After the Supreme Court refused to bite on his appeal to emotion, and the suffering client was again left to ponder why her lawyers failed to mention that chances were good her cause would fail miserably, former judge turned lawprof turned radical victim advocate Paul Cassell tried an end run around the Constitution.

He went to Utah Senator Orrin Hatch, who picked up the torch with the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015.  Hatch’s pitch for the law provides:

The Amy and Vicky Act creates an effective, balanced restitution process for victims of child pornography that also responds to the Supreme Court’s decision in Paroline v. United States. It does three things that reflect the nature of  these crimes. First, it considers the total harm to the victim, including from individuals who may not yet have been identified. Second, it requires real and timely restitution. Third, it allows defendants who have contributed to the same victim’s harm to spread the restitution cost among themselves.

A victim’s losses include medical services, therapy, rehabilitation, transportation, child care, and lost income

If a victim was harmed by a single defendant, the defendant must pay full restitution for all her losses

If a victim was harmed by multiple individuals, including those not yet identified, a judge can impose restitution on an individual defendant in two ways depending on the circumstances of the case

the defendant must pay “the full amount of the victim’s losses” or, if less than the full amount,

at least $250,000 for production, $150,000 for distribution, or $25,000 for possession

Federal law already provides a mechanism for creating a restitution payment schedule

Multiple defendants who have harmed the same victim and have paid at least those minimum amounts may sue each other to spread the restitution cost (the Supreme Court said in Paroline that this is important)

In other words, every defendant convicted of possessing an image or video of child porn must have restitution in the full amount of whatever a court determined is the lifetime damages the child suffered due to involvement in child porn, or a minimum of $25,000.

The law shifts the issue of contribution from the government to the defendant.  If there are 1000 defendants sentenced to pay restitution, and one pays the full amount (for Amy, this amount has been calculated at $3.3 million), he must sue all the other defendants, and any future defendants, to get a judgment against them for their share of his overpayment, and collect from the others.

The law is nothing more than a means of circumventing the Paroline ruling, which wasn’t one of the Supreme Court’s moments of shining clarity.

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.

While the Supremes refused to succumb to sad Cassell tears for lack of a doctrinal argument, the appeal to emotion will certainly play better to Congress, as reflected in the Senate’s 98-0 vote for the bill.  What politician doesn’t want to be on the side of victims of child porn?  What politician doesn’t want to be against defendants convicted of child porn?

Even the Washington Post came out in support, though its editorial suggests that nobody there had much of a grasp of the problem.

The justices are right in thinking that Congress should revisit the issue. Legislation set to be introduced Wednesday by Sens. Charles E. Schumer (D-N.Y.) and Orrin G. Hatch (R-Utah) seems to be a step in the right direction, with its outline of options for full victim recovery when multiple individuals are involved and giving multiple defendants who have harmed the same victim the ability to sue each other to spread the cost of restitution. The court was clear in its opinion that “the victim should someday collect restitution for all her child pornography losses.” Congress needs to provide the tools to turn that someday into reality.

The tools to accomplish restitution are there, and have been there since the Violence Against Women Act. The problem is that Cassell wants every defendant who ever downloaded an Amy or Vicky pic or video to be sentenced to restitution of $3.3 million. Every single one of them. A thousand of them? Then aggregate restitution of $3.3 billion.  A guy viewed one picture? So what? A guy has a family, kids of his own? So what?

No, just because a sentence of restitution is imposed doesn’t mean that a victim is assured that restitution will be made, and even if it is, that it will be made in full.  Then again, because these defendants are unlikely to ever be able to work again as a result of their conviction, registry requirements, etc., the complaint about restitution rings hollow.

It’s not that Amy and Vicky are not extremely sympathetic victims, or that defendants who download child porn are sympathetic criminals. It’s that restitution, once untethered from individualized harm, and imposed in absurdly disproportionate amounts, creates burdens from which no one can ever escape, destroys the innocent spouse and children along with the guilty, and bears no cognizable connection to the wrong committed.

But while the Supreme Court realized this couldn’t be done, there is no impediment to Congress pandering to the people who feel only the emotion without any of the reasoning.  And if they can do it for these victims, other victims of other crimes will tell their sad tale and beg Congress to do it for them as well.  And as history shows, they will.