A child pornography case currently before the U.S. Court of Appeals for the D.C. Circuit centrally concerns a determination of what constitutes a workable and fair formula for calculating restitution to a victim.
That standard is proving difficult for judges to agree upon in a federal criminal appeals case in which a lower federal court issued an order requiring a man who pleaded guilty to a single count each of possession of child pornography and distribution to pay the victim $5,000.
The defendant’s attorney argued that the mandated amount was arbitrary and not based on any evidence provided by government prosecutors that connected his client to any specific losses alleged to have been suffered by the plaintiff. On appeal, the D.C. Circuit agreed with that reasoning and remanded the case back to the trial court, finding that the government had not in fact produced any evidence that linked the defendant to specific losses suffered by the plaintiff.
The lower court then vacated the $5,000 amount and reduced it to zero.
The matter ultimately ended up with the D.C. Circuit a second time, with the government appealing the trial court’s ruling and stating that the formula proposed by prosecutors was an equitable solution.
The appellate judges are now wrestling with the question of how best to calculate restitution. Finding an answer has proven to be difficult for courts, given, as one media account of the case has stated, that “it can be difficult to know the extent an individual defendant who viewed or possessed an [online] image was responsible for harming the victim.”
One spokesperson for the U.S. Department of Justice told one of the appellate judges that the DOJ was planning on submitting recommended legislation to Congress on the matter.
Source: The BLT, “D.C. Circuit weighs child pornography restitution case,” May 13, 2013