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.
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 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.