Our firm has handled a number of child pornography cases, especially within the past few years as the FBI and the U.S. Attorney’s Office for the District of Connecticut have made these cases a high priority. In every one of these cases, the U.S. Attorney’s Office has a standard practice of sending out notices to the victims who have been identified as being in the pictures and videos possessed by the defendant. This can result in the victim filing a claim for full restitution from the defendant – sometimes seeking hundreds of thousands of dollars. One of the challenges of these cases is that the victim frequently argues that the defendant must pay the full amount of the losses, even where the evidence shows that the defendant did not know or have any direct contact with the victim, and even where the defendant may have been only one of thousands of anonymous possessors of the images available for download from the Internet.
In Paroline v. United States, No. 12-8561, the U.S. Supreme Court finally addressed the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim in this type of a situation. In a 5-4 decision, the Court rejected the victim’s claim that each defendant is responsible for all of the victim’s claimed losses. Instead, in the majority opinion written by Justice Kennedy, the Court held that the sentencing court must engage in a flexible, apportionment-type analysis:
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 required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child pornography crimes, even simple possession, affect real victims.