Navigating Paroline's Wake


Over the last six years, courts have struggled with the challenge of calculating criminal restitution in child pornography cases. At the heart of this struggle has been the statute mandating restitution, 18 U.S.C. § 2259, which requires courts to simultaneously grant restitution for the “full amount” of a victim’s losses and limit this award to those losses “proximately caused” by the defendant. Faced with navigating this ambiguity in the context of child pornography, when a single defendant may be one of thousands of fellow distributors and possessors harming the victim, courts have awarded restitution in a wide range of amounts, from tens to millions of dollars, using inconsistent methodology or none at all. The Supreme Court’s decision in Paroline v. United States tried to provide the courts relief by clarifying the meaning of § 2259 and offering practical guidance on how to calculate restitution. But the Court’s attempt at making § 2259 workable has failed. In the first empirical analysis of the child pornography restitution issue, this Article uses sentencing data from thousands of cases to show that, even in Paroline’s wake, the restitution system fails to achieve its compensatory, punitive, and victim-affirming purposes. Most of today’s victims continue to receive no restitution at all. Moreover, most courts deciding to award restitution continue to order defendants to pay low-level amounts that are neither calibrated to offense-specific characteristics nor informed by any consistent methodology. As a result, the system causes a number of secondary harms to victims who choose to request restitution, while offering no support to the majority of victims who decline to do so. The system is therefore ripe for legislative overhaul, but Congress’s current proposal to amend § 2259 does little to make it any more practical for courts, fair to defendants, or therapeutic for victims. Drawing on its empirical findings, this Article suggests replacing the current system with a victim reimbursement fund that would better achieve the purposes of restitution. The fund would reimburse victims regardless of their participation in the justice system and would derive its contributions from defendants using reasonable, evidence-based baseline amounts and enhancement criteria that meaningfully distinguish between modern child pornography offenses.

About the Author

J.D., Yale Law School, 2012; Ph.D., University of Oxford, 2014; Supreme Court Fellow at the United States Sentencing Commission, 2014–15.

By uclalaw