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Justices void $3.4 million child pornography award

WASHINGTON — The Supreme Court on Wednesday set aside a $3.4 million award to a victim of child pornography who had sought restitution from a man convicted of viewing images of her. That figure was too much, Justice Anthony M. Kennedy wrote for a five-justice majority, returning the case to the lower courts to apply a new and vague legal standard to find a lower amount that was neither nominal nor too severe.

The victim in the case said the majority’s approach was arbitrary and confusing.

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The two dissents to the majority opinion would have taken more categorical approaches.

Chief Justice John G. Roberts Jr., joined by Justices Antonin Scalia and Clarence Thomas, said that restitution was a worthy goal, but that the federal law at issue did not allow awards when many people had viewed the images.

Justice Sonia Sotomayor took the opposite view in her dissent, saying that each viewer could be held liable for the full amount of the victims’ losses.

The case arose from the prosecution of Doyle R. Paroline, who was convicted in 2009 of possessing 280 images of child pornography. Two of them were of a woman known in court papers as Amy.

Images of Amy being sexually assaulted by her uncle as a child have been widely circulated and have figured in thousands of criminal cases. Amy has often sought restitution for her losses under a 1994 federal law. Every viewing of child pornography, Congress found, “represents a renewed violation of the privacy of the victims and repetition of their abuse.”

Amy’s lawyers say her losses — for lost income, therapy, and legal fees — amount to $3.4 million. She has been granted restitution in about 180 cases and has recovered about 40 percent of what she seeks.

The 1994 law allows victims of child pornography to seek the “full amount” of their losses from people convicted of producing, distributing, or possessing it. Amy asked the US District Court in Tyler, Texas, to order Paroline to pay her the full $3.4 million.

Paroline said he owed Amy nothing, arguing that her problems did not stem from learning that he had looked at images of her. Amy’s uncle, who was sentenced to 12 years in prison for his crimes, bore the brunt of the blame, Paroline said, but was ordered to pay Amy just $6,325.

Paroline was sentenced to two years in prison, but the trial judge said Amy was not entitled to restitution, saying the link between Amy’s losses and what Paroline did was too remote.

The US Court of Appeals for the Fifth Circuit in New Orleans disagreed and awarded Amy the $3.4 million she sought. Paroline should pay what he could and seek contributions from his fellow wrongdoers if he thought it was too much, the court said, relying on the legal doctrine of “joint and several” liability.

The Supreme Court adopted neither of the lower courts’ approaches. Acknowledging that he was employing “a kind of legal fiction,” Kennedy said the only sensible method of apportionment was for courts to require “reasonable and circumscribed” restitution “in an amount that comports with the defendant’s relative role.”

“This cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment,” Kennedy wrote.

Justices Ruth Bader Ginsburg, Stephen G. Breyer, Samuel A. Alito Jr., and Elena Kagan joined the majority opinion.

Roberts said the majority’s approach was arbitrary and impossible to square with the words of the 1994 law.

“The statute as written allows no recovery,” he said. “We ought to say so, and give Congress a chance to fix it.”

Sotomayor, in turn, was critical of the chief justice’s dissent, saying it “would result in no restitution in cases like this for the perverse reason that a child has been victimized by too many.”

Of the majority’s approach, she said that “the injuries caused by child pornography possessors are impossible to apportion in any practical sense.” She said she would award the full amount of Amy’s losses but let offenders pay it off over time until she was made whole.

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