One year ago today, the United States Senate, in one of its first acts of the 114th Congress, passed the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015, on a vote of 98–0.
As Senator Grassley explained, "the choice is between the convicted child pornography offender being held responsible for the full loss and the innocent victim not receiving full compensation."
Unfortunately, the Senate's bold vision for child pornography victims—led by Senators Hatch and Schumer—has all but died in the House Judiciary Committee which has failed to act for almost a year.
During that time federal courts have grown increasingly frustrated, while child victims have been denied meaningful compensation for the lifelong injuries they suffer. Child pornography criminals, who have repeatedly expressed fear and dismay about paying restitution, are newly emboldened in attacking every aspect of the current restitution law.
The painful outcome for children who have been repeatedly raped and sexually exploited is unpaid bills for therapy and few resources to help them live with dignity.
Without criminal restitution, many victims must rely on taxpayer-funded public assistance while wealthy defendants serve a few years in a minimum security taxpayer-funded prison and return to a life of relative comfort and privilege.
Sadly, young victims of some of the most heinous crimes are ignored and forgotten while the House Judiciary Committee sits idly by, seemingly immune to the despair and injustice unfolding daily in the federal courts.
Chief Justice Robert's warning in the disastrous Supreme Court decision in Paroline—which began this current round of suffering—has been repeated over and over again by the lower courts:
Unfortunately, the restitution statute that Congress wrote for child pornography offenses makes it impossible to award that relief to Amy in this case.…Congress set up a restitution system sure to fail in cases like this one.…[I]t would be a mistake…to lead readers to conclude that…Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.
Paroline v. United States (2014).
Despite the almost unanimous consensus in the Senate, and 74 bi-partisan co-sponsors in the House led by Amy's Congressman Matt Cartwright, Congress has long had a chance to "fix it" and failed.
Judges across the country are equally frustrated:
"As an initial matter, the Court notes that of the handful of district courts that have grappled with the matter of restitution in child pornography cases post-Paroline, several have expressed their concern with the lack of precise guidance from Congress and the Supreme Court in deciding restitution awards in these circumstances…. Having now grappled with the same issues, this Court finds that such concerns are well-founded." United States v. Miner (Northern District of New York)
"It appears to this Court that some of the factors the Supreme Court suggests be considered are at best difficult, and at worst impossible to calculate in this case as in most similar cases. The Court is not entirely comfortable making such calculations in this or similar situations but believes it compelled to do so by the U.S. Supreme Court opinion in Paroline." United States v. Crisostomi (Rhode Island)
"Paroline suggests that district courts, 'as a starting point, determine the amount of the victim's losses caused by the continuing traffic in the victim's images'…[T]he Court believes…it is simply not possible for the Government to show, 'as a starting point,' the amount of losses caused by the 'continuing trafficking' in Cindy and Vicky's images. This theoretical starting point will simply not exist in many cases." United States v. Reynolds (Eastern District of Michigan)
"Some courts have difficulty determining a starting point for the losses caused by the "continuing trafficking" of images.…Paroline is of limited use because no logical starting point can be determined." United States v. Austin (Nevada)
"While the Paroline factors offer some guidance, the practical application of those factors is extraordinarily difficult." United States v. Ayer (Nevada)
"It is extremely difficult to quantify the loss sustained by these minor victims." United States v. Miller (Eastern District of Michigan)
"These tools provided by Paroline, while seemingly useful in a theoretical sense, have proven to have very difficult, and very limited, practical application." United States v. Campbell-Zorn (Montana)
"Though commentators may quarrel over the astuteness of the Supreme Court's professed confidence in the skill of the district courts to divine a true course through this thicket…the task seems akin to piloting a small craft to safe harbor in a Nor'easter.…. The task of charting passage through these unknown waters is overwhelming." United States v. DiLeo (Eastern District of New York)
"While Congress could and should have made determination of the amount to which a victim is entitled a simple matter, it regrettably did not." United States v. Galan (Ninth Circuit Court of Appeals)
"Congress is currently considering a enacting a law that would provide for a graduated system of restitution for victims of child pornography beginning with a minimum amount of $25,000 for possession. If enacted, this law would eliminate much of the present variability in victim restitution awards." United States v. Schultz (Massachusetts)
"The current statutory process for restitution does not fully compensate losses suffered by child pornography victims and may, in fact, dissuade victims from seeking restitution; the end result is hardly worth yet another reminder of their continued exploitation. The court cannot remedy this problem. Rather, it is up to Congress to develop a system to truly compensate child pornography victims for the losses they continue to suffer." United States v. Galan (Oregon)
"We do agree that this area, in which Congress has adopted a scheme that at least approaches the limits of fair adjudication, despite attempts by the courts to avoid caprice, cries out for a congressional solution." United States v. Galan (Ninth Circuit Court of Appeals)
Almost two years have passed since Justice Sotomayor, writing in dissent in Paroline, presciently observed that "[i]n the end, of course, it is Congress that will have the final say." Unfortunately Congress has said nothing.
While countries like the United Kingdom press ahead with the reforms envisioned by the Amy and Vicky Act, the United States Congress remains stuck in neutral.
Political gamesmanship needs to come to an end. It's time for the House Judiciary Committee to present the Amy and Vicky Act to the full House for a vote on the merits.
The House needs to heed the endorsements of victims' rights and law enforcement groups like:
- National Center for Victims of Crime
- National Crime Victim Law Institute
- National Organization for Victim Assistance
- National Task force to End Sexual and Domestic Violence Against Women
- Enough is Enough
- Building Empowerment by Stopping Trafficking
- Rape Abuse and Incest National Network
- National Center for Missing and Exploited Children
- Forty Four State Attorney Generals
and pass S.295 / H.R.595, the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015.
As Senator Hatch explained just one year ago, "The current statute maximizes a victim's burden and minimizes her restitution. This bill minimizes a victim's burden and maximizes her restitution."
You can help by contacting your member of Congress today!
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