The New York Times
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
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
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
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