New York Times

Justices Seem Stumped on Calculating Damages Over Child Pornography
By ADAM LIPTAK JAN. 22, 2014

WASHINGTON — In a Supreme Court argument on Wednesday that was part
math problem and part seminar on the nature of culpability, the justices seemed
to agree on just two things.

The first was that Doyle R. Paroline, convicted in 2009 of possessing 280
images of child pornography, “is a bad guy,” as Justice Antonin Scalia put it.

The second was that the child shown in two of those images had suffered
terrible harm, first from sexual assaults committed by another man two decades
ago and then from the mass circulation of depictions of her abuse.

“The woman has undergone serious psychiatric harm because of her
knowledge that there are thousands of people out there viewing her rape,”
Justice Scalia said.

Beyond those two points, though, the justices seemed at a loss to identify a
principled way to determine what Mr. Paroline owes Amy, as the woman is
known in court papers.

A 1994 federal law allows the victims of child pornography to seek
restitution from people convicted of viewing images of their abuse. Amy’s
lawyers say her losses, for a lifetime of therapy, lost income and legal bills, add
up to $3.4 million.

The three lawyers who appeared before the court on Wednesday offered
varying answers to the question of what Mr. Paroline owes Amy, and none of
their arguments seemed to satisfy the justices.

Stanley G. Schneider, a lawyer for Mr. Paroline, said his client owed Amy
nothing, because the link between his conduct and her losses was too remote and
hard to trace. Justice Ruth Bader Ginsburg said the words of the 1994 law
appeared to require an award of at least some money. Several other justices
seemed to agree.

“If only one person viewed the pornography, that person would be
responsible for the entire damages,” Justice Elena Kagan said. “But if a
thousand people viewed the pornography and the harm was that much greater,
nobody would be on the hook for restitution. How could that possibly make
sense?”

Amy’s lawyer, Paul G. Cassell, a former federal judge, made the argument at
the other extreme. He said Amy was entitled to collect all $3.4 million from Mr.
Paroline, citing a part of the 1994 law that allows victims of child pornography
to seek the “full amount” in restitution from people convicted of producing,
distributing or possessing it.

In ruling for Amy in 2012, the United States Court of Appeals for the Fifth
Circuit, in New Orleans, agreed, relying on the legal doctrine of “joint and
several” liability. Mr. Paroline should pay what he could of the full amount, the
court said, and seek contributions from his fellow wrongdoers if he thought it
was too much.

Mr. Cassell said this was the only sensible approach and the only one
faithful to the words of the 1994 law. “Amy’s losses,” he said, “come from a vast
faceless, anonymous crowd of thousands of people scattered around the globe
from Denver to Denmark who are looking at pictures of her being raped as an 8-
year-old girl.”

He said at least 70,000 people had viewed the images of Amy. She should
not be put to the burden of filing “literally thousands and thousands of cases” for
piecemeal restitution, he said, and “collecting as little as $47 under some of the
calculation theories that the government has proposed.”

But Justice Stephen G. Breyer said there must be a “limiting principle,”
because “you don’t require a person to pay what he didn’t cause.”

Michael R. Dreeben, a lawyer for the federal government, suggested a
middle ground, saying that trial judges should try to allocate Amy’s losses among
various offenders. The idea seemed appealing to some justices, but they
struggled to find a principled and practical way to apply it.

“If you knew that it had been viewed by a thousand people, is a psychologist
able to say that her knowledge that it has been viewed by a thousand people
causes this much harm?” Justice Samuel A. Alito Jr. asked. “And once she learns
that it’s now been viewed by a thousand and one people, there’s a little bit of
additional harm?”

Justice Ginsburg noted that the man who assaulted Amy, her uncle, had
been made to pay her just $6,325. He was sentenced to 12 years in prison.

“If there’s any kind of proportionality,” she said, “it seems that the possessor
of two images should not be responsible for more than the person who
perpetrated this horrendous crime.”

Mr. Dreeben proposed various formulas for allocating the losses, but he
admitted that they lacked precision and did not work well in all circumstances.

He mentioned the possibility of “a 50 percent fudge factor.”

Justice Scalia resisted such a free-form approach in the case, Paroline v.
United States, No. 12-8561.

“There is such a thing as due process of law,” he said.

A version of this article appears in print on January 23, 2014, on page A17 of the New York edition with the
headline: Justices Seem Stumped on Calculating Damages Over Child Pornography.