Legal Commentary

D.C. Circuit Argument on Victim?s Right to Restitution in Child Pornography Cases

By Paul Cassell

On Monday, I?ll be in the D.C. Circuit arguing an interesting case concerning a crime victim?s right to restitution in child pornography cases. 

I represent ?Amy?, who is the victim depicted in the ?Misty? child pornography series ? apparently the most widely disseminated series on the web.  She has filed restitution requests of approximately $3,000,000 in cases throughout the country, mostly seeking to recover lost income and psychiatric counseling losses.  District courts have reached differing conclusions about whether Amy is entitled to restitution for that amount and, if so, whether individual defendants are liable for the entire amount or some smaller share.

Several weeks ago, Judge Kessler awarded Amy only $5,000 in restitution.  Under the Crime Victims Rights Act (CVRA), New York attorney James Marsh and I filed a CVRA petition in the D.C. Circuit, asking for full recovery for Amy.  The petition is here, along with responses from the defendant and the Government.

Amy?s petition implicates a procedural issue on which the circuits are split: whether crime victims filing a CVRA petition are entitled to ordinary appellate review or merely deferential mandamus review for clear and indisputable errors.  I?ve written a  law review article taking the position that victims should receive the same sorts of appellate protections that other litigants receive, so I?m looking forward to making my case to the D.C. Circuit on that one.   The issue is how to interpret 18 U.S.C.  3771, which requires a court of appeals to ?take up and decide? a mandamus petition filed by victims.   In my view, this language makes clear that Congress intended to replace discretionary mandamus standards with ordinary appellate standards ? a view taken by the 2d, 3rd, 9th, and 11th circuits. 

On the substantive restitution issue, the question that has divided district courts is how to interpret 18 U.S.C. 2259, which promises victims of child pornography offenses restitution for the ?full amount of the victims losses.?  To my mind, this and other provisions in 2259 guantee Amy a right to restitution award of $3 million from each and every defendant who views her images ? as an innocent victim of crime, Amy shouldn?t be required to track down all the multiple offenders around the country to obtain full restitution. 

The CVRA promises crime victims a decision in 72 hours.  Amy has tried to waive that right, but the D.C. Circuit is nonethelss moving at breakneck speed.  Amy?s petition was filed on Wednesday, January 26, and this Monday, January 31, the D.C. Circuit ordered oral argument next Monday, February 6.

Full post as published by The Volokh Conspiracy on February 03, 2011 (boomark / email).