Thursday, January 10, 2013

Second Circuit reverses restitution award in CP case, explains proper formula for calculating the amount

In United States v. Hagerman, No. 11-3421-cr (2d Cir. 2012), the Second Circuit reversed and remanded an award of restitution to "Vicky", a victim of child pornography. The defendant was ordered to pay the remaining balance of Vicky's damages, but the Second Court found that he was only liable for the amount portioned to him after dividing the total damages by the total number of convicted defendants.

The defendant had been convicted of receipt and possession of child pornography and was sentenced to 96 months in prison, a life term of supervised release, and a $200 special assessment. Additionally, finding that the defendant was jointly and severally liable Vicky, the district court ordered him to pay restitution of $975,917.64. On appeal, the defendant make multiple objections with regard to his sentence and the restitution order.

The Second Circuit is one of the majority circuits which holds that a defendant must have proximately caused the harm to the victim in order to be ordered to pay restitution (read more about this issue and the circuit split here). The court found that standard to be met here as:

Vicky had actual knowledge of Hagerman's offense conduct as her representative had informed her of this action, and that her knowledge that Hagerman was among those who had downloaded her picture had caused her actual and ongoing psychological harm, as demonstrated in her victim impact statement and psychological evaluations.
However, where the Second disagreed with the trial court was in the amount of the damages. The total harm alleged to have been caused to Vicky is $1,224,697.04. A total of $248,779.40 has been collected from other defendants, "leaving $975,917.65 unpaid and recoverable." The district court found the defendant liable for the entire amount of the remaining damages despite precedent holding that joint and several liability should not apply in this situation.

The correct calculation, the Second Circuit determined, was to divide the entire amount of damages by the number of defendants who have been "successfully prosecuted" for possessing the images of Vicky. Thus, the defendant should have been ordered to pay restitution in the amount of $8,388.31 (which is $1,224,697.04 divided by 146 (the number of convicted defendants)).

Of course, the difficulty in imposing such a formula is that there is no way to know how many defendants there will be when the first case is decided. Thus, the calculation plays out in a weird way throughout the process. The first defendant would be liable for the entire amount, the second for $612,348.52, and the third for $408,232.35. Suppose 500 defendants are ultimately convicted - number 500 will only be liable for $2,449.39. However, victims cannot recover more than 100% of their injuries. Thus, if the first defendant is able to pay the entire amount, no future defendant would be ordered to pay any money.

To you non-lawyer folks, do know that an award of restitution is not to be considered a punishment for committing a crime; rather, the amount is intended to "make them whole" - that is to provide the financial resources necessary to put the victim in the same position as if the injury had not happened, similar to a tort lawsuit after a car wreck.


  1. There are several logical issues with this. First, her representative informs her of the case and she writes that that causes actual and ongoing psychological harm. The obvious issue is testing confirmation bias. If the representative informed her of a case that either was fictitious or where the defendant was actually innocent, she would most likely have the same reaction despite no actual liability on the part of the defendant. Therefore if the reaction is the same regardless of the defendant's actions, the harm (if it exists, but let's assume it does) comes from something else, namely the representative's informing of the victim. If that informing process is what causes harm, why is the government perpetuating it?