Restitution For Child Porn?

A couple of cases are looking at monetary sanctions for child pornography users.

Child pornography is different than adult pornography, because it involves a crime committed against a child who is incapable of consent. Producing child pornography is another form of rape. Its creation is a crime, and distribution of it benefits a criminal, economically or via a sense of celebrity obtained by doing it in a subculture of child pornographers. Distribution of child pornography also further hurts the child by adding the insult of impaired privacy interests of the child to the injury of the child abuse that went into making the material. Criminalizing child pornography possession destroys the economically driven market for this crime. The theory of criminalizing child pornography is mostly to discourage anyone from buying it, and thereby shutting down this market (even in cases where there is a non-economic motive for creating and distributing the material). Even where someone does illegally buy child pornography, the reduced demand reduces the harm to the child's privacy interests. This makes solid sense.

But, while a regularly enforces law against consuming child pornography makes sense and shrinks the market for the material, what sentence for that conduct makes sense?

The justification for very harsh sentences for mere possession of child pornography requires a theoretical basis beyond the market impact and privacy interest impairment ideas behind criminalizing possession of child pornography at all. Harsh sentences for child pornography are based upon the theory that it is that people who view it are likely to be future child molesters. There are studies that have reached this conclusion, but they aren't very solid at all and don't match the profile of the offenders that federal judges are seeing before them in their courtrooms. Often the sentences for possession of child pornography, because they involve consecutive sentences for each pornographic image, are longer than they would be if the offender had personally molested a child, rather than merely buying images and viewing them. But, judges are pushing back against these sentences because the offenders who come before them look unlikely to be future child molesters. The premise behind these long prison terms that people who view images are highly likely to molest children is false. The premise that the likelihood of a child pornography cusmoer bears a meaningful relationship to how many images the customer is found to possess is even less plausible. In the computer age, this may have more to do with how recently the offender bought a new computer than it does with the offender's culpability.

Still, how do you limit the demand side of the child pornography world, in order to shut down the economic incentives behind the ugly world of child pornography creation, which will persist as long as there is demand because the people who make it don't think that they will be caught?

An alternative to putting child porn consumers who don't create it in prison for many years at great expense, is to use some combination of a shorter criminal sentence and monetary sanctions. Why not make the people who use child porn pay some amount in restitution for victims of these crimes?

One way to do that is for the child pornography victim to sue the consumers of child pornography directly (Sentencing Law Professor Douglas Berman is quoted on that concept in the linked New York Times article). Another approach (probably ultimately more workable) is for judges to make restitution awards in criminal child pornography cases.

Even when money is paid by child pornography creators, it isn't usually paid to the victims themselves. There is certainly precedent for awards of civil damages against molesters themselves. And, while in ordinary commerce, someone who buys media may be entitled to a presumption that it was sold by someone with a right to do so, in child pornography cases, anyone who buys it knowns that they are funding an illegal enterprise which did not have appropriate permission from the children participating, because that cannot be given.

Of course, the question then becomes "how much restitution?" Normally, restitution awards are based on actual out of pocket costs incurred by victims, something that may be fairly similar from one case to another. But, this turns out to be hard to calculate since the kind of records necessary to determine how many offenders shares in the harm is difficult to determine and constantly changing as new offenders are located over decades, and it punishes offenders in cases where there are many known consumer offenders more lightly than cases in which there are few known consumer offenders, despite the fact that the harm appears greater in the former case. This approach also punishes someone who has many child porn images of a single child more lightly than someone who has child porn images of many children, and it fosters undue attention on the task of trying to identify particular child porn victims in images.

Simply forfeiting all assets of a child pornography consumer (which is essentially what a joint and several liablity regime would lead to in most cases), punishes consumers without regard to how much they partook of child pornography, largely in regard to their wealth. Yet, more affluent offenders with stable lives who view a small amount of child pornography may pose a lesser threat measured by the incentive they provide to produce child pornography, measured by their share of the harm to child pornography victim's privacy interests and measures by the risk that they will harm others, than less affluent consumer offenders who are much more deeply engrossed in consuming child pornography. Dispensing with proportionality and making even small scale possession of child pornography lead to an economic death penalty is not optimal. Among other things, it ends any incentive for a child pornography consumer to stop further consumption of it. An "in for a penny, in for a pound" approach destroys any further influence that the criminal justice system may have once the offense is commited the first time, even though more consumption does more harm by expanding the distribution of images and encouraging a market for child pornography.

The rough justice of simply establishing a fund for the benefit of child pornography victims generally, and then establishing some penalty of a fixed dollar amount per image makes more sense. Those who consumer child pornography more should expect to pay more in restitution. And, making a monetary sanction proportional to the number of images (as we would with other contraband media) makes more sense that fine tuning prison sentences to the number of images, because the relationship between an appropriate prison term and the number of offenses isn't linear.

What should that number be? As a floor, it should be more than the most expensive legitimate media (e.g. a child pornography video should cost more than a new Blu-Ray movie which was either legitimate or pornographic). Child pornography victims presumptively requires more compensation than legitimate actors do. This would suggest of floor of something like $40 per movie.

It should also be at least as much as the market price for such images, on the theory that the criminal justice system that the harm is at least as great as the benefit the producers of child pornography receive for it. If the harm were less than the benefit, the conclusion would be that child pornography should be taxed rather than banned, in much that same way that we permit employers in dangerous industries to buy worker's compensation insurance rather than discontinuing dangerous economic activity. I have no idea what the market price is for child pornography, but surely there are some experts in that matter who could testify to a sentencing commission or legislature setting an amount.

Some allowance can also rightly be made for the fact that only a small percentage of consumer offenders will ever be caught.

Another approach would be to estimate the amount of harm done by the entire industry to each victim, one case reported on the harm put that at about $200,000 for a victim in one case, to estimate the number of new victims each year (probably in the thousands or tens of thousands), to divide that by the number of defendants convicted of child pornography possession each year (a number not terribly hard to obtain), and to divide that in turn by a typical number of child pornography items in a typical child pornography case (a number that could be secured with tolerable accuracy with a fairly modest random sample). This could be backstopped by the market comparison approaches already discussed.

Perhaps the amount ends up being $100 per isolated image and $1000 per movie. Those are simply posed for the sake of argument. This amount would still be non-bankrupting in the case of an offender with moderate assets and a relatively small involvement, but would be substantial. And, unlike the current system, they would not divert large sums of money to the dead weight loss of putting someone who is not a threat to the public in prison for long periods of time.

The rough justice of criminal restitution to a general fund also has the benefit of not casting child pornography victims in the role of child prostitutes seeking their pay, an instinct that has probably been an important factor in discomfort concerning monetary awards in child pornography cases. It is more important that all child support victims receive counseling and support in getting their lives back on track than it is that there be a neat correspondence between how widely a particular child's image was used in the child pornography market place by offenders who were caught, and how much compensation a victim receives.

In the legitimate acting world, we want to align the interests of actors with their producers. In the world of child pornography, we don't want child pornography victims, their potential allies, and the people who produce child pornography to have the same interests. We want it to be in the interest of child pornography victims and their potential allies to stop further exploitation as soon as possible and to minimize the exploitation that the child experiences. The direct harm from molestation is almost always going to exceed the indirect harm from damage to a child's privacy interests, and the best strategy to minimize the harm to child pornography victims from damage to their privacy interests is likely to involve replacing feelings of shame with a self-image of being a crime survivor. Indeed, funding a child pornography victim's support fund with a mix of criminal restitution funds, charitable contributions and public funding to further blunt the directness of the connection between restitution and support funding from the victim's perspective might be desirable.

In the same vein, it might make sense to have a presumptive restitution amount, perhaps $200,000, that can be elected by a victim or the victim's guardians, rather than requiring expensive and legal standard frought expert testimony, for particular victims of child pornography that they are entitled to recover from actual participants in the molestation without having to prove up a particular amount. This takes painful public or semi-public attention in testimony away from the particular details of a victim whose harm consists in part in a violation of privacy. Concerns about a lack of linkage between a particular offender and a particular victim are weaker in this situation than in the child pornography consumption case where a whole universe of child pornography consumers have some responsibility to a whole universe of child pornography victims. So, joint and several liability for all involved might be more appropriate at this level. In addition, these offenders ought to be required to disgorge any gains they received from participating. Both of these amounts could go to a child pornography victim's fund, which would in turn provide support to victims without regard to the ability of the victims to pay the amount owed in a particular case.

Turning disgorgements and restitution awards to a fund for victims, rather than to law enforcement, for example, also avoids the risk of corruption through self-interest by law enforcement that has appeared to spring up so often in civil forfeiture regimes used in other vice contexts such as in connection with the drug trade.

This kind of regime would create appropriate incentives from the criminal justice system, would provide compensation to victims, would maintain proportionality with respect to offenders, and would easy the financial burden on the public created by incarcerating low risk child pornography consumer offenders allowing those public funds to be spent on care for child pornography victims instead. It would also reduce the dead weight loss of relitigation and testimony on big picture issues in each individual case that in addition to being expensive may compound harm to victims. The only input required from the victim in the court process would be evidence to establish that the victim was indeed used in the creation of child pornography, often though mere identification not necessarily even with a court appearance, and information regarding who was participating in that activity, which would tend to be somewhat less private from the victim's perspective than information about what precisely was done to that victim.