The U.S. Supreme Court recently considered the definition of causation as it relates to multiple acts of harm against a victim of crime. In doing so, the Court turned to the Restatement Third of Torts: Liability for Physical and Emotional Harm, drawing analogies and distinctions between tort law and restitution in criminal matters.
The decision in Paroline v. United States, 134 S. Ct. 1710 (2014), is expected to have significant impact on the law of criminal restitution and the role of tort principles in explicating it.
The defendant, Doyle Paroline, pleaded guilty in the Eastern District of Texas to possession of child pornography. The charges were based on Paroline’s possession of some 300 images of child pornography, two of which depicted a child known as Amy. Years earlier, the victim’s uncle had sexually abused her, photographed the abuse, and then widely distributed the photographs on the Internet. The Court noted that the photographs were available “nationwide and no doubt worldwide … [and] possessors … number in the thousands.”
Following Paroline’s guilty plea, the victim sought restitution of more than $3.4 million from the defendant under 18 U.S.C. § 2259, a federal statute that mandates restitution in cases of sexual exploitation of children and requires defendants to pay “the full amount of the victim’s losses.” The district court denied a restitution award, concluding the government had not met its burden of proving that Paroline’s conduct was the proximate cause of the victim’s losses. The Court of Appeals for the Fifth Circuit ultimately disagreed, and held en banc that a § 2259 award is not limited to those losses proximately caused by the defendant’s conduct. Moreover, the circuit court reasoned, each possessor of images should be liable for the entirety of the victim’s loss.
The Supreme Court concluded that both the district court and the circuit court were mistaken in their analyses. The Paroline majority determined first that § 2259 requires a proximate-cause link between a criminal defendant’s conduct and a victim’s losses, citing the Restatement’s explication of common definitions of proximate cause as including foreseeability.
In line with that analysis, the Court held that restitution would not be appropriate for fortuitous losses a victim may incur. Here, the Court found that the victim’s losses of treatment and lost income were direct and foreseeable. The primary issue, the Court stated, was whether Paroline’s conduct was a factual cause of the victim’s harm.
Paroline proposed a but-for causation standard, which could not be met because the victim would have suffered the same harm from other violators. The Court rejected that approach and adopted a standard based on aggregate-causation principles that applies when multiple causes combine to cause harm. The Court looked specifically to §§ 27, 29, and 36 of the Restatement, as well as other tort-law authorities, in determining that aggregate-causation principles “are part of the background legal tradition against which Congress has legislated” and in concluding that this alternative causal standard was necessary to vindicate congressional intent.
Each party offered a different answer to the question of how to calculate a restitution award. The victim insisted the defendant should be charged with the entire amount of her losses. Paroline maintained that no loss could be traced, precisely, to his conduct and thus no restitution award could be imposed. The government asserted that proximate cause was required, that an aggregate-causation standard was appropriate, and that the district court, in its discretion, should determine the amount of restitution by allocating the loss attributable to the defendant’s conduct.
Deputy Solicitor General Michael R. Dreeben, an ALI member, argued before the Court on behalf of the United States. The Paroline Court concluded that the government’s position was the proper one. In adopting the government’s aggregate-causation approach, the Court noted the sound principles underlying it, including those espoused in the Restatement, and rejected Paroline’s no-recovery approach as anomalous and contrary to restitution’s purpose.
But the majority declined to adopt the victim’s vision of aggregate-causation theory that all the victim’s general losses were “suffered . . . as a proximate result of [Paroline’s] offense.” The majority deemed such an interpretation as “expansive,” beyond Congress’s intent, and “contrary to the bedrock principle that restitution should reflect the consequences of the defendant’s own conduct.”
In remanding the case to the district court for calculation of a restitution award, the majority encouraged the court to make its assessment of Paroline’s conduct “in light of the broader causal process that produced the victim’s losses.” The Court characterized the assessment as one that was neither a “precise mathematical inquiry” nor a “rigid formula,” but rather one that involved the district court’s “use of discretion and sound judgment.”
In a dissenting opinion, Chief Justice Roberts, joined by Justices Scalia and Thomas, agreed with Paroline that no award was possible because Paroline’s contribution to the victim’s loss was not capable of calculation.
Justice Sotomayor, in a lone dissent, adopted the victim’s position and would have held Paroline jointly and severally liable for all of the victim’s losses. Relying on the Restatement of Torts, as well as the Restatement Second of Torts, and the Restatement Third of Torts: Apportionment of Liability, Justice Sotomayor argued that Congress would have expected joint and several liability to be imposed for intentional torts.