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SCOTUS: Single possessor of child porn can’t be ordered to pay restitution for victim’s losses due to trafficking in her images by others

Paroline v. United States, USSC No. 12-8561, 4/23/14, vacating and remanding In re Amy Unknown, 701 F.3d 749; Scotusblog page (includes links to the briefs and case commentary)

Resolving a split among federal circuit courts about how to determine restitution in child pornography cases under 18 U.S.C. § 2259, the Supreme Court holds that where a defendant possessed images of a victim who suffered losses from the continuing traffic in the images, but it is impossible to trace a particular amount of the losses to the individual defendant, a court should order restitution “in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.” (Slip op. at 21).

Paroline was convicted of possessing hundreds of images of child pornography, two of which depicted the abuse of a person denominated “Amy.” As she has been doing in scores of cases around the country, Amy sought restitution from Paroline based on his possession of images of her being sexually abused. She argued defendants like Paroline who possess the images contribute to her continuing re-victimization and injury, and she requested restitution totaling about $3.4 million for, among other things, past medical expenses, future therapy, and lost wages. (Slip op. at 4).

Paroline argued his criminal conduct was not the proximate cause of the entire amount of Amy’s losses, but the Fifth Circuit agreed with Amy that under § 2259 a defendant is responsible for all losses suffered by the victim regardless of whether his criminal acts were a proximate cause of the losses. (Slip op. at 4-5). As noted in our post on the cert grant, every other federal court of appeals holds § 2259 requires a showing of proximate cause. The Supreme Court rejects the Fifth Circuit’s conclusion and holds that § 2259 does impose causation requirements that preclude ordering Paroline—or any other single defendant—from paying the entire amount of Amy’s losses.

The Court starts with the fact there is no dispute that § 2259 imposes a basic requirement of actual causation, or causation in fact:

The statute defines a victim as “the individual harmed as a result of a commission of a crime under this chapter.” § 2259(c). The words “as a result of” plainly suggest causation. … And a straightforward reading of § 2259(c) indicates that the term “a crime” refers to the offense of conviction. Cf. Hughey v. United States, 495 U.S. 411, 416 (1990). So if the defendant’s offense conduct did not cause harm to an individual, that individual is by definition not a “victim” entitled to restitution under § 2259. (Slip op. at 7).

Because § 2259 is intended to compensate victims for losses caused by the offense of conviction, “the central concern of the causal inquiry must be the conduct of the particular defendant from whom restitution is sought.” (Slip op. at 8).

The Court then explains that as a matter of both statutory construction and “common sense,” the statute allows restitution only for those losses that were the “proximate result” of a defendant’s offense. (Slip op. at 6-11). Proximate cause, of course, is “a standard aspect of causation in criminal law and the law of torts,” and it forecloses liability in situations where “the causal link between conduct and result is so attenuated that the so-called consequence is more akin to mere fortuity.” (Slip op. at 8, 10).

Having determined the statute’s causation requirements, the Court concludes that “the most difficult aspect” of the causation inquiry in this case is not proximate causation, but “the threshold requirement of causation in fact.” (Slip op. at 12). The difficulty arises from the fact that § 2259 authorizes restitution from Paroline only for the amount of the Amy’s losses that were a result of his offense of conviction; it doesn’t allow ordering him to pay restitution for losses caused by any crime some other defendant committed. Because Paroline’s offense involved possession of only two of Amy’s images, and Paroline was just one of thousands of anonymous possessors, no one suggests (or can prove) that his crime actually caused Amy to suffer millions of dollars in losses, the statute does not allow a court to order Paroline to pay all of Amy’s losses. (Slip op. at 12-19).

But if Paroline can’t be order to pay Amy’s entire losses from the ongoing trade in her images cannot be ordered under § 2259, it is still the fact that Paroline’s crime was part of the cause for her losses. Given the statute’s remedial and penological purposes “it would produce anomalous results to say that no restitution is appropriate in these circumstances.” (Slip op. at 19-20). Thus:

In this special context, where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. (Slip op. at 21). 

This is not “a precise mathematical inquiry,” but “involves the use of discretion and sound judgment,” guided by a variety of factors. For example:

…the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role. (Slip op. at 22, 23).

The amount of restitution in a case like this should not be “severe,” given the limited causal connection between Paroline’s conduct and the entirety of Amy’s losses, which are the product of the acts of thousands of offenders; but it should not be “a token or nominal amount.” Rather, it should be “a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role.” (Slip op. at 21-22).

The Chief Justice, joined by Justices Scalia and Thomas, “regretfully” dissents. He agrees with the majority’s causation analysis, but says its directive for determining restitution, “sensible as it may be, is not the one Congress adopted.” (Roberts dissent at 1). The Chief instead concludes that under § 2259 “it is not possible to do anything more than pick an arbitrary number” for the amount of Amy’s loss attributable to Paroline’s crime. “And arbitrary is not good enough for the criminal law.” (Id.). Because the statute as written makes it impossible to determine in this case how much of a victim’s loss is attributable to the defendant’s crime, “we ought to say so and give Congress a chance to fix it.” (Id. at 10).

Justice Sotomayor also dissents, but she agrees with the Fifth Circuit’s analysis, and concludes § 2259 allows an award of “the full amount” of Amy’s losses in Paroline’s case, even if his offense was the cause of only part of those losses.

The Seventh Circuit was among the majority of courts that interpreted § 2259 to include a proximate cause requirement, United States v. Laraneta, 700 F.3d 983, 989-990 (7th Cir. 2012), so the Court’s decision does not change our circuit’s approach this issue. However, in reversing the full-cost restitution orders and remanding the case, the court of appeals didn’t detail the methodology for the district court to use to re-calculate restitution. The majority’s opinion now purports to give more direction on that question.

Or does it? The very phrasing of the majority’s approach proves the Chief Justice’s critique: If it is “impossible to trace a particular amount of [Amy’s] losses to the individual defendant by recourse to a more traditional causal inquiry,” then the threshold causation requirement is not satisfied, and determining “the defendant’s relative role in the causal process” would also seem to be impossible. And saying the restitution award should be neither “severe” nor “token or nominal” invites a Goldilocks-type “just right” approach that will finally be nothing but arbitrary. And if proof of arbitrariness were needed, note (as the Roberts’s dissent does, at 7) that district courts awarding less than Amy’s full losses have imposed restitution orders varying from $50 to $530,000. Is $50 “token or nominal”? Is $530,000 “severe”? Even taking account of each case’s different facts, it’s likely there’ll be little logic or consistency to restitution awards in individual cases.

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