Against Restitution as the Core Aim of Criminal Law

There is a story in today's National Law Journal (unfortunately kept under lock and key) about orders of monetary restitution to make victims of child pornography whole.  The defendants in some of these cases have been convicted of possession of child pornography, not distribution. 

The cases, which at present seem largely limited to a single victim -- "Amy" (though there is another victim in a different group of cases named "Vicky") --, raise interesting questions about the nature and purposes of criminal law.  I understand that restitution seems to be an increasingly popular mode of administering punishment, and the commingling of tort and criminal remedies gives me some pause, though in truth I am uncertain about it.

As I understand the issue (thanks in part to a terrific law review note that I supervised by Brad Reiss), wherever images of Amy (or whoever) are part of the evidence against the defendant, Amy's lawyers (who include former Judge Paul Cassell, whose writing I greatly respect) are notified and then use 18 U.S.C. section 2259 to request restitution for the harm caused by the display of the images.  Whether the victim is herself notified is not clear.  Each time the images are re-circulated represents a new episode of victimization for which new restitution is warranted.  Courts have split over the question of restitution in possession cases.  One, the S.D. of Florida, has awarded full restitution (more than $3 million worth), others partial restitution (sometimes the language of restitution is couched in terms of "proportionality"), and still others no restitution at all.  

The story in the NLJ reports on the 11th Circuit's decision to award partial restitution (it joins the 9th in adopting this approach) using rather over-heated language about the "slow acid drip" of harm that the victim suffered as a result of the defendant's possession.  The story itself is about the appeal of Judge Gladys Kessler's $5,000 award -- the case is being heard today by the D.C. Circuit.

These cases present difficult questions of proximate causation, and it looks like one of the major issues will be how to measure the harm to the victim of increasingly remote possession of the images.  But another larger question relates to the nature of remedies in tort and the aims of criminal punishment -- purposes which, though they may overlap here and there, ought to remain distinct.

Part of the trouble is that on some retributivist accounts, the aim of the criminal law is to make "society whole."  Victim vindication theorists likewise focus on the damage done to the victim and how somehow to rebalance that wrong.  The language of both of these kinds of theoretical defenses of punishment sounds in terms of payment of a social debt, or the restoring of the victim to a position of equality -- hence "restitution." 

But the payment of a debt really does not stand at the core of criminal law.  What stands there, what must take pride of place, is social condemnation and stigma.  Speaking in terms of payment of debts, restitution, or restoration fosters the regrettable tendency to think of the aims of criminal law as matching nicely with those of tort law.  We begin to think more and more about what will compensate the victim and less and less about how and in what degree the defendant deserves our (and not primarily the victim's) condemnation.  Obviously I am not making the claim that in order to qualify as a crime, an action must elicit a social condemnation.  But I am saying that thinking too much in terms of restitution may adulterate our sense of the core role of criminal punishment.

These cases of possession of child pornography -- bad as they may be, deserving of condemnation as they surely are -- do not merit the imposition of a penalty of $3.5 million for the possession of a single image of child pornography, even if all of the expert testimony about Amy's substantial trauma is accepted as establishing the necessary causative link.  To impose that kind of penalty is to strip away what is distinctive about criminal law and to create from the state's criminal law machine a tort law chimera. 

Professor Cassell is quoted in the NLJ piece as saying this: "This isn't really about the money . . . . This is about the principle of protecting the rights of crime victims."  That may be, and I am very uncertain about how to determine exactly how much Amy and others deserve.  But too great an intrusion of the language and theory of restitution into the core function of criminal law is, in my view, dangerous.  Tort and criminal law ought not overlap to any great degree.