Paul Cassell,
a former federal judge, represents child pornography victims in a series of federal
appellate cases. In October alone, Cassell notched a win and a loss in two circuit
courts and argued in another. The case he won created a circuit split about
restitution for victims, which the U.S. Supreme Court will almost certainly be
asked to review.
A former
clerk to Chief Justice Warren Burger at the Supreme Court and then-Judge
Antonin Scalia at the U.S. Court of Appeals for the D.C. Circuit, Cassell
served as a federal district judge in Utah from 2002-2007. He is currently a
professor at the University of Utah’s S.J. Quinney College of Law. With the
assistance of law students in the Utah Appellate Clinic, Cassell has been involved
in litigation throughout the country on behalf of victims.
Under 18
U.S.C. § 2259, child pornography victims are entitled to restitution from
defendants for losses in several listed categories, among them: medical
expenses, therapy costs, lost income, attorneys’ fees, and “any other losses
suffered by the victim as a proximate result of the offense.”
The last
phrase is the source of the circuit split.
On October 1,
in a win for Cassell, the en banc 5th
Circuit concluded that the “proximate result” requirement applies only to
the last category, “any other losses.” The 5th Circuit acknowledged that its reading
of the statute splits with “[a]ll our sister circuits that have addressed this
question.”
Eight federal
appellate courts have held that proximate cause applies to all losses. Put
another way, there must be some direct link between the defendant’s offenses and
the victim’s losses.
The split has
important consequences.
Under the
majority approach, it is more difficult for victims to collect. Defendants who
possess or transport images may not cause a direct loss in the same way that
producers of images do. The defendants in the 5th Circuit were guilty of
possession, making them harder to reach for restitution.
On October
24, just weeks after the 5th Circuit decision, Cassell lost a case in the 9th
Circuit, one of the courts that follows the majority rule. The 9th Circuit affirmed
its precedent and expressly declined to adopt the 5th Circuit decision.
In an earlier
appeal in the same matter, the 9th
Circuit said that “the responsibility lies with Congress, not the courts,
to develop a scheme to ensure that defendants . . . are held liable for the
harms they cause through their participation in the market for child
pornography.”
In its
October 24 opinion, the 9th Circuit also raised the possibility of Supreme
Court intervention.
Both the 5th
and 9th Circuit decisions could be appealed to the Supreme Court soon. The
clear split on an important, recurring issue of federal law makes them cases to
watch. A former federal judge’s participation also gives the split greater
visibility.
Work
continues in other cases, as well.
According to
the Utah College of Law website, quoting one of Cassell’s students, the 5th
Circuit decision “came down in our favor about seven minutes before Professor
Cassell got up to argue [on restitution before the 7th Circuit]. That decision
changed the face of the argument and the feeling in the courtroom.”
The case was
argued on October 1 in a special 7th Circuit sitting at the University of Notre
Dame Law School and is pending.
