Argued January 22, 2014.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[134 S.Ct. 1713] Syllabus [*]
The respondent victim in this case was sexually abused as a young girl in order to produce child pornography. When she was 17, she learned that images of her abuse were being trafficked on the Internet, in effect repeating the original wrongs, for she knew that her humiliation and hurt would be renewed well into the future as thousands of additional wrongdoers witnessed those crimes. Petitioner Paroline pleaded guilty in federal court to possessing images of child pornography, which included two of the victim, in violation of 18 U.S.C. §2252. The victim then sought restitution under §2259, requesting nearly $3 million in lost income and about $500, 000 in future treatment and counseling costs. The District Court declined to award restitution, concluding that the Government had not met its burden of proving what losses, if any, were proximately caused by Paroline's offense. The victim sought a writ of mandamus, asking the Fifth Circuit to direct the District Court to order Paroline to pay restitution. Granting the writ on rehearing en banc, the Fifth Circuit held, inter alia, that §2259 did not limit restitution to losses proximately caused by the defendant, and that each defendant who possessed the victim's images should be made liable for the victim's entire losses from the trade in her images.
1. Restitution is proper under § 2259 only to the extent the defendant's offense proximately caused a victim's losses. This provision has a broad restitutionary purpose, stating that a district court "shall order restitution for any offense" under Chapter 110 of Title 18, such as Paroline's possession offense; requiring district courts to order defendants "to pay the victim . . . the full amount of the victim's losses as determined by the court, " §2259(b)(1); and expressly making "issuance of a restitution order . . . mandatory, " § 2259(b)(4)(A). The Government has the "burden of demonstrating the amount of the [victim's] loss." §3664(e).
To say one event proximately caused another means, first, that the former event caused the latter, i.e., actual cause or cause in fact; and second, that it is a proximate cause, i.e., it has a sufficient connection to the result. The concept of proximate causation is applicable in both criminal and tort law, and the analysis is parallel in many instances. Section 2259(c) defines a victim as "the individual harmed as a result of a commission of a crime under this chapter." The words "as a result of" plainly suggest causation, and the referent of "a crime" is the offense of conviction. The "full amount of the victim's losses, " §2259(b)(1), includes "any costs incurred by the victim" for six enumerated categories of expense, §2259(b)(3). The [134 S.Ct. 1714] reference to "costs incurred by the victim" is most naturally understood as costs arising "as a result of" the offense of conviction, i.e., the defendant's conduct. And the last of the six enumerated categories—for "other losses suffered .. as a proximate result of the offense, " §2259(b)(3)(F)—clearly states that the causal requirement is one of proximate cause. This reading is supported by the canon of construction that, "[w]hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all." Porto Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 64 L.Ed. 944. The reading also presents a commonsense way to impose sensible limitations on claims for attenuated costs. Pp. 1718-1722, 188 L.Ed.2d, at 725-728.
2. Applying the statute's causation requirements in this case, victims should be compensated and defendants should be held to account for the impact of their conduct on those victims, but defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others. Pp. 1721 - 1729, 188 L.Ed.2d, at 728-736.
(a) A somewhat atypical causal process underlies the losses here. It may be simple to prove aggregate losses, i.e., "general losses, " stemming from the ongoing traffic in the victim's images, but the question for §2259 purposes is how much of these general losses were the "proximate result" of an individual defendant's offense. Here, the victim's costs of treatment and lost income resulting from the trauma of knowing that images of her abuse are being viewed over and over are direct and foreseeable results of child-pornography crimes, provided the prerequisite of factual causation is satisfied. The primary problem, then, is the proper standard of causation in fact. Pp. 1721 - 1722, 188 L.Ed.2d, at 728-729.
(b) A showing of but-for causation is not the proper standard here, for it is not possible to prove that the victim's losses would be less but for one possessor's individual role in the large, loosely connected network through which her images circulate. The victim and the Government urge the Court to read § 2259 to require a less restrictive causation standard in child-pornography cases like this. They endorse the theory of "aggregate causation, " one formulation of which finds factual causation satisfied where a wrongdoer's conduct, though alone "insufficient .. to cause the plaintiff's harm, " is, "when combined with conduct by other persons, " "more than sufficient to cause the harm." 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27, Comment /. Tort law teaches that such alternative causal tests, though a kind of legal fiction, may be necessary to vindicate the law's purposes, for it would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm, and nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many would have no redress, while those hurt by the acts of one person alone would. These are sound principles. Taken too far, however, such alternative causal standards would treat each possessor as the cause in fact of all the trauma and attendant losses incurred as a result of all the ongoing traffic in the victim's images. Aggregate causation logic should not be adopted in an incautious manner in the context of criminal restitution, which differs from tort law in numerous respects. Paroline's contribution to the causal process underlying the victim's losses was very minor, both compared to the combined acts of all other relevant offenders and compared to the contributions of other individual offenders, [134 S.Ct. 1715] particularly distributors and the initial producer of the child pornography. Congress gave no indication that it intended the statute to be applied in an expansive manner so starkly contrary to the principle that restitution should reflect the consequences of the defendant's own conduct. The victim claims that holding each possessor liable for her entire losses would be fair and practical in part because offenders can seek contribution from one another, but there is no general federal right to contribution and no specific statutory authorization for contribution here. Her severe approach could also raise questions under the Excessive Fines Clause of the Eighth Amendment. Pp. 1722 -1726, 188 L.Ed.2d, at 729-733.
(c) While the victim's expansive reading must be rejected, that does not mean the broader principles underlying aggregate causation theories are irrelevant to determining the proper outcome in cases like this. The cause of the victim's general losses is the trade in her images, and Paroline is a part of that cause. Just as it undermines the purposes of tort law to turn away plaintiffs harmed by several wrongdoers, it would undermine §2259's purposes to turn away victims in cases like this. With respect to the statute's remedial purpose, there is no question that it would produce anomalous results to say that no restitution is appropriate in these circumstances, for harms of the kind the victim endured here are a major reason why child pornography is outlawed. The unlawful conduct of everyone who reproduces, distributes, or possesses images of the victim's abuse—including Paroline—plays a part in sustaining and aggravating this tragedy. And there is no doubt Congress wanted restitution for such victims. Denying restitution would also be at odds with §2259's penological purposes, which include the need to impress upon offenders that their conduct produces concrete and devastating harms for real, identifiable victims. Thus, where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in her images but where it is impossible to trace a particular amount of those losses to the individual defendant utilizing a more traditional causal inquiry, a court should order restitution in an amount that comports with the defendant's relative role in the causal process underlying the victim's general losses.
District courts should use discretion and sound judgment in determining the proper amount of restitution. A variety of factors may serve as guideposts. Courts might, as a start, determine the amount of the victim's losses caused by the continuing traffic in the victim's images, and then base an award on factors bearing on the relative causal significance of the defendant's conduct in producing those losses. The victim finds this approach untenable because her losses are "indivisible, " but the Court is required to define a causal standard that effects the statute's purposes, not to apply tort-law concepts in a mechanical way in the criminal restitution context. She also argues she will be consigned to "piecemeal" restitution that may never lead to full recovery, but Congress has not promised victims full and swift restitution at the cost of holding a defendant liable for an amount drastically out of proportion to his individual causal relation to those losses. Furthermore, this approach better effects the need to impress upon defendants that their acts are not irrelevant or victimless. Pp. 1726 -1729, 188 L.Ed.2d, at 733-736.
(d) Though this approach is not without difficulties, courts can only do their best to apply the statute as written in a workable manner, faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of [134 S.Ct. 1716] their own conduct, not the conduct of others. District courts, which routinely exercise wide discretion both in sentencing generally and in fashioning restitution orders, should be able to apply the causal standard defined here without further detailed guidance. P. 1729, 188 L.Ed.2d, at 736.
701 F.3d 749, vacated and remanded.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion.
Stanley G. Schneider, Houston, TX, for the Petitioner.
Michael R. Dreeben, Washington, D.C., for the United States.
Paul G. Cassell Salt Lake City, UT, for respondent Amy Unknown.
James R. Marsh, Marsh Law Firm PLLC, White Plains, NY, Paul G. Cassell, Michael J. Teter, Appellate Legal Clinic, Salt Lake City, UT, for Respondent Amy.
Donald B. Verrilli, Jr., Solicitor General, Washington, D.C., for United States.
Robin E. Schulberg, Robin E. Schulberg, LLC, Covington, LA, Virginia Laughlin Schlueter, Federal Public Defender, Eastern District of Louisiana, Roma Ajubita Kent, Assistant Federal Public Defender, Jordan Mark Siverd. Assistant Federal Public Defender, New Orleans, LA, for Respondent Michael Wright.
Stanley G. Schneider, Thomas D. Moran, Schneider & McKinney, P.C., Houston, TX, F.R. "Buck" Files, Jr., Bain, Files, Jarrett, Bain, & Harrison, P.C., Tyler, TX, Casie L. Gotro, Romy B. Kaplan, Houston, TX, for Petitioner.
This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed. The relevant statutory provisions are set forth at 18 U.S.C. §2259. Enacted as a component of the Violence Against Women Act of 1994, §2259 requires district courts to award restitution for certain federal criminal offenses, including child-pornography possession.
Petitioner Doyle Randall Paroline pleaded guilty to such an offense. He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym "Amy" for this litigation. The question is what causal relationship must be established between the defendant's conduct and a victim's losses for purposes of determining the right to, and the amount of, restitution under § 2259.
Three decades ago, this Court observed that "the exploitive use of children in the production of pornography has become a serious national problem." New York v. Ferber, 458 U.S. 747, 749, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The demand for child pornography harms children in part because it drives production, which involves child abuse. The harms caused by child pornography, however, are still more [134 S.Ct. 1717] extensive because child pornography is "a permanent record" of the depicted child's abuse, and "the harm to the child is exacerbated by [its] circulation." Id., at 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113. Because child pornography is now traded with ease on the Internet, "the number of still images and videos memorializing the sexual assault and other sexual exploitation of children, many very young in age, has grown exponentially." United States Sentencing Comm'n, P. Saris et al., Federal Child Pornography Offenses 3 (2012) (hereinafter Sentencing Comm'n Report).
One person whose story illustrates the devastating harm caused by child pornography is the respondent victim in this case. When she was eight and nine years old, she was sexually abused by her uncle in order to produce child pornography. Her uncle was prosecuted, required to pay about $6, 000 in restitution, and sentenced to a lengthy prison term. The victim underwent an initial course of therapy beginning in 1998 and continuing into 1999. By the end of this period, her therapist's notes reported that she was '"back to normal'"; her involvement in dance and other age-appropriate activities, and the support of her family, justified an optimistic assessment. App. 70-71. Her functioning appeared to decline in her teenage years, however; and a major blow to her recovery came when, at the age of 17, she learned that images of her abuse were being trafficked on the Internet. Id., at 71. The digital images were available nationwide and no doubt worldwide. Though the exact scale of the trade in her images is unknown, the possessors to date easily number in the thousands. The knowledge that her images were circulated far and wide renewed the victim's trauma and made it difficult for her to recover from her abuse. As she explained in a victim impact statement submitted to the District Court in this case:
"Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them—at me—when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle. . . . My life and my feelings are worse now because the crime has never really stopped and will never really stop. . . . It's like I am being abused over and over and over again." Id., at 60-61.
The victim says in her statement that her fear and trauma make it difficult for her to trust others or to feel that she has control over what happens to her. Id., at 63.
The full extent of this victim's suffering is hard to grasp. Her abuser took away her childhood, her self-conception of her innocence, and her freedom from the kind of nightmares and memories that most others will never know. These crimes were compounded by the distribution of images of her abuser's horrific acts, which meant the wrongs inflicted upon her were in effect repeated; for she knew her humiliation and hurt were and would be renewed into the future as an ever-increasing number of wrongdoers witnessed the crimes committed against her.
Petitioner Paroline is one of the individuals who possessed this victim's images. In 2009, he pleaded guilty in federal court to one count of possession of material involving the sexual exploitation of children in violation of 18 U.S.C. §2252. 672 F.Supp.2d 781, 783 (E.D.Tex. 2009). Paroline admitted to knowing possession of between 150 and [134 S.Ct. 1718] 300 images of child pornography, two of which depicted the respondent victim. Ibid. The victim sought restitution under §2259, asking for close to $3.4 million, consisting of nearly $3 million in lost income and about $500, 000 in future treatment and counseling costs. App. 52, 104. She also sought attorney's fees and costs. 672 F.Supp. 2d, at 783. The parties submitted competing expert reports. They stipulated that the victim did not know who Paroline was and that none of her claimed losses flowed from any specific knowledge about him or his offense conduct. Id., at 792, and n. 11; App. 230.
After briefing and hearings, the District Court declined to award restitution. 672 F.Supp. 2d, at 793. The District Court observed that "everyone involved with child pornography—from the abusers and producers to the end-users and possessors—contribute[s] to [the victim's] ongoing harm." Id., at 792. But it concluded that the Government had the burden of proving the amount of the victim's losses "directly produced by Paroline that would not have occurred without his possession of her images." Id., at 791. The District Court found that, under this standard, the Government had failed to meet its burden of proving what losses, if any, were proximately caused by Paroline's offense. It thus held that "an award of restitution is not appropriate in this case." Id., at 793.
The victim sought a writ of mandamus, asking the United States Court of Appeals for the Fifth Circuit to direct the District Court to order Paroline to pay restitution in the amount requested. In re Amy, 591 F.3d 792, 793 (2009). The Court of Appeals denied relief. Id., at 795. The victim sought rehearing. Her rehearing request was granted, as was her petition for a writ of mandamus. In re Amy Unknown, 636 F.3d 190, 201 (2011).
The Fifth Circuit reheard the case en banc along with another case, in which the defendant, Michael Wright, had raised similar issues in appealing an order of restitution under §2259, see United States v. Wright, 639 F.3d 679, 681 (2011) (per curiam). As relevant, the Court of Appeals set out to determine the level of proof required to award restitution to victims in cases like this. It held that §2259 did not limit restitution to losses proximately caused by the defendant, and each defendant who possessed the victim's images should be made liable for the victim's entire losses from the trade in her images, even though other offenders played a role in causing those losses. In re Amy Unknown, 701 F.3d 749, 772-774 (2012) (en banc).
Paroline sought review here. Certiorari was granted to resolve a conflict in the Courts of Appeals over the proper causation inquiry for purposes of determining the entitlement to and amount of restitution under § 2259. 570 U.S. __, 133 S.Ct. 2886, 186 L.Ed.2d 932 (2013). For the reasons set forth, the decision of the Court of Appeals is vacated.
Title 18 U.S.C. §2259(a) provides that a district court "shall order restitution for any offense" under Chapter 110 of Title 18, which covers a number of offenses involving the sexual exploitation of children and child pornography in particular. Paroline was convicted of knowingly possessing child pornography under §2252, a Chapter 110 offense.
Section 2259 states a broad restitutionary purpose: It requires district courts to order defendants "to pay the victim . . . the full amount of the victim's losses as determined by the court, " §2259(b)(l), and expressly states that "[t]he issuance of a restitution order under this section is [134 S.Ct. 1719] mandatory, " §2259(b)(4)(A). Section 2259(b)(2) provides that "[a]n order of restitution under this section shall be issued and enforced in accordance with section 3664, " which in turn provides in relevant part that "[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government, " §3664(e).
The threshold question the Court faces is whether §2259 limits restitution to those losses proximately caused by the defendant's offense conduct. The Fifth Circuit held that it does not, contrary to the holdings of other Courts of Appeals to have addressed the question. Compare, e.g., 701 F.3d, at 752 (no general proximate-cause requirement applies under § 2259), with United States v. Rogers, 714 F.3d 82, 89 (C.A.1 2013) (general proximate-cause requirement applies under § 2259); United States v. Benoit, 713 F.3d 1, 20 (C.A.10 2013) (same); United States v. Fast, 709 F.3d 712, 721-722 (C.A.8 2013) (same); United States v. Laraneta, 700 F.3d 983, 989-990 (C.A.7 2012) (same); United States v. Burgess, 684 F.3d 445, 456-457 (C.A.4 2012) (same); United States v. Evers, 669 F.3d 645, 659 (C.A.6 2012) (same); United States v. Aumais, 656 F.3d 147, 153 (C.A.2 2011) (same); United States v. Kennedy, 643 F.3d 1251, 1261 (C.A.9 2011) (same); United States v. Monzel, 641 F.3d 528, 535, 395 U.S. App. D.C. 162 (C.A.D.C. 2011) (same); United States v. McDaniel, 631 F.3d 1204, 1208-1209 (C.A.11 2011) (same).
As a general matter, to say one event proximately caused another is a way of making two separate but related assertions. First, it means the former event caused the latter. This is known as actual cause or cause in fact. The concept of actual cause "is not a metaphysical one but an ordinary, matter-of-fact inquiry into the existence .. of a causal relation as laypeople would view it." 4 F. Harper, F. James, & O. Gray, Torts §20.2, p. 100 (3d ed. 2007).
Every event has many causes, however, see ibid., and only some of them are proximate, as the law uses that term. So to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result. The idea of proximate cause, as distinct from actual cause or cause in fact, defies easy summary. It is "a flexible concept, " Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 654, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008), that generally "refers to the basic requirement that . . . there must be 'some direct relation between the injury asserted and the injurious conduct alleged, '" CSX Transp., Inc. v. McBride, 564 U.S. __, __, 131 S.Ct. 2630, 2645, 180 L.Ed.2d 637, 655 (2011) (ROBERTS, C. J., dissenting) (quoting Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992)). The concept of proximate causation is applicable in both criminal and tort law, and the analysis is parallel in many instances. 1 W. LaFave, Substantive Criminal Law § 6.4(c), p. 471 (2d ed. 2003) (hereinafter LaFave). Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. See, e.g., ibid.; 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 29, p. 493 (2005) (hereinafter Restatement). A requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity. Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 838-839, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996).
[134 S.Ct. 1720] All parties agree § 2259 imposes some causation requirement. The statute defines a victim as "the individual harmed as a result of a commission of a crime under this chapter." § 2259(c). The words "as a result of" plainly suggest causation. See Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. __, __, 132 S.Ct. 680, 690-691, 181 L.Ed.2d 675, 692 (2012); see also Burrage v. United States, 571 U.S. __, __, 134 S.Ct. 881, 886-887, 187 L.Ed.2d 715, 725 (2014). And a straightforward reading of §2259(c) indicates that the term "a crime" refers to the offense of conviction. Cf. Hughey v. United States, 495 U.S. 411, 416, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). So if the defendant's offense conduct did not cause harm to an individual, that individual is by definition not a "victim" entitled to restitution under § 2259.
As noted above, § 2259 requires a court to order restitution for "the full amount of the victim's losses, " §2259(b)(1), which the statute defines to include "any costs incurred by the victim" for six enumerated categories of expense, §2259(b)(3). The reference to "costs incurred by the victim" is most naturally understood as costs stemming from the source that qualifies an individual as a "victim" in the first place—namely, ones arising "as a result of" the offense. Thus, as is typically the case with criminal restitution, § 2259 is intended to compensate victims for losses caused by the offense of conviction. See id., at. 416, 110 S.Ct. 1979, 109 L.Ed.2d 408. This is an important point, for it means the central concern of the causal inquiry must be the conduct of the particular defendant from whom restitution is sought.
But there is a further question whether restitution under §2259 is limited to losses proximately caused by the offense. As noted, a requirement of proximate cause is more restrictive than a requirement of factual cause alone. Even if §2259 made no express reference to proximate causation, the Court might well hold that a showing of proximate cause was required. Proximate cause is a standard aspect of causation in criminal law and the law of torts. See 1 LaFave §6.4(a), at 464-466; W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 41, p. 263 (5th ed. 1984) (hereinafter Prosser and Keeton). Given proximate cause's traditional role in causation analysis, this Court has more than once found a proximate-cause requirement built into a statute that did not expressly impose one. See Holmes, supra, at 265-268, 112 S.Ct. 1311, 117 L.Ed.2d 532; Associated Gen. Contractors of Cat., Inc. v. Carpenters, 459 U.S. 519, 529-536, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); see also CSX Transp., Inc., supra, at __, 131 S.Ct. 2630, 2646, 180 L.Ed.2d 637, 655-656 (ROBERTS, C. ...