Supreme Court refuses to resolve confusion over child pornography law

The US Supreme Court declined on Monday to hear an appeal examining whether an individual convicted of possessing child pornography can be forced to pay potentially millions of dollars in restitution to a child victim identified in the seized images, even when he or she had no contact with the child.

The action leaves unresolved conflicting interpretations of a federal restitution statute.

At issue in the case was a law in which Congress directed the courts to order defendants who were convicted of crimes involving sexual exploitation of children to pay restitution to cover the “full amount of the victim’s losses.”

The law, known as Section 2259, has sparked disagreement within the federal judiciary over exactly what Congress meant by full restitution.

Should a defendant guilty of possessing child pornography be subject to the same multimillion-dollar restitution payment as the person who physically abused the child, recorded the abuse, and distributed the resulting illicit images?

Most courts have said no. Many have ruled there must be evidence showing that a defendant’s conduct in possessing the illicit images was a proximate cause of the child’s injuries.

Other courts have ruled that mere possession of illegal images can make a defendant liable for the full cost of a child victim’s injuries, including underlying sexual assaults and abuse.

The result is a national hodgepodge of conflicting rulings, with restitution awards in child pornography cases often depending more on where the case is litigated or who the judge is than any connection between a defendant’s illegal conduct and the resulting harm suffered by the victim.

For example, a federal judge in Florida ordered a defendant who possessed six images of a child victim to pay her full restitution of $3,680,153.

In contrast, federal judges in Florida, Georgia, Iowa, Maine, Minnesota, New York, North Dakota, and Pennsylvania have all refused to award restitution to child victims in cases where the defendant merely possessed images of child pornography.

Child victims have recovered lesser amounts of restitution in other possession cases. Among the payments: $3,000 in California; $3,000 in Virginia; $4,500 in Indiana; $5,448 in Virginia; and $12,740 in Georgia.

A judge in Washington ordered $65,000 in restitution to a child victim at a rate of $1,000 for each of 65 photos in the defendant’s possession.

A Virginia judge ordered a nominal payment of $100 to a child victim, while a New Jersey judge ordered a restitution payment of $15,000 that had been agreed to by both sides.

Victim advocates say such rulings are too restrictive. They say the law requires that anyone convicted of involvement with child pornography – including mere possession of illicit photographs – must be held financially liable for the full amount of a child victim’s losses.

Others – including the Obama administration – argue that the law authorizes courts only to order restitution commensurate with harms caused by the defendant himself.

But the law does not explain how judges are to decide an appropriate dollar amount. Should restitution in possession cases cover all injuries or only reflect the extra suffering caused to a child victim through the possession of images of that child being sexually abused?

A panel of the Fifth Circuit Court of Appeals has upheld the comprehensive restitution approach, while appeals-court panels at the Second, Ninth, Tenth, and Eleventh Circuits have favored more targeted restitution tied to proof that actions by the defendant were the proximate cause of injuries.

The appeal presented to the Supreme Court involved a child victim known in court documents by the pseudonym “Amy.” When Amy was 8 or 9 years old, she was raped and molested by an uncle who recorded the ordeal for another pedophile. The resulting images eventually spread around the world via the Internet.

“I am being exploited and used every day and every night somewhere in the world by someone,” Amy said in a 2009 victim impact statement. “How can I ever get over this when the crime that is happening to me will never end? How can I get over this when the shameful abuse I suffered is out there forever and being enjoyed by sick people?”

Lawyers working on Amy’s behalf have filed more than 700 requests for full restitution in child pornography cases across the United States. Each has sought more than $3 million.

Subsequent awards would be reduced by the amount of total restitution Amy has already received. So far, Amy’s lawyers have recovered more than $245,000 in restitution payments, according to their brief.

Supporters of a broad interpretation of the child victim restitution law say it creates a powerful deterrent to pedophiles who seek out and trade images of the sexual abuse of children. The potential bankrupting effect of a multimillion-dollar restitution order may help undercut the flourishing international trade in images of child sexual abuse, they say.

Others say such broad enforcement of the restitution law raises constitutional issues about fairness, due process, and excessive punishment.

The issue arose in the case of Michael Monzel, who pleaded guilty in federal court in Washington, D.C., to one count of distributing child pornography and one count of possessing child pornography. 

The charges stemmed from an undercover operation in which a federal agent monitored a chat room believed to be frequented by pedophiles. A raid revealed more than 800 images of child pornography.

After pleading guilty, Mr. Monzel was sentenced to 10 years in prison.

Experts were able to identify 30 children whose images were among those collected by Monzel. Of those 30, three of the victims, including Amy, submitted requests for restitution.

Citing Section 2259, Amy’s lawyers requested that the judge order Monzel to pay Amy restitution of $3,263,758.

The judge rejected the request, ruling that the law authorized compensation for the harm caused by Monzel, not the total harm suffered by Amy. The judge set the restitution at $5,000, which he acknowledged did not rise to the level of the actual harm that “Amy” suffered.

The appeals court reversed the $5,000 award and remanded the case back to the judge to determine an appropriate level of restitution that reflected the actual harm done to Amy by Monzel’s possession of the images of her being abused.

In appealing to the US Supreme Court, Amy’s lawyers asked the high court to embrace an expansive interpretation of the federal restitution statute. “As the plethora of different attempts at calculating restitution demonstrate, it is almost impossible for a child pornography victim to trace precisely how her losses were ‘proximately’ caused,” wrote Utah law professor Paul Cassell in his brief to the court.

“Congress broadly commanded that district courts must award restitution in every single case for ‘the full amount of the victim’s losses,’ ” he said.

The case was Amy v. Monzel (11-85).