Justices Void $3.4 Million Award to Child Pornography Victim

By Adam Liptak
New York Times
April 23, 2014

http://www.nytimes.com/2014/04/24/us/politics/justices-void-3-4-million-award-to-child-pornography-victim.html?hp&_r=0

Justice Anthony M. Kennedy said courts should require “reasonable and circumscribed” restitution for child pornography victims.

Justice Sonia Sotomayor issued one of two dissents.

WASHINGTON — The Supreme Court on Wednesday set aside a $3.4 million award to a victim of child pornography who had sought restitution from a man convicted of viewing images of her. That figure was too much, Justice Anthony M. Kennedy wrote for a five-justice majority, returning the case to the lower courts to apply a new and vague legal standard to find a lower amount that is neither nominal nor too severe.

The victim in the case said the majority’s approach was confusing and meant that she might never be compensated for her losses.

The two dissents to the majority opinion would have taken more categorical approaches. Chief Justice John G. Roberts Jr., joined by Justices Antonin Scalia and Clarence Thomas, said that restitution was a worthy goal, but that the federal law at issue did not allow awards when many people had viewed the images.

Justice Sonia Sotomayor took the opposite view, saying that each viewer could be held liable for the full amount of the victims’ losses.

The case arose from the prosecution of Doyle R. Paroline, who was convicted in 2009 of possessing 280 images of child pornography. Two of them were of a woman known in court papers as Amy.

Images of Amy being sexually assaulted by her uncle as a child have been widely circulated and have figured in thousands of criminal cases. Amy has often sought restitution for her losses under a 1994 federal law. Every viewing of child pornography, Congress found, “represents a renewed violation of the privacy of the victims and repetition of their abuse.”

Amy’s lawyers say her losses — for lost income, therapy and legal fees — amount to $3.4 million. She has been granted restitution in about 180 cases and has recovered about 40 percent of what she seeks.

The 1994 law allows victims of child pornography to seek the “full amount” of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million.

Mr. Paroline said he owed Amy nothing, arguing that her problems did not stem from learning that he had looked at images of her. Amy’s uncle, who was sentenced to 12 years in prison for his crimes, bore the brunt of the blame, Mr. Paroline said, but was ordered to pay Amy just $6,325.

Mr. Paroline was sentenced to two years in prison, but the trial judge said Amy was not entitled to restitution, saying the link between Amy’s losses and what Mr. Paroline did was too remote.

The United States Court of Appeals for the Fifth Circuit, in New Orleans, disagreed and awarded Amy the $3.4 million she sought. Mr. Paroline should pay what he could and seek contributions from his fellow wrongdoers if he thought it was too much, the court said, relying on the legal doctrine of “joint and several” liability.

The Supreme Court adopted neither of the lower courts’ approaches. Acknowledging that he was employing “a kind of legal fiction,” Justice Kennedy said the only sensible method of apportionment was for courts to require “reasonable and circumscribed” restitution “in an amount that comports with the defendant’s relative role.”

“This cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment,” Justice Kennedy wrote. Justices Ruth Bader Ginsburg, Stephen G. Breyer, Samuel A. Alito Jr. and Elena Kagan joined the majority opinion.

Chief Justice Roberts said the majority’s approach was arbitrary and impossible to square with the words of the 1994 law. “The statute as written allows no recovery,” he said. “We ought to say so, and give Congress a chance to fix it.”

Justice Sotomayor, in turn, was critical of the chief justice’s dissent, saying it “would result in no restitution in cases like this for the perverse reason that a child has been victimized by too many.”

Of the majority’s approach, she said that “the injuries caused by child pornography possessors are impossible to apportion in any practical sense.” She said she would award the full amount of Amy’s losses but let offenders pay them off over time until she was made whole.

In a statement issued through her lawyers, Amy said the Supreme Court’s decision, in Paroline v. United States, No. 12-8561, had left her “surprised and confused.”

“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,” she said. “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.”

In another case, concerning the death penalty, the court split 6 to 3 over whether its precedents had established that capital defendants are entitled to a jury instruction that their failure to testify at sentencing hearings should not be held against them.

The case, White v. Woodall, No. 12-794, involved Robert K. Woodall, a Kentucky man who pleaded guilty to the 1997 rape, mutilation and drowning of Sarah Hansen, a 16-year-old high school student. He did not testify at his sentencing hearing in state court, and the judge declined to give the requested instruction. Mr. Woodall was sentenced to death.

Justice Scalia, writing for the majority, said Mr. Woodall’s challenge to his conviction in federal court must fail because the Supreme Court had not squarely ruled on whether defendants have a right to the instruction. In dissent, Justice Breyer said the right was clearly established.