Too Much Restitution for Child Pornography Victims? The Role of Proportionality

By Sherry F. Colb

In my Verdict column for this week, I discuss the case of Paroline v. United States, in which the U.S. Supreme Court confronted the question of how to interpret a federal law providing for restitution for victims of child pornography.  In the column, I review the different approaches of the majority and the two (very much opposed) dissenting opinions, and I also suggest that the restitution focus at the Court (and in the federal statute as well) ignores a whole group of victims of child pornography who could virtually never meet an individualized causation requirement established as a prerequisite to receiving monetary compensation: those victims whose later exploitation was fueled and motivated by prior possessors' demand for child pornography.

In this post, I want to talk about a very different matter that goes mostly undiscussed in the Supreme Court's opinions in Paroline:  the tension between the majority's worries about disproportionate restitution and the Court's general indifference to proportionality in the context of sentencing convicts to extremely long sentences for their (sometimes trivial) offenses.

The Court's majority opinion  expressly states that forcing Paroline to pay for all of child-pornography-victim (and respondent) Amy’s pornography-induced injuries would be grossly out of proportion to Paroline's relative role in causing those injuries (given the number of other offenders who have possessed her images).  Indeed, the Court goes beyond making this observation as a matter of simple statutory interpretation and indicates that requiring such a "joint and several liability" payment might well violate the excessive fines clause of the Eighth Amendment.  In the Court's words:

“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.”

This statement is striking, given that this is the same Court that has seen fit to tolerate – against Eighth Amendment disproportionality challenges – the imposition of a life sentence for shoplifting, in Ewing v. California, and of a mandatory life sentence without the possibility of parole for the possession of 672 grams of cocaine, in Harmelin v. Michigan.  Justice Kennedy in particular, who wrote the majority opinion in Paroline, joined the majority in Ewing and joined a concurring opinion in Harmelin, in which Justice O'Connor said that life without parole was not grossly disproportionate punishment for the crime of cocaine possession.  

If it is unfair and disproportionate to make someone in possession of child pornography pay money for much more than his share of his victims’ injuries, is it any more fair and proportionate to lock someone up for the rest of his days in a prison cell, when it is impossible to trace his particular conduct to anyone's suffering serious injuries at all?

I will share here  two admittedly speculative potential accounts of this oddity,  The first guess is about ideology. To oversimplify the terrain, outside the death penalty context, this Court has, on the whole, been hostile to criminal defendants’ complaints about the severity of their punishments, while the Court has simultaneously been rather friendly to civil defendants' claims that they are denied Due Process by plaintiffs’ demands for large punitive damages awards for tortious behavior.

When a convict complains about having to go to prison for a long time, such a claim may accordingly be triggering a law-and-order “don’t complain about your punishment” attitude in many (including some of the Justices on the Supreme Court).  Yet at the same time, when a plaintiff (or here, a victim who seeks restitution and thus resembles a civil plaintiff in that respect) asks for a large amount of money to compensate for her injuries, some of the same people who feel little empathy for the criminal convict may nonetheless feel impatience and annoiyance at the civil tort plaintiff's (or here, the similarly situated victim seeking restitution's) argument that she wishes to receive a seemingly enormous amount of money from the defendant.  Though Justice Kennedy in Paroline distinguishes Paroline himself from a civil defendant in virtue of the litigation's connection to his criminal prosecution, his similarity to civil defendants may do a better job than Justice Kennedy's distinction in accounting for the mercy that his circumstances seem to engender.  

In a number of cases, the U.S. Supreme Court has said that punitive damage awards can be so high that they violate the defendant's right to Due Process.  Such cases include BMW of North America v. Gore, State Farm v. Campbell, and Philip Morris USA v. Williams.  This line of cases may help explain a reluctance on the part of the Supreme Court to award Amy, a victim of child pornography, an amount of restitution that would be extremely disproportionate to the relative contribution of the particular defendant here to her suffering.

A second potential source for the oddity (of toothless proportionality analysis in Eighth Amendment cruel and unusual punishment consideration of prison sentences coupled with more exacting Eighth Amendment excessive fines scrutiny of proportionality in restitution awards), I believe, is the regrettable fact that shockingly long prison sentences no longer shock people, including the Justices.  The U.S. is such a leader in incarceration that sending people away for life for relatively trivial matters no longer raises eyebrows.  They’re “just criminals,” after all.  On the other hand, there is a perception among Americans (and perhaps among some of the Justices as well) that plaintiffs (and plaintiff-like victims) are greedy people who seek unearned awards while the “rest of us” have to work for a living.  This uncharitable view of both convicted criminal defendants and injured plaintiffs creates the otherwise peculiar sentiment that comfortably tolerates draconian prison sentences but takes offense at the possibility of over-compensating a plaintiff-like individual such as Amy.

Whatever its source, I would suggest that it may be time for the Supreme Court Justices (and perhaps for Americans more generally) to apply some critical scrutiny to their willingness to allow extremely long prison sentences to fall under the radar, while money awards -- which take less away from defendants than incarceration does and which, unlike incarceration, may directly help in restoring the wellbeing of injured victims -- trigger outrage and cries of "unconstitutional."  At the very least, there is a tension here, if one is truly concerned about proportionality, that deserves our attention.