Saturday, May 3, 2014

GateHouse: Supreme Court leaves child pornography restitution muddled

Matthew T. Mangino
GateHouse News Service
May 2, 3014

Crime victims achieved a significant milestone recently when attorney Paul G. Cassell represented before the U.S. Supreme Court a crime victim named “Amy.” Amy was videotaped being raped by her uncle as a child, and those assaults are some of the most widely distributed images of child pornography ever produced.

When Cassell appeared before the Supreme Court, it was the first time that a lawyer had argued on behalf of a crime victim for enforcement of her own rights in a criminal case filed by government prosecutors.

All nine Supreme Court justices recognized that possession of child pornography is not a victimless crime. Although a victory for crime victims, the court’s ultimate decision is a little murky.

Last month, in Paroline v. U.S., the court acknowledged that “every viewing of child pornography is a repetition of the crime.” The court also agreed that victims of child pornography are entitled to restitution from those who possess the images of abuse.

Justice Anthony Kennedy wrote on behalf of a narrow five-member majority. He said that damages must be based on the proportion of harm that each defendant caused to the victim. “Of course the victim should someday collect restitution for all her child pornography losses, but it makes sense to spread payment among a larger proportion of offenders.”

He did not say how a trial court should calculate those payments.

Through intensive counseling, Amy was getting her life in order when, as a teenager, she discovered that images of her abuse were being traded on Internet porn sites. She found herself back in counseling and her losses were calculated at nearly $3.4 million.

Kennedy said paying nothing should not be an option. “One reason to make restitution mandatory for crimes like this is to impress upon offenders that their conduct produces concrete and devastating harms for real, identifiable victims.”

But Kennedy said, according to the Washington Post, that making each defendant liable for the total amount would be so “severe” as to raise constitutional questions. Instead, Kennedy said, there should be “reasonable and circumscribed” restitution that “comports with the defendant’s relative role.”

The problem is the Supreme Court did not explain how to determine the amount of restitution owed. Without the court’s guidance on how to calculate what an individual defendant owes, the victim’s access to restitution may be considerably delayed.

The concern is not without merit. In 2002, the U.S. Supreme Court ruled that executing a mentally disabled person violated the Eighth Amendment’s ban against cruel and unusual punishment. The decision contained a loophole that rendered it virtually meaningless in many cases. The decision in Atkins v. Virginia bewilderingly included “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restrictions upon its execution of sentences.”

The result was a whole bunch of confusion. Individual states came up with individualized methods for determining mental disability. In fact, Atkins, the decision’s namesake, was sent back to Virginia and resentenced to death.

Now, 12 years later, the Supreme Court has agreed to hear another mental disability case with an eye toward cleaning up the mess created by Atkins. Hall v. Florida was recently argued before the court. Sixty-eight-year-old Freddie Lee Hall is challenging the state’s use of a rigid IQ cutoff to determine mental disability. In Florida, an IQ higher than 70 categorically means an inmate is not mentally disabled.

Will victims of child pornography have to wait an additional 12 years before the U.S. Supreme Court will agree to clarify what it failed to clarify in the Paroline decision?

Amy’s attorney is not optimistic. “As Amy has recognized, the Supreme Court’s split-the-difference ruling promises her that she will receive full restitution ‘someday,’?” Cassell wrote. “I just wonder how far in the future that someday will be.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
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