Congress mandated that the victims of crime be given restitution as part of a defendant’s sentence. In many instances, the amount of restitution can be ascertained with some precision, even with some squabbling around the edges. But as the definition of victim expands, and as victims become more aggressive in seeking restitution, the question muddies significantly. Such is the case for “Misty”.
“Misty” is the victim of child pornography, appearing in still photographs and videos. That she suffered as no child should is not in issue. But Congress has made those who possess child pornography responsible for paying restitution to the children who appeared. The concept behind it is that without people who want to see the pornography, there would be no market to create it. Hence, they are responsible for the crime, and to the victim, as are the people who create the pornography in the first place. The possessors may never know, meet, recognize the children victimized in the creation of the images they “enjoy”, but they are the audience for it, the consumers. It’s consumer demand that drives the victimization of children.
From the Pioneer Press, a Duluth man pleaded guilty to possession of kiddie porn. He was quite the consumer.
When Brandon Arthur Buchanan pleaded guilty in federal court in May and was sentenced in November to 7 1/2 years in prison, prosecutors didn’t ask that he pay restitution to any of the children depicted in any of the 16,339 photos and 877 video files he had on his computers.
“Given the clear congressional mandate that those convicted of child-pornography offenses pay restitution to their victims, the court will no longer accept silence from the government when an identified victim of a child-pornography offense seeks restitution,” Schiltz, of St. Paul, wrote in a Jan. 4 order.
“If the government declines to seek restitution,” the judge wrote, “the government will have to give the court some explanation for its decision.”
A victim did come forward seeking restitution. It was “Misty”, by her lawyer. The amount sought was $3.4 million. This was not her first request.
Schiltz said he couldn’t order restitution of nearly $3.5 million without some explanation from the government, but he couldn’t deny restitution “without some explanation of why the victim is not entitled to even a single penny.”
In the memorandum filed Friday, [U.S. Attorney Erika] Mozangue noted that “Misty” had submitted restitution requests in almost 90 cases in at least 30 judicial districts across the nation.This is a tough one. While it’s hardly clear that the connection between possessors of child porn and the children who appear in the images is sufficiently direct to rationally justify restitution, as opposed to an imposition of a fine that might fund a trust for their benefit, since restitution relates to a direct loss attributable to the wrongful conduct, Congress has spoken and the issue, for better or worse, is off the table for the moment.
One defendant in Florida had about a dozen images of “Misty” on his computer, and after hearing evidence about how the child had been harmed by her abuse, the judge ordered the defendant to pay more than $3.2 million in restitution.
A federal judge in Iowa, however, ordered a defendant to pay “Misty” $5,000, and a federal judge in Connecticut ordered a defendant to pay her $500.
But the same problem in justifying restitution per se remains in attempting to arrive at a rational amount. Since there is no attributable loss, the numbers are essentially arbitrary. Are they a product of the totality of harm to the child, and then ascribed to every defendant who might possess an image? If the harm to the child is determined to be $3.4 million, and the image has been spread to 1,000 defendants, should each bear restitution in that amount? Granted, it will never be paid in full, but it will do enough to make sure that the defendant, and his family, are under water financially for the rest of his life.
And who cares? Who feels sorry for the defendant who possesses kiddie porn? Clearly, the victim is worthy of great sympathy, but does $3.4 million in harm explain $3.4 trillion in restitution? And how does one court award $500 while another $3.2 million in restitution for the same offense? How does any court arrive at a rational amount, and yet the court is required to provide restitution. There seems to be no consideration of proportionality involved, but proportionality has never been Congress’ strong suit.
While there is little sympathy for the defendant, per se, there is a substantial issue as to whether restitution is the proper framework for compensating the victims of child pornography. The award, whether large or small, seems wholly arbitrary, and this stems from the fact that Congress has decoupled victimization from the specific conduct of, and harm cause by, the defendant. It’s never going to make any sense or give rise to a rational basis for an award for restitution. Yet Congress says it must be awarded.
What’s curious in the Buchanan case is that Judge Schiltz first directed the government to explain why “Misty” should receive no restitution, if that was its position, but then directed that the government explain why the amount of $3.4 million was proper. It appears that the government was incapable of doing either. At least the judge didn’t put the burden on the defendant to explain why it shouldn’t order the latter.
While putting a dollar amount on the appropriate restitution for possession of child pornography is problematic, I think in general that restitution is the more appropriate sanction for this crime than prison time. It’s just too easy to look at sick stuff on the internet without what we would normally consider a criminal intent. I don’t buy the argument that possessors of child pornography, especially those who don’t pay for the images, are really conscious of the fact that their possession of the images is driving the market for such images and contributing to the victimization of the children in them. The many people who viewed the Nicholas Berg beheading could likewise be said to be doing just what the terrorists wanted them to do when they made that video, and to be contributing to the “market” for such videos. On the other hand, I get the argument that each viewing of child pornography is itself a separate victimization of the child involved. (Although wouldn’t the same consideration apply to a lesser extent to ESPN reporter Erin Andrews, who was filmed in the nude without her knowledge, and to others similarly situated?)
Seems Congress could solve the disproportionately problem by just setting a specific dollar of restitution, say $10,000 (or $100,000, or more) for each child depicted in the perv’s pornography collection, with an additional $2,000 (or $20,000, or more) for each additional image of that child in the perv’s collection.
I’ve never agreed that rewinding a recording re-victimises the victim just on the basis of common sense. Football players are not re-injured in the slow motion replay, nor is another goal scored. The number of times a tape is replayed has no impact on the events recorded on the tape. It’s possible to be injured by the contents of a video recording (eg if it’s made public) but it’s a different kind of injury.
That’s always seemed to be a rhetorical bridge too far for me. The problem is that it happened at all, you don’t need it to re-happen every time some one watches it for it to be desperately heinous.