New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Computing Restitution Awards in Child Porn Cases

In 1997 and 1998, an eight-year-old girl known as “Amy” was sexually abused and raped repeatedly by her uncle.  Amy’s uncle received a custodial term of 10 years, and was ordered to pay $6,325.00 in restitution.  The assaults were photographed, and the photos were placed on the Internet and spread around the world.  Nobody really knows who photographed the assaults or placed them on the Internet, and it is impossible to know how many people viewed them or shared them with others.    When Amy was older, she learned that thousands of people were viewing these images, and said that it made her feel that the abuse was re-occurring and would never end.

A federal statute requires defendants in child porn cases to pay the full amount of restitution to victims such as Amy.  On its face, the statute arguably requires each defendant to make full payment notwithstanding the portion of harm they actually caused.  Amy eventually retained an attorney who computed the full amount of restitution due her at $3.4 million.  Her attorney began serving restitution demands for $3.4 million on child porn defendants everywhere, regardless of how many pictures of Amy were implicated in their respective cases, or whether they were convicted of simple possession, as opposed to distribution.

Doyle Randall Paroline of Texas subsequently pleaded guilty to possession of child pornography, and received a two-year term and ten years of supervised release.  Two of the 300 images discovered on his computer hard drive were of Amy.  As a result, Amy’s attorney served him with a demand for $3.4 million in restitution.  Paroline’s attorney argued recently before the US Supreme Court that his client, who was convicted of possession, as opposed to production and/or distribution, should not have to pay that much because it was out of all proportion to any harm Amy sustained from his conduct.  Amy’s attorney argued that the statute literally requires full payment from each defendant.

To date, only one Circuit Court of Appeals (the Fifth) has agreed with Amy’s attorney.  The other 12 Circuit Courts that have ruled on the issue adopted the approach put forth by the Government during oral argument in the Paroline case, which is that courts have the power to order proportional payment depending upon the unique facts and circumstances of each matter.

At argument, the Justices clearly struggled with this case.  Justice Breyer acknowledged that the original offense was horrific, but also indicated that it was not right to require payment from someone who did not cause the harm.  Justice Scalia, who took issue with all three positions, raised the plain meaning issue in response to the Government’s argument.

Anyone who represents defendants in these cases understands that they are tough.  The statutes coming out of Congress, as well as the advisory guidelines promulgated by the US Sentencing Commission, continue to convey the message that the tolerance for these offenses is decreasing steadily and rapidly.  Additionally, it is difficult to argue that the “Amys” of the world do not experience real harm as a result of what is done to them initially, as well as the subsequent sharing and viewing of any photos.  However, requiring a defendant like Paroline, convicted only of simple possession of two images, to pay $3.4 million in damages raises basic due process issues.

Since almost all child pornography is viewed online, this case is relevant for anyone representing clients accused of internet-related offenses.

A decision is expected by June.