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3:36 pm
Wed January 22, 2014

Justices Hear Arguments In Restitution Case

The Supreme Court lent a sympathetic ear Wednesday to a victim of child pornography who wants the court to make it easier for victims to collect money from people convicted of downloading and viewing the pornographic images.

The woman known as Amy was at the court, her legal team said, for arguments in which the justices underscored that she and other victims of child pornography suffer serious psychological harm whenever anyone looks at their images online.

But the court seemed to struggle with determining how much restitution for counseling, lost income and legal fees any single defendant should be asked to pay.

The justices heard an appeal from Doyle Randall Paroline, who was held liable by a federal appeals court for the nearly $3.4 million judgment associated with the ongoing Internet trade and viewing of images of Amy being raped by her uncle when she was 8 and 9 years old. Paroline had hundreds of images of children on his computer when he was arrested but only two were of Amy.

“He’s guilty of the crime, but to sock him with all of her psychological costs and everything else because he had two pictures of her. Congress couldn’t have intended that,” Justice Antonin Scalia said in an exchange with Amy’s lawyer, Paul Cassell.

Several other justices also said they were troubled by the apparent lack of a link between the crime and the restitution order.

But Cassell said that when Congress wrote a 1994 law giving victims of child pornography and other sexual crimes the right to collect restitution from people convicted of the crimes, it meant to make it easy for the victim to collect.

The idea, Cassell said, is that courts could hold everyone responsible for the total amount. Most people could afford only a small portion, but a few wealthier defendants might be able to pay the bulk of the judgment.

Amy has so far received more than $1.75 million, Cassell said. Of that total, $1.2 million came from one man.

If the justices weren’t entirely persuaded by Cassell’s argument, they also had problems with the solutions put forth by Paroline’s lawyer, Stanley Schneider, and Justice Department lawyer Michael Dreeben.

Schneider said that there is no relationship between Paroline’s conduct and Amy’s losses, so that there should be no award of restitution.

Justice Elena Kagan said Schneider’s position could lead to odd results. If only one person were convicted of viewing the images, he might be responsible for all the damages, Kagan said. “But if 1,000 people viewed them, no one would be on the hook for restitution. How can that make sense?” she said.

The Obama administration takes a middle ground, saying victims should be awarded some money from each defendant but not the entire amount. Dreeben said trial judges should make the determination.

But under questioning, Dreeben could not give the court a single formula judges could apply. “In restitution cases, reasonable estimates are the order of the day,” he said.

Amy’s lawyers estimate that tens of thousands of people worldwide have downloaded and viewed Amy’s images.

Since 2005, there have been about 2,000 prosecutions in federal court that, like Paroline’s, included images of the rapes, for which Amy’s uncle spent about 10 years in prison and paid a few thousand dollars for counseling sessions for Amy. Restitution has been awarded in just under 200 cases involving Amy’s images.

A decision is expected by late June.

The case is Paroline v. Amy Unknown and U.S., 12-8561.

Emily Bazelon, legal affairs editor for Slate, joins Here & Now’s Robin Young to discuss the case.

Guest

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Transcript

ROBIN YOUNG, HOST:

It's HERE AND NOW.

The Supreme Court heard arguments this morning on a case that could determine how restitution is paid to victims of child pornography. Under a 1994 federal law, victims are entitled to seek the full amount of their losses from people convicted of producing, distributing or possessing images of them. Those losses include things like therapy, legal bills, compensation for being unable to work.

Today, the court heard an appeal from Doyle Paroline of Tyler, Texas. Now, he was convicted of possessing hundreds of images of children being sexually abused. We are not going to talk in detail about those images, but parents might want to know that's what this conversation is about. Two of those pictures were of the victim in a case in which a lower court held Doyle Paroline liable for $3.4 million in restitution. He's arguing before the higher court that he shouldn't be held liable, because the victim didn't prove that he personally caused her harm.

Emily Bazelon is legal affairs editor for Slate, senior research fellow at Yale Law School. She was at the high court today - Amy. A lot of people, when we first mentioned this story last week, didn't know that victims were being compensated for these images. We talked with the lawyer of the first woman here in Massachusetts to get state money. She was just awarded 8,000. But just to be clear, in the case before the Supreme Court, Doyle Paroline is not arguing that there shouldn't be restitution at all. He's just arguing - or the amount of the restitution, I should say. He's arguing that the victim didn't prove that he personally caused her harm?

EMILY BAZELON: That's right. That's his argument. And to step back for a moment, this particular victim has been noticed that there are 3,200 different criminal defendants in the United States who've been convicted of having her images. So, the question is, she has these losses. She needs counseling. She has lost income, and she argues that the continued viewing of these painful images causes her trauma. So, how do you figure out who should pay what, given that you have this big pool of defendants? And you have aggregate harm. You have harm that's collective, as opposed to individual.

YOUNG: Well, and so just - I'm sorry. Help us with this. If there are so many others convicted, how is it that Doyle Paroline has this huge amount? Did the others all get an amount, too?

BAZELON: Well, that's the theory of this victim. She wants the courts to award the full amount, the 3.4 million, in every case, and then to have those different defendants, the men, go after each other in court for contribution. So she would only get up to the cap of 3.4 million. She wouldn't get more than that, but it would be on them to have the burden of suing each other, instead of her having to seek them out one by one.

YOUNG: Well, this is what we heard, that the Fifth Circuit Court, the lower court ruled that Doyle Paroline should pay what he could and seek contributions from fellow wrongdoers. That raised so many questions for us. Doesn't that put - no matter how horrendous you might thing someone is who views these images, doesn't that put them in something of a dangerous situation to go knock on doors and - or go online and seek out others who are viewing these images and ask them to pay?

BAZELON: I don't think so, because, you know, what would really happen here, the Justice Department has - sends out crime notices to victims when a new person is convicted of having these images. That's a list. The Justice Department keeps that information. And so the defendants, who are mostly men, they would ask for that information, and then they would use it to seek contribution. Or another option would be that the Justice Department could create a big victims compensation fund that everyone would pay into, and that would probably be the most fair and kind of rational way to divide up this money and to make sure that the intent of Congress here is realized. That intent is for victims of child pornography to get restitution.

YOUNG: But what's the motivation for someone else who was convicted of looking at these images for paying into Doyle Paroline's fine?

BAZELON: So you got - I think one helpful analogy here is a pollution case. So imagine you live on a lake and it's polluted, and lots of companies dumped waste into that lake. We have a principle in this kind of law, tort law, called joint and several liability. You can sue the wealthiest defendant, the company that's the easiest to find and get on the hook. And then that company has to turn around and sue the other companies, and they have to pay because they're ordered to.

YOUNG: So there might be even - you mentioned the word sue. So there might be a legal motivation for them to do it. But meanwhile, Doyle Paroline isn't - doesn't sound like he's even arguing about the huge amount of the restitution. He's arguing he shouldn't have to pay any?

BAZELON: Yes. He's making a fairly tactical argument, which is that the victim impact statement that this victim submitted was written and created six months before he was convicted. So he's saying, look, there's no proof that my viewing these images personally harmed this defendant. Her answer to that is, look, you're part of a pool of people who harmed me, and I shouldn't have to prove it each time separately in this specific way. It's clear that there is a general harm, here. And the court was very receptive to her argument on that point today.

YOUNG: Well, tell us more about how the justices received both sides today.

BAZELON: Well, you know, there was this, I think, crucial moment where Justice Scalia looked up, and he said to the Department of Justice, look, the victim wants all the money. The defendant wants to pay nothing. And you're saying somewhere in the middle. And I kind of like the idea of somewhere in the middle, but help me get there. What would that mean? What basis? What formula? And the problem is that it's really hard to see, in the statute, how to arrive at that middle ground, because Congress just didn't say.

YOUNG: Well - and we mentioned that there was a woman in Massachusetts who received an award of $8,000, which is a huge difference from 3.4 million.

BAZELON: That's right. And so then you fear a kind of randomness, here, where if you leave it up to district court judges to kind of pick a number out of thin air - which was a concern Justice Kagan raised today - then how do you have any kind of fairness or proportionality among the different awards?

YOUNG: Well, the concern about this case was that it might endanger all awards. You know, what's your sense? Tell us more about what you could pick up from the justices.

BAZELON: I don't - didn't hear any votes for zero restitution for victims. I felt like all the justices wanted to figure out a way to help Congress realize its intent here, to provide restitution. And so the question was: How do we go about doing that? Do we import this theory of joint and several liability, which would allow for contributions, but which has never shown up in criminal law before? Or do we go with this kind of mushy, well, district court judges will just have to figure this out and, you know, they'll arrive at some roughly fair result.

YOUNG: Well - and the overarching hope of this law and this restitution is that people would not look at the images, because they would hear about these huge fines. I mean, this is not your bailiwick, but is, you know, is - that seemed to be upheld in the court, this idea that it might someday prevent people from looking at these images, which are going to be there forever.

BAZELON: Right. So I think you're - there's something really important here, which is this idea of deterrence. How do you deter people from being part of this market? And if making them pay is one way to do that, then that could be something Congress is legitimately trying to make happen.

YOUNG: Emily Bazelon, legal affairs editor for Slate on today's Supreme Court hearing of a case involving restitution for victims of child pornography. Emily, thanks so much, as always.

BAZELON: Thanks so much for having me.

YOUNG: You're listening to HERE AND NOW. Transcript provided by NPR, Copyright NPR.