On Parsing the Cost of the Harm - and Its Cause

There are, in this world, people who do unspeakable things to others.  Some of their victims are children.   And some of them - Well, thereby hangs a tale.

Someone rapes a child, films it, and puts the film out in the ether where others can see it.

That's a whole bunch of crimes.  Maybe the baddie is found, convicted, and punished.  But the child is (and no one possessing even a hint of a sound mind can fairly disagree) likely damaged.  And then there's the follow up.  That film out there in the ether where others can see it actually gets seen. Repeatedly.  Over and over.  And the child, later an adult, learns that those films (or still pictures, that really makes no difference) are being masturbated over by (almost exclusively) men who get their jollies seeing little whoever getting raped.

And the child or now adult feels that with every viewing there's another violation.  Which is (and really it's hard to deny this) damaging again.

I mean, we're not just talking hurt feelings and being overly sensitive here.  This is real stuff.

Enter Congress which, in its infinite wisdom, enacted the Mandatory Restitution for Sexual Exploitation of Children Act to see that those who get off on seeing that kid raped are criminals and should be punished.  And, in particular, that they should pay for the harm that's caused to the child when she learns that they're jerking off to the visuals of her rape.  And so there's this law that says they have to pay her damages.

Calculating damages that aren't just out of pocket expenses is a tricky business, actually it's largely a matter of picking a number out of thin air, but put that aside and do the math for "Amy unknown" who's rape is the subject of what's known as the "Misty" series.  The figure they've come up with is 3.4 million.  Amy's claim is that every time she learns of another person who looks at her being raped, it brings it all back. So she wants every one of those people to pay 3.4 million.  And there's this law.

Of course, one guy has watched Amy being raped dozens, maybe hundreds of times. While Doyle Paroline of Tyler, Texas (it gets personal eventually - Amy isn't the only real person in this story) only a couple.  But they both, maybe, get hit with the 3.4 million.  Which doesn't exactly seem right to Paroline who's stuck paying for damage that other guy caused Amy.

And that's the case that went to the Supreme Court which yesterday explained how much Paroline should pay.

And the court, in its wisdom, concluded . . . .  Here's where it gets tricky.

Sotomayor, and she alone, said that he should be stuck with the whole 3.4 million.  If he thinks that's more than his share, he can hire a lawyer and track down the other baddies and try to get some money back from them.

Roberts (with Scalia and Thomas along for the ride) said that Paroline can't be forced to pay more than their share, that is, for the portion of her 3.4 million in damages that he personally actually caused. And since it's impossible to calculate that amount (which nobody really disputes), and since criminal punishment isn't supposed to be just pull-it-out-of-your-ass (though of course that's what it often is, though as Scott Greenfield points out this morning taking off from a post by Judge Kopf yesterday, the alternative of rigid sentencing guidelines is just as bad if not worse).  So, since we can't come up with an answer, the answer must be nothing.  Which isn't particularly satisfying to Amy but is the only logical and coherent view.

Logical and coherent not being hallmarks of the law (despite its pretensions), the Court's actual decision was that Paroline ought to pay exactly for the percentage of the 3.4 million in damages he personally caused Amy when she learned that he jerked off to her rape (3.4 million that was determined to be the amount of her damages before he ever got involved) and even though there's no way to figure out how much that is, or even to make a good guess, judges are to reach deep into their asses and decide with rigor and logic and . . . 

Well fuck.  Justice Kennedy, on behalf of himself Breyer, Ginsburg, Kagan, and Alito declared that they're supposed to make it up.  Which is, in essence, splitting the difference even if it's wholly stupid.

The case is Paroline v. United States (which I've written about before) and you can read the opinions here. 

But wait, 'cause this isn't just a lesson in how the Supremes do whatever they do.  And it's not just a report on one of the two criminal cases the court decided yesterday.  (The other was a terrible decision reversing a grant of habeas corpus relief from the 6th Circuit, White v. Woodall.)  Because there's a question you may have been wondering about:

How is it that Amy knew Paroline had her stuff on his computer?

I mean, he's got to pay the percentage of 3.4 million that he caused not just by having his fun while she got raped.  That percentage would be zero if she didn't know he was doing it. And she knew because (I'm going boldface and bigger font and centering here)

Congress required that she be told.

Yep.  That's the law.  The government is required to let her know whenever they find out that her rape is on someone's computer.  And as she says, whenever she learns, she feels violated again.  And wants her money so that she can be, in the twisted language of the law, "made whole."

And, of course, if she wasn't told . . . .  We're not supposed to go there.

And amid the years of squabbling about how much Doyle Paroline should be out of pocket, it's an issue nobody talks about.

Paroline, Haugen, Maharaj - Catching Up on the News

We here at Gamso For the Defense (that's the Royal we, since I'm the only one here) struggle to stay atop the news and to keep tabs on stories.  Occasionally we even succeed.  As it happens, there are developments of a sort in two of the things about which I've written before.

So while we wait to find out how SCOTUS will parse the language of the Mandatory Restitution for Sexual Exploitation of Children Act -- Oh, I guess I'd better explain.

In 1994, Congress passed this law that said anyone convicted of federal crimes of sexually exploiting children must pay restitution to the identified victims of those crimes.  (There are a bunch of preliminary hoops that folks have to jump through - not least of which is identifying the victims.)  One child, known as Amy Unknown, was raped by her uncle when she was 8 and 9.  

She's 21 now, but her life has, apparently been a complete mess ever since she learned some years later that her uncle took pictures of the rape and they've been circulated widely on the internet.  (Don't go looking for them.  That's a serious federal crime.)  The damages she suffered and will continue to suffer from the knowledge that the pictures of her rape are being viewed by folks have been calculated at 3.4 million dollars.   To date she's been paid some 1.7 million in restitution.  Which means she's still owed 1.7 million.  The question is who should pay.  And how much.

That question made it to the Supreme Court this morning for oral argument in Doyle Randall Paroline v. United States.  (Transcript here.)  Paroline was discovered to have thousands of pictures of child pornography on his computer.  Two were of Amy.  He's been ordered to pay Amy 3.4 million for the harm he caused her by looking at her pictures.  Oh, nobody thinks he personally caused all 3.4 million in harm.  But he caused part of her harm by looking at the pictures of her being raped.  He's to pay what he can. After all, she's harmed whenever she learns that someone looked at her pictures.  

But should he really be stuck with the whole bill since he didn't cause the whole harm?  Maybe he should only have to pay restitution for the portion of the 3.4 million harm caused by his looking at those two pictures.  And how do you calculate that?  That's what the Court will try to work out in his case.

But hang on a second.  So he looked at Amy's pictures.  That doesn't harm her unless she knows, right? How is it that she knows?  How did she learn that Paroline had those 2 pictures?  Good questions.  The answer:  Our government told her.  Congress says the children in these pictures, if they can be identified, have to be told every time someone's caught looking at their pictures.  Which harms them. But the government isn't liable for the harm, even though it's actually the immediate cause of it.  That issue wasn't before the Court.

Did I mention that this is really fucked up?

Anyway

ALSO IN THE SUPREME COURT

Or maybe it would be better to say not in the Supreme Court, is Gary Haugen.  You remember Gary. He's the guy on death row in Oregon who was due to be executed when Governor Kitzhaber granted a reprieve explaining that he would not allow any executions as long as he's governor. Haugen was pissed, wanted to be killed.  He sued the Governor claiming that Oregon law makes a reprieve something like a contract and it has to be accepted or it doesn't count.  Since he didn't accept it, it didn't count and he could be killed.  The Oregon trial court agreed, grudgingly.  The Oregon Supreme Court said no. 

So Haugen went to the U.S. Supreme Court.  Which on Tuesday told him to go away

. They wouldn't hear his case.  Damn.  Now if he wants to die he has to kill himself.  Or wait till Kitzhaber's no longer governor and hope that the next guy is more bloodthirsty.  

The good news from Haugen's point of view is that Kitzhaber only has another year in his term.  The bad news is that he he just announced he's running for another term.  If he wins, that's 5 more years of reprieve.  Shit.

Oh, and there's this.  Jason Brumwell, Haugen's co-defendant is also on death row.  Same song, second verse.  Two weeks ago. Brumwell announced that he wants to be killed and will sue the Governor if he's granted a reprieve.  

Maybe it's something in the water.

WHILE IN FLORIDA

It was November 2012 when I reviewed Clive Stafford Smith's The Injustice System which told the story of Kris Maharaj, how he ended up in prison in Florida, first on death row, then just for decades, for the 1986 murders of Derrick and Duane Moo Young in a Miami hotel room.  A pair of murders he almost certainly did not commit.  He's 74 years old and confined to a wheelchair.  He's served some 27 years so far.  He'll first be eligible for parole in another 27 years, when he's 101. If he lives that long.  

Clive's been on the case for close to 20 years now, struggling to free him.

Just maybe.  

The evidence Clive presented in the book suggests that the actual killers may be from Columbian drug cartels.  There's more evidence now, including witnesses who can say that Pablo Escobar personally ordered the murders and that Maharaj had nothing to do with them.  And there are the fingerprints in the room which can be matched, maybe, to the actual killers.  If Florida would just let the examination be done.

But why would Florida do that?  Why would they want to find out?  Oh.  Right. 

What I say about the DNA in other cases, I say about the prints in this one.

TEST THE FUCKING FINGERPRINTS.

I mean, there are three possibilities.  Either they'll strongly corroborate the claim that Kris didn't do it and that a couple of Columbian drug cartel types did.  Or they'll show nothing of the sort.  Why wouldn't they want to know. 

There's supposed to have been a hearing earlier today.  I haven't found a news report.  

But when I do.

* * * * *

Just another day in the trenches.