Child porn: $3.4 million for two photos? Court grapples with restitution.

The US Supreme Court hears arguments on whether consumers of child pornography should pay full restitution for the harm caused the child victim – or some proportional share.

Justices at the US Supreme Court on Wednesday grappled with the difficult question of whether a person convicted of downloading and possessing two computer images of child pornography can be forced to pay $3.4 million in restitution to the child-victim depicted in the two illicit images.

The justices are examining how judges are to award restitution payments to victims identified in confiscated images of child pornography.

At issue is whether a person who is convicted of possessing child pornography (rather than producing it or distributing it) can be held responsible for the total amount of restitution sought by the child-victim identified in the illicit images even though the person did not cause all, or even most, of the victim’s injuries.

The restitution statute passed by Congress appears to require judges to order defendants to pay the full amount of the victim’s losses without regard to the proportion of harm they caused.

That interpretation of the statute would ensure that child-victims receive restitution payments quickly and efficiently. But forcing someone to pay the full amount for a crime primarily committed by someone else raises basic issues of due process and fairness.

“Some limiting principle has to come into play,” Justice Stephen Breyer said, during the hour-long oral argument. “This is a terrible crime, [but] you don’t require a person to pay [for] what he didn’t cause.”

Justice Breyer added: “This is called restitution, it isn’t called fines.”

The case involves a Texas man, Doyle Randall Paroline, who pleaded guilty to possession of child pornography and was later presented with a restitution demand from a single child-victim for $3.4 million.

Mr. Paroline was sentenced to two years in prison and 10 years of supervised release. Investigators examined Mr. Paroline’s computer and found 300 images of children engaged in various sexual acts.

Two of the 300 photos involved a young girl referred to in court documents by the pseudonym “Amy.”

Based on the two photos, Amy’s lawyer submitted a demand for full restitution of $3.4 million.

A federal judge declined to order Paroline to pay the full amount because there was no evidence that he caused all, or even most, of Amy’s losses.

A federal appeals court reversed that decision, saying Paroline could be required to pay the full amount of restitution under its reading of the federal restitution statute.

During Wednesday’s oral argument, the justices seemed perplexed by the choices being presented to them.

On one side, Paroline’s lawyer, Stanley Schneider of Houston, said his client should only have to pay restitution for harms Paroline caused to Amy, not for harms others caused.

On the other side, a lawyer representing Amy, Paul Cassell of the University of Utah Law School, argued that the statute requires each defendant to pay full restitution.

In the middle, Deputy Solicitor General Michael Dreeben suggested the court embrace a mechanism for apportioning the amount of restitution in cases like Amy’s, where there are potentially thousands of restitution orders.

Most courts facing the issue have adopted this kind of middle ground approach. Indeed, although Paroline is facing a $3.4 million restitution order, Amy has already received $1.75 million from various others convicted of possessing images of her abuse.

Once the remaining $1.65 million in Amy’s restitution is paid, no new restitution orders will be issued on Amy’s behalf. Mr. Cassell said that if the high court upheld the appeals court in Paroline’s case, the full amount of her restitution would be paid by various defendants within two or three years.

Mr. Cassell said that as many as 70,000 individuals may have downloaded and viewed illicit images of Amy on the Internet, but there was no way to know how many of them would be arrested for possessing the images.

The images were produced in 1997 and '98 when Amy was sexually abused and raped repeatedly by her uncle. She was 8 years old when the abuse began.

The uncle was prosecuted and sent to prison for 10 years. In addition, he was ordered to pay Amy restitution totaling $6,325.

At the time of the uncle’s prosecution, it was not clear that the uncle had photographed the sexual assaults on Amy and shared them with others on the Internet. The images proliferated and spread around the world.

Years later, Amy discovered that thousands of people were downloading and viewing the images. She said it made her feel as if the assaults were happening again and would never end.

In contrast to Amy’s uncle, Paroline says he’s never met Amy and never distributed photos of her being sexually abused.

Justice Antonin Scalia gave all three lawyers in the case a particularly hard time during their arguments.

When Paroline’s lawyer argued that the government had been unable to prove a connection between Amy’s injuries and his client, Justice Scalia spoke up.

“The woman has undergone serious psychiatric harm because of her knowledge that there are thousands of people out there viewing her rape,” he said. “Why isn’t your client at least responsible for some of that?”

When Deputy Solicitor General Dreeben began suggesting that an interpretation of civil tort law might allow courts to fashion a middle ground approach, Scalia took issue with that as well.

“We’re dealing here with a question of statutory interpretation,” Scalia said. “So the question is not what does modern tort law allow, but the question is what reasonably could Congress have meant by this statute?”

Finally, when Amy’s lawyer, Cassell, argued that any contribution by Paroline to Amy’s injuries would trigger liability for full restitution, Scalia again objected.

“He was convicted of possessing two pictures,” the justice said. “He’s guilty of the crime, but to sock him for all of her psychiatric costs and everything else because he had two pictures of her?”

Scalia continued: “Congress couldn’t have intended that.”

Cassell responded: “Congress did intend that, your honor.”

The restitution issue has resulted in a split among the federal appeals courts, albeit a one-sided split. The New Orleans-based Fifth US Circuit Court of Appeals agreed with Amy’s lawyer, while 12 appeals courts ruling in other cases have embraced the proportional approach favored by the government.

The case is Doyle Randall Paroline v. United States (12-8561). A decision is expected by June.