Jacob Sullum

Amy was 8 when her uncle began raping her. He took pictures. Last month the Supreme Court considered what restitution Amy is entitled to collect -- not from her uncle, but from a man, Doyle Paroline, who downloaded two of those pictures.

The potential answers to that question range from zero to $3.4 million. According to The New York Times, the justices seemed "stumped." Their confusion reflects a deeper problem with the justification for criminalizing possession of child pornography, an offense for which legislators have prescribed increasingly harsh penalties with little regard to sense or justice.

Amy's lawyer puts the past and future cost of her sexual abuse, including lifelong psychotherapy, an interrupted college education and reduced earning capacity, at $3.4 million, some of which is attributable to her knowledge that images of her uncle's crimes are circulating on the Internet. As Justice Antonin Scalia observed during oral argument in the case, Amy "has undergone serious psychiatric harm because of her knowledge that there are thousands of people out there viewing her rape.''

Yet it is no easy matter to allocate responsibility for that harm under a federal law that requires a defendant to pay his victim "the full amount of the victim's losses." Under a theory of joint and several liability, Amy's lawyer argued that Paroline should be on the hook for the full $3.4 million. Paroline's lawyer argued that he owes her nothing because downloading the pictures her uncle took was not the proximate cause of her suffering.

In between those two extremes, Deputy U.S. Solicitor General Michael Dreeben said judges should assess restitution on a case-by-case basis. Another possible approach: If you divide $3.4 million by the estimated 70,000 people who have seen images of the crimes committed by Amy's uncle, the result is less than $50.

None of these solutions is very satisfying. Once images of sexual abuse have been viewed 1,000 times, Justice Samuel Alito wondered, is it even theoretically possible to assess the damage caused by the 1,001st viewing?

The difficulty of deciding exactly what harm Paroline has done to Amy raises the question of why possessing child pornography is treated as a crime that merits years in prison. As a result of congressional edicts, the average sentence in federal child porn cases that do not involve production rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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