Amy, The Argument

The question of how to properly calculate restitution for Amy has been a subject of many posts here, which I note to avoid a full recitation of the entire history of Amy litigation. The short story is that Amy was the victim of kiddie porn, and has become the poster victim for restitution under 18 U.S.C. §2259.  The amount of damages suffered has been fixed at $3.4 million.

As prior posts have shown, there are circuit splits all over the place as to how to divvy up restitution among individuals convicted of having downloaded one or more images of Amy.  At one extreme, the argument is that each person convicted of having an Amy image should be jointly and severally liable for the entire $3.4 million. At the other end, the argument is that no restitution should be imposed as the individual’s “share” of the total amount of damages cannot be calculated with sufficient foundation to impose restitution.

And so the Supreme Court has taken up the question in Paroline v. United States.

In anticipation of oral argument as lawyer for Amy, Paul Cassell, formerly a federal judge and now a lawprof in Utah and a Volokh Conspirator, argued his case:

Section 2259 is entitled “mandatory restitution,” and it mandates that district courts must award restitution for the “full amount” of Amy’s losses. The statute cannot be reasonable read (as the Solicitor General would) to be converted into a discretionary statute allowing district judges to make some determination of what fractional amount of Amy’s losses should be awarded. Essentially Congress created a system of joint and several liability for the vast network of criminals scattered around the globe who cause harm to child pornography victims.

The “reason” for Cassell’s certainty?

One of the interesting things about this case is the tort law dropdrop. All of the parties agree that tort law principles form the backdrop against which Congress legislated this restitution statute. In my view, where the other parties go astray is in failing to recognize that the relevant principles here are those for intentional torts. Child pornography criminals commit serious federal crimes requiring scienter (“knowingly” at a minimum and “intentionally” in many cases) that are parallel to intentional torts. The standard tort treatises all make plain the joint and several liability is the default rule for intentional tortfeasors.

Lest you think Cassell a bit of an extreme outlier, he’s not alone in his view that restitution trumps all else, or more to the point, that who gives a damn about these disgusting defendants anyway.

I encouraged by the fact that Amy’s position has received some strong support, including Emily Bazelon over on Slate and Doug Berman on his indispensable Sentencing Blog.

At oral argument, however, it turned out that the obvious wasn’t so, well, obvious:

The third lawyer appearing before the Justices was Utah law professor Paul G. Cassell, representing perhaps the most famous child pornography victim — famous as “Misty” but in real life known only as ”Amy Unknown.”  He had come to argue that any individual convicted of possessing images of “Amy” should at least potentially be required to pay the full amount of restitution that she is due.

Paul G. Cassell for respondant Amy Unknown (Art Lien)

Paul G. Cassell for respondent Amy Unknown (Art Lien)

But Justice Scalia promptly pointed out that, in this case, the individual was convicted for having on his computer only two images of the victim.  “He’s guilty of a crime,” Scalia said, but, “to sock him for all of her psychological costs?  Congress couldn’t have intended that.”  Cassell retorted: “Congress did intend that.”

Emphatic argument is always persuasive. I strenuously object.

“Amy’s” lawyer, though, encountered trouble with a number of Justices because, each time they asked him about how to divide up blame, he answered that all who “contributed” to the harm should potentially have to pay the full amount.  The difficulty seemed to be that the Justices were hearing “contribution” as meaning “a share” rather than the “full amount,” but Cassell meant sufficient blame to be liable for the whole.

As has been the case each time sentence has been imposed upon a defendant convicted of having an Amy image, the argument has been that every person who possesses the image is liable for the full amount of damage purportedly suffered. The theory is that each time the image is seen, it adds to the psychological trauma suffered by the victim when she learns of yet another perpetrator.  Of course, she learns of it because the government tells her about it, but that’s too ironic for discussion.

For example, Justice Kagan asked him why one convicted viewer of “Amy’s” image should have to put up the whole amount of restitution, her lawyer said that was because that person had “contributed to the harm.”

Kagan persisted: “He caused the harm?”  Cassell held fast: “He contributed to the entire amount.”  It is impossible, he added, to “tease out” each contributor’s share.

And that’s why Cassell’s argument fails, and will always fail.  In the absence of any rational basis to “tease out” each contributor’s share, there can be no basis to impose restitution.  Cassell is correct when he says it’s impossible, and impossibility does not give rise to carte blanche to impose whatever amount strikes his fancy upon anyone he despises.

What makes this situation perpetually disturbing is that there is a reasonably normal person who doesn’t sympathize greatly with Amy, or suffer disgust at the desire of a defendant to get off on kiddie porn. The defendants in the Amy cases are not good guys. But that is what makes this a critical opportunity to uphold the fundamental premises of proportionality and due process, even when we despise the conduct involved.

The hearing ended where it began: in unresolved complexity.

And so the Rule of Lenity should prevail.



20 thoughts on “Amy, The Argument

  1. John Burgess

    Hypothetically, if one offender actually ended up paying the full $3.4 million, would that end it? All future Amy offenders would thereby get a free ride? Or would there be some (impossible) mechanism through which those who had already paid be given remittances? Or the guy who paid the $3.4 million would get payments from all other offenders?

    This thing is a complete mess. But that’s hardly new given the half-assed way in which laws get passed.

  2. Robert D

    Could the law be intentionally designed this way not necessarily to reimburse the victim, but to encourage members of pornography rings to sue and destroy the trust in each other without burdening the state’s resources in prosecuting them (although the testimony in these cases could be handy for a prosecutor). All the malefactor has to do is roll over on the website he obtained the images from and his burden is at least halved. If he prefers to pay $3.4m to avoid snitching, that is his (expensive) priviledge.

  3. jakee308

    I always heard that all the lawyers in Congress wrote the laws to help those in the courtroom.

    Guess not, huh?

  4. Jim Majkowski

    Where might I quickly find discussion of the significance of 18 USC §3664(h)?:

    If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.

    And, re reduction by payment by another, what of §3664(j)?

    Any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in—
    (A) any Federal civil proceeding; and
    (B) any State civil proceeding, to the extent provided by the law of the State.

    Although perhaps the word “paid” ought be “payable.” And, of course, no explicit reference to payment by some third person appears.

    I have a nagging fear I haven’t yet checked deeply enough.

  5. Nigel Declan

    Reading the oral argument transcript, Cassell seemed to have come in with only his single argument and was hammered by the Justices for constantly referring back to it in response to virtually every question, seemingly earning him a very frosty reception. Assuming the Court does not accept his rather extreme position outright (acknowledging that predicting what the Nine ultimately do is a fool’s errand), was Cassell’s position doomed to fail or did his apparent refusal to consider any sort of limiting principle based on proximate cause, something that the Justices seemed almost certain to ask him about, hurt his case? His efforts to slough the whole thing off as a “simple” matter of textualism , which failed to impress both Scalia and Roberts, presumably did not help him either.

    1. SHG Post author

      His argument has always been a one-trick pony, absolute and inflexible, and without any recognition or acknowledgement that there are other impacts worthy of consideration other than his. He needed a smack. He deserved the smack.

  6. DaveL

    Here’s one thing I don’t get: is it really impossible to “tease out” each contributor’s share? I mean, if we can find a way to put a dollar value on psychological suffering that, while neither truly objective nor in any way scientific, can be considered reasonable and fair, can we really not do the same with the various tortfeasors’ share thereof?

    1. SHG Post author

      The problem is that there is no way to determine how many potential defendants are out there, will be found, will be prosecuted and convicted. And then, we don’t know whether and to what extent any of the potential group of people upon whom restitution has been imposed will be capable of paying. So how is the amount, the $3.4 million (which of course is a soft number, but it’s a number) to be divided up among an unknown quantity.

      On the flip side of teasing out, what of the families of defendants whose homes and possessions would be sold to fund restitution. So daddy is a sick guy, a dude who gets off on kiddie porn. His wife and three children are put out on the street as well. Or daddy downloaded one or two nasty images of Amy among 1000 other images he’s lawfully permitted to possess. Still, the wife and kids get tossed into the street. When we speak of teasing out numbers, we can’t forget that there are others who will suffer for the numbers as well. While I don’t doubt Amy’s suffering is real, I similarly don’t doubt that the suffering of other innocents is real. They all have to be taken into account.

      1. DaveL

        Putting a definite number on an ongoing crime of uncertain scope seems to me to be, to put it charitably, a neat trick. It seems to me that the offense and the damages stemming from it ought to be construed narrowly enough so as to limit the scope of the case to specific identifiable defendants falling under the court’s jurisdiction. I’m no lawyer, of course, and I’m still getting caught up on my reading on the case, so maybe I’m missing something.

        As to the matter of the defendants’ ability to pay, the statute is quite clear and explicit that this should not enter into the equation. That is, to put it bluntly, nutty. Nutty and unethical. Nutty, unethical, and possibly unconstitutional under the 8th Amendment. A court order that states that this or that homeless vagrant owes this or that victim a million dollars serves no purpose but to allow prosecutors and congressmen to pat each other on the back for getting tough on child sex abusers.

        1. SHG Post author

          a neat trick.

          That’s the problem. It can’t be done. Nor are “specific identifiable defendants” static. There will be a new one tomorrow, and the next day, each of whom changes all the calculations.

          1. DaveL

            Couldn’t these new defendants, as they appear, be considered as new cases with new offenses, and justifying new restitution?

            1. SHG Post author

              So the restitution would be $3.4 million for each, but without joint liability? Not a great solution.

              I realize that you’re trying to find a viable answer, but consider this: a lot of very smart and dedicated people have been trying to find an answer for a very long time. They have been unable to do so. It’s a bit arrogant to think that the elusive answer will appear here and now.

            2. DaveL

              Well, no, a new restitution figure would need to be worked out for each new defendant as they’re convicted. Trying to include unnamed defendants’ contributions in the original restitution amount was a mistake. The original award should have been based on the damages incurred by the original named defendants only and apportioned among them only.

            3. SHG Post author

              Numbers don’t work that way. This has been hashed out at great length. Feel free to read up on it, but this has already been discussed. It doesn’t work.

            4. DaveL

              You’re right about your second paragraph, of course. While I don’t buy Cassell’s argument that the “proximate cause” clause in the statute was actually meant to apply only to the last item on the list, I must admit he cites persuasive precedent for interpreting it as he says. Trying to come up with an equitable solution is far from hopeless. Finding one that is consistent with existing case law, statute law, and the constitution is – well, I can’t even attempt it.

            5. SHG Post author

              There is no “persuasive precedent,” as there has never been an application similar to this. That’s why this is before the Supreme Court.


    “Of course, she learns of it because the government tells her about it, but that’s too ironic for discussion.”

    Heh. Your recent rejoinder to me on Twitter is now clearer.


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