In a memorable Saturday Night Live sketch following the power failure that inserted a long intermission in the middle of Super Bowl XLVII, cast members parodied the frazzled NFL commentators desperately trying to fill the empty airtime. Each time the in-studio commentators ran out of things to say, they would bark “Back to you!”, sending the feed to the on-field commentator. The on-field commentator would scramble for insights for a few seconds, then free himself with a “Back to you!”, punting the feed back to the studio. When the latter sent the feed back too quickly, the former angrily objected: “You can’t ‘Back to you’ me – I just ‘Back to you’d you!” It was a humorous, but accurate, portrayal of the frustration and awkwardness that ensues when no one knows just what to do, but everyone knows they have to do something.
Wondering what this has to do with restitution in child porn cases? Everything. Liability for child porn offenses extends well beyond the person who directly abuses the child. It also draws in those who possess and distribute images created by the original abuser, perhaps long after the abuse is over. The notion that theirs is a victimless crime has been rejected, on the rationale that each possession and distribution re-victimizes the victim. All well and good as far as it goes – but how are courts to assign this somewhat abstract concept a dollar value in individual cases? After all, thousands of offenders may possess and view images of any particular victim over the course of years or decades, and generally they come before the court one at a time.
The question cannot be avoided, because Congress provided that restitution for “the full amount of the victim’s losses,” including losses “suffered by the victim as a proximate result of the offense,” is mandatory. 18 U.S.C. § 2259. After much consternation in the circuit courts, the Supreme Court took on the question last year, and . . . punted? The majority in Paroline v. United States, 134 S. Ct. 1710 (2014), confirmed that courts must award restitution “in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.” For a defendant who is one of possibly thousands who only possessed or distributed images, the award should fall somewhere between “token” and “severe.”