Child Pornography, and an Issue of Restitution

February 3, 2010
Child Pornography, and an Issue of Restitution
By JOHN SCHWARTZ

When Amy was a little girl, her uncle made her famous in the worst way: as a star in the netherworld of child pornography. Photographs and videos known as “the Misty series” depicting her abuse have circulated on the Internet for more than 10 years, and often turn up in the collections of those arrested for possession of illegal images.

Now, with the help of an inventive lawyer, the young woman known as Amy — her real name has been withheld in court to prevent harassment — is fighting back.

She is demanding that everyone convicted of possessing even a single Misty image pay her damages until her total claim of $3.4 million has been met.

Some experts argue that forcing payment from people who do not produce such images but only possess them goes too far.

In February, when the first judge arranged payment to Amy in a case in Connecticut, Jonathan Turley, a law professor at George Washington University, called the decision “highly questionable” on his blog and said it “stretches personal accountability to the breaking point.”

The judge in the case acknowledged, “We’re dealing with a frontier here.”

The issue is part of a larger debate over fairness in sentencing sex offenders. For years, lawmakers (and some voters) have reasoned that virtually no punishment was too severe for such criminals; even statutory limits on sentencing were often exceeded.

Now some courts have begun to push back, saying these heavy sentences are improper, and a new emphasis has arisen on making sex offenders pay monetary damages for their crimes. If such damages become widespread, experts say, it may make it easier to reach a consensus on measured sentencing.

Douglas A. Berman, a law professor at Ohio State University and an expert on sentencing, said the rise in monetary damages might curb “a troublesome modern tendency of many legislators and judges to respond to all perceived crime problems with longer and longer terms of imprisonment.”

Those longer terms and conditions are already under fire.

On Thursday, the California Supreme Court ruled 5 to 2 that a state ballot initiative allowing the indefinite extension of sentences for sexually violent predators might violate constitutional guarantees of equal protection; the court ordered a new hearing to explore the issues.

On Monday, the court also asked for more study on a law that prohibits sexual predators from living within 2,000 feet of a school or park after their release from prison. The law, called Jessica’s law, was approved by voters in 2006.

Corey Rayburn Yung, an expert in sex crimes at the John Marshall Law School in Chicago, said that while “it’s hard to be too sympathetic” toward those who possess images of child pornography, “there is such a thing as going too far.” The harm to child pornography victims from those who possess the images, he said, is less direct than that caused by those who abused the children.

The most novel approach is being taken by Amy’s lawyer, James R. Marsh, whose practice focuses on child exploitation cases. Mr. Marsh’s arguments are the fruits of a national movement granting greater rights to crime victims and shifting the financial burden of crimes to criminals, said Paul G. Cassell, a former federal judge and professor of law at the University of Utah, who advised Mr. Marsh and wrote a brief supporting his position in a Texas case.

Amy’s uncle is now in prison, but she is regularly reminded of his abuse whenever the government notifies her that her photos have turned up in yet another prosecution. More than 800 of the notices, mandated by the Crime Victims Rights Act and sent out by the federal victim notification system, have arrived at Amy’s home since 2005.

Those notices disturb Amy when they arrive, but Mr. Marsh, looking at the same pieces of paper, saw an opportunity: he could intervene in the federal prosecutions and demand restitution. He had Amy write a victim-impact statement and hired a psychologist to evaluate her. Economists developed a tally of damages that included counseling, diminished wages and lawyer fees. The total came to $3,367,854.

Mr. Marsh contends that every defendant should be ordered to pay the full amount, under the doctrine of joint and several liability. According to that doctrine, the recipient would stop collecting money once the full damages are paid, and those held responsible for the amount could then sue others who are found culpable for contributions. But the doctrine, which developed in civil law, does not apply as easily in criminal law, especially with an indeterminate population of defendants.

Amy’s first restitution award came in February in the Connecticut case; it involved Alan Hesketh, a British executive at the pharmaceutical giant Pfizer, who paid $130,000. Since then, Mr. Marsh has automated the process and e-mailed Amy’s filings to United States Attorneys in 350 cases. “I’m able to leverage the power of the Internet to get restitution for a victim of the Internet,” he said.

Mr. Marsh has, in effect, expanded his small New York law firm by hundreds of federal prosecutors. Some of them decline to file for restitution — a judge in Minnesota ordered prosecutors to explain why — but many have. Judges’ reactions have varied, with some declining to order restitution, including one in Texas and another in Maine, usually saying that the link between possession and the harm done is too tenuous to reach the level of “proximate harm” generally required under the law for restitution.

Yet in two Florida cases, judges have ordered defendants to pay nearly the full amount requested and even more. Many judges who have considered the issues award a few thousand dollars. Even though many of the defendants have no way to pay even the smallest fine, Mr. Marsh’s efforts in the first year have earned $170,000 for Amy.

“This is a lawyer’s dream,” he said.

The federal government has struggled with how to best approach the wave of new cases, and those to come. Another victim known as Vicky has begun making similar claims in court, and still more victims could come forward. Professor Berman suggested Congress would have to sort out the issue, perhaps with a victim compensation fund.

A memorandum last summer from a lawyer in the Administrative Office of the Courts, the federal agency that runs the judicial branch, stated that the law did not support restitution for “mere possession.” But Lanny A. Breuer, the assistant attorney general for the criminal division at the Justice Department, issued a letter in October stating “we do not agree that restitution is not available to victims of the possession of child pornography as a matter of law.”

Mr. Breuer urged judges not to let “practical and administrative challenges” to the restitution issue “drive a policy position that directly or indirectly suggests that possession of child pornography is a victimless crime.”