U.S. Supreme Court
Sentencing – Restitution – child pornography
18 U.S.C. 2259 limits restitution to losses proximately caused by the defendant, and a defendant who possessed a child pornography victim’s images is not liable for the victim’s entire losses from the trade in her images.
A showing of but-for causation is not the proper standard here, for it is not possible to prove that the victim’s losses would be less but for one possessor’s individual role in the large, loosely connected network through which her images circulate. The victim and the Government urge the Court to read §2259 to require a less restrictive causation standard in child-pornography cases like this. They endorse the theory of “aggregate causation,” one formulation of which finds factual causation satisfied where a wrongdoer’s conduct, though alone “insufficient . . . to cause the plaintiff ’s harm,” is, “when combined with conduct by other persons,” “more than sufficient to cause the harm.” 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm §27, Comment f. Tort law teaches that such alternative causal tests, though a kind of legal fiction, may be necessary to vindicate the law’s purposes, for it would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm, and nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many would have no redress, while those hurt by the acts of one person alone would. These are sound principles. Taken too far, however, such alternative causal standards would treat each possessor as the cause in fact of all the trauma and attendant losses incurred as a result of all the ongoing traffic in the victim’s images. Aggregate causation logic should not be adopted in an incautious manner in the context of criminal restitution, which differs from tort law in numerous respects. Paroline’s contribution to the causal process underlying the victim’s losses was very minor, both compared to the combined acts of all other relevant offenders and compared to the contributions of other individual offenders, particularly distributors and the initial producer of the child pornography. Congress gave no indication that it intended the statute to be applied in an expansive manner so starkly contrary to the principle that restitution should reflect the consequences of the defendant’s own conduct. The victim claims that holding each possessor liable for her entire losses would be fair and practical in part because offenders can seek contribution from one another, but there is no general federal right to contribution and no specific statutory authorization for contribution here. Her severe approach could also raise questions under the Excessive Fines Clause of the Eighth Amendment.
701 F. 3d 749, vacated and remanded.
12-8561 Paroline v. U.S.
Kennedy, J.; Roberts, C.J., dissenting; Sotomayor, J., dissenting.