On Pearl Harbor Day, 2018, Trump signed into law the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (AVAA). Not only was there a name change, with the addition of Andy from the originally proposed Amy and Vicky Act, but there was a far more substantive change as well.
[T]he Act requires a court sentencing a defendant convicted of a child pornography crime harming a victim to determine the full amount of that victim’s losses and then to order restitution from a defendant for amount reflecting the defendant’s relative role in the causal process. (Sec. 3(a)(2)(B)). But — and here’s a new innovation — a trial court must impose restitution in the minimum amount of $3,000.
They may call it restitution, but it’s a $3,000 fine that offsets the amount of restitution to be determined. And this is the good news, as the originally proposed amounts were astronomically higher.
[A]t least $250,000 for production, $150,000 for distribution, or $25,000 for possession.
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.)
Congress, in its infinite wisdom, decided to “fix” the problem created by the Court in Paroline that created an unworkable rule. Well, not even a rule, really.
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.
That’s about as useful to a district court judge as “don’t be a jerk.” On a more practical level, the totality of claimed damages, $3.3 million, would have to somehow be divided among all the people involved with, or who at any point in time viewed, child pornography involving Amy. How that math is to be done, and when it’s to be done given that a judge is required to impose restitution at sentence, but can’t account for others prosecuted and convicted after sentence, adding to the pool of defendants required to pay restitution, all of which should ultimately add up to $3.3 million, is unaddressed.
While the name of this law implicates the Ted Franks Rule thrice over, it’s not without its positives. First, the amount of the fine, called minimum restitution but a fine nonetheless, is far less than originally sought. Not to make light of the amount of $3,000, as it’s a huge amount to someone who doesn’t have a spare $3k to pay, it’s a far cry better than $25,000, and it was hardly out of the question that Congress could have made it much worse. Remember, this is about child porn, and there are few voices complaining about the severity of the treatment of defendants when it comes to such horrific matters.
On the other side, the amount bears no causal connection to the suffering of Amy (or Vicky or Andy), or to the ultimate amount of restitution. While district courts were left to come up with arbitrary numbers, Congress did the same thing.
The argument in favor of this remedy was that each person who viewed an Amy video inflicted harm on the then-child again, as she would “know” that yet another person watched her, causing her additional mental and emotional suffering.
The knowledge the persons around the world are viewing those images has been psychologically very harmful to Amy.
It’s not a sound argument, both because there is no actual support for this rhetorical claim and because the only way Amy would know of another defendant viewing images of her is if the government, or her attorneys, told her. If they didn’t want to inflict more suffering, don’t tell her. But then, did it inflict more suffering? So they say.
The $3,000 minimum amount may be called restitution, but it’s just another fine levied on defendants convicted of possession of kiddie porn. Another piece of punishment, on top of whatever fine is imposed otherwise plus the prison sentence that’s imposed. While this may not trouble a lot of people, because the crime of possession of child pornography is so repugnant and we care so little for anyone who would engage in such a disgusting pastime that, well, who cares about them anyway.
But from the perspective of sentencing, this opens a new path for Congress, which had already made restitution mandatory even when impossible to rationally calculate. While calling the $3,000 fine restitution, it’s not. It’s just a fine, another punishment atop the punishment already being imposed.
And if they can do it for this crime, which almost everyone finds repulsive, and get away with it, why not for other crimes after the law is firmly established? Why not for $10,000 next time, or $100,000, or more? Once the premise is deemed acceptable for people we despise, it’s only a matter of time that it creeps into offenses that aren’t quite so repugnant, and eventually not reprehensible at all. In rem forfeiture, anyone?