On Thursday, June 27, the U.S. Supreme Court granted certiorari in a case raising fundamental and very interesting issues of private law under a public (criminal) law statutory scheme. 18 U.S.C. 2259 mandates full restitution to victims of child pornography by those convicted of creation, distribution or possession of such pornography for harms caused to the victims such pornography. Given the specific wording of the relevant statute, federal courts in the U.S. have been split on a number of issues, including whether ‘proximate causation’ is required for all the harms suffered or only those not specifically listed, the meaning of causation and proximate causation, and the proper allocation of liability among multiple (potentially thousands plus) convicted defendants who distributed and/or possessed pictures of the same victim. A related issue that has been debated among the various U.S. Courts of Appeal is whether the restitutionary award constitutes punishment subject to the Excessive Fines Clause of the Eighth Amendment of the U.S. Constitution.
The Supreme Court’s grant of certiorari states the issue to be reviewed narrowly, but I expect that the arguments regarding the resolution of that issue will be a bit broader, including all but the Excessive Fines Clause issue. The grant of certiorari states the question for consideration as follows:
PAROLINE, DOYLE R. V. UNITED STATES, ET AL.
The petition for a writ of certiorari is granted limited to the following question: What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. §2259.
[Read more about Paroline v. U.S. at SCOTUSblog here — Ed.]