Superfund offers model for child porn restitution -- Obama admin

As Supreme Court justices struggled this week with how much criminals convicted of possessing child pornography must pay in restitution to victims, an Obama administration lawyer drew a parallel to how the costs of Superfund cleanups are divided among responsible parties.

The case centers on whether a man convicted in 2009 of possessing nearly 300 child pornography images is responsible for all of the $3.4 million in restitution owed to a woman featured in two of the images.

Amy, as she is known in court documents, was raped 20 years ago when she was 8 and 9 years old by her uncle. Images of the abuse have spread across the Internet and have been viewed by thousands.

Relying on a 1994 law, Amy's lawyers say she should be able to collect the full amount from convicted offenders to compensate for psychiatric counseling, lost wages and other damages. The New Orleans-based 5th U.S. Circuit Court of Appeals agreed and put the convict, Doyle Paroline of Brownsboro, Texas, on the hook for as much of the $3.4 million as he can pay. So far, Amy has collected about $1.75 million from other defendants.

Paroline says he is responsible for none of it, claiming there is no direct connection between his actions and Amy's losses.


Justices were frustrated during arguments Wednesday, noting that Amy was clearly a victim owed restitution but questioning whether it was fair for Paroline to be responsible for all of it.

"He's guilty of the crime, but to sock him with all of her psychiatric costs and everything else because he had two pictures of her," Justice Antonin Scalia said. "Congress couldn't have intended that."

Justice Elena Kagan saw the issue from the opposite side.

"If only one person viewed the pornography, that person would be responsible for the entire damages," she said. "But if a thousand people viewed the pornography and the harm was that much greater, nobody would be on the hook for restitution. How could that possibly make sense?"

The Department of Justice proposed a middle ground. Deputy Solicitor General Michael Dreeben argued that the court should divide the $3.4 million among defendants convicted of possessing the images.

Such a framework, he argued, is similar to how the costs of hazardous waste cleanups may be broken up among responsible parties who either contributed to the contamination or owned the site at different times.

Dreeben highlighted the Supreme Court's 2009 ruling in Burlington Northern & Santa Fe Railway Co. v. United States. That case involved the Superfund cleanup of a site in Arvin, Calif., that was contaminated with harmful pesticides.

A federal district judge ruled -- and the Supreme Court upheld -- that the railroads were liable for 9 percent of the $8 million the government spent remediating the site, even though it only owned the land and didn't handle the chemicals.

Dreeben said the principle in Burlington Northern applies to breaking up the restitution in the child pornography case.

"This court applied that section in the Burlington Northern case ... to hold that apportionment of the damages was required in a pollution case," Dreeben said.

But Scalia questioned whether the comparison fits, though he appeared to agree with Dreeben's larger point. The conservative justice said that in Superfund cases, the damage is known and directly attributable to known parties.

For Amy, he said, the psychological damage increases exponentially as an increasing number of unknown parties view the images.

"All the pollution is there," Scalia said. "The stream is polluted. That's quite different from this case where ... this young woman has been subjected to psychological harm because of thousands of people viewing her rape."

Still, Scalia said it should be up to a district court to figure out how much of that damage one defendant, like Paroline, is responsible for.

"So why shouldn't the question in this case be simply he caused a certain incremental amount of psychological harm to this woman and he should pay for it?" Scalia asked. "It's up to the district court to decide what the proper amount of that payment ought to be."

Dreeben said that was the same conclusion the Obama administration has reached.

But he added that in the Burlington Northern case, a judge tried to include a "fudge factor" of 50 percent for "estimations that reflected possible calculation errors" in assigning damages.

Scalia didn't bite on that argument.

"We have a fudge factor here?" he asked, adding that the court shouldn't be "liable for a fudge factor."

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