Sunday, March 6, 2011
Dennis F. DiBari has posted Restoring Restitution: The Role of Proximate Causation in Child Pornography Possession Cases Where Restitution is Sought (Cardozo Law Review, Vol. 33, 2011, Forthcoming) on SSRN. Here is the abstract:
The issue of causation is the central reason why possession cases are so problematic for many district courts. Unlike cases involving direct abuse or actual production of child pornography, defendants in possession cases usually have had no contact with the victims. The defendants often do not know the victim's true identity. In fact, the victims usually do not know the defendants exist until only after they are alerted by notices from the federal government. The only link defendants have to their victims is, of course, the physical possession of their image. It is difficult for courts to even begin to quantify the amount of harm done to the victim by the defendant's possession of their depiction. In addition, most victims have experienced the trauma of multiple crimes and therefore have different layers of victimization; isolating the damage done by the original abuse, the production, the distribution, and end-use possession has been described as an “evidentiary nightmare.” Simply put, courts are stumbling over causation before they award restitution in possession cases because they are having great difficulty linking the defendant's act to the victim's harm.
This Note will examine the developing split between district courts across the nation over the ordering of restitution in child pornography possession cases. Part I of this Note will provide a brief primer on the developments leading up to the creation of the problem. Part II will provide a comprehensive analysis of how federal courts have been approaching restitution in possession cases, specifically focusing on the role proximate causation plays in a court's final disposition on restitution. Part III will discuss the calculation of restitution awards in possession cases and derivative issues, such as the propriety of using a joint and several liability theory. Part IV will explore the constitutional dimensions of these restitution awards, evaluating the risk of violating the Eighth Amendment's ban on excessive fines. Finally, Part V recommends a principled approach to ordering restitution in possession cases, founded in the underlying concepts of criminal restitution. This Note will conclude that a district court can avoid punishing defendants for harm they did not cause by being vigilant of how they analyze proximate causation in a possession case.