New York Times

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Justices Rule Child Pornography Restitution Is Too High

By ADAM LIPTAK APRIL 23, 2014

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.
 

A version of this article appears in print on April 24, 2014, on page A21 of the New York edition with the
headline: Justices Rule Child Pornography Restitution Is Too High.