“Amy” Decided, and Arbitrary Wins (Update)

The name of the case is Paroline v. United States, but the case is all about Amy. Amy, Amy, Amy.  As I read the syllabus to the opinion, itself ponderous, my thoughts went to whether a young woman would have made herself the key figure in a war for victims’ rights had she known where this would go.

Her champions promoted this as an emotional plea, using Amy as the sacrificial lamb.  Did anyone step back, detach themselves from their emotional bondage and give Amy a cold, hard, reasoned view?

This concern was bolstered when I saw that Paul Cassell, who argued on Amy’s behalf before the Supreme Court, posted her reaction at WaPo Conspiracy:

[M]y co-counsel (James Marsh) and I have just had a chance to communicate with our client, Amy.  Here is her reaction:

I am surprised and confused by the Court’s decision today.  I really don’t understand where this leaves me and other victims who now have to live with trying to get restitution probably for the rest of our lives. The Supreme Court said we should keep going back to the district courts over and over again but that’s what I have been doing for almost six years now. It’s crazy that people keep committing this crime year after year and now victims like me have to keep reliving it year after year. I’m not sure how this decision helps anyone to really know if, when, and how restitution will ever be paid to kids and other victims of this endless crime. I see that the Court said I should get full restitution ‘someday,’ I just wonder when that day will be and how long I and Vicky and other victims will have to wait for justice.”

Rather than post Amy’s response, written within hours of the issuance of the opinion, on the internet, I wondered whether anyone talked to her about what this really meant. But then, that was something that should have been done long ago, and all along. That’s how a lawyer tries to help a client, by helping them to understand and appreciate what the law can, and cannot, do for them.

You see, one of the primary claims made by the lawyers for Amy is that every time a new defendant was prosecuted, and her image was found, she again suffered the pain, anguish and humiliation of a victim of child porn.  How then, I wondered, did Cassell and Marsh using Amy not do the very harm to her that they accused of every defendant who saw an Amy image?  How does the quote above not reflect their abdication of any moral obligation to serve their client, Amy?

The opinion consists of an ad hoc majority:

Although the Court split 5-4, it did not split along usual left-right or formalist-pragmatist lines.  Justice Kennedy wrote the majority opinion, joined by Justices Ginsburg, Breyer, Alito and Kagan. The Chief Justice dissents, joined by Justices Scalia and Thomas, and Justice Sotomayor dissents as well, albeit on quite different grounds.

The majority opinion can perhaps be charitably characterized as a pragmatic punt.  While the joint and several liability of every person convicted of viewing an image of Amy for the entirety of her damages, calculated at $3.3 million, is unacceptable, each can be sentenced to restitution in an amount that is neither nominal nor severe.  What that amount might be, or how a district court judge should calculate that amount, is left to the wind.  The majority concedes this, and offers only this guidance: do your best.

Due to the nature of the ruling, the main dissent, by C.J. Roberts, offers the only doctrinally sound view:

Unfortunately, the restitution statute that Congress wrote for child pornography offenses makes it impossible to award that relief to Amy in this case. Instead of tailoring the statute to the unique harms caused by child pornography, Congress borrowed a generic restitution standard that makes restitution contingent on the Government’s ability to prove, “by the preponderance of the evidence,” “the amount of the loss sustained by a victim as a result of ” the defendant’s crime. 18 U. S. C. §3664(e). When it comes to Paroline’s crime—possession of two of Amy’s images—it is not possible to do anything more than pick an arbitrary number for that “amount.” And arbitrary is not good enough for the criminal law. (Emphasis added.)

And this has been the conundrum from the start, despite all the emotional outpouring over the harm done the victims of child pornography.  This is not about sympathy, or the lack thereof, toward the victim. It never had been. It is solely about how restitution is properly calculated for the defendants who viewed images of the victim.

What is clear is that each individual defendant who viewed an image of Amy cannot be held accountable for the full amount of her loss.  The majority makes it clear that they must be held to some amount of restitution that will serve to make them financially aware that their conduct caused harm to a human being, and that requires greater than a nominal amount. Beyond that, it’s anybody’s guess.

As Amy asks, per Cassell’s post, “I’m not sure how this decision helps anyone to really know if, when, and how restitution will ever be paid to kids and other victims of this endless crime.”  Rather than rush to post Amy’s reaction on the internet, I would have hoped that Cassell and Marsh would have prepared Amy to understand that the criminal law, and its ill-conceived restitution requirement, is subject to the constraints of proportionality and due process.

Had the lawyers not been blinded by their “passion,” they might have tempered their advice to Amy, so that she didn’t have to “keep reliving it year after year.”  I hope Amy gets full restitution, plus some.  More importantly, I hope Amy puts this behind her as much as possible and will no longer be used as a pawn in a poorly played law game.

Update:  Paul Cassell has provided his view of the opinion, essentially bemoaning the unfairness of the criminal justice system for not providing restitution to victims in the most expeditious way possible.  Nowhere in his analysis is there any notion that “criminals,” of which he states there are about 71,000 in relation to Amy, bear or deserve anything resembling proportionality, or where any notion of proximate cause might matter.

Curiously, the rhetoric of his post suggests that Cassell is remarkably unclear about what the restitution statute offers. It provides for a judgment, but only of proximate damages. It is not a guarantee of payment, and certainly not a guarantee of payment within a particular time frame.

Essentially, Cassell’s argument, as it has consistently been from the outset, is entirely victim-centric; what’s good for Amy without regard to any other question.  While he makes some appropriate legal points about failings in the opinion, he concludes with the standard appeal to emotion:

Congress will hopefully step into this important issue, simplify the restitution process, and make sure that victims quickly receive  the restitution that they desperately need.  Innocent victims like Amy deserve full restitution from convicted criminals  not “someday” in the distant future, but as soon as possible.

Of course, the inclusion of restitution at all, via the 1994 Violence Against Women Act, 18 U.S.C. §2259, is an adjunct to the sentence imposed on a person convicted of a crime.  Cassell, on the other hand, sees the criminal justice system as primarily a collection agency for victims, and demonstrates no regard whatsoever for anything else.



5 thoughts on ““Amy” Decided, and Arbitrary Wins (Update)

  1. Richard G. Kopf


    Just a quick and not well-thought out point which has nothing to do with the merits. The majority opinion may be the best that defendants’ can hope for in that Congress may live with it. If CJ Robert’s dissent prevailed Congress would have been forced to act.

    All the best.


    1. SHG Post author

      I was never a fan of mandatory restitution before, where a $100k loss was gamed into a $1M loss. I fear that some fine Congressman will see an opportunity here to amend with a child porn carve out anyway, since everyone hates them and proportionality is easily trumped by emotional appeal. In the meantime, the majority provides as minimal guidance as humanly possible, leaving perhaps a span of $10k to $100k for the district court to arbitrarily fix as restitution?

      But your point about the dissent seems undeniable; if CJ Robert’s view prevailed, Congress would have no choice, and who knows what they will come up with. There is no going back now.

  2. william doriss

    I tried reading the opinion, per the link provided. Tried, tried, and tried again: If I hear/read “proximate cause” one more time,…
    I’m going to,…. the bathroom, and take a, … nice hot/cold bath/shower. Wash my face, and look into the mirror for undiscovered pimples and unwanted lipstick. Perhaps newly formed age spots.
    Just when I thought I had mastered “probable cause”; now you want me to master “proximate cause”? This is worse than reading Martin Heidegger or Immanuel Kant at the breakfast table. In the original German.
    The “ad hoc” decision tells me that this was a complete and total toss-up, which is less than we expect from the Supremes. I agree, CJ Roberts may have given us the greatest insight into this utterly pathetic case.
    Changed my mind: No, not going to law school anytime soon.
    We want nothing less than consistency from the Supremes in D.C.,… not the ones from Detroit.

  3. Nigel Declan

    Paul Cassell’s comments suggest that he had little-to-know understanding that the outcome could be anything other than what he wanted, which was reflected in his one-note argument before the Supreme Court. I am disheartened to think that another victim of crime might be left with promises unfulfilled of quick restitution due to counsel who so greatly misunderstands statutory construction and the criminal law that he is incapable of seeing the merits of the other side(s) of the argument.

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