How is Restitution Calculated in Child Pornography Cases?

If you have been charged with a violation under Chapter 110 of the United States code for possessing, receiving, distributing, or producing child pornography, then pursuant to 18 USC 18 U.S. Code § 2259, you are likely to be ordered to pay restitution to the victims of the crime. The term “victim” refers to the individual who is harmed because of the child pornography related crime.

As a general concept, the purpose of restitution in a criminal case is two-fold.  Firstly, restitution is intended to make a person “whole” meaning reimburse them directly for losses suffered because of the crime committed. Secondly, restitution has a punitive function, it is intended to punish the wrongdoer for the crime.

If the crime involved the trafficking of child pornography, which in this context means a violation of 18 USC 2251(d), 2252, 2252A(a)(1) through (5), 2252A(g), then the specific law cited above applies. Under this law, the court is required to determine the full amount of losses that were actually incurred or that could be “reasonably projected.” Then, after this calculation, the court is required to order restitution in an amount that reflects the defendant’s “relative role” in causing the victims loses.  The minimum amount that must be ordered $3,000.

In the context of this statute, the word “caused” has been subject to much debate, and most United States District Court judges believe that the words in the law alone provide insufficient guidance for them when attempting to determine the appropriate amount of restitution.  Consequently, there has and continues to be significant disparity from court to court and case to case between amounts of restitution ordered on child pornography cases.

The leading United States Supreme Court (USSC) case that has addressed this issue is Paroline v. United States, 134 S. Ct. 1710 (2014). This case involved an attempt to resolve the question of how the amount of restitution child pornography possession case should be determined. In this case the defendant had pleaded guilty in federal court to possessing child pornography in violation of 18 U. S. C. §2252. Of the images retrieved by the government, two of them were of a particular victim sought restitution under §2259. The government, as her representative, requested almost three million dollars in lost income and an additional $500,000 to cover her for future treatment and counseling.

The District Court Judge awarded nothing because in their opinion the government had failed to prove losses that were proximately caused by the defendant.  The USSC indicated in Paroline that the statute itself denotes 6 categories for the sentencing judge to consider in calculating restitution in a child pornography case:

  1. Required medical services for the victim as set forth in §2259(b)(3)(A);
  2. Required physical and/or occupational therapy, as set forth in §2259(b)(3)(B);
  3. Any attorney’s fees and costs of victim that are related to the crime, as set forth in §2259(b)(3)(E);
  4. Any necessary transportation, temporary housing, and childcare for the victim, as set forth in §2259(b)(3)(C);
  5. Any lost income attributable to the crime, pursuant to §2259(b)(3)(D);
  6. And the very broad, catch-all category of “any other losses suffered by the victim as a proximate result of the offense” as set forth in §2259(b)(3)(F).

The phrase “proximate cause” and its application in child pornography cases has been subject to much debate by the various published opinions that have addressed it in this context. In Paroline the USSC attempted to clarify this term and provide a means by which to apply it to a particular case.  Paroline held that that §2259 required the District Court Judge to take the victims alleged losses as a whole, then adjust them downward to reflect and incorporate, using the following factors:

  • The total number of child pornography offenders,
  • The number of images in the defendant’s possession and
  • Whether the defendant was involved in the actual production of the child pornography
  • Paroline concluded that after a United States District Court applies §2259 using the above “formula” they should then order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.

As explained in the University of Michigan’s Law Review article entitled “Section 2259 Restitution Claims and Child Pornography” Vol. 109, Issue 7, 2011, the courts have had difficulty applying section 2259 to child pornography possession for 7 reasons.  These include:

  1. First determining whether the person seeking restitution under this law is actually a victim of the crime alleged?
  2. How is the amount of restitution determined?
  3. What is the applicable burden of proof in a restitution claim and who bears this burden?
  4. Are restitution orders joint and several when more than one defendant is involved?
  5. How is the legal concept of proximate cause applied?
  6. How are restitution orders to be managed when multiple defendants in multiple jurisdictions are involved?
  7. How are defendants protected from and what safeguards can be put in place to avoid the potential for double recovery?

Another law review article, this one appearing in the UCLA Law Review, 63 UCLA Rev. 2 (2016) analyzes restitution awards in child pornography cases around the county for the six years after Paroline, and conclude that most United States District Court judges don’t seem to follow Paroline and either don’t award restitution, or only award insignificant amounts. Looking at a sample of awards post-Paroline, the total awards ranged from $56.00 to $976,418.00 (a range of $976,362.00).

This article concludes that most United District Court judges order low-level amounts of restitution that are not calculated using Paroline or any offense-specific characteristics. In the author’s opinion, the current restitution system “is broken” and fails to provide victims, and by implication, defendants and their attorneys, with any certainty as to if and how much restitution they will receive or be ordered to pay, or even factors might apply to the calculation of this amount.

Because there is such variability in the awarding of restitution in child pornography cases, it is essential that persons accused of these crimes be adequately represented by competent counsel knowledgeable in all aspects of federal sentence mitigation.

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