Sixth Circuit Limits Lifetime Losses Post-Paroline
On June 5, 2014, the Sixth Circuit Court of Appeals—in the first federal circuit court ruling since the United States Supreme Court issued its decision in Paroline in April—held that a child pornography defendant is not liable for a victim’s lifetime losses. This order seriously undermines the ability of child pornography victims to recover full restitution from any defendant.
This unpublished order in United States v. Wilson is yet another critical reason why Congress must act now to pass the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014.
The Amy and Vicky Act restores Congressional intent that the “full amount of the victim’s losses” includes “lifetime” medical services relating to physical, psychiatric, or psychological care; “lifetime” physical and occupational therapy or rehabilitation; and “lifetime” lost income. These enumerated losses are intended to be “lifetime” aggregate losses.
As Justice Sotomayor explained in her dissent in Paroline: “One answer is that the defendant’s offense is a cause-in-fact only of losses for which it was a but-for cause. A second is that the offense is a cause-in-fact of losses for which it was part of the aggregate cause. The former would preclude restitution in cases like this; the latter would allow it.” Not surprisingly, as Justice Sotomayor recognized, the Sixth Circuit has chosen the former which effectively precludes meaningful restitution in most child pornography cases.
The Amy and Vicky Act requires courts to impose either full restitution jointly and severally with a right to contribution or a Congressionally determined statutory minimum amount. Like Justice Sotomayor, the Act acknowledges that “the injuries caused by child pornography possessors are impossible to apportion in any practical sense.” It gives judges options to craft a restitution order which takes into account the unique circumstances of each case while requiring meaningful restitution from every defendant.
The Sixth Circuit’s decision to further apportion restitution based on the date of a defendant’s offense is not an option under the Amy and Vicky Act since the Act specifically makes it clear that a victim is not only a person who is harmed by the commission of an offense under Chapter 110, but also a person who is harmed by a series of offenses committed by the defendant and other persons causing aggregated losses.
Justice Sotomayor concluded her dissent by saying that “In the end, of course, it is Congress that will have the final say. If Congress wishes to recodify its full restitution command, it can do so in language perhaps even more clear than §2259’s ‘mandatory’ directive to order restitution for the ‘full amount of the victim’s losses.’ Congress might amend the statute, for example, to include the term ‘aggregate causation.’ Alternatively, to avoid the uncertainty in the Court’s apportionment approach, Congress might wish to enact fixed minimum restitution amounts. See, e.g., §2255 (statutorily imposed $150,000 minimum civil remedy).”
The Amy and Vicky Act does both. As the district courts and circuit courts begin to reconsider restitution in light of Paroline, one thing remains clear: as Justice Roberts warned in his dissent in Paroline, “it would be a mistake for that salutary outcome to lead readers to conclude that…Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.”
Now is this time for Congress to “fix it.” The Amy and Vicky Act will restore Congress’ desire to “do justice” for victims of child pornography. Congress must move quickly before more bad law and bad precedent makes restitution for child porngoraphy victims even more impossible. Pass the Amy and Vicky Act now!