The thorny question of how to calculate restitution to victims of child pornography came back before the U.S. Court of Appeals for the D.C. Circuit last week, with the U.S. Department of Justice defending a proposed formula.
Friday's arguments marked the second time the court considered the case of Michael Monzel. Monzel pleaded guilty to one count each of distribution and possession of child pornography. A trial judge ordered Monzel to pay $5,000 to a victim known by the pseudonym "Amy," but on remand from the D.C. Circuit reduced the award to zero, finding the government didn't produce evidence on how much of Amy's losses he caused.
The government appealed, arguing U.S. District Judge Gladys Kessler was wrong to reduce the award and that its proposed formula – dividing a victim's total losses by the number of individuals found criminally responsible and then adjusting based on certain factors – represented a fair solution. Monzel's lawyer, Federal Public Defender A.J. Kramer, said the formula was arbitrary and that Kessler was right to reduce the award after the government presented no evidence linking his client to specific losses.
Courts across the country have struggled to find a consistent way to calculate damages in child pornography cases. As lawyers on both sides noted, there are often an unpredictable number of defendants, especially if the images are distributed online, and it can be difficult to know the extent an individual defendant who viewed or possessed an image was responsible for harming the victim.
Judge Brett Kavanaugh told Patty Stemler, chief of the appellate section of the Justice Department's criminal division, that he was interested in reaching a decision that would apply to similar cases in the future. However, the court expressed concern that under the government's formula, individuals convicted earlier would bear more of a burden. Stemler said the amount owed by each defendant would be lowered as needed until a certain threshold.
Kavanaugh asked if the Justice Department had recommended legislation to Congress addressing the restitution issue. Stemler said they were working on it, but had yet to submit something.
Specific to Monzel's case, Judge Judith Rogers asked Stemler why the government didn't provide more information to Kessler on remand estimating Amy's losses that could be attributed to Monzel. Kessler had called the estimates stale, Rogers said. Stemler said the government was never asked for more information and followed the D.C. Circuit's first decision saying Kessler could request more evidence or a formula.
The court heard from a lawyer representing Amy's interests, Paul Cassell of the appellate clinic at the University of Utah S.J. Quinney College of Law. Cassell said Kessler was wrong to not follow a federal statute known as Masha's Law, which gave victims of child pornography the right to file a civil lawsuit and set minimum damages at $150,000 for each violation of federal child pornography laws.
Cassell said his team was preparing to take the case to the U.S. Supreme Court to ask that defendants pay at least $150,000 in accordance with Masha's Law.
When asked how the court should calculate losses attributable to Monzel, Kramer said several courts found there was no answer and that the statute surrounding criminal restitution was "unworkable." Absent evidence from the government, Kramer said, Kessler was justified in finding Monzel couldn't be responsible for paying specific losses.
Rogers compared the situation to the administration of payments to victims of the terrorist of attacks on September 11, 2001, saying the court was tasked with finding a reasonable approach, as opposed to a perfect solution for allotting payments. Kramer said the government's formula was arbitrary and ran afoul of a requirement that restitution be tied to the defendant's role in contributing to the victim's losses.
Senior Judge A. Raymond Randolph also heard the case.