D.C. Circuit Weighs Child Pornography Restitution Case

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.

Comments

[Rob]

This is an emotional topic with horrible consequences. Aside from the actual topic of restitution, removing the damage by other means may be possible. For instance, the millions of hash sets the fbi has collected could be easily incorporated with anti virus software such as Norton. The real work would be getting anti virus software involved in something so toxic. They already do it for websites, but could include files if they were provided the hash sets that identify the files.

[Avon]

The damage is real, and the concept of restitution (in a criminal law!) is laudable. But, as a tort lawyer, I think the restitution law is unpredictable, unfair and unmanageable.

The 9/11 Victims Compensation Fund example is certainly not helpful. There, only one payor was the source of all the money, the number of applicants for a payout was fixed by a deadline, and then the applicants detailed each element of their losses and suffering at length. Sure, it was emotionally draining to weigh apples and oranges, but at least the total payout and every recipient were known.

The child porn victims are a permanently changing pool of people with evolving injuries, and the number of convicts (and how much they are actually capable of, and liable for, paying) is also a moving target - indeed, unknown at any given time.

I'd say the DoJ and Congress should envision and enact a revised statute that works more like asbestos or Superfund liability, handling an ongoing stream of funds and claims pursuant to a logically consistent scheme. That should satisfy every argument or objection reported in this article.

[Anoni Tihnker]

This country has spiraled into complete idiocy and continues to be fueled by the DoJ's "ideas". First of all accessing with intent to view and possession are crimes, but I guess this does not apply to the employees at the National Center for Missing and Exploited Children, FBI, ICE, or ICAC. I find it hilarious that the victim was dragged into the justice system's stupid goose chase. At this point I would assume the victim would rather move on with their lives than continue to be reminded that someone has been arrested for having a image/video of them. If anything the victim should sue the US government for possessing and accessing with intent to view. These child pornography laws do nothing at all. It is not getting rid of the free content that is readily available across various Internet based applications.

[Charles E. Higgins Sr.]

Childhood sexual abuse harms the victim in a way that leaves damage that effects the person all her life. My ex-wife is a victim and the damage to our marriage was severe. She refused to have sex with me except the Saturday after my birthday for the last 20 years of marriage and even then only every third year. She also constantly accused me of affairs I never had. All this because of childhood trauma.