Ninth Circuit Rejects Call for Joint and Several Liability for Child Porn Possessors – In re Amy & Vicky
Last week, I wrote in this space about a child pornography possession case in which a dispute arose over financial compensation to the victims of the child porn. As I’ve noted here before, there are at least three people who routinely seek financial compensation from people caught in possession of “their” child pornography. They say knowing that people possess pictures of their childhood sexual abuse re-injures them, causing substantial psychological damage that makes it difficult for them to live normal lives. However, courts have been divided on whether and how they should be awarded restitution, because the law was written with in-person victimization in mind. In In re Amy & Vicky, the Ninth U.S. Circuit Court of Appeals revisited a previous appeal by those two young women, pseudonyms for two victims, rejecting a call for joint and several liability just after the Sixth Circuit did the same.
The case had been to the Ninth Circuit before, on an appeal filed only by Amy and Vicky. In the underlying case, Joseph Cantrelle was caught in possession of child pornography that included images of both Amy and Vicky. The Eastern California district court denied both young women’s petitions for restitution, adopting a presentencing report that did not recommend restitution because there was not enough evidence supporting it. However, the first Ninth Circuit panel reversed, finding adequate evidence supporting restitution provided by the petitioners themselves. That panel nonetheless rejected the petitioners’ argument that U.S. v. Kennedy, the controlling precedent on these restitution issues from the Ninth Circuit, should be overruled. That case requires petitioners to show proximate causation between the defendant’s crimes and the victims’ losses. The issue has split the circuit courts; the Fifth Circuit recently declined to require proximate causation.
The new Ninth Circuit panel re-heard the case after the district court, on remand, calculated the restitution order using the formula created by the Eighth Circuit in United States v. Gamble. This calls for excluding the damages sustained by the petitioners before the defendant had their materials, then dividing the proportion of remaining damages by the number of standing restitution orders. The victims’ new appeal renews their argument that Kennedy should be overturned, and also argues that the district court should have imposed joint and several liability because the Crime Victims Rights Act says restitution should be paid for “the full amount of the victim’s losses.” The Ninth said the district court committed no errors; how to calculate restitution “is an open question in this Circuit,” it said. Joint and several liability is not authorized in the relevant laws; and of the circuit courts to consider it, only the Fifth has imposed it, while others have expressly declined to impose it. The panel added that there is still no reason to overturn Kennedy and upheld the award.
The Ninth Circuit’s opinion notes that the arguments against Kennedy were made primarily to preserve the issue for a larger Ninth Circuit panel or the U.S. Supreme Court. While I do not believe Kennedy should be overturned, I would welcome Supreme Court review of child pornography restitution rules because some clarity would be welcome. Joint and several liability is better for victims because it makes each possession defendant liable for the full amount, and requires the defendants, rather than the victims, to sort out who owes how much money to whom. But it’s also not realistic to ask people who are already in prison for child pornography possession to sort this out, and of course prisoners are unlikely to have enough money to pay the full amount. For this reason, I would welcome a court ruling or federal legislation intended to address this issue.
If you’re charged with a serious cyber crime like child pornography possession, don’t wait to call Seltzer Law, P.A., for a free, confidential consultation. You can send us a message online or call 1-888-THE-DEFENSE (1-888-843-3333) 24 hours a day and seven days a week.
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