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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–8561
_________________
DOYLE RANDALL PAROLINE, PETITIONER v. UNITED
STATES, et al.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[April 23, 2014]
Justice Kennedy
delivered the opinion of the Court.
This case presents the
question of how to determine the amount of restitution a possessor
of child pornography must pay to the victim whose childhood abuse
appears in the pornographic materials possessed. The relevant
statutory provisions are set forth at 18 U. S. C. §2259.
Enacted as a component of the Violence Against Women Act of 1994,
§2259 requires district courts to award restitution for certain
federal criminal offenses, including child-pornography
possession.
Petitioner Doyle
Randall Paroline pleaded guilty to such an offense. He admitted to
possessing between 150 and 300 images of child pornography, which
included two that depicted the sexual exploitation of a young girl,
now a young woman, who goes by the pseudonym “Amy” for this
litigation. The question is what causal relationship must be
established between the defendant’s conduct and a victim’s losses
for purposes of determining the right to, and the amount of,
restitution under §2259.
I
Three decades ago,
this Court observed that “the exploitive use of children in the
production of pornography has become a serious national problem.”
New York v. Ferber, 458 U. S. 747, 749 (1982) . The demand for
child pornography harms children in part because it drives
production, which involves child abuse. The harms caused by child
pornography, however, are still more extensive because child
pornography is “a permanent record” of the depicted child’s abuse,
and “the harm to the child is exacerbated by [its] circulation.”
Id., at 759. Because child pornography is now traded with ease on
the Internet, “the number of still images and videos memorializing
the sexual assault and other sexual exploitation of children, many
very young in age, has grown exponentially.” United States
Sentencing Comm’n, P. Saris et al., FederalChild Pornography
Offenses 3 (2012) (hereinafter Sentencing Comm’n Report).
One person whose story
illustrates the devastating harm caused by child pornography is the
respondent victim in this case. When she was eight and nine years
old, she was sexually abused by her uncle in order to produce child
pornography. Her uncle was prosecuted, required to pay about $6,000
in restitution, and sentenced to a lengthy prison term. The victim
underwent an initial course of therapy beginning in 1998 and
continuing into 1999. By the end of this period, her therapist’s
notes reported that she was “ ‘back to normal’ ”; her
involvement in dance and other age-appropriate activities, and the
support of her family, justified an optimistic assessment. App.
70–71. Her functioning appeared to decline in her teenage years,
however; and a major blow to her recovery came when, at the age of
17, she learned that images of her abuse were being trafficked on
the Internet. Id., at 71. The digital images were available
nationwide and no doubt worldwide. Though the exact scale of the
trade in her images is unknown, the possessors to date easily
number in the thousands. The knowledge that her images were
circulated far and wide renewed the victim’s trauma and made it
difficult for her to recover from her abuse. As she explained in a
victim impact statement submitted to the District Court in this
case:
“Every day of my life I live in constant
fear that someone will see my pictures and recognize me and that I
will be humiliated all over again. It hurts me to know someone is
looking at them—at me—when I was just a little girl being abused
for the camera. I did not choose to be there, but now I am there
forever in pictures that people are using to do sick things. I want
it all erased. I want it all stopped. But I am powerless to stop it
just like I was powerless to stop my uncle. . . . My
life and my feelings are worse now because the crime has never
really stopped and will never really stop. . . .
It’s like I am being abused over and over and over again.” Id., at
60–61.
The victim says in her statement that her fear
and trauma make it difficult for her to trust others or to feel
that she has control over what happens to her. Id., at 63.
The full extent of this
victim’s suffering is hard to grasp. Her abuser took away her
childhood, her self-conception of her innocence, and her freedom
from the kind of nightmares and memories that most others will
never know. These crimes were compounded by the distribution of
images of her abuser’s horrific acts, which meant the wrongs
inflicted upon her were in effect repeated; for she knew her
humiliation and hurt were and would be renewed into the future as
an ever-increasing number of wrongdoers witnessed the crimes
committed against her.
Petitioner Paroline is
one of the individuals who possessed this victim’s images. In 2009,
he pleaded guilty in federal court to one count of possession of
material involving the sexual exploitation of children in violation
of 18 U. S. C. §2252. 672 F. Supp. 2d 781, 783 (ED
Tex. 2009). Paroline admitted to knowing possession of between 150
and 300 images of child pornography, two of which depicted the
respondent victim. Ibid. The victim sought restitution under §2259,
asking for close to $3.4 million, consistingof nearly $3 million in
lost income and about $500,000in future treatment and counseling
costs. App. 52, 104. She also sought attorney’s fees and costs. 672
F. Supp. 2d, at 783. The parties submitted competing expert
reports. They stipulated that the victim did not know who Paroline
was and that none of her claimed losses flowed from any specific
knowledge about him or his offense conduct. Id., at 792, and
n. 11; App. 230.
After briefing and
hearings, the District Court declined to award restitution. 672
F. Supp. 2d, at 793. The District Court observed that
“everyone involved with child pornography—from the abusers and
producers to the end-users and possessors—contribute[s] to [the
victim’s] ongoing harm.” Id., at 792. But it concluded that the
Government had the burden of proving the amount of the victim’s
losses “directly produced by Paroline that would not have occurred
without his possession of her images.” Id., at 791. The District
Court found that, under this standard, the Government had failed to
meet its burden of proving what losses, if any, were proximately
caused by Paroline’s offense. It thus held that “an award of
restitution is not appropriate in this case.” Id., at 793.
The victim sought a
writ of mandamus, asking the United States Court of Appeals for the
Fifth Circuit to direct the District Court to order Paroline to pay
restitution in the amount requested. In re Amy, 591 F. 3d
792, 793 (2009). The Court of Appeals denied relief. Id., at 795.
The victim sought rehearing. Her rehearing request was granted, as
was her petition for a writ of mandamus. In re Amy Unknown,
636 F. 3d 190, 201 (2011).
The Fifth Circuit
reheard the case en banc along with another case, in which the
defendant, Michael Wright, had raised similar issues in appealing
an order of restitution under §2259, see United States v. Wright,
639 F. 3d 679, 681 (2011) (per curiam). As relevant, the Court
of Appeals set out to determine the level of proof required to
award restitution to victims in cases like this. It held that §2259
did not limit restitution to losses proximately caused by the
defendant, and each defendant who possessed the victim’s images
should be made liable for the victim’s entire losses from the trade
in her images, even though other offenders played a role in causing
those losses. In re Amy Unknown, 701 F. 3d 749, 772–774
(2012) (en banc).
Paroline sought review
here. Certiorari was granted to resolve a conflict in the Courts of
Appeals over the proper causation inquiry for purposes of
determining the entitlement to and amount of restitution under
§2259. 570 U. S. ___ (2013). For the reasons set forth, the
decision of the Court of Appeals is vacated.
II
Title 18
U. S. C. §2259(a) provides that a district court “shall
order restitution for any offense” under Chapter 110 of Title 18,
which covers a number of offenses involving the sexual exploitation
of children and child pornography in particular. Paroline was
convicted of knowingly possessing child pornography under §2252, a
Chapter 110 offense.
Section 2259 states a
broad restitutionary purpose: It requires district courts to order
defendants “to pay the victim . . . the full amount of
the victim’s losses as determined by the court,” §2259(b)(1), and
expressly states that “[t]he issuance of a restitution order under
this section is mandatory,” §2259(b)(4)(A). Section 2259(b)(2)
provides that “[a]n order of restitution under this section shall
be issued and enforced in accordance with section 3664,” which in
turn provides in relevant part that “[t]he burden of demonstrating
the amount of the loss sustained by a victim as a result of the
offense shall be on the attorney for the Government,” §3664(e).
The threshold question
the Court faces is whether §2259 limits restitution to those losses
proximately caused by the defendant’s offense conduct. The Fifth
Circuit held that it does not, contrary to the holdings of other
Courts of Appeals to have addressed the question. Compare, e.g.,
701 F. 3d, at 752 (no general proximate-cause requirement
applies under §2259), with United States v. Rogers, 714 F. 3d
82, 89 (CA1 2013) (general proximate-cause requirement applies
under §2259); United States v. Benoit, 713 F. 3d 1, 20 (CA10
2013) (same); United States v. Fast, 709 F. 3d 712, 721–722
(CA8 2013) (same); United States v. Laraneta, 700 F. 3d 983,
989–990 (CA7 2012) (same); United States v. Burgess, 684 F. 3d
445, 456–457 (CA4 2012) (same); United States v. Evers, 669
F. 3d 645, 659 (CA6 2012) (same); United States v. Aumais, 656
F. 3d 147, 153 (CA2 2011) (same); United States v. Kennedy,
643 F. 3d 1251, 1261 (CA9 2011) (same); United States v.
Monzel, 641 F. 3d 528, 535 (CADC 2011) (same); United States
v. McDaniel, 631 F. 3d 1204, 1208–1209 (CA11 2011) (same).
As a general matter, to
say one event proximately caused another is a way of making two
separate but related assertions. First, it means the former event
caused the latter. This is known as actual cause or cause in fact.
The concept of actual cause “is not a metaphysical one but an
ordinary, matter-of-fact inquiry into the existence . . .
of a causal relation as laypeople would view it.” 4 F. Harper, F.
James, & O. Gray, Torts §20.2, p. 100 (3d ed. 2007).
Every event has many
causes, however, see ibid., and only some of them are proximate, as
the law uses that term. So to say that one event was a proximate
cause of another means that it was not just any cause, but one with
a sufficient connection to the result. The idea of proximate cause,
as distinct from actual cause or cause in fact, defies easy
summary. It is “a flexible concept,” Bridge v. Phoenix Bond &
Indemnity Co., 553 U. S. 639, 654 (2008) , that generally
“refers to the basic requirement that . . . there must be
‘some direct relation between the injury asserted and the injurious
conduct alleged,’ ” CSX Transp., Inc. v. McBride, 564 U. S.
___, ___ (2011) (Roberts, C. J., dissenting) (slip op., at 3)
(quoting Holmes v. Securities Investor Protection Corporation, 503
U. S. 258, 268 (1992) ). The concept of proximate causation is
applicable in both criminal and tort law, and the analysis is
parallel in many instances. 1 W. LaFave, Substantive Criminal Law
§6.4(c), p. 471 (2d ed. 2003) (hereinafter LaFave). Proximate cause
is often explicated in terms of foreseeability or the scope of the
risk created by the predicate conduct. See, e.g., ibid.; 1
Restatement (Third) of Torts: Liability for Physical and Emotional
Harm §29, p. 493 (2005) (hereinafter Restatement). A requirement of
proximate cause thus serves, inter alia, to preclude liability in
situations where the causal link between conduct and result is so
attenuated that the consequence is more aptly described as mere
fortuity. Exxon Co., U. S. A. v. Sofec, Inc., 517
U. S. 830 –839 (1996).
All parties agree §2259
imposes some causation requirement. The statute defines a victim as
“the individual harmed as a result of a commission of a crime under
this chapter.” §2259(c). The words “as a result of” plainly suggest
causation. See Pacific Operators Offshore, LLP v. Valladolid, 565
U. S. ___, ___ (2012) (slip op., at 13); see also Burrage v.
United States, 571 U. S. ___, ___ (2014) (slip op., at 5). And
a straightforward reading of §2259(c) indicates that the term “a
crime” refers to the offense of conviction. Cf. Hughey v. United
States, 495 U. S. 411, 416 (1990) . So if the defendant’s
offense conduct did not cause harm to an individual, that
individual is by definition not a “victim” entitled to restitution
under §2259.
As noted above, §2259
requires a court to order restitution for “the full amount of the
victim’s losses,” §2259(b)(1), which the statute defines to include
“any costs incurred by the victim” for six enumerated categories of
expense, §2259(b)(3). The reference to “costs incurred by the
victim” is most naturally understood as costs stemming from the
source that qualifies an individual as a “victim” in the first
place—namely, ones arising “as a result of” the offense. Thus, as
is typically the case with criminal restitution, §2259 is intended
to compensate victims for losses caused by the offense of
conviction. See id., at 416. This is an important point, for it
means the central concern of the causal inquiry must be the conduct
of the particular defendant from whom restitution is sought.
But there is a further
question whether restitution under §2259 is limited to losses
proximately caused by the offense. As noted, a requirement of
proximate cause is more restrictive than a requirement of factual
cause alone. Even if §2259 made no express reference to proximate
causation, the Court might well hold that a showing of proximate
cause was required. Proximate cause is a standard aspect of
causation in criminal law and the law of torts. See 1 LaFave
§6.4(a), at 464–466; W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
Prosser and Keeton on Law of Torts §41, p. 263 (5th ed. 1984)
(hereinafter Prosser and Keeton). Given proximate cause’s
traditional role in causation analysis, this Court has more than
once found a proximate-cause requirement built into a statute that
did not expressly impose one. See Holmes, supra, at 265–268;
Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459
U. S. 519 –536 (1983); see also CSX Transp., Inc., supra, at
___ (Roberts, C. J., dissenting) (slip op., at 4) (“We have
applied the standard requirement of proximate cause to actions
under federal statutes where the text did not expressly provide for
it”); Lexmark Int’l, Inc. v. Static Control Components, Inc., ante,
at 13–14.
Here, however, the
interpretive task is easier, for the requirement of proximate cause
is in the statute’s text. The statute enumerates six categories of
covered losses. §2259(b)(3). These include certain medical
services, §2259(b)(3)(A); physical and occupational therapy,
§2259(b)(3)(B); transportation, temporary housing, and child care,
§2259(b)(3)(C); lost income, §2259(b)(3)(D); attorney’s fees and
costs, §2259(b)(3)(E); and a final catchall category for “any other
losses suffered by the victim as a proximate result of the
offense,” §2259(b)(3)(F).
The victim argues that
because the “proximate result” language appears only in the final,
catchall category of losses set forth at §2259(b)(3)(F), the
statute has noproximate-cause requirement for losses falling within
the prior enumerated categories. She justifies this reading of
§2259(b) in part on the grammatical rule of the last antecedent,
“according to which a limiting clause or phrase . . .
should ordinarily be read as modifying only the noun or phrase that
it immediately follows.” Barnhart v. Thomas, 540 U. S. 20, 26
(2003) . But that rule is “not an absolute and can assuredly be
overcome by other indicia of meaning.” Ibid. The Court has not
applied it in a mechanical way where it would require accepting
“unlikely premises.” United States v. Hayes, 555 U. S. 415,
425 (2009) .
Other canons of
statutory construction, moreover, work against the reading the
victim suggests. “When several words are followed by a clause which
is applicable as much to the first and other words as to the last,
the natural construction of the language demands that the clause be
read as applicable to all.” Porto Rico Railway, Light & Power
Co. v. Mor, 253 U. S. 345, 348 (1920) . Furthermore, “[i]t is
. . . a familiar canon of statutory construction that
[catchall] clauses are to be read as bringing within a statute
categories similar in type to those specifically enumerated.”
Federal Maritime Comm’n v. Seatrain Lines, Inc., 411 U. S.
726, 734 (1973) . Here, §2259(b)(3)(F) defines a broad, final
category of “other losses suffered . . . as a proximate
result of the offense.” That category is most naturally understood
as a summary of the type of losses covered—i.e., losses suffered as
a proximate result of the offense.
The victim says that if
Congress had wanted to limit the losses recoverable under §2259 to
those proximately caused by the offense, it could have written the
statute the same way it wrote §2327, which provides for restitution
to victims of telemarketing fraud. Section 2327, which is written
and structured much like §2259, simply defines the term “full
amount of the victim’s losses” as “all losses suffered by the
victim as a proximate result of the offense.” §2327(b)(3). In
essence the victim argues that the first five categories of losses
enumerated in §2259(b)(3) would be superfluous if all were governed
by a proximate-cause requirement. That, however, is unpersuasive.
The first five categories provide guidance to district courts as to
the specific types of losses Congress thought would often be the
proximate result of a Chapter 110 offense and could as a general
matter be included in an award of restitution.
Reading the statute to
impose a general proximate-cause limitation accords with common
sense. As noted above, proximate cause forecloses liability in
situations where the causal link between conduct and result is so
attenuated that the so-called consequence is more akin to mere
fortuity. For example, suppose the traumatized victim of a Chapter
110 offender needed therapy and had a car accident on the way to
her therapist’s office. The resulting medical costs, in a literal
sense, would be a factual result of the offense. But it would be
strange indeed to make a defendant pay restitution for these costs.
The victim herself concedes Congress did not intend costs like
these to be recoverable under §2259. Brief for Respondent Amy 45.
But she claims that it is unnecessary to “read . . .
into” §2259 a proximate-cause limitation in order to exclude costs
of that sort. Ibid. She says the statute “contextually and
inferentially require[s] a nexus for why” the losses were
sustained—i.e., a sufficient connection to child pornography. Id.,
at 46.
The victim may be right
that the concept of proximate cause is not necessary to impose
sensible limitations on restitution for remote consequences. But
one very effective way, and perhaps the most obvious way, of
excluding costs like those arising from the hypothetical car
accident described above would be to incorporate a proximate-cause
limitation into the statute. Congress did so, and for reasons given
above the proximate-cause requirement applies to all the losses
described in §2259. Restitution is therefore proper under §2259
only to the extent the defendant’s offense proximately caused a
victim’s losses.
III
There remains the
difficult question of how to apply the statute’s causation
requirements in this case. The problem stems from the somewhat
atypical causal process underlying the losses the victim claims
here. It is perhaps simple enough for the victim to prove the
aggregate losses, including the costs of psychiatric treatment and
lost income, that stem from the ongoing traffic in her images as a
whole. (Complications may arise in disaggregating losses sustained
as a result of the initial physical abuse, but those questions may
be set aside for present purposes.) These losses may be called, for
convenience’s sake, a victim’s “general losses.” The difficulty is
in determining the “full amount” of those general losses, if any,
that are the proximate result of the offense conduct of a
particular defendant who is one of thousands who have possessed and
will in the future possess the victim’s images but who has no other
connection to the victim.
In determining the
amount of general losses a defendant must pay under §2259 the
ultimate question is how much of these losses were the “proximate
result,” §2259(b)(3)(F), of that individual’s offense. But the most
difficult aspect of this inquiry concerns the threshold requirement
of causation in fact. To be sure, the requirement of proximate
causation, as distinct from mere causation in fact, would prevent
holding any possessor liable for losses caused in only a remote
sense. But the victim’s costs of treatment and lost income
resulting from the trauma of knowing that images of her abuse are
being viewed over and over are direct and foreseeable results of
child-pornography crimes, including possession, assuming the
prerequisite of factual causation is satisfied. The primary
problem, then, is the proper standard of causation in fact.
A
The traditional way
to prove that one event was a fac-tual cause of another is to show
that the latter would not have occurred “but for” the former. This
approach is a familiar part of our legal tradition, see 1 LaFave
§6.4(b), at 467–468; Prosser and Keeton §41, at 266, and no party
disputes that a showing of but-for causation would satisfy §2259’s
factual-causation requirement. Sometimes that showing could be made
with little difficulty. For example, but-for causation could be
shown with ease in many cases involving producers of child
pornography, see §2251(a); parents who permit their children to be
used for child-pornography production, see §2251(b); individuals
who sell children for such purposes, see §2251A; or the initial
distributor of the pornographic images of a child, see §2252.
In this case, however,
a showing of but-for causation cannot be made. The District Court
found that the Government failed to prove specific losses caused by
Paroline in a but-for sense and recognized that it would be
“incredibly difficult” to do so in a case like this. 672
F. Supp. 2d, at 791–793. That finding has a solid foundation
in the record, and it is all but unchallenged in this Court. See
Brief for Respondent Amy 63; Brief for United States 19, 25. But
see Supp. Brief for United States 8–10. From the victim’s
perspective, Paroline was just one of thousands of anonymous
possessors. To be sure, the victim’s precise degree of trauma
likely bears a relation to the total number of offenders; it would
probably be less if only 10 rather than thousands had seen her
images. But it is not possible to prove that her losses would be
less (and by how much) but for one possessor’s individual role in
the large, loosely connected network through which her images
circulate. See Sentencing Comm’n Report, at ii, xx. Even without
Paroline’s offense, thousands would have viewed and would in the
future view the victim’s images, so it cannot be shown that her
trauma and attendant losses would have been any different but for
Paroline’s offense. That is especially so given the parties’
stipulation that the victim had no knowledge of Paroline. See
supra, at 4.
Recognizing that losses
cannot be substantiated under a but-for approach where the
defendant is an anonymous possessor of images in wide circulation
on the Internet, the victim and the Government urge the Court to
read §2259 to require a less restrictive causation standard, at
least in this and similar child-pornography cases. They are correct
to note that courts have departed from the but-for standard where
circumstances warrant, especially where the combined conduct of
multiple wrongdoers produces a bad outcome. See Burrage, 571
U. S., at ___ (slip op., at 10) (acknowledging “the undoubted
reality that courts have not always required strict but-for
causality, even where criminal liability is at issue”).
The victim and the
Government look to the literature on criminal and tort law for
alternatives to the but-for test. The Court has noted that the
“most common” exception to the but-for causation requirement is
applied where “multiple sufficient causes independently
. . . produce a result,” ibid.; see also 1 LaFave
§6.4(b), at 467–469; 1 Restatement §27, at 376. This exception is
an ill fit here, as all parties seem to recognize. Paroline’s
possession of two images of the victim was surely not sufficient to
cause her entire losses from the ongoing trade in her images. Nor
is there a practical way to isolate some subset of the victim’s
general losses that Paroline’s conduct alone would have been
sufficient to cause. See Brief for United States 26,
n. 11.
Understandably, the
victim and the Government thus concentrate on a handful of less
demanding causation tests endorsed by authorities on tort law. One
prominent treatise suggests that “[w]hen the conduct of two or more
actors is so related to an event that their combined conduct,
viewed as a whole, is a but-for cause of the event, and application
of the but-for rule to them individually would absolve all of them,
the conduct of each is a cause in fact of the event.” Prosser and
Keeton §41, at 268. The Restatement adopts a similar exception for
“[m]ultiple sufficient causal sets.” 1 Restatement §27, Comment f,
at 380–381. This is where a wrongdoer’s conduct, though alone
“insufficient . . . to cause the plaintiff’s harm,” is,
“when combined with conduct by other persons,” “more than
sufficient to cause the harm.” Ibid. The Restatement offers as an
example a case in which three people independently but
simultaneously lean on a car, creating enough combined force to
roll it off a cliff. Ibid. Even if each exerted too little force to
move the car, and the force exerted by any two was sufficient to
the move the car, each individual is a factual cause of the car’s
destruction. Ibid. The Government argues that these authorities
“provide ample support for an ‘aggregate’ causation theory,” Brief
for United States 18, and that such a theory would best effectuate
congressional intent in cases like this, id., at 18–19. The victim
says much the same. Brief for Respondent Amy 42–43.
These alternative
causal tests are a kind of legal fiction or construct. If the
conduct of a wrongdoer is neither necessary nor sufficient to
produce an outcome, that conduct cannot in a strict sense be said
to have caused the outcome. Nonetheless, tort law teaches that
alternative and less demanding causal standards are necessary in
certain circumstances to vindicate the law’s purposes. It would be
anomalous to turn away a person harmed by the combined acts of many
wrongdoers simply because none of those wrongdoers alone caused the
harm. And it would be nonsensical to adopt a rule whereby
individuals hurt by the combined wrongful acts of many (and thus in
many instances hurt more badly than otherwise) would haveno
redress, whereas individuals hurt by the acts of one person alone
would have a remedy. Those are the prin-ciples that underlie the
various aggregate causation tests the victim and the Government
cite, and they are sound principles.
These alternative
causal standards, though salutary when applied in a judicious
manner, also can be taken too far. That is illustrated by the
victim’s suggested approach to applying §2259 in cases like this.
The victim says that under the strict logic of these alternative
causal tests, each possessor of her images is a part of a causal
set sufficient to produce her ongoing trauma, so each possessor
should be treated as a cause in fact of all the trauma and all the
attendant losses incurred as a result of the entire ongoing traffic
in her images. Id., at 43. And she argues that if this premise is
accepted the further requirement of proximate causation poses no
barrier, for she seeks restitution only for those losses that are
the direct and foreseeable result of child-pornography offenses.
Because the statute requires restitution for the “full amount of
the victim’s losses,” including “any . . . losses
suffered by the victim as a proximate result of the offense,”
§2259(b), she argues that restitution is required for the entire
aggregately caused amount.
The striking outcome of
this reasoning—that each possessor of the victim’s images would
bear the consequences of the acts of the many thousands who
possessed those images—illustrates why the Court has been reluctant
to adopt aggregate causation logic in an incautious manner,
especially in interpreting criminal statutes where there is no
language expressly suggesting Congress intended that approach. See
Burrage, 571 U. S., at ___ (slip op., at 11–12). Even if one
were to refer just to the law of torts, it would be a major step to
say there is a sufficient causal link between the injury and the
wrong so that all the victim’s general losses were “suffered
. . . as a proximate result of [Paroline’s] offense,”
§2259(b)(3)(F).
And there is special
reason not to do so in the context of criminal restitution. Aside
from the manifest procedural differences between criminal
sentencing and civil tort lawsuits, restitution serves purposes
that differ from (though they overlap with) the purposes of tort
law. See, e.g., Kelly v. Robinson, 479 U. S. 36 , n. 10
(1986) (noting that restitution is, inter alia, “an effective
rehabilitative penalty”). Legal fictions developed in the law of
torts cannot be imported into criminal restitution and applied to
their utmost limits without due consideration of these
differences.
Contrary to the
victim’s suggestion, this is not akin to a case in which a “gang of
ruffians” collectively beats a person, or in which a woman is “gang
raped by five men on one night or by five men on five sequential
nights.” Brief for Respondent Amy 55. First, this case does not
involve a set of wrongdoers acting in concert, see Prosser and
Keeton §52, at 346 (discussing full liability for a joint
enter-prise); for Paroline had no contact with the overwhelming
majority of the offenders for whose actions the victim would hold
him accountable. Second, adopting the victim’s approach would make
an individual possessor liable for the combined consequences of the
acts of not just 2, 5, or even 100 independently acting offenders;
but instead, a number that may reach into the tens of thousands.
See Brief for Respondent Amy 65.
It is unclear whether
it could ever be sensible to embrace the fiction that this victim’s
entire losses were the “proximate result,” §2259(b)(3)(F), of a
single possessor’s offense. Paroline’s contribution to the causal
process underlying the victim’s losses was very minor, both
compared to the combined acts of all other relevant offenders, and
in comparison to the contributions of other individual offenders,
particularly distributors (who may have caused hundreds or
thousands of further viewings) and the initial producer of the
child pornography. See 1 Restatement §36, and Comment a, at 597–598
(recognizing a rule excluding from liability individuals whose
contribution to a causal set that factually caused the outcome
“pales by comparison to the other contributions to that causal
set”). But see id., §27, Reporters’ Note, Comment i, at 395 (“The
conclusion that none of” two dozen small contributions to a
sufficient causal set was a cause of the outcome “is obviously
untenable”). Congress gave no indication that it intended its
statute to be applied in the expansive manner the victim suggests,
a manner contrary to the bedrock principle that restitution should
reflect the consequences of the defendant’s own conduct, see
Hughey, 495 U. S., at 416, not the conduct of thousands of
geographically and temporally distant offenders acting
independently, and with whom the defendant had no contact.
The victim argues that
holding each possessor liable for her entire losses would be fair
and practical, in part because offenders may seek contribution from
one another. Brief for Respondent Amy 58. If that were so, it might
mitigate to some degree the concerns her approach presents. But
there is scant authority for her contention that offenders
convicted in different proceedings in different jurisdictions and
ordered to pay restitution to the same victim may seek contribution
from one another. There is no general federal right to
contribution. Northwest Airlines, Inc. v. Transport Workers, 451
U. S. 77 –97 (1981). Nor does the victim point to any clear
statutory basis for a right to contribution in these circumstances.
She thus suggests that this Court should imply a cause of action.
Brief for Respondent Amy 58. But that is a rare step in any
circumstance. See, e.g., Stoneridge Investment Partners, LLC v.
Scientific-Atlanta, Inc., 552 U. S. 148 –165 (2008); Musick,
Peeler & Garrett v. Employers Ins. of Wausau, 508 U. S.
286, 291 (1993) (noting that this Court’s precedents “teach that
the creation of new rights ought to be left to legislatures, not
courts”). And it would do little to address the practical problems
offenders would face in seeking contribution in any event, see
Brief for United States 45–46, problems with which the victim fails
to grapple.
The reality is that the
victim’s suggested approach would amount to holding each possessor
of her images liable for the conduct of thousands of other
independently acting possessors and distributors, with no legal or
practical avenue for seeking contribution. That approach is so
severe it might raise questions under the Excessive Fines Clause of
the Eighth Amendment. To be sure, this Court has said that “the
Excessive Fines Clause was intended to limit only those fines
directly imposed by, and payable to, the government.”
Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc.,
492 U. S. 257, 268 (1989) . But while restitution under §2259
is paid to a victim, it is imposed by the Government “at the
culmination of a criminal proceeding and requires conviction of an
underlying” crime, United States v. Bajakajian, 524 U. S. 321,
328 (1998) . Thus, despite the differences between restitution and
a traditional fine, restitution still implicates “the prosecutorial
powers of government,” Browning-Ferris, supra, at 275. The primary
goal of restitution is remedial or compensatory, cf. Bajakajian,
supra, at 329, but it also serves punitive purposes, see
Pasquantino v. United States, 544 U. S. 349, 365 (2005) (“The
purpose of awarding restitution” under 18 U. S. C. §3663A
“is . . . to mete out appropriate criminal punishment”);
Kelly, 479 U. S., at 49, n. 10. That may be “sufficient
to bring [it] within the purview of the Excessive Fines Clause,”
Bajakajian, supra, at 329, n. 4. And there is a real question
whether holding a single possessor liable for millions of dollars
in losses collectively caused by thousands of independent actors
might be excessive and disproportionate in these circumstances.
These concerns offer further reason not to interpret the statute
the way the victim suggests.
B
The contention that
the victim’s entire losses from the ongoing trade in her images
were “suffered . . . as a proximate result” of Paroline’s
offense for purposes of §2259 must be rejected. But that does not
mean the broader principles underlying the aggregate causation
theories the Government and the victim cite are irrelevant to
determining the proper outcome in cases like this. The cause of the
victim’s general losses is the trade in her images. And Paroline is
a part of that cause, for he is one of those who viewed her images.
While it is not possible to identify a discrete, readily definable
incremental loss he caused, it is indisputable that he was a part
of the overall phenomenon that caused her general losses. Just as
it undermines the purposes of tort law to turn away plaintiffs
harmed by several wrongdoers, it would undermine the remedial and
penological purposes of §2259 to turn away victims in cases like
this.
With respect to the
statute’s remedial purpose, there can be no question that it would
produce anomalous results to say that no restitution is appropriate
in these circumstances. It is common ground that the victim suffers
continuing and grievous harm as a result of her knowledge that a
large, indeterminate number of individuals have viewed and will in
the future view images of the sexual abuse she endured. Brief for
Petitioner 50; Brief for Respondent Wright 4; Brief for United
States 23; Brief for Respondent Amy 60. Harms of this sort are a
major reason why child pornography is outlawed. See Ferber, 458
U. S., at 759. The unlawful conduct of everyone who
reproduces, distributes, or possesses the images of the victim’s
abuse—including Paroline—plays a part in sustaining and aggravating
this tragedy. And there can be no doubt Congress wanted victims to
receive restitution for harms like this. The law makes restitution
“mandatory,” §2259(b)(4), for child-pornography offenses under
Chapter 110, language that indicates Congress’ clear intent that
victims of child pornography be compensated by the perpetrators who
contributed to their anguish. It would undermine this intent to
apply the statute in a way that would render it a dead letter in
child-pornography prosecutions of this type.
Denying restitution in
cases like this would also be at odds with the penological purposes
of §2259’s mandatory restitution scheme. In a sense, every viewing
of child pornography is a repetition of the victim’s abuse. One
reason to make restitution mandatory for crimes like this is to
impress upon offenders that their conduct produces concrete and
devastating harms for real, identifiable victims. See Kelly, supra,
at 49, n. 10 (“Restitution is an effective rehabilitative
penalty because it forces the defendant to confront, in concrete
terms, the harm his actions have caused”). It would be inconsistent
with this purpose to apply the statute in a way that leaves
offenders with the mistaken impression that child-pornography
possession (at least where the images are in wide circulation) is a
victimless crime.
If the statute by its
terms required a showing of strict but-for causation, these
purposes would be beside the point. But the text of the statute is
not so limited. Although Congress limited restitution to losses
that are the “proximate result” of the defendant’s offense, such
unelaborated causal language by no means requires but-for causation
by its terms. See Burrage, 571 U. S., at ___ (slip op., at 8)
(courts need not read phrases like “results from” to require
but-for causality where there is “textual or contextual” reason to
conclude otherwise). As the authorities the Government and the
victim cite show, the availability of alternative causal standards
where circumstances warrant is, no less than the but-for test
itself as a default, part of the background legal tradition against
which Congress has legislated, cf. id., at ___ (slip op., at 10).
It would be unacceptable to adopt a causal standard so strict that
it would undermine congressional intent where neither the plain
text of the statute nor legal tradition demands such an
approach.
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. 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.
There remains the
question of how district courts should go about determining the
proper amount of restitution. At a general level of abstraction, a
court must assess as best it can from available evidence the
significance of the individual defendant’s conduct in light of the
broader causal process that produced the victim’s losses. This
cannot be a precise mathematical inquiry and involves the use of
discretion and sound judgment. But that is neither unusual nor
novel, either in the wider context of criminal sentencing or in the
more specific domain of restitution. It is well recognized that
district courts by necessity “exercise . . . discretion
in fashioning a restitution order.” §3664(a). Indeed, a district
court is expressly authorized to conduct a similar inquiry where
multiple defendants who have “contributed to the loss of a victim”
appear before it. §3664(h). In that case it may “apportion
liability among the defendants to reflect the level of contribution
to the victim’s loss . . . of each defendant.” Ibid.
Assessing an individual defendant’s role in the causal process
behind a child-pornography victim’s losses does not involve a
substantially different or greater exercise of discretion.
There are a variety of
factors district courts might consider in determining a proper
amount of restitution, and it is neither necessary nor appropriate
to prescribe a precise algorithm for determining the proper
restitution amount at this point in the law’s development. Doing so
would unduly constrain the decisionmakers closest to the facts of
any given case. But district courts might, as a starting point,
determine the amount of the victim’s losses caused by the
continuing traffic in the victim’s images (excluding, of course,
any remote losses like the hypothetical car accident described
above, see supra, at 10), then set an award of restitution in
consideration of factors that bear on the relative causal
significance of the defendant’s conduct in producing those losses.
These could include the number of past criminal defendants found to
have contributed to the victim’s general losses; reasonable
predictions of the number of future offenders likely to be caught
and convicted for crimes contributing to the victim’s general
losses; any available and reasonably reliable estimate of the
broader number of offenders involved (most of whom will, of course,
never be caught or convicted); whether the defendant reproduced or
distributed images of the victim; whether the defendant had any
connection to the initial production of the images; how many images
of the victim the defendant possessed; and other facts relevant to
the defendant’s relative causal role. See Brief for United States
49.
These factors need not
be converted into a rigid formula, especially if doing so would
result in trivial restitution orders. They should rather serve as
rough guideposts for determining an amount that fits the offense.
The resulting amount fixed by the court would be deemed the amount
of the victim’s general losses that were the “proximate result of
the offense” for purposes of §2259, and thus the “full amount” of
such losses that should be awarded. The court could then set an
appropriate payment schedule in consideration of the defendant’s
financial means. See §3664(f)(2).
The victim says this
approach is untenable because her losses are “indivisible” in the
sense that term is used by tort law, i.e., that there is no
“reasonable basis for the factfinder to determine . . .
the amount of damages separately caused by” any one offender’s
conduct. Restatement (Third) of Torts: Apportionment of Liability
§26, p. 320 (1999). The premise of her argument is that because it
is in a sense a fiction to say Paroline caused $1,000 in losses,
$10,000 in losses, or any other lesser amount, it is necessary to
embrace the much greater fiction that Paroline caused all the
victim’s losses from the ongoing trade in her images. But that is a
non sequitur. The Court is required to define a causal standard
that effects the statute’s purposes, not to apply tort-law concepts
in a mechanical way in the criminal restitution context. Even if
the victim’s losses are fully “indivisible” in this sense (which is
debatable), treating Paroline as a proximate cause of all the
victim’s losses—especially in the absence of a workable system of
contribution—stretches the fiction of aggregate causation to its
breaking point. Treating him as a cause of a smaller amount of the
victim’s general losses, taking account of his role in the overall
causal process behind those losses, effects the statute’s purposes;
avoids the nonsensical result of turning away victims emptyhanded;
and does so without sacrificing the need for proportional-ity in
sentencing.
The victim also argues
that this approach would consign her to “piecemeal” restitution and
leave her to face “decades of litigation that might never lead to
full recovery,” Brief for Respondent Amy 57, which “would convert
Congress’s promise to child pornography victims into an empty
gesture,” id., at 66. But Congress has not promisedvictims full and
swift restitution at all costs. To be sure, the statute states a
strong restitutionary purpose; but that purpose cannot be twisted
into a license to hold a defendant liable for an amount drastically
out of proportion to his own individual causal relation to the
victim’s losses.
Furthermore, an
approach of this sort better effects the need to impress upon
defendants that their acts are not irrelevant or victimless. As the
Government observes, Reply Brief for United States 18, it would
undermine this important purpose of criminal restitution if the
victim simply collected her full losses from a handful of wealthy
possessors and left the remainder to pay nothing because she had
already fully collected. Of course the victim should someday
collect restitution for all her child-pornography losses, but it
makes sense to spread payment among a larger number of offenders in
amounts more closely in proportion to their respective causal roles
and their own circumstances so that more are made aware, through
the concrete mechanism of restitution, of the impact of
child-pornography possession on victims.
C
This approach is not
without its difficulties. Restitution orders should represent “an
application of law,” not “a decisionmaker’s caprice,” Philip Morris
USA v. Williams, 549 U. S. 346, 352 (2007) (internal quotation
marks omitted), and the approach articulated above involves
discretion and estimation. But courts can only do their best to
apply the statute as written in a workable manner, faithful to the
competing principles at stake: that victims should be compensated
and that defendants should be held to account for the impact of
their conduct on those victims, but also that defendants should be
made liable for the consequences and gravity of their own conduct,
not the conduct of others. District courts routinely exercise wide
discretion both in sentencing as a general matter and more
specifically in fashioning restitution orders. There is no reason
to believe they cannot apply the causal standard defined above in a
reasonable manner without further detailed guidance at this stage
in the law’s elaboration. Based on its experience in prior cases of
this kind, the Government—which, as noted above, see supra, at 5–6,
bears the burden of proving the amount of the victim’s losses,
§3664(e)—could also inform district courts of restitution sought
and ordered in other cases.
* * *
The Fifth Circuit’s
interpretation of the requirements of §2259 was incorrect. The
District Court likewise erred in requiring a strict showing of
but-for causation. The judgment of the Court of Appeals is vacated,
and the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–8561
_________________
DOYLE RANDALL PAROLINE, PETITIONER v. UNITED
STATES, et al.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[April 23, 2014]
Chief Justice
Roberts, with whom Justice Scalia and Justice Thomas join,
dissenting.
I certainly agree with
the Court that Amy deserves restitution, and that Congress—by
making restitution mandatory for victims of child pornography—meant
that she have it. Unfortunately, the restitution statute that
Congress wrote for child pornography offenses makes it impossible
to award that relief to Amy in this case. Instead of tailoring the
statute to the unique harms caused by child pornography, Congress
borrowed a generic restitution standard that makes restitution
contingent on the Government’s ability to prove, “by the
preponderance of the evidence,” “the amount of the loss sustained
by a victim as a result of” the defendant’s crime. 18
U. S. C. §3664(e). When it comes to Paroline’s
crime—possession of two of Amy’s images—it is not possible to do
anything more than pick an arbitrary number for that “amount.” And
arbitrary is not good enough for the criminal law.
The Court attempts to
design a more coherent restitution system, focusing on “the
defendant’s relative role in the causal process that underlies the
victim’s general losses.” Ante, at 21. But this inquiry, sensible
as it may be, is not the one Congress adopted. After undertaking
the inquiry that Congress did require, the District Court in this
case concluded that the Government could not meet its statutory
burden of proof. Before this Court, the Government all but concedes
the point. See Brief for United States 25 (“it is practically
impossible to know whether [Amy’s] losses would have been slightly
lower if one were to subtract one defendant, or ten, or fifty”). I
must regretfully dissent.
I
Section 2259(a) of
Title 18 directs that a district court “shall order restitution for
any offense under this chapter,” which includes Paroline’s offense
of knowingly possessing child pornography in violation of section
2252. In case Congress’s purpose were not clear from its use of
“shall,” section 2259(b)(4) then emphasizes that “[t]he issuance of
a restitution order under this section is mandatory.”
Section 2259(b)(1)
spells out who may receive restitution, and for what. It provides
that “[t]he order of restitution under this section shall direct
the defendant to pay the victim (through the appropriate court
mechanism) the full amount of the victim’s losses as determined by
the court pursuant to [section 2259(b)(2)].” The term “
‘victim’ ” is defined as “the individual harmed as a result of
a commission of a crime under this chapter.” §2259(c). And the term
“ ‘full amount of the victim’s losses’ includes any costs
incurred by the victim for . . . medical services
relating to physical, psychiatric, or psychological care”; “lost
income”; and “any other losses suffered by the victim as a
proximate result of the offense.” §§2259(b)(3)(A), (D), (F).
Section 2259(b)(2) then
describes how the district court must calculate restitution. It
provides that “[a]n order of restitution under this section shall
be issued and enforced in accordance with section 3664 in the same
manner as an order under section 3663A.” Unlike section 2259,
sections 3663A and 3664 were not designed specifically for child
pornography offenses; they are part of the Mandatory Victims
Restitution Act of 1996 and supply general resti-tution guidelines
for many federal offenses. Most relevant here, section 3664(e)
provides that “[a]ny dispute as to the proper amount or type of
restitution shall be resolved by the court by the preponderance of
the evidence. The burden of demonstrating the amount of the loss
sustained by a victim as a result of the offense shall be on the
attorney for the Government.”
A
As the Court
explains, the statute allows restitution only for those losses that
were the “proximate result” of Paroline’s offense. See ante, at
9–11 (citing §2259(b)(3)). Contrary to Paroline’s argument, the
proximate cause re-quirement is easily satisfied in this case. It
was readily foreseeable that Paroline’s crime could cause Amy to
suffer precisely the types of losses that she claims: future lost
wages, costs for treatment and counseling, and attorney’s fees and
costs, all of which are eligible losses enumerated in section
2259(b)(3). There is a “direct relation” between those types of
injuries and Paroline’s “injurious conduct.” Holmes v. Securities
Investor Protection Corporation, 503 U. S. 258, 268 (1992) . I
therefore agree with the Court that if Paroline actually caused
those losses, he also proximately caused them. See ante, at 12.
The more pressing
problem is the statutory requirement of actual causation. See
Burrage v. United States, 571 U. S. ___, ___ (2014) (slip op.,
at 6) (the ordinary meaning of the term “results from” requires
proof that the defendant’s conduct was the “actual cause” of the
injury). Here too the Court correctly holds that the statute
precludes the restitution award sought by Amy and preferred by
Justice Sotomayor’s dissent, which would hold Paroline responsible
for Amy’s entire loss. See ante, at 16–19; contra, post, at 7–16.
Congress has authorized restitution only for “the amount of the
loss sustained by a victim as a result of the offense.” §3664(e).
We have interpreted virtually identical language, in the
predecessor statute to section 3664, to require “restitution to be
tied to the loss caused by the offense of conviction.” Hughey v.
United States, 495 U. S. 411, 418 (1990) (citing 18
U. S. C. §3580(a) (1982 ed.); emphasis added). That is,
restitution may not be imposed for losses caused by any other crime
or any other defendant.[
1]
Justice Sotomayor’s
dissent dismisses section 3664(e), which is Congress’s direct
answer to the very question presented by this case, namely, how to
resolve a “dispute as to the proper amount . . . of
restitution.” Justice Sotomayor thinks the answer to that question
begins and ends with the statement in section 2259(b)(1) that the
defendant must pay “the full amount of the victim’s losses.” See
post, at 1, 2, 10, 15. But losses from what? Theanswer is found in
the rest of that sentence: “the full amount of the victim’s losses
as determined by the court pursuant to paragraph 2.” §2259(b)(1)
(emphasis added). “[P]aragraph 2,” of course, instructs that “[a]n
order of restitution under this section shall be issued and
enforced in accordance with section 3664 in the same manner as an
order under section 3663A.” §2259(b)(2). And it is section 3664
that provides the statute’s burden of proof and specifies that the
defendant pay for those losses sustained “as a result of the
offense”—that is, his offense. §3664(e).
The offense of
conviction here was Paroline’s possession of two of Amy’s images.
No one suggests Paroline’s crime actually caused Amy to suffer
millions of dollars in losses, so the statute does not allow a
court to award millions of dollars in restitution. Determining what
amount the statute does allow—the amount of Amy’s losses that
Paro-line’s offense caused—is the real difficulty of this case. See
ante, at 12.
B
Regrettably, Congress
provided no mechanism for answering that question. If actual
causation is to be determined using the traditional, but-for
standard, then the Court acknowledges that “a showing of but-for
causation cannot be made” in this case. Ante, at 12. Amy would have
incurred all of her lost wages and counseling costs even if
Paroline had not viewed her images. The Government and Amy respond
by offering an “aggregate” causation theory borrowed from tort law.
But even if we apply this “legal fiction,” ante, at 15, and assume,
for purposes of argument, that Paroline’s crime contributed
something to Amy’s total losses, that suffices only to establish
causation in fact. It is not sufficient to award restitution under
the statute, which requires a further determination of the amount
that Paroline must pay. He must pay “the full amount of the
victim’s losses,” yes, but “as determined by” section 3664—that is,
the full amount of the losses he caused. The Government has the
burden to establish that amount, and no one has suggested a
plausible means for the Government to carry that burden.[
2]
The problem stems from
the nature of Amy’s injury. As explained, section 3664 is a general
statute designed to provide restitution for more common crimes,
such as fraud and assault. The section 3664(e) standard will work
just fine for most crime victims, because it will usually not be
difficult to identify the harm caused by the defendant’s offense.
The dispute will usually just be over the amount of the victim’s
loss—for example, the value of lost assets or the cost of a night
in the hospital.
Amy has a qualitatively
different injury. Her loss, while undoubtedly genuine, is a result
of the collective actions of a huge number of people—beginning with
her uncle who abused her and put her images on the Internet, to the
distributors who make those images more widely avail-able, to the
possessors such as Paroline who view her im-ages. The harm to Amy
was produced over time, gradually, by tens of thousands of persons
acting independently from one another.[
3] She suffers in particular from her knowledge that her
images are being viewed online by an unknown number of people, and
from her fear that any person she meets might recognize her from
having witnessed her abuse. App. 59–66. But Amy does not know who
Paroline is. Id., at 295, n. 11. Nothing in the record comes
close to establishing that Amy would have suffered less if Paroline
had not possessed her images, let alone how much less. See Brief
for United States 25. Amy’s injury is indivisible, which means that
Paroline’s particular share of her losses is unknowable. And yet it
is proof of Paroline’s particular share that the statute
requires.
By simply importing the
generic restitution statute without accounting for the diffuse harm
suffered by victims of child pornography, Congress set up a
restitution system sure to fail in cases like this one. Perhaps a
case with different facts, say, a single distributor and only a
handful of possessors, would be susceptible of the proof the
statute requires. But when tens of thousands of copies (or more) of
Amy’s images have changed hands all across the world for more than
a decade, a demand for the Government to prove “the amount of the
loss sustained by a victim as a result of the offense”—the offense
before the court in any particular case—is a demand for the
impos-sible. §3664(e) (emphasis added). When Congress con-ditioned
restitution on the Government’s meeting that burden of proof, it
effectively precluded restitution inmost cases involving possession
or distribution of child pornography.
II
The District Court in
Paroline’s case found that the Government could not meet its
statutory burden of proof. The Government does not really contest
that holding here; it instead asks to be held to a less demanding
standard. Having litigated this issue for years now in virtually
every Circuit, the best the Government has come up with is to tell
courts awarding restitution to look at what other courts have done.
But that is not a workable guide, not least because courts have
taken vastly different approaches to materially indistinguishable
cases. According to the Government’s lodging in this case, District
Courts awarding less than Amy’s full losses have imposed
restitution orders varying from $50 to $530,000.[
4] Restitution Awards for Amy Through
December 11, 2013, Lodging of United States. How is a court
supposed to use those figures as any sort of guidance? Pick the
median figure? The mean? Something else?
More to the point, the
Government’s submission lacks any basis in law. That the first
district courts confronted with Amy’s case awarded $1,000, or
$5,000, or $530,000, for no articulable reason, is not a legal
basis for awarding one of those figures in Paroline’s case. The
statute requires proof of this defendant’s harm done, not the going
rate. And of course, as the Government acknowledges, its approach
“doesn’t work very well” in the first case brought by a particular
victim. Tr. of Oral Arg. 24.
The majority’s proposal
is to have a district court “assess as best it can from available
evidence the significance of the individual defendant’s conduct in
light of the broader causal process that produced the victim’s
losses.” Ante,at 22. Even if that were a plausible way to design a
restitution system for Amy’s complex injury, there is no way around
the fact that it is not the system that Congress created. The
statute requires restitution to be based exclusively on the losses
that resulted from the defendant’s crime—not on the defendant’s
relative culpability. The majority’s plan to situate Paroline along
a spectrum of offenders who have contributed to Amy’s harm will not
assist a district court in calculating the amount of Amy’s
losses—the amount of her lost wages and counseling costs—that was
caused by Paroline’s crime (or that of any other defendant).
The Court is correct,
of course, that awarding Amy no restitution would be contrary to
Congress’s remedial and penological purposes. See ante, at 20. But
we have previously refused to allow “policy
considerations”—including an “expansive declaration of purpose,”
and the need to “compensate victims for the full losses they
suffered”—to deter us from reading virtually identical statutory
language to require proof of the harm caused solely by the
defendant’s particular offense. Hughey, 495 U. S., at
420–421.
Moreover, even the
Court’s “relative role in the causal process” approach to the
statute, ante, at 21, is unlikely to make Amy whole. To the extent
that district courts do form a sort of consensus on how much to
award, experience shows that the amount in any particular case will
be quite small—the significant majority of defendants have been
ordered to pay Amy $5,000 or less. Lodging of United States. This
means that Amy will be stuck litigatingfor years to come. The Court
acknowledges that Amy may end up with “piecemeal” restitution, yet
responds simply that “Congress has not promised victims full and
swift restitution at all costs.” Ante, at 24.
Amy will fare no better
if district courts consider the other factors suggested by the
majority, including the number of defendants convicted of
possessing Amy’s im-ages, a rough estimate of those likely to be
convicted in the future, and an even rougher estimate of the total
number of persons involved in her harm. Ante, at 23. In the first
place, only the last figure is relevant, because Paroline’s
relative significance can logically be measured only in light of
everyone who contributed to Amy’s injury—not just those who have
been, or will be, caught and convicted. Even worse, to the extent
it is possible to project the total number of persons who have
viewed Amy’s images, that number is tragically large, which means
that restitution awards tied to it will lead to a pitiful recovery
in every case. See Brief for Respondent Amy 65 (estimating
Paro-line’s “ ‘market share’ ” of Amy’s harm at 1/71,000,
or $47). The majority says that courts should not impose “trivial
restitution orders,” ante, at 23, but it is hard to see how a court
fairly assessing this defendant’s relative contribution could do
anything else.
Nor can confidence in
judicial discretion save the statute from arbitrary application.
See ante, at 22, 25–26. It is true that district courts exercise
substantial discretion in awarding restitution and imposing
sentences in general. But they do not do so by mere instinct.
Courts are instead guided by statutory standards: in the
restitution context, a fair determination of the losses caused by
the individual defendant under section 3664(e); in sentencing more
generally, the detailed factors in section 3553(a). A contrary
approach—one that asks district judges to impose restitution or
other criminal punishment guided solely by their own intuitions
regarding comparative fault—would undermine the requirement that
every criminal defendant receive due process of law.
* * *
The Court’s decision
today means that Amy will not go home with nothing. But it would be
a mistake for that salutary outcome to lead readers to conclude
that Amy has prevailed or 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.
I respectfully
dissent.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–8561
_________________
DOYLE RANDALL PAROLINE, PETITIONER v. UNITED
STATES, et al.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[April 23, 2014]
Justice Sotomayor,
dissenting.
This Court has long
recognized the grave “physiological, emotional, and mental”
injuries suffered by victims of child pornography. New York v.
Ferber, 458 U. S. 747, 758 (1982) . The traffic in images
depicting a child’s sexual abuse, we have observed, “ ‘poses
an even greater threat to the child victim than does sexual abuse
or prostitution’ ” because the victim must “ ‘go through
life knowing that the recording is circulating within the mass
distribution system for child pornography.’ ” Id., at 759, n.
10. As we emphasized in a later case, the images cause “continuing
harm by haunting the chil[d] in years to come.” Osborne v. Ohio,
495 U. S. 103, 111 (1990) .
Congress enacted 18
U. S. C. §2259 against this backdrop. The statute imposes
a “mandatory” duty on courts to order restitution to victims of
federal offenses involving the sexual abuse of children, including
the possession of child pornography. §2259(b)(4). And it commands
that for any such offense, a court “shall direct the defendant to
pay the victim . . . the full amount of the victim’s
losses.” §2259(b)(1).
The Court interprets
this statute to require restitution in a “circumscribed” amount
less than the “entirety of the victim’s . . . losses,” a
total it instructs courts to estimate based on the defendant’s
“relative role” in the victim’s harm. Ante, at 21. That amount, the
Court holds, should be neither “nominal” nor “severe.” Ibid.
I appreciate the
Court’s effort to achieve what it perceives to be a just result. It
declines to require restitution for a victim’s full losses, a
result that might seem incongruent to an individual possessor’s
partial role in a harm in which countless others have participated.
And it rejects the position advanced by Paroline and the dissenting
opinion of The Chief Justice, which would result in no restitution
in cases like this for the perverse reason that a child has been
victimized by too many.
The Court’s approach,
however, cannot be reconciled with the law that Congress enacted.
Congress mandated restitution for the “full amount of the victim’s
losses,” §2259(b)(1), and did so within the framework of settled
tort law principles that treat defendants like Paroline jointly and
severally liable for the indivisible consequences of their
intentional, concerted conduct. And to the extent an award for the
full amount of a victim’s losses may lead to fears of unfair
treatment for particular defendants, Congress provided a mechanism
to accommodate those concerns: Courts are to order “partial
payments” on a periodic schedule if the defendant’s financial
circumstances or other “interest[s] of justice” so require.
§§3664(f )(3), 3572(d)(1). I would accordingly affirm the
Fifth Circuit’s holding that the District Court “must enter a
restitution order reflecting the ‘full amount of [Amy’s] losses,’ ”
In re Amy Unknown, 701 F. 3d 749, 774 (2012), and
instruct the court to consider a periodic payment schedule on
remand.
I
A
There are two
distinct but related questions in this case: First, whether
Paroline’s conduct bears a sufficient causal nexus to Amy’s harm,
and second, if such a nexus exists, how much restitution Paroline
should be required to pay. Beginning with causation, I agree with
the majority that proximate causation is beyond dispute because the
medical and economic losses suffered by Amy are “direct and
foreseeable results of child-pornography crimes.” Ante, at 12;
accord, ante, at 3 (Roberts, C. J., dissenting). The real
issue, then, is “the proper standard of causation in fact.” Ante,
at 12 (majority opinion).
The majority and I
share common ground on much of this issue. We agree that the
ordinary way to prove cause-in-fact is to show that a result would
not have occurred “but for” the defendant’s conduct. Burrage v.
United States, 571 U. S. ___, ___ (2014) (slip op., at 6). We
also agree that “ ‘strict but-for causality’ ” is
“ ‘not always required,’ ” and that alternative standards
of factual causation are appropriate “where there is ‘textual or
contextual’ reason to conclude” as much. Ante, at 13, 21 (quoting
Burrage, 571 U. S., at ___ (slip op., at 8, 10). And most
importantly, we agree that there are ample reasons to reject a
strict but-for causality requirement in §2259. See ante, at 21.
Starting with the text,
§2259 declares that a court “shall order restitution for any
offense under this chapter.” The possession of child pornography,
§2252, is an offense under the relevant chapter, and the term
“shall” creates “an obligation impervious to judicial discretion,”
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523
U. S. 26, 35 (1998) . So the text could not be clearer: A
court must order restitution against a person convicted of
possessing child pornography. Section 2259(b)(4) underscores this
directive by declaring that “[t]he issuance of a restitution order
under this section is mandatory.” And the statute’s
title—“mandatory restitution”—reinforces it further still.
Interpreting §2259 to
require but-for causality would flout these simple textual
commands. That is because “a showing of but-for causation cannot be
made” in this case and many like it. Ante, at 12. Even without
Paroline’s offense, it is a regrettable fact that “thousands would
have viewed and would in the future view [Amy’s] images,” such that
“it cannot be shown that her trauma and attendant losses would have
been any different but for Parolin[e].” Id., at 13. A but-for
requirement would thus make restitution under §2259 the opposite of
“mandatory”; it would preclude restitution to the victim of the
typical child pornography offense for the nonsensical reason that
the child has been victimized by too many.
Such an approach would
transform §2259 into something unrecognizable to the Congress that
wrote it. When Congress passed §2259 in 1994, it was common
knowledge that child pornography victims suffer harm at the hands
of numerous offenders who possess their images in common, whether
in print, film, or electronic form. See, e.g., Shouvlin, Preventing
the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L.
Rev. 535, 544 (1981) (describing the “enormous number of magazines”
and “hundreds of films” produced each year depicting the sexual
abuse of children, which were circulated to untold numbers of
offenders through a “well-organized distribution system [that]
ensures that even the small towns have access to [the] material”);
Doyle, FBI Probing Child Porn on Computers, San Francisco
Chronicle, Dec. 5, 1991,p. A23 (describing complaint that “child
pornographic pho-tographs” were circulating via the “America
On-Line com-puter service”). Congress was also acutely aware of the
severe injuries that victims of child pornography suffer at the
hands of criminals who possess and view the recorded images of
their sexual abuse. Congress found, for example, that the
“continued existence” and circulation of child pornography images
“causes the child victims of sexual abuse continuing harm by
haunting those children in future years.” Child Pornography
Prevention Act of 1996, §121, 110Stat. 3009–26, Congressional
Findings (2), notes following 18 U. S. C. §2251
(hereinafter §2251 Findings). It is inconceivable that Congress
would have imposed a mandatory restitution obligation on the
possessors who contribute to these “continuing harm[s],” ibid.,
onlyto direct courts to apply a but-for cause requirementthat would
prevent victims from actually obtaining any recovery.
There is, of course, an
alternative standard for determining cause-in-fact that would be
consistent with the text of §2259 and the context in which it was
enacted: aggregate causation. As the majority points out, aggregate
causation was, “no less than the but-for test itself,” a “part of
the background legal tradition against which Congress” legislated.
Ante, at 21. And under this standard, “ ‘[w]hen the conduct of
two or more actors is so re-lated to an event that their combined
conduct, viewed as a whole, is a but-for cause of the event, and
application of the but-for rule to them individually would absolve
all of them, the conduct of each is a cause in fact of the
event.’ ” Ante, at 14 (quoting W. Keeton, D. Dobbs, R. Keeton,
& D. Owen, Prosser and Keeton on Law of Torts §41, p. 268 (5th
ed. 1984) (hereinafter Prosser and Keeton)).[
1] Paroline and his fellow offenders plainly
qualify as factual causes under this approach because Amy’s losses
would not have occurred but for their combined conduct, and because
applying the but-for rule would excuse them all.
There is every reason
to think Congress intended §2259 to incorporate aggregate
causation. Whereas a but-for requirement would set §2259’s
“mandatory” restitution command on a collision course with itself,
the aggregate causation standard follows directly from the statute.
Section 2259 is unequivocal; it offers no safety-in-numbers
exception for defendants who possess images of a child’s abuse in
common with other offenders. And the aggregate causation standard
exists to avoid exactly that kind of exception. See Prosser and
Keeton §41, at 268–269 (aggregate causation applies where multiple
defendants “bea[r] a like relationship” to a victim’s injury, and
where “[e]ach seeks to escape liability for a reason that, if
recognized, would likewise protect each other defendant in the
group, thus leaving the [victim] without a remedy in the face of
the fact that had none of them acted improperly the [victim] would
not have suffered the harm”); Restatement (Third) of Torts:
Liability for Physical and Emotional Harm §27, Comment f, p. 380
(2005) (similar).
At bottom, Congress did
not intend §2259 to create a safe harbor for those who inflict upon
their victims the proverbial death by a thousand cuts. Given the
very nature of the child pornography market—in which a large class
of offenders contribute jointly to their victims’ harm by trading
in their images—a but-for causation requirement would swallow
§2259’s “mandatory” restitution command, leaving victims with
little hope of recovery. That is all the “textual [and] contextual”
reason necessary to conclude that Congress incorporated aggregate
causation into §2259. Burrage, 571 U. S., at ___ (slip op., at
8).
B
The dissent of The
Chief Justice suggests that a contrary conclusion is compelled by
our decision in Hughey v. United States, 495 U. S. 411 (1990)
. Hughey involved a defendant who had been convicted of a single
count of unauthorized credit card use, which resulted in $10,412 in
losses. Id., at 414. The Government nonetheless re-quested
restitution for additional losses based on different counts in the
indictment that the Government had agreed to dismiss. Id., at 413.
We declined the Government’s request, reasoning that restitution
was to be tied to the offense of conviction. Id., at 418.
That commonsense
holding, of course, casts no doubt on the ordinary practice of
requiring restitution for losses caused by an offense for which a
defendant is convicted, where the loss is the product of the
combined conduct of multiple offenders. What troubles my colleagues
in this case, then, is not the concept of restitution in cases
involving losses caused by more than one offender. Their objection
is instead to restitution in cases where the victim’s losses are
caused by too many offenders. As The Chief Justice puts it,
Congress wrote a law that would enable Amy to recover if only her
images had been circulated by “a single distributor” to just a
“handful of possessors.” Ante, at 6–7. But because she has been
victimized by numerous distributors and thousands of possessors,
she gets nothing. It goes without saying that Congress did not
intend that result.
My colleagues in
dissent next assert that no restitution may be awarded because of
§3664(e), which describes the Government’s burden of showing the
“loss sustained by a victim as a result of the offense.” But that
provision is nothing close to a “direct answer” to this case. Ante,
at 4. It simply restates the question: What should a court do when
the losses sustained by a victim are the “result of the
[defendant’s] offense,” §3664(e), but that result is produced in
combination with the offenses of others? 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. Given Congress’ “mandatory” command that
courts “shall order restitution for any offense,” §§2259(a),
(b)(4), it is beyond clear which answer Congress chose.[
2]
The Chief Justice’s
dissent also fails to contend with the ramifications of the
suggestion that §3664(e) forecloses entry of restitution in cases
where a victim suffers indivisible losses as a result of the
aggregate conduct of numerous offenders. It claims that this
reading of §3664(e) “will work just fine” for “common crimes” such
as assault. Ante, at 5–6. But what about a victim of a vicious gang
assault, where a single offender’s conduct cannot be labeled a
but-for cause of any discrete injury? Such offenses are,
unfortunately, all too common. See, e.g., Wheelock v. United
States, 2013 WL 2318145, *2 (ED Wisc., May 28, 2013) (defendant
convicted for his participation in a gang rape of a 13-year-old
victim in which he “and several other individuals had provided
alcohol to the girl and, after she became intoxicated and
unconscious, sexually assaulted her”); United States v. Homer B.,
1990 WL 79705 (CA9, June 14, 1990) (similar). I would have thought
it beyond refute that the victim of such a tragic offense would be
entitled to restitution even though none of her losses may be
attributed solely to any individual defendant. If the opinion of
The Chief Justice is in agreement, it does not explain why the
result should be any different for victims like Amy, who have
suffered heart wrenching losses at the hands of thousands of
offenders rather than a few.[
3]
II
The majority accepts
aggregate causation at least to an extent, ruling that §2259
requires possessors to pay some amount of restitution even though
“it is impossible” to say that they caused “a particular amount of
[a victim’s] losses . . . by recourse to a more
traditional [but-for] causal inquiry.” Ante, at 21. But the
majority resists the “strict logic” of aggregate causation for fear
that doing so would produce the “striking outcome” of an award
against an individual possessor “for the entire aggregately caused
amount.” Ante, at 15–16. The majority accordingly holds that “a
court applying §2259 should order restitution in an amount that
comports with the defendant’s relative” contribution to “the
victim’s general losses.” Ante, at 21.
The majority’s
apportionment approach appears to be a sensible one. It would, for
instance, further the goal of “proportionality in sentencing,”
avoid “turning away victims emptyhanded,” and “spread payment
among” offenders. Ante, at 24–25. But it suffers from a far more
fundamental problem: It contravenes the language Congress actually
used. Section 2259 directs courts to enter restitution not for a
“proportional” or “relative” amount, but for the “full amount of
the victim’s losses.” §2259(b)(1). That command is unequivocal, and
it is buttressed by the tort law tradition of joint and several
liability within which Congress legislated.
A
Once a defendant is
found to bear a sufficient causal nexus to a victim’s harm, §2259
provides a straightforward instruction on how much restitution a
court is to order: “The order of restitution under this section
shall direct the defendant to pay the victim . . . the
full amount of the victim’s losses.” §2259(b)(1). Because the word
“shall” imposes a “discretionless obligatio[n],” Lopez v. Davis,
531 U. S. 230, 241 (2001) , a court considering a §2259
restitution request has no license to deviate from the statute’s
command. It must enter an order for the “full amount of the
victim’s losses,” regardless of whether other defendants may have
contributed to the same victim’s harm.
If there were any doubt
on the matter, Congress eliminated it in §2259(b)(4)(B)(ii), which
bars a court from “declin[ing] to issue [a restitution] order under
this section” on the ground that a victim “is entitled to receive
compensation for his or her injuries from the proceeds of insurance
or any other source.” One “other source” from which a victim would
be “entitled to receive compensation” is, of course, other
offenders who possess images of her sexual abuse. It is unthinkable
that Congress would have expressly forbidden courts to award
victims no restitution because their harms have been aggregately
caused by many offenders, only to permit restitution orders for a
single penny for the same reason.
B
As the majority
recognizes, Congress did not draft §2259 in a vacuum; it did so in
the context of settled tort law traditions. See ante, at 14–15; see
also Meyer v. Holley, 537 U. S. 280, 285 (2003) (Congress
“legislates against a legal background of ordinary tort-related”
principles). Section 2259 functions as a tort statute, one designed
to ensure that victims will recover compensatory damages in an
efficient manner concurrent with criminal proceedings. See
Restatement of Torts §901, p. 537 (1939) (the purposes of tort law
include “to give compensation, indemnity, or restitution for harms”
and “to punish wrongdoers”); Dolan v. United States, 560 U. S. 605,
612 (2010) (the “substantive purpose” of the related Mandatory
Victims Restitution Act of 1996, §3664, is “to ensure that victims
of a crime receive full restitution”). And the nature of the child
pornography industry and the indivisible quality of the injuries
suffered by its victims make this a paradigmatic situation in which
traditional tort law principles would require joint and several
liability. By requiring restitution for the “full amount of the
victim’s losses,” §2259(b)(1), Congress did not depart from these
principles; it embraced them.
First, the injuries
caused by child pornography possessors are impossible to apportion
in any practical sense. It cannot be said, for example, that
Paroline’s offense alone required Amy to attend five additional
minutes of therapy, or that it caused some discrete portion of her
lost income. The majority overlooks this fact, ordering courts to
surmise some “circumscribed” amount of loss based on a list of
factors. Ante, at 21, 22–23; see also ante, at 7–10 (Roberts,
C. J., dissenting). Section 2259’s full restitution
requirement dispenses with this guesswork, however, and in doing so
it harmonizes with the settled tort law tradition concerning
indivisible injuries. As this Court explained this rule in Edmonds
v. Compagnie Generale Transatlantique, 443 U. S. 256 (1979) ,
unless a plaintiff ’s “injury is divisible and the causation
of each part can be separately assigned to each tortfeasor,” the
rule is that a “tortfeasor is not relieved of liability for the
entire harm he caused just because another’s negligence was also a
factor in effecting the injury.” Id., at 260, n. 8; see also
Prosser and Keeton §52, at 347 (joint and several liability applies
to injuries that “are obviously incapable of any reasonable or
practical division”); Feneff v. Boston & Maine R. Co., 196
Mass. 575, 580, 82 N. E. 705, 707 (1907) (similar).
Second, Congress
adopted §2259 against the backdrop of the rule governing concerted
action by joint tortfeasors, which specifies that “[w]here two or
more [tortfeasors] act in concert, it is well settled
. . . that each will be liable for the entire result.”
Prosser and Keeton §52, at 346. The degree of concerted action
required by the rule is not inordinate; “if one person acts to
produce injury with full knowledge that others are acting in a
similar manner and that his conduct will contribute to produce a
single harm, a joint tort has been consummated even when there is
no prearranged plan.” 1 F. Harper, F. James, & O. Gray, The Law
of Torts §10.1, p. 699 (1st ed. 1956) (hereinafter 1 Harper and
James); see also, e.g., Troop v. Dew, 150 Ark. 560, 565, 234 S. W.
992, 994 (1921) (defendants jointly liable for uncoordinated acts
where they were “working to a common purpose”).
Child pornography
possessors are jointly liable under this standard, for they act in
concert as part of a global network of possessors, distributors,
and producers who pursue the common purpose of trafficking in
images of child sexual abuse. As Congress itself recognized,
“possessors of such material” are an integral part of the “market
for the sexual exploitative use of children.” §2251 Finding (12).
Moreover, although possessors like Paroline may not be familiar
with every last participant in the market for child sexual abuse
images, there is little doubt that they act with knowledge of the
inevitable harms caused by their combined conduct. Paroline himself
admitted to possessing between 150 and 300 images of minors engaged
in sexually explicit conduct, which he downloaded from other
offenders on the Internet. See 672 F. Supp. 2d 781, 783; App.
146. By communally browsing and downloading Internet child
pornography, offenders like Paroline “fuel the process” that allows
the industry to flourish. O’Connell, Paedophiles Networking on the
Internet, in Child Abuse on the Internet: Ending the Silence 77 (C.
Arnaldo ed. 2001). Indeed, one expert describes Internet child
pornography networks as “an example of a complex criminal
conspiracy,” ibid.—the quintessential concerted action to which
joint and several liability attaches.
Lastly, §2259’s full
restitution requirement conforms to what Congress would have
understood to be the uniform rule governing joint and several
liability for intentional torts. Under that rule, “[e]ach person
who commits a tort that requires intent is jointly and severally
liable for any indivisible injury legally caused by the tortious
conduct.” Restatement (Third) of Torts: Apportionment of Liability
§12, p. 110 (2007). There is little doubt that the possession of
images of a child being sexually abused would amount to an
intentional invasion of privacy tort—and an extreme one at that.
See Restatement (Second) of Torts §652B, p. 378 (1976) (“One who
intentionally intrudes, physically or otherwise, upon [another’s]
private affairs or concerns, is subject to liability
. . . if the intrusion would be highly offensive to a
reasonable person”).[
4]
Section 2259’s
imposition of joint and several liability makes particular sense
when viewed in light of this intentional tort rule. For at the end
of the day, the question of how to allocate losses among defendants
is really a choice between placing the risk of loss on the
defendants (since one who is caught first may be required to pay
more than his fair share) or the victim (since an apportionment
regime would risk preventing her from obtaining full recovery).
Whatever the merits of placing the risk of loss on a victim in the
context of a negligence-based offense, Congress evidently struck
the balance quite differently in this context, placing the risk on
the morally culpable possessors of child pornography and not their
innocent child victims.
C
Notwithstanding
§2259’s text and the longstanding tort law traditions that support
it, the majority adopts an apportionment approach based on its
concern that joint and several liability might lead to unfairness
as applied to individual defendants. See ante, at 15–22. The
majority finds this approach necessary because §2259 does not
provide individual defendants with the ability to seek contribution
from other offenders. Ante, at 17–18. I agree that the statute does
not create a cause of action for contribution, but unlike the
majority I do not think the absence of contribution suggests that
Congress intended the phrase “full amount of the victim’s losses”
to mean something less than that. For instead of expending judicial
resources on disputes between intentional tortfeasors, Congress
crafted a different mechanism for preventing inequitable treatment
of individual defendants—the use of periodic payment schedules.
Section 2259(b)(2)
directs that “[a]n order of restitution under this section shall be
issued and enforced in accordance with section 3664.” Section
3664(f )(1)(A) in turn reiterates §2259’s command that courts
“shall order restitution to each victim in the full amount of each
victim’s losses.” But §3664 goes on to distinguish between the
amount of restitution ordered and the schedule on which payments
are to be made. Thus, §3664(f )(2) states that a court “shall
. . . specify in the restitution order . . .
the schedule according to whic[h] the restitution is to be paid,”
and §3664(f )(3)(A) provides that “[a] restitution order may
direct the defendant to make a single, lump sum payment” or
“partial payments at specified intervals.” Critically, in choosing
between lump-sum and partial payments, courts “shall” consider “the
financial resources and other assets of the defendant,” along with
“any financial obligationsof the defendant, including obligations
to dependents.” §§3664(f )(2)(A), (C).
Applying these factors
to set an appropriate payment schedule in light of any individual
child pornography possessor’s financial circumstances would not be
difficult; indeed, there is already a robust body of case law
clarifying how payment schedules are to be set under
§3664(f ). For example, Courts of Appeals have uniformly found
it an abuse of discretion to require defendants to make immediate
lump-sum payments for the full amount of a restitution award when
they do not have the ability to do so. In such cases, Congress has
instead required courts to impose periodic payment schedules. See,
e.g., United States v. McGlothlin, 249 F. 3d 783, 784 (CA8
2001) (reversing lump-sum payment order where defendant “had no
ability to pay the restitution immediately,” and requiring District
Court to set a periodic payment schedule); United States v. Myers,
198 F. 3d 160, 168–169 (CA5 1999) (same). The existing body of
law also provides guidance as to proper payment schedules. Compare,
e.g., United States v. Calbat, 266 F. 3d 358, 366 (CA5 2001)
(annual payment of $41,000 an abuse of discretion where defendant
had a net worth of $6,400 and yearly income of $39,000), with
United States v. Harris, 60 F. Supp. 2d 169, 180 (SDNY 1999)
(setting payment schedule for the greater of $35 per month or 10%
of defendant’s gross income).
Section 3664’s
provision for partial periodic payments thus alleviates any
concerns of unfairness for the vast number of child pornography
defendants who have modest financial resources. A more difficult
challenge is presented, however, by the case of a wealthy defendant
who wouldbe able to satisfy a large restitution judgment in an
immediate lump-sum payment. But the statute is fully capable of
ensuring just results for these defendants, too. For in addition to
an offender’s financial circumstances, §3664 permits courts to
consider other factors “in the interest of justice” when deciding
whether to impose a payment schedule. See §3664(f )(2)
(district court shall specify payment schedule “pursuant to section
3572”); §3572(d)(1) (restitution order shall be payable in periodic
installments if “in the interest of justice”).
Accordingly, in the
context of a restitution order against a wealthy child pornography
possessor, it would likely be in the interest of justice for a
district court to set a payment schedule requiring the defendant to
pay restitution in amounts equal to the periodic losses that the
district court finds will actually be “incurred by the victim,”
§2259(b)(3), in the given timeframe. In this case, for example,
Amy’s expert estimates that she will suffer approximately $3.4
million in losses from medical costs and lost income over the next
60 years of her life, or approximately $56,000 per year. If that
estimate is deemed accurate, a court would enter a restitution
order against a wealthy defendant for the full $3.4 million amount
of Amy’s losses, and could make it payable on an annual schedule of
$56,000 per year. Doing so would serve the interest of justice
because the periodic payment schedule would allow the individual
wealthy defendant’s ultimate burden to be substantially offset by
payments made by other offenders,[
5] while the entry of the full restitution award would
provide certainty to Amy that she will be made whole for her
losses.
* * *
Although I ultimately
reach a different conclusion as to the proper interpretation of the
statutory scheme, I do appreciate the caution with which the Court
has announced its approach. For example, the Court expressly
rejects the possibility of district courts entering restitution
orders for “token or nominal amount[s].” Ante, at 21. That point is
important because, if taken out of context, aspects of the Court’s
opinion might be construed otherwise. For instance, the Court
states that in estimating a restitution amount, a district court
may consider “the broader number of offenders involved (most of
whom will, of course, never be caught or convicted).” Ante, at 23.
If that factor is given too much weight, it could lead to ex-actly
the type of trivial restitution awards the Court disclaims. Amy’s
counsel has noted, for instance, that in light of the large number
of persons who possess her images, a truly proportional approach to
restitution would lead to an award of just $47 against any
individual defendant. Brief for Respondent Amy 65. Congress
obviously did not intend that outcome, and the Court wisely refuses
to permit it.[
6]
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). In the meanwhile, it is my
hope that the Court’s approach will not unduly undermine the
ability of victims like Amy to recover for—and from—the
unfathomable harms they have sustained.