Federal Criminal Defense Attorney Hope Lefeber Discusses U.S. Supreme Court Decision Regarding Restitution in Criminal Cases
The United States Supreme Court has decided the issue of the calculation of restitution for violation of the child pornography statutes under 18 U.S.C. §2259. In Paroline v. U.S., 2014 WL 612426 (April 23, 2014), the Supreme Court held that 18 U.S.C. §2259 which requires district courts to award restitution for certain federal criminal offenses including child pornography possession, requires a causal relationship between the defendant's relative role and the victim's losses.
In Paroline, the defendant pled guilty to possessing 150 to 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman. The question that the Supreme Court grappled with 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. In Paroline, it was impossible to trace a particular amount of the victim's losses to the individual defendant, although the victim had outstanding losses caused by the continuing traffic in those images that had been possessed by the defendant.
The Supreme Court held that the restitution should 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. It may apportion liability among the defendants to reflect the level of contribution to the victim's loss. This 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 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. Basically, the amount of restitution should be the amount of the victim's general losses that were the "proximate result of the offense."
Ms.Lefeber explains that trial judges routinely exercise wide discretion in federal criminal cases in sentencing when it comes to forfeiture and restitution. Ms. Lefeber cautions that, while the government bears the burden of proving the amount of restitution and forfeiture, often criminal defendants get saddled with enormous restitution and forfeiture judgments without careful consideration of the mitigating facts. Therefore, it is essential that all mitigating factors, such as the causal role between the defendant's actions and the victim's losses be scrutinized in defending a federal criminal case.
