New Minimum of $3000.00 Per Victim Under the Federal Child Pornography Restitution Statute

Defendants who are convicted of possession, receipt, or distribution of child pornography are often surprised to learn that as part of their sentence, they will be ordered to pay restitution to each victim identified in the images. This is a surprise because the defendants have literally never met or communicated with the minors in the images. But 18 U.S.C. § 2259 requires the Court to order a defendant convicted of a crime involving trafficking in child pornography to pay restitution to the victims for “the full amount of the victim’s losses.” The court must order such restitution regardless of the defendant’s ability to pay.

From April 24, 1996 through December 6, 2018, 18 U.S.C. § 2259 did not have a mandatory minimum amount for restitution. Under the old version of the statute, the term “full amount of the victim’s losses” included any costs incurred by the victim for:

(A) medical services relating to physical, psychiatric, or psychological care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child care expenses;

(D) lost income;

(E) attorneys’ fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate result of the offense.

Under the old version of 18 U.S.C. § 2259, the court considered the losses listed in subparts (A) through (E) above. Those are easy to calculate because they are based on actual monetary losses incurred, such as medical bills.

The court also considered subpart (F), which is a catch-all provision. This provision is most commonly used when a defendant possessed a victim’s images and that victim has outstanding losses caused by the continuing traffic in those images (such as fear that classmates or co-workers will see the images) but it is impossible to trace a particular amount of those losses to the individual defendant using a more traditional causal inquiry. To calculate such losses, the court considered “the Paroline factors” derived from the Supreme Court’s opinion in Paroline v. U.S., 572 U.S. 434 (2014). Please insert link to the case.

The Supreme Court suggested that district courts first determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images, and then delineate the defendant’s individual contribution to and responsibility for the victim’s losses considering the following non-exhaustive factors:

-the number of past criminal defendants found to have contributed to the victim’s losses;

-reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s losses;

-estimates of the broader number of offenders involved (most of whom will never be convicted);

-whether the defendant reproduced or distributed images of the victim;

-whether the defendant had any connection to the initial production of the images;

-how many images of the victim the defendant possessed.

Paroline v. U.S., 572 U.S. 434, 460 (2014).

Applying the Paroline factors under the old version of 18 U.S.C. § 2259, many defendants have been ordered to pay less than $3000.00 to a victim. See e.g., United States v. Knapp, 695 F. App’x 985, 988 (8th Cir. 2017) (per curiam) (affirming district court’s order of equal amounts of restitution of $2,500 to two victims with different total losses because the victim with the greater claimed losses had received 315 restitution orders, while the victim with lower claimed losses had received only three restitution orders); U.S. v. Mentzer, 760 Fed. Appx. 90, 95 (3d Cir. 2019) (unpublished) (“The Court’s award of $1,000 reflects its view about Mentzer’s more limited causal role in the continued dissemination and use of the child pornography. As a result, we cannot conclude that the District Court abused its discretion in setting an award of $1,000.”); U.S. v. Erickson, 388 F. Supp. 3d 1086 (D. Minn. 2019) (ordering $1,000.00 for one of the victims, $1,500.00 for one of the victims, $2,000 for two of the victims, and $3,000.00 to two of the victims).

But in December 2018, 18 U.S.C. § 2259 was amended to require a minimum restitution amount of $3,000.00 to each victim.

The statute now reads:

(A) Determining the full amount of a victim’s losses.–The court shall determine the full amount of the victim’s losses that were incurred or are reasonably projected to be incurred by the victim as a result of the trafficking in child pornography depicting the victim.

(B) Determining a restitution amount.–After completing the determination required under subparagraph (A), the court shall order restitution in an amount that reflects the defendant’s relative role in the causal process that underlies the victim’s losses, but which is no less than $3,000.

18 U.S.C. § 2259 (b)(2)(A)-(B)

The list of damages constituting the “victim’s losses” under the old statute are for all intents and purposes the same as the list of damages under the new statute (even though there is a slight change to the wording). And the Paroline factors are still relevant because in many cases, the court will be considering awards greater than $3,000.00.

But now, even if a district court highly experienced in using its discretion to evaluate the Paroline factors (like the Judges in the above-listed cases) believes that less than $3,000.00 should be ordered for a victim, the court’s hands will be tied and the court will be required to order at least $3,000.00. So, in cases where a defendant possessed only one image of a victim, the defendant will be required to pay that victim at least $3,000.00.

What does this mean for defense attorneys and defendants?

Many criminal defense attorneys have clients who are charged a year after the client committed the child pornography offense. Since this blog post is being published in April 2020, we have been operating under the old version of 18 U.S.C. § 2259 during most of our sentencings. Now that we are starting to represent people who committed their crimes AFTER December 6, 2018 we need to remember to tell those clients that they will be required to pay a MINIMUM of $3000.00 to each identified victim who seeks restitution. These restitution awards are going to be much greater than we have seen before this amendment to the statute and we need to prepare our clients.

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