Restitution In Child Pornography Cases Controversial

Ordering those convicted of possessing child pornography to pay restitution to the victims is a hot topic receiving a lot of attention across the country. Recently, the New York Times and other national newspapers have picked up on the story of "Amy," a woman who was sexually assaulted by her uncle as a child. Her uncle took numerous photographs of her and made videos of the abuse, which have gone viral on the Internet. Through her lawyer, Amy is seeking restitution from anyone in the country who has been convicted of possessing these images of her. Some of her petitions have been successful while others have not.

Federal courts are divided on the issue of how best to handle restitution in child pornography possession cases. Generally to award restitution, there must be a sufficient connection between the possession and the harm done to the victim ("proximate harm"), but not all courts have been willing to find such a connection exists. For example, a federal court in Texas declined to award the payment of restitution in a child porn possession case because the court found the connection between the defendant and victim too tenuous to meet the legal standard.

Other courts, however, have been more than willing to order significant restitution awards to victims of child pornography. The average award generally amounts to a few thousand dollars, but two courts in Florida have awarded victims the full amount of requested restitution. In one of the cases, this amounted to more than $3.2 million.

Restitution and Proposition 9

Closer to home, those seeking restitution in child pornography and other criminal cases in California received a boost with the passage of Proposition 9, or Marsy's Law, in 2008. Under Prop 9, payment of restitution is no longer discretionary, but a requirement. The law also prioritized restitution payments over all other fines and fees that the offender may legally owe, meaning that any money collected from an offender must be used towards paying restitution debt first.

Some of the other important changes enacted by Prop 9 include:

  • Amending the state constitution to include a victim's bill of rights
  • Lengthening the parole hearing waiting period for people sentenced to life from five years to 15 years
  • Limiting the use of state-paid defense attorneys in parole revocation hearings for indigent offenders
  • Prohibiting early release programs for violent offenders

Prop 9 has been criticized for doing nothing more than giving victims' rights they already had under California law, including rights to restitution. Others have alleged that Prop 9 will cost taxpayers hundreds of millions of dollars by keeping offenders incarcerated for longer periods of time - money that the cash-strapped state could use for more important programs.

However, those in support of Prop 9 argue that it will save the state money by reducing the number of parole hearings available to life-time offenders and limiting the use of state-funded defense attorneys. Additionally, proponents of Prop 9 argue that ordering restitution also will help save California money if the punishment is used as a substitute for longer prison sentences.

How Much is Too Much?

One of the biggest issues with requiring those convicted of child pornography possession charges to pay restitution is: how much punishment is too much?

Few are sympathetic towards the rights of convicted sex offenders, but lately there has been some push back against the plethora of laws that continue to punish those convicted of these crimes long after their sentences have been served.

For example, the California Supreme Court recently called into question the constitutionality of the state's civil commitment laws in People v. McKee. Under these laws, those determined to be sexually violent predators could be held indefinitely by the state after their original incarceration periods have ended. The U.S. Supreme Court heard oral arguments earlier this year in a similar case concerning the constitutionality of the federal civil commitment laws under the Adam Walsh Act.

The debate over restitution in child pornography cases and other punishments against convicted sex offenders is not likely to go away any time soon. If you have questions about defending against a child pornography possession charge or other sex offense, contact an experienced criminal defense attorney.