Restitution under § 2259 awarded by NY District Court

Several recent court opinions have dealt with restitution damages under 18 U.S.C. § 2259, and you can find earlier postings on this blog regarding these cases here.

In United States v. Hagerman, 2011 U.S. Dist. LEXIS 141231 (N.D.N.Y. 2011), the court addressed these same issues in a lengthy opinion. Here's a brief (as brief as I could make it!) outline of the arguments:

• Evidentiary hearings are not necessary to determine restitution under § 2259.
• The victim of the child pornography was such because:
• The materials are a permanent record of the harm.
• The images are an invasion of the child's privacy.
• The child pornographer instigated an economic motive in the CP industry.
• The statute's use of semicolons (instead of commas) and applying "the rule of the last antecedent," there is no proximate cause requirement for the first five losses (lost income, attorneys' fees, medical care, etc.).
• Also, the statute is remedial in nature and doesn't have the goal of punishing the "defendant for harm that he proximately caused."
• Despite the lack of need for proximate cause, it existed. The losses were reasonably foreseeable, and the losses and the defendant's actions had a direct causal connection.
• There is no requirement that the defendant know the victim.
• The injuries stem "from the fact that she did not know who was downloading" the images.
• Such a requirement would make it extremely difficult to grant restitution.
• The requirement would violate the "spirit" of the law (as it would require testimony).
• There is no need to precisely quantify the amount of harm the defendant caused.
• All of the losses were due to the victim's revictimization.
• Mathematical precision is not required to show causation. Even if it must be quantified, it need only be reasonably quantified. In this case, that amount is .68% (146 defendants have been identified with this series).
• Restitution amounts
• Future counseling expenses of $108,975 are reasonable and established.
• Education and vocational counseling needs of $147,830 are reasonable and established.
• Lost wages and benefits of $722,511 are reasonable and established.
• Attorneys' fees of $203,140 and out-of-pocket expenses of $42,241.04 are reasonable and established.
• The total amount should be offset by losses already recovered.
• The defendant is jointly and severally liable for the restitution. The payments should be tracked to ensure that the victim is not awarded "double recovery."

The opinion included many more sections and arguments than I mentioned here. If you are just learning about restitution under this Section 2259, it's a good place to start. Thanks, Judge Suddaby, for this excellent opinion on the subject.