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Child Porn Restitution Cases Vacated; New Vague Standard Awaits

By William Peacock, Esq. on June 11, 2014 | Last updated on March 21, 2019

Yesterday, the Fifth Circuit made it official: The two child-porn restitution orders for Michael Wright and Doyle Paroline, which made it to the U.S. Supreme Court, are now vacated and remanded [PDF] to the district court. The two defendants were ordered to pay restitution for downloading child pornography featuring the victim, pseudonymously known as "Amy Unknown."

And while the two orders were brief and uneventful, it seems likely that these cases will return at some point. After all, not only are there causation issues and ever more defendants (the images are still widely traded online by pedophiles), but the Supreme Court barely helped the issue by vaguely ordering the lower courts to order "restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses."

Relative role. In an ever-increasing pool of hundreds, if not thousands of defendants. Expect a lot more litigation.

The Problem: Too Many Pedophiles

We've seen these exact cases before, in pretty much every circuit court of appeal in the nation, because there are a lot of perpetrators facing restitution awards in "Amy" and "Vicky" cases. And unfortunately, that's never going to change thanks to the eternal nature of the Internet: Nothing is ever truly gone, and pedophiles will continue to trade images and (hopefully) get arrested.

Each time, it adds another perpetrator to the restitution rolls. This makes the question of how to divide up the damages between currently known and not-yet-known defendants pretty much impossible.

SCOTUS: Something, Not Nothing, Not Everything

If you're the type to hate vague standards, avert your eyes from anything Justice Kennedy ever writes, but especially this:

"In this special context, where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim's general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount."

Yeah. Good luck with that, district court. The two dissents' takes (no restitution because no clear causation, or joint and several liability) would have been easier to apply. Don't be shocked to see either of the defendants, or the victims' lawyers, appeal whatever the district court comes up with.

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