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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.