CRIMINAL JURISDICTION

Federal Judges Split on Issue of Restitution in Possession of Child Pornography Cases

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Her name is “Amy.” She is twenty years of age. When she was a child, 8 or 9 (according to media reports), Amy was sexually abused by her uncle. The uncle took photos of the abuse and posted the images on the Internet. Amy’s images became some of “the most widely circulated child pornography images online,” according to Associated Press writer Amy Forliti in a recent report.

Then “Amy” met New York attorney James Marsh who either saw in the former victim of child sexual abuse what he believed to be an injustice in need of correction or an opportunity to expand his practice into the potentially lucrative area of child porn restitution. Marsh has used a federal restitution statute, 18 U.S.C. § 2259, to file approximately 250 requests for restitution on behalf of Amy in child pornography possession cases across the country. § 2259 was enacted in 1994 to provide restitution for offenses involving the sexual exploitation and abuse of children. The statute imposes a duty upon a federal sentencing court to order any defendant convicted of a child abuse-related offense to pay restitution to the victim of that offense. The statute is particularly exacting because the sentencing judge cannot refuse to order restitution based on the defendant’s deprived economic circumstances or because the victim has received compensation for his/her injuries from some other source, such as a civil judgment. 1/ § 2259 authorizes restitution for the following reasons:

• “Medical services relating to physical, psychiatric, or psychological care” for the victim;
• “Physical and occupational therapy or rehabilitation” for the victim;
• “Attorney fees, as well as other costs incurred” by the victim; and
• “Any other losses suffered by the victim as a proximate result of the offense.”

Then in 2004 Congress enacted the Crime Victims Rights Act, 18 U.S.C. § 3771, which requires that the victim of any crime be given timely notice of any court proceeding involving the perpetrator of the crime and the right to be heard at that proceeding. 2/

These two related statutes have generally been used to impose restitution orders against the defendant charged with committing specific offense(s) against a victim—for example, Amy’s uncle who sexually abused her and posted images of that abuse on the Internet. Attorney Marsh, however, has used these statutes to seek, and secure, restitution orders against defendants charged in possession of child pornography cases in which Amy’s images were discovered in their possession. Marsh is plowing his way through this new area of restitution law which has produced serious conflict in the judicial arena.

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