[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


 
              CHILD EXPLOITATION RESTITUTION FOLLOWING 
                THE PAROLINE v. UNITED STATES DECISION

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                 HOMELAND SECURITY, AND INVESTIGATIONS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 19, 2015

                               __________

                            Serial No. 114-8

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUUL LABRADOR, Idaho                HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

Subcommittee on Crime, Terrorism, Homeland Security, and Investigations

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia            PEDRO R. PIERLUISI, Puerto Rico
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TREY GOWDY, South Carolina           KAREN BASS, California
RAUUL LABRADOR, Idaho                CEDRIC RICHMOND, Louisiana
KEN BUCK, Colorado
MIKE BISHOP, Michigan

                     Caroline Lynch, Chief Counsel
                            C O N T E N T S

                              ----------                              

                             MARCH 19, 2015

                                                                   Page

                               WITNESSES

Jill Steinberg, National Coordinator for Child Exploitation 
  Prevention and Interdiction, U.S. Department of Justice
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
The Honorable Paul G. Cassell, Ronald N. Boyce Presidential 
  Professor of Criminal Law, S.J. Quinney College of Law at the 
  University of Utah
  Oral Testimony.................................................    24
  Prepared Statement.............................................    26
Jonathan Turley, Shapiro Professor of Public Interest Law, George 
  Washington University
  Oral Testimony.................................................    80
  Prepared Statement.............................................    82
Grier Weeks, Executive Director, National Association to Protect 
  Children
  Oral Testimony.................................................   100
  Prepared Statement.............................................   102

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Witness Introductions............................................     3
Material submitted by the Honorable F. James Sensenbrenner, Jr., 
  a Representative in Congress from the State of Wisconsin, and 
  Chairman, Subcommittee on Crime, Terrorism, Homeland Security, 
  and Investigations.............................................    19

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., 
  a Representative in Congress from the State of Wisconsin, and 
  Chairman, Subcommittee on Crime, Terrorism, Homeland Security, 
  and Investigations.............................................   119
Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................   120
Preparted Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Ranking 
  Member, Subcommittee on Crime, Terrorism, Homeland Security, 
  and Investigations.............................................   121
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................   122
Prepared Statement of Victims of Child Pornography...............   124

 
CHILD EXPLOITATION RESTITUTION FOLLOWING THE PAROLINE v. UNITED STATES 
                                DECISION

                              ----------                              


                        THURSDAY, MARCH 19, 2015

                        House of Representatives

                   Subcommittee on Crime, Terrorism, 
                 Homeland Security, and Investigations

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 10 a.m., in room 
2141, Rayburn Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
    Present: Representatives Sensenbrenner, Goodlatte, Gohmert, 
Chabot, Poe, Buck, Bishop, Jackson Lee, and Conyers.
    Staff Present: (Majority) Allison Halataei, Parliamentarian 
& General Counsel; Sarah Allen, Counsel; Alicia Church, Clerk; 
(Minority) Joe Graupensperger, Counsel; Vanessa Chen, Counsel; 
and Veronica Eligan, Professional Staff Member.
    Mr. Sensenbrenner. The Subcommittee will be in order. 
Without objection, the Chair will be authorized to declare 
recesses at any time due to votes on the House floor.
    Let me see, we are due to have votes sometime between 10:05 
and 10:15, and then another series of votes at 11:45. It is the 
Chair's intent not to resume the hearing after the second 
series of votes, so we will have to go over there to vote, come 
on back, and then resume the hearing. So this is kind of going 
to be the rocket docket.
    The Chair will withhold his opening statement, and at this 
time ask unanimous consent to have all opening statements be 
placed in the record. If either the full Committee Chair or the 
Ranking Member, Ms. Jackson Lee, want to give an opening 
statement, which the Chair will discourage, they may do so.
    The gentleman from Virginia, Mr. Goodlatte?
    Mr. Goodlatte. I will put my statement in the record. Thank 
you, Mr. Chairman.
    Mr. Sensenbrenner. The gentlewoman from Texas, Ms. Jackson 
Lee?
    Ms. Jackson Lee. Mr. Chairman, thank you for your 
courtesies. I will put in my statement, which I intend to have 
revised, and you have given me a great opportunity. I will ask 
unanimous consent for that statement to be placed in the 
record.
    Mr. Sensenbrenner. Without objection, all Members' opening 
statements will be placed in the record. And the Chair will 
remember that you have----
    Mr. Conyers. You didn't ask me.
    Mr. Sensenbrenner. Oh, I didn't see you. The gentleman from 
Michigan?
    Mr. Conyers. I am going along with the crowd here this 
morning.
    Mr. Sensenbrenner. Bless you.
    We have a very distinguished panel today, and I will begin 
by swearing you all in, if you would please rise.
    Please raise your right hand. Do you swear that the 
testimony you are about to give is the truth, the whole truth, 
and nothing but the truth, so help you God?
    Let the record show that all the witnesses answered in the 
affirmative.
    Let me give a brief introduction of all of the witnesses, 
and ask unanimous consent that the full introduction be placed 
in the record.
    [The information referred to follows:]
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                               __________
    Mr. Sensenbrenner. Jill Steinberg serves as the national 
coordinator for Child Exploitation Prevention and Interdiction 
at the United States Department of Justice.
    The Honorable Paul Cassell is an endowed chair of the 
University of Utah College of Law. Professor Cassell received a 
J.D. from Stanford, which shows that he is a person of great 
intellect, and he also makes good choices.
    Professor Jonathan Turley is the Shapiro Professor of 
Public Interest Law at George Washington University Law School.
    And Grier Weeks is the executive director of the National 
Association to Protect Children, which he helped establish in 
2004.
    Without objection, all the witnesses' statements will be 
placed in the record in full. Each witness will be asked to 
summarize their testimony in 5 minutes or less. You all know 
what the red, yellow, and green lights mean.
    Ms. Steinberg, you are first.

  TESTIMONY OF JILL STEINBERG, NATIONAL COORDINATOR FOR CHILD 
 EXPLOITATION PREVENTION AND INTERDICTION, U.S. DEPARTMENT OF 
                            JUSTICE

    Ms. Steinberg. Chairman Goodlatte, Ranking Member Conyers, 
Chairman Sensenbrenner, Ranking Member Jackson Lee, and 
distinguished Members of the Subcommittee, I would like to 
thank you for the leadership that you have taken in addressing 
restitution for child pornography victims. On behalf of the 
Justice Department, I look forward to working closely with you 
on this issue.
    Every day, individuals around the world advertise, 
distribute, and access child pornography. These images of child 
sexual abuse are moved from computer to smart phone to tablet 
to cloud storage and back, seamlessly crisscrossing 
international borders without detection. When sexually explicit 
images of children become actively traded, those victims 
necessarily are implicated in hundreds of cases all over the 
country and across time.
    In this way, these victims are unique among crime victims. 
Because of the mechanics of the crime committed against them, 
they continually suffer harm caused by countless individuals 
all over the country and the world.
    Like all crime victims, victims of child pornography are 
entitled to full and timely restitution as provided by law, 
including restitution for losses that arise from the collection 
and distribution of their images.
    In 2009, for the first time, a victim came forward and 
sought restitution not just from the person who produced and 
initially shared those images, but from the subsequent 
individuals who collected and traded those images. Soon, 
Federal prosecutors across the country were seeking restitution 
in collection and distribution cases for child pornography 
victims. For the most part, prosecutors were successful in 
obtaining restitution orders for those victims.
    Despite the department's overall effort and success in 
obtaining restitution orders for these victims, there were some 
hard-fought losses. Some courts struggled to determine whether 
a defendant proximately caused a victim's loss. If a defendant 
was one of thousands of individuals who harmed a victim, some 
courts found that he could not have proximately caused her 
losses because those losses essentially would be the same if he 
had not committed the crime. On that logic, some courts denied 
restitution.
    Others demanded a showing as to how much an individual 
defendant incrementally increased a victim's loss, which 
imposed a generally insurmountable evidentiary burden.
    Among courts that awarded restitution, many courts grappled 
with how much that restitution should be. Although most awards 
clustered in the range of $1,000 to $5,000, courts adopted 
numerous different approaches to come up with that number.
    These two issues were brought to the Supreme Court in 
Paroline v. United States last term. In its majority opinion, 
the Court found that the unique issue of imposing restitution 
in child pornography cases required the use of a less demanding 
causal standard. The majority opinion concluded that in these 
types of child pornography cases, a court should order 
restitution in an amount that comports with the defendant's 
relative role in the causal process that underlies the victim's 
general losses.
    Paroline has substantially improved the department's 
ability to obtain restitution orders for these victims. Since 
Paroline, the department has obtained approximately 160 
restitution orders in approximately 60 Federal districts across 
the country. In that time, we are not aware of any district 
court judge denying a restitution order in these kinds of cases 
because of the failure of proof on the
    Causation issue. Instead, courts can focus on how much 
restitution should be ordered.
    Although Paroline has significantly improved the 
department's ability to obtain restitution in these kinds of 
cases, legislation is still needed to improve our ability to 
help these victims. Current data tells us that there are over 
8,500 children who have been identified in images of child 
pornography. Yet as of yesterday, when we found out about one 
additional victim who is asking for restitution, there are only 
16 victims seeking restitution in child pornography 
distribution, receipt, and possession cases in Federal court.
    The department believes that the reason so few seek 
restitution is because the process of litigating claims in 
hundreds of cases around the country over many years is simply 
too burdensome, and we can do better.
    The department urges Congress to create an alternative 
system that allows victims of the distribution and collection 
of child pornography to obtain some measure of restitution 
without enduring litigation.
    Under this system, child pornography defendants would be 
required to pay a special assessment, in addition to any 
restitution that they might owe. The special assessment would 
go into a fund. Victims of these types of child pornography 
cases could then choose whether to present their full 
restitution claim in court, as they do now, or to avail 
themselves of a onetime source of administrative compensation.
    This two-track process is meant to ameliorate the 
structural impediments that we believe deters victims from 
coming forward now while preserving the option of obtaining 
full restitution for those who wish to do so.
    Thank you for your continued consideration of this issue. 
The department looks forward to working with Congress to find 
the best means to advance an important cause of putting 
restitution in the hands of these victims.
    [The prepared statement of Ms. Steinberg follows:]

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                               __________
    Mr. Sensenbrenner. The Chair hears bells in the distance, 
which means that we have to go to vote. Before recessing the 
hearing, the Chair asks unanimous consent to include in the 
record a statement by Linda Krieg, the acting CEO of the 
National Center for Missing and Exploited Children, on this 
subject.
    Without objection, so ordered.
    [The information referred to follows:]
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                                   __________
    Mr. Sensenbrenner. Pursuant to the previous order, the 
Subcommittee stands in recess. Members are advised to come back 
as soon as the last vote in this series is taken.
    [Recess.]
    Mr. Sensenbrenner. The Subcommittee will be in order.
    Professor Cassell?

  TESTIMONY OF THE HONORABLE PAUL G. CASSELL, RONALD N. BOYCE 
PRESIDENTIAL PROFESSOR OF CRIMINAL LAW, S.J. QUINNEY COLLEGE OF 
                 LAW AT THE UNIVERSITY OF UTAH

    Mr. Cassell. Thank you. Mr. Chairman, and distinguished 
Members of the Subcommittee, I am pleased to be here today to 
testify in support of legislation to expand restitution for 
child pornography victims.
    As the Subcommittee is aware, last April, the Supreme Court 
handed down its decision in Paroline v. United States. The case 
involved a young victim of Federal child pornography crimes, 
Amy. She had a documented restitution claim for significant 
psychological counseling costs, costs that were attributable to 
the crimes of literally thousands of criminals scattered across 
the country.
    The Supreme Court's 5-to-4 decision interpreted a 
restitution statute enacted by Congress and held that an order 
of restitution is only appropriate to the extent that it 
reflects the defendant's relative role in the causal process 
underlying the victim's financial losses.
    Exactly what this holding means is not completely clear, 
and lower courts are currently struggling to implement the 
Court's holding. But even the Supreme Court itself seemed to 
recognize that Congress would need to amend the restitution 
statute. Chief Justice Roberts, joined by Justices Scalia and 
Thomas, noted that the majority opinion would result in tiny 
restitution awards to Amy, and that Congress should have the 
chance to ``fix it.''
    Justice Sotomayor, too, called for a congressional 
response, explaining that, in the end, it is Congress that will 
have the final say. She specifically suggested that Congress 
might amend the statute, for example, to include the term 
``aggregate causation'' or to set minimum restitution amounts.
    Following up on the specific suggestions in the dissenting 
opinions, the proposed Amy and Vicky act would specifically 
mandate the use of an aggregate causation standard in making 
restitution determinations. The Amy and Vicky act would also 
simplify apportionment issues by establishing fixed minimum 
restitution amounts, $25,000 for possession crimes, $150,000 
for distribution crimes, and $250,000 for production crimes.
    It is important to note that none of these amounts exceeds 
the current maximum fine amount, $250,000, and it is hard to 
understand how ordering restitution that goes to victims in 
amounts equal to or less than what can already go to the 
government could be found objectionable by anyone.
    The view that Congress should step in and amend the child 
pornography restitution statute appears to be widely shared. On 
today's panel, all four of us have provided testimony calling 
for changes to the statute. Mr. Weeks and I both support the 
Amy and Vicky act. The Justice Department, too, has advocated 
setting minimum restitution amounts, calling such a change to 
be helpful. And Professor Turley supports amendments to provide 
for minimum restitution awards for those who produce or 
distribute child pornography.
    This broad support for changes to the statute is also 
reflected in the resounding 98-to-nothing vote that the Senate 
gave in passing the act, as well as 43 endorsements from 
attorneys general.
    In my written testimony, I explained at length how the act 
is consistent with well-settled principles of tort law, which 
hold that intentional wrongdoers, like the criminals involved 
here, must shoulder the burden of paying for harms to which 
their wrongful actions contribute.
    But rather than end with a law professor's explication of 
tort theory, I want to conclude my remarks with the words of a 
courageous young woman whom I have had the great privilege to 
represent in courts across the country, including the United 
States Supreme Court.
    My client Amy is seated in the hearing room today, along 
with two other victims of child pornography crimes, whom I will 
refer to has Alice and Aurora. They are available to meet with 
the Committee or the Committee staff after today's hearing.
    But each of them have asked me to convey to the 
Subcommittee the endless trauma that they endure. As Amy 
explained to me, ``Imagine that you were abused, raped, and 
hurt, and this is something that other people want. They enjoy 
it, and it is you. It is your life and it is your pain that 
they are enjoying. And it never stops, and you are helpless to 
do anything ever to stop it. That is horror.''
    This Subcommittee can never go back and erase the horrors 
that Amy and others like her have already suffered. But moving 
forward, it can put in place a workable statute that would 
provide restitution from convicted criminals who have 
contributed to their pain.
    The House should hear Amy's plea and join the Senate in 
passing the Amy and Vicky act. Victims of child pornography 
crimes deserve nothing less than full and speedy restitution.
    Thank you.
    [The prepared statement of Mr. Cassell follows:]
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                                   __________
    Mr. Sensenbrenner. Thank you very much.
    Professor Turley?

   TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF PUBLIC 
           INTEREST LAW, GEORGE WASHINGTON UNIVERSITY

    Mr. Turley. Thank you, Chairman Sensenbrenner, Ranking 
Member Jackson Lee, Members of the Subcommittee. It is a great 
honor to appear before you to discuss this important issue of 
restitution for child exploitation in the aftermath of the 
Paroline decision.
    Even though I have taught tort law for decades, and 
practiced in the area of criminal defense, I have to say, this 
is the most challenging question I have faced when called 
before a Committee of Congress.
    In my view, the Supreme Court was correct when it struck 
down the prior system, which contained a well-intentioned but 
ill-conceived model for relief for these victims. The problem, 
as I explain in my written testimony, is not with the core 
culprits of these crimes. For them, the restitution is fairly 
clear and conventional. The problem is with that group of 
culprits that are accused of viewing or possession of these 
images.
    As the Supreme Court itself said on page 24 of the opinion, 
the prior system pushed traditional concepts of tort and 
criminal law to ``the breaking point.'' And I certainly agree 
with that.
    There are no advocates of child pornography here today. 
There are no such advocates in this debate. We all agree that 
these are horrendous crimes. More importantly, we agree that 
these victims need restitution and relief, and that too few of 
them are receiving that. So no one was doing a victory lap when 
the Supreme Court struck down the prior system.
    I thought it was a sad moment, because I believed before 
the opinion that it was unnecessary litigation, that the system 
was flawed and that it could have been avoided, and that, more 
importantly, these victims could have gotten the relief that 
they deserve.
    It is important to remember that even though the decision 
was 5-4, there were eight Justices that felt that restitution 
could not be awarded under the prior system. And of the 
circuits, there was not much of a split. There was just one 
circuit that said restitution of this kind could be granted. 
Ten said that it could not because of these core principles of 
proximate causation, joint and several liability, and other 
controversies.
    So we are not here to vent about the opinion but to try to 
learn from it. I think there are things that could be learned 
from it, and I believe that the Committee could make this a 
better system to better assist these victims.
    While I agree with the Supreme Court decision, I thought 
the most unfortunate aspect, and Paul has indicated this as 
well, is that the guidelines given to lower courts are not very 
helpful. They are pretty opaque, in fact, as to what lower 
courts are supposed to do to find a figure of restitution. You 
end up with sort of a Goldilocks figure. They want it to be not 
too big, not too small, but just right. That is not going to 
help out these courts. These judges will be left with this sort 
of Sisyphean task of trying to find a way to fit this round peg 
into a square hole. I think that is the problem.
    That is the reason I suggest in my testimony that the 
Committee consider the creation of a compensation fund. I call 
it tentatively ``RAISE.'' That RAISE fund would follow previous 
funds created, including the International Terrorism Victim 
Expense Reimbursement Fund. But also it would track this 
approach in tort cases, mass tort cases, as well as settlement 
cases in areas like the BP oil spill, the 9/11 Victim 
Compensation Fund.
    I go through the benefits of this fund. I think that the 
current system is insane, to have each of these victims have to 
go through this process, hire attorneys, have judges try to 
reinvent the wheel in every single case in finding a figure.
    So I recommend the fund for various reasons. One is that it 
is fair. It would guarantee fair and equitable distribution to 
victims.
    Second, it would reduce legal fees, because you would have 
a fund that would be able to administer this process. It would 
reduce court costs so that judges would not be faced with what 
is clearly a very difficult task.
    It would also end the race to the courthouse. You wouldn't 
have the problem of people getting first into a case, possibly 
tapping out a defendant to the possible disadvantage of other 
victims.
    It would also reduce information and transactional costs, 
and guarantee a more consistent and perhaps increased number of 
orders for victims. As was previously said, we have 8,500 
victims here, but if you take a look at how many of the victims 
have received compensation, it is ridiculously small.
    So the question for the Committee is, are you going to have 
a retort to the Supreme Court or reform? I think the Senate 
bill is more of a retort. It does not really take from the 
opinion what it could.
    I will end simply by noting Archimedes once said very 
famously that if you give me a lever long enough and a fulcrum 
to place it on, I can move the world. The question here is the 
lever. I think Congress made the wrong decision, and this would 
give you a new lever and would give victims a better life.
    [The prepared statement of Mr. Turley follows:]
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                                   __________
    Mr. Sensenbrenner. Thank you very much, Professor.
    Mr. Weeks?

    TESTIMONY OF GRIER WEEKS, EXECUTIVE DIRECTOR, NATIONAL 
                ASSOCIATION TO PROTECT CHILDREN

    Mr. Weeks. Thank you, Chairman Sensenbrenner, and 
distinguished Members of the Committee. I am a Grier Weeks with 
Protect. We are a pro-child, anticrime membership association. 
We have been working on this issue, in particular, with 
Congress and in the States since 2006.
    Child pornography is a massive black market in the United 
States. The market demand can only be supplied in one way, and 
that is through the additional rape and torture of children. 
Many of those children, if not most, are toddlers or elementary 
school age, and they have no idea that their nightmare is not 
over when the assaults stop.
    There are somewhere on the order of 5 million known video 
and images of children being abused today. There has been over 
8,000 victims identified.
    I think it is important for you to understand, as 
policymakers, that the vast majority of those victims have not 
been identified through any concerted national effort. They 
have been identified in the normal course of law enforcement 
investigations. And this is a serious shame, I think.
    If you ask law enforcement their best estimates for how 
many victims there are out there, it will always tend to be in 
the tens of thousands. We think that about 50,000 is a very 
safe estimate for how many victims are out there.
    But I want to point out there is a much larger iceberg 
there. We know that there are over 1 million people in this 
country sexually preying on children. That means that there are 
millions of child victims, and every one of those kids is in 
danger of having a camera or smart phone pointed at them and 
becoming a victim of child pornography.
    The Amy and Vicky act, if drafted properly, and I am not 
here as a legal expert, would be a fix to part of the problem. 
I want to say that victims, survivors, transcenders, really, of 
abuse, like Amy and Vicky, who have really gone to great 
lengths in their lives to go fight to make the predators 
accountable, are national heroes. And they need a solution.
    I want to also say that there has been some suggestion that 
if there were a victim restitution compensation fund, that the 
victims have to choose that or go to court. I think the spirit 
of the crime victims' rights act is that you have the right to 
confront the person who abused you or committed the crime 
against you, to be heard, and to exact some measure of justice. 
I do not think we can say to people, well, you forfeited that 
right because you availed yourself of help from a government 
fund.
    In 2014, our organization compiled a report on the state of 
affairs in all 50 States with crime victim compensation funds. 
The author Susan Nelson found that 44 States and the District 
of Columbia either do not allow or make it very difficult for 
victims to recover damages from these funds.
    In New York, for example, if you are a victim of a 
frivolous lawsuit, you are eligible for compensation. But if 
you are a victim of child sexual exploitation, you are not.
    The problem cannot be solved piecemeal, state-by-state. The 
fact is that the vast majority of victims are never going to 
hire an attorney, never going to put themselves through the 
ordeal of recounting what happened to them, in the courtroom. 
We need a Federal solution. We need a Federal fund.
    Unlike virtually any other crime on the books, a victim in 
Ohio may have simultaneous perpetrators in 49 other States. We 
support a dedicated Federal crime victim compensation fund that 
should be at the Department of Justice. The Office for Victims 
of Crime is the natural home for this fund, as they already 
oversee the Crime Victims Fund.
    It should utilize money from a special assessment on child 
sexual exploitation crimes. We should make the perpetrators pay 
for this. And they should be graduated based on seriousness of 
offense.
    It will need to be reconciled, if the justice for victims 
of trafficking act were to make it out of the Senate. It needs 
to be reconciled with that.
    The fund should be seeded up front, I believe, with funds 
from the Crime Victims Fund, which now has a staggering balance 
of about $9 billion. That will be more than recouped over the 
years.
    It really should be user-friendly. It is just inhumane to 
ask victims to come forward with a shoebox full of receipts for 
everything that has happened to them since they were 8 years 
old.
    Finally, I want to say that we can't just worry about 
yesterday's victims. We have to think about today's victims. 
There are only so many special assessments and fines that can 
be piled on. If a special assessment is created, a portion 
should go to law enforcement, I would say as much as 50 
percent. That will grow the fund for all victims concerned, but 
it also is the only way of ensuring that we are not just 
helping those brave survivors who have gotten strong and 
stepped forward to fight for their rights. We are also 
protecting the 5 year olds, the 8 year olds today who 
desperately need to be rescued, and that is law enforcement.
    Thank you.
    [The prepared statement of Mr. Weeks follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
       
                               __________
    Mr. Sensenbrenner. Thank you very much, Mr. Weeks.
    I will recognize myself for 5 minutes. It will be kind of 
more of a list of concerns than a question, although I may have 
one or two at the end.
    Everybody here wants to make those who perpetrate and 
distribute child pornography pay and pay dearly. We all know 
that there is a lot of money in it, and this is criminal money. 
We ought to make those who attempt to make a lot of money and 
get caught really have the book thrown at them, and it is not 
just jail time.
    The second issue is how we compensate people who have been 
the victims of child pornography. The Paroline decision talks a 
lot about that and comes to the conclusion that the current 
statute is defective.
    The third point is, how do we compensate the victims, how 
much, what they have to show to be compensated, and whether it 
is proper to call this restitution when it might go beyond the 
restitution that is necessary to actually deal with the 
psychological damage that is done to people who are victims of 
child pornography.
    This is kind of something that is all mixed up. The 
Paroline case, in my opinion, shows very clearly that Congress 
got it wrong when it passed the trafficking statute Section 
2259 of the Criminal Code. This time we have to do it right, 
because there will be a further Paroline-type case that makes 
it all the way up to the Supreme Court. And if we don't do it 
right, in a few years, we will be back right from the start.
    It appears from the testimony that Amy and Vicky's law is a 
good start, but it doesn't do it right completely. With all 
these concerns that have been raised by the witnesses today, 
let me ask you, Professor Cassell, how you think Amy and 
Vicky's law can be strengthened in a way that we don't have to 
respond to a Supreme Court decision years down the road.
    Mr. Cassell. Thank you, Mr. Chairman. I think you make a 
very good point. The Amy and Vicky act is a good start and 
should be the first step in the process. But there are 
obviously additional steps that can be taken, and I list some 
of those in my testimony.
    One of the key things is the Crime Victims' Rights Act, 
which I know you were instrumental in helping to pass about 10 
years ago. One of the problems there is that there was 
initially appropriation made for crime victims' legal 
representation that has since disappeared. So I think that 
would be the number one thing Congress could do, to reestablish 
the funding that was part of the Crime Victims' Rights Act. 
That would provide legal representation for victims on 
restitution issues and every other issue that they have.
    There were also some other things that could be done to 
strengthen the Crime Victims' Rights Act, such as ensuring 
proper appellate review of crime victims' claims.
    I think it is certainly worth discussing the idea of a 
fund, but what has been interesting for me is the Justice 
Department, who we had to litigate against in the Supreme Court 
on these issues, threw out the idea of a fund 5 years ago. 
Well, here they are today still talking about it, but when is 
the department actually going to put something forward that is 
specific?
    The Amy and Vicky act is something specific. It is 
legislation that has passed the Senate, and it would make a 
real-world difference for Amy, Vicky, and many other victims 
around the country. I think that is the thing that has to 
happen.
    Mr. Sensenbrenner. With all due respect to our colleagues 
on the other side of the Capitol, there are a lot of bills that 
pass the Senate that we have to fix up. This is a case where we 
have to do it right the first time, because if we don't do it 
right the first time and try to take a bow and say, ``Guess 
what, folks? We have solved this problem,'' when we really know 
we didn't, I think we are just deceiving the American public, 
knowing that further litigation is going to result in an 
inconclusive decision by the Supreme Court, which will make a 
lot of the victims of this type of crime very frustrated and 
very unhappy.
    I think that Amy has indicated that on the record after 
this all went up to the Supreme Court, where eight of the nine 
Justices said that under the current statute, no restitution 
was possible.
    I guess what I would like to say is that I am concerned 
that if the shoebox full of receipts, using Professor Turley's 
testimony, ends up resulting in a pittance and a slap on the 
wrist, and having a minimum amount of restitution damages, I am 
concerned that that would raise some Eighth Amendment problems 
that we really don't need to be adding to the whole business of 
things that have to be solved.
    So I am going to say I am very, very eager and willing to 
work with everybody who has an oar in the water. But remember, 
the goal is to do it right, not to do something where people 
can take a bow on the Sunday morning talk shows and then being 
embarrassed that their law has been struck down because it is 
wrong or because it is not specific enough.
    With that, I will call on the gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    And I appreciate the witnesses.
    Let me ask Professor Turley, does the Eighth Amendment 
prohibition against excessive fines apply to restitution 
statutes in criminal cases?
    Mr. Turley. Thank you. It is wonderful to appear again 
before you, sir.
    The Supreme Court actually touched on this and said that 
restitution, even though it is traditionally not a punitive 
measure, can trigger the Eighth Amendment because it is part of 
the criminal process. They touched on it lightly on the opinion 
that this can conflict as an excessive fine under the Eighth 
Amendment.
    I think that most of the opinion is directed at the origins 
of these doctrines of proximate causation in torts, where the 
court is saying, look, this just doesn't fit. What you are 
trying to do here with possessors, and I think that is the key 
here, that if you want to fix this thing, I think that you need 
to separate who are the targets.
    When it comes to those core individuals, the ones that do 
the filming and distribution, I don't see a serious problem, 
even with Senate bill. But the Senate bill replicates many of 
the problems that the Supreme Court identified. In some 
respects, it is a cosmetic change. I think that is how it will 
be viewed by some of the Justices.
    Where I think we have our issue, what makes this difficult, 
are with possessors and fitting it into a restitution scheme. 
The Chairman was addressing that as well.
    So the answer, sir, is yes, excessive fines can run afoul 
of the Eighth Amendment. In fact, it was raised by the Supreme 
Court. But you can actually get on to terra firma, if you just 
take a different approach to this issue. I think that, frankly, 
this was just the wrong path to take with that group of 
individuals. You can get to the same place. You can actually 
get to the same relief, but you can do it in a way that will 
avoid all of this litigation.
    It is sort of like when a patient goes to the doctor and 
says, ``Doc, when I do this, it hurts.'' And the doctor says, 
``Stop doing that.'' I think that is the problem here, that you 
are using the wrong means for that class of defendants.
    Mr. Conyers. Ms. Steinberg and Professor Cassell and Mr. 
Weeks, are you in general agreement with the response that has 
been made so far?
    Mr. Cassell. I am not. I think the Eighth Amendment does 
not apply at all to restitution awards. Restitution awards do 
not punish criminals. They provide compensation to victims.
    I litigated that issue in the 10th Circuit in the Oklahoma 
City bombing case on behalf of 169 families and many others who 
were trying to get a very large restitution award entered 
against Terry Nichols so he couldn't go sell a book or do 
something like that and profit from his horrible crime.
    The issue went to the 10th Circuit, and the 10th Circuit 
said restitution does not punish criminals. It is compensation. 
So some of the other constitutional restraints that may apply 
in other settings, when Congress sets mandatory minimums or 
things like that, simply do not apply.
    The other key thing to remember about the Amy and Vicky 
act, today, a possessor of child pornography can be ordered to 
pay $250,000 to the government. The Amy of Vicky act says to a 
possessor, well, let's not send money to the government. Let's 
send $25,000 to a victim.
    If you can send $250,000 to the government, it is hard for 
me to imagine how any court in the land would say, well, 
$25,000 to a victim is cruel and unusual punishment.
    Mr. Conyers. Any other comments on this?
    Mr. Weeks. Congressman, I would like to respond.
    Mr. Conyers. Mr. Weeks?
    Mr. Weeks. My opinion on the constitutional question 
wouldn't be expert enough to be valuable to you, but I do want 
to emphasize that possessors, the so-called simple possessors, 
must be held accountable. They are commissioning the rape of 
children.
    Mr. Conyers. Now, finally, I have been pursuing an attempt 
to get nondeterrent minimums struck from the Criminal Code for 
a considerable period of time. I think I am gaining steam. 
Couldn't we drop that and let's leave it in the court's 
discretion, rather than us trying to write in whatever feelings 
we happen to have on the day this legislation comes up?
    Who would like to try that?
    Mr. Turley. I will take a stab at it. I actually, in my 
testimony, encourage the Committee, in whatever it does, to 
allow some element of discretion for trial courts to make 
qualitative decisions in cases. There are no de minimis 
possession of child pornography cases, in my view. That is, 
they are all serious. But there are great variations.
    And these trial courts are in an excellent position--they 
are the boots on the ground--to make decisions. None of these 
courts are going to be sympathetic to these defendants.
    But I think that what the Committee itself has to accept is 
if you look at the record of Paroline, it is riddled with 
broken courts, fractured courts trying to use the system, the 
approach, that I think is replicated by the Senate with regard 
to possessors. It is really only with possessors that courts 
fractured on trying to use the system.
    So I think it would be a good idea to have a discretionary 
component, but also to use an alternative approach to avoid 
another round of litigation.
    Mr. Conyers. I thank you all.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Ohio, Mr. Chabot?
    Mr. Chabot. Thank you, Mr. Chairman. Thank you for holding 
this very important hearing.
    I want to thank all our witnesses here today for devoting 
much of their time and their lives to an issue which is 
absolutely critical, the exploitation of children, particularly 
over the Internet. It is incredible how prevalent it is, how 
many children have been injured.
    I have been on the Judiciary Committee, this is my 19th 
year now. Henry Hyde had introduced the victims of crime 
constitutional amendment some years before I got here. And 
after a while, he was so busy with so many issues, being Chair 
of the full Committee, that he turned to me to handle it. And 
for years, I was the principal sponsor of the victims 
constitutional amendment.
    Unfortunately, we never got it passed. It is very hard to 
pass a constitutional amendment, as Professor Turley knows. We 
did pass some legislation, and oftentimes it was a victims bill 
that was attached to some other larger bill that in a CR went 
through. So it was hard to focus.
    It wasn't a CR this time, but in any event----
    Mr. Sensenbrenner. No, I stuck it on something the Senate 
wanted.
    Mr. Chabot. Okay.
    But, procedurally, oftentimes, you never know what you 
actually accomplish, because it is in a 2,000-page bill 
somewhere. But the bottom line is, a lot of us have been 
involved in this for a long time.
    There is a debate around here. Oftentimes, you hear about 
we prefer, conservatives, in particular, prefer to have the 
States doing what they can and us not to get involved in it, if 
we don't really need to.
    So I guess my question would be for you, Mr. Weeks, mainly, 
but anyone can comment on it, if they want. You mentioned the 
States. Some of them have victims' compensation funds and most 
don't apply to, I guess, minors exploited on the Internet. But 
this is a case where it may happen in one State and then 
because these people apparently deal with each other all over 
the place, it can be in all 50 States.
    So make your best argument, if you would, for the record, 
as to why this is an area, really, we should have Federal 
involvement and a Federal victims' compensation fund of some 
sort.
    Mr. Weeks. Sure. Congressman, we work in probably a dozen 
States so far. We have worked on the legislative level. And one 
of the things we want most to see is States taking 
responsibility, taking the lead on this issue.
    However, virtually every single case of online-facilitated 
child pornography trafficking is a Federal crime because of the 
commerce clause. So you have that. You also have a very large 
percentage of all prosecutions are federally done, so you have 
that as well. There is also a very large international 
component.
    I think that here in the States, law enforcement is 
completely overwhelmed. In every single State, law enforcement 
is unable to even pursue any more than 2 percent of known 
leads, of known leads.
    Mr. Chabot. Thank you very much.
    Let me ask you another question. I also practiced law for 
18 years and did criminal cases, represented victims, et 
cetera. In going through the victims' compensation funds, as 
you all know, to fund them, they will slap on court costs on 
criminal cases. Unfortunately, oftentimes, the people in our 
criminal courts all over the country are basically indigent, 
and they are supposed to pay but oftentimes don't. How can we 
make sure that the actual perpetrators here--and I think a lot 
of these perpetrators are people who have some financial 
ability to pay. I am sure there are exceptions, but how do we 
make sure that actually the people who are committing these 
horrific crimes are the ones who foot the bill and not 
taxpayers, or in some way the public is paying for it.
    We want the victims to get something, but it really ought 
to be the bad guys and not all of us, the taxpayers, paying.
    Professor Turley, would you want to take that?
    Mr. Turley. Well, under my written testimony, I refer to 
the fund as actually collecting money from these cases, a 
central fund where these district courts can refer to an office 
that has the expertise and can also distribute this with a 
centralized idea of who is receiving what money and has the 
ability to do this in an efficient way.
    It would also allow courts to send fines into the fund, 
which could help support it even further.
    One of the things that I think has great promise is that 
these people, if they are out of prison, should have 
garnishment. They should have money removed from every paycheck 
to remind them of what they helped facilitate, if they are 
possessors, or what they did, as core original violators. That 
can be done.
    Mr. Chabot. Thank you.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Michigan, Mr. Bishop?
    Mr. Bishop. Thank you, Mr. Chair.
    And thank you to all the witnesses here today. I appreciate 
your testimony and would echo the comments from my colleagues 
regarding all that you do and the importance of what you do. 
Thank you very much.
    I practiced law for 22 years, too, and I had a chance to be 
on both sides of the law. I have seen victims firsthand, and I 
know that this is an ongoing process that all of us are working 
on and trying to do the best that we can do.
    Many of you can answer these questions. I have several of 
them. I am sure, as time goes on, I will have a chance to ask 
them in the future.
    I think, Judge Cassell, you helped write this. Is there a 
reason it didn't include a compensation fund to address the 
droves of victims that haven't sought traditional restitution?
    Mr. Cassell. Thank you, Congressman.
    The reason we wrote the bill--when I say ``we,'' a large 
number of people, the victims community, members of the staffs 
on both sides of the Hill have looked at this. The idea was to 
keep it narrow, so that it wouldn't attract the controversy 
that seems to attend broader bills.
    The Supreme Court in the Paroline decision says someone is 
going to need stop in, at least the four dissenting Justices 
all indicated that. So we responded to that call and simply 
addressed the narrow problems that needed to be fixed in the 
wake of the Supreme Court decision.
    Obviously, Congress could do a number of broader things. 
Congressman Chabot has talked about a constitutional amendment, 
and I believe I will be here in April when the House will be 
holding hearings on that. There are some much broader steps 
that can be taken to protect victims' rights. But we tried to 
do a narrow approach to a narrow problem.
    Mr. Bishop. Thank you very much for that.
    One of the dissenting opinions, Justice Roberts, in that 
particular case, provided that the victims should get nothing 
under the restitution statute as written, and that Congress 
should fix the statute. But after that, he gives very little 
guidance as to what he meant by that.
    Perhaps you all can give me some idea as to what you think 
he meant by that.
    Mr. Cassell. I think he meant that victims like Amy should 
receive ample compensation, and the bill that has been passed 
by the Senate, the Amy and Vicky act, does exactly that.
    One of the things it does, Congressman Chabot talked about 
the taxpayers here. Frankly, the only people who love the 
current regime are wealthy child pornography criminals, because 
now they can manage to get off the hook and pay just $1,000 or 
$2,000, which is the collection rate of victims in the system. 
If the Amy and Vicky act passes, then a substantial amount of 
money can be taken from those defendants and given to victims. 
And if those defendants are unhappy about having to shoulder 
the burden for paying a large amount, they can then go track 
down other criminals around the country.
    What happens under the current regime is that crime victims 
like Amy have to go to literally dozens and dozens and dozens 
of different cases, different courts, different judges, to try 
to collect restitution. I think that is the kind of thing that 
Chief Justice Roberts was thinking needed to be changed.
    Mr. Turley. I will disagree to some extent to what my 
friend Judge Cassell has said, in terms of the dissent by Chief 
Judge Roberts, although we all, obviously, could read this 
differently.
    One thing that comes out of eight of nine Justices is a 
view that the system designed by the Congress was unworkable. 
That was not a close question.
    I mean, one of the things I tried to convey in my written 
testimony is you have 10 out of 11 circuits saying that what 
Congress did was impossible to carry out. You have eight out of 
nine Justices, who agree on less and less each year, who agreed 
on that position.
    My problem with the Senate bill is it does try to make 
marginal changes, and what you see in these opinions is that 
there are substantial changes that have to be made, but not in 
what we want to achieve. We can achieve it. But this is an 
example of what I talk about in my written testimony of what 
economists call path dependence. This idea of fitting these 
fines as a form of restitution and part of joint and several 
liability was a flawed concept. And this is a good time to 
simply take another path.
    One of the nice things about the compensation fund is that 
it will get you out of that morass. These Justices said 
clearly, look, this just doesn't fit. It is very hard to make 
this into proximate causation in terms of restitution. They 
weren't saying that the victims couldn't get the relief, but 
this was not the vehicle. That is why a compensation fund would 
move you out of that problem.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The Chair will ask unanimous consent that all Members of 
the Subcommittee have the opportunity to submit written 
questions of the witnesses within 5 days.
    Without objection, the Subcommittee stands adjourned.
    [Whereupon, at 11:25 a.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

  Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a 
 Representative in Congress from the State of Wisconsin, and Chairman, 
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
    The crime of child exploitation, including the trading and viewing 
of images of sexual abuse against children, is one of the most horrific 
crimes one can imagine. It is also, sadly, one of the fastest growing. 
The National Center for Missing and Exploited Children, which works in 
partnership with law enforcement, reviewed over 3 million child sexual 
abuse images and videos last month alone. And, there was an 18 percent 
increase in the files they reviewed between 2013 and 2014.
    The harm that the victims of child exploitation trafficking suffer 
is extensive. Not only must these young victims overcome the trauma of 
being raped--most often by a so-called loved one or an adult in a 
position of trust--but they are also faced with the knowledge that 
everyday many thousands of pedophiles could be viewing the evidence of 
their rape for their own pleasure. Horrifically, many pedophiles also 
use these exploitative images to groom other victims for abuse.
    There are some who think that the possession, or ``mere 
possession'' as they call it, of child pornography is a victimless 
crime. I want to state unequivocally that it is not. Amy, the 
extraordinarily brave victim whose restitution claim formed the basis 
of the Supreme Court case we will examine today, has said this in a 
victim impact statement:

        ``Every day of my life I live in constant fear that someone 
        will see my pictures and recognize me and that I will be 
        humiliated all over again.''

                              *    *    *

        ``The truth is, I am being exploited and used every day and 
        every night somewhere in the world by someone. How can I ever 
        get over this when the crime that is happening to me will never 
        end? How can I get over this when the shameful abuse I suffered 
        is out there forever and being enjoyed by sick people?''

                              *    *    *

    While the equities of online child exploitation cases, including 
those involving defendants who traffic in images, seem pretty clear to 
me, the federal courts have long struggled with these cases. It is very 
disappointing to me that federal judges sentence child exploitation 
defendants below the applicable guideline range with increasing 
frequency. In 2011, only 32 percent of these defendants were sentenced 
within the guideline range. It is a travesty that our federal judges 
are not treating this crime with appropriate seriousness. Congress, and 
this Committee, must address this issue.
    Determining the appropriate amount of restitution for the victims 
of child exploitation has also proven difficult for the courts. Under 
current law, federal courts are required to award any child depicted in 
sexually explicit material restitution in ``the full amount of the 
victim's losses'' as determined by the court. These losses can include 
medical services, therapy, and attorneys' fees, among other things. 
Unlike child pornography production cases, where there is a limited 
universe of defendants who are generally joined in the same 
prosecution, the harm to the victims in end-user child pornography 
trafficking cases is often caused by hundreds or thousands of unrelated 
individuals who are prosecuted across time and in different 
jurisdictions, which makes apportionment difficult.
    In recent years, there has been disagreement among the federal 
circuit courts over how to calculate the restitution owed by a 
defendant who received, distributed, or possessed child pornography. In 
response to the circuit split, the Supreme Court ruled in United States 
v. Paroline [Pear-a-line] that an individual child pornography 
trafficking defendant may be made liable only for the harm caused by 
their own conduct, and not for the conduct of others.
    I am glad that the Paroline decision gave the lower courts better 
guidance on how to determine the appropriate restitution under the 
existing statute, but there is still work to be done. To date, only 
fifteen of the more than 8,600 known victims of child exploitation have 
ever sought restitution. Congress must craft a scheme that helps to 
address this travesty.
    It is also incumbent on Congress to ensure that any changes to the 
existing restitution statute, 18 U.S.C. 2259, are done deliberately and 
with a close eye to the Supreme Court's constitutional admonishments in 
Paroline. It serves no one if Congress were to make changes that create 
unneeded litigation and circuit splits over legislation that is 
intended to make victims whole.
    We have a very distinguished panel of legal and subject-matter 
experts here today to help us examine the Paroline decision and the 
state of restitution in child exploitation trafficking cases. I thank 
all of you for being here today.

                                

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 
  Congress from the State of Virginia, and Chairman, Committee on the 
                               Judiciary
    The harms that result from the sexual abuse of children are 
horrible, and too lengthy to list. These harms last long after the 
abuse ends. Importantly for our hearing today, they can also be 
incredibly expensive. The cost of finding a new home, on-going therapy, 
and other care quickly adds up for the victims of child exploitation. 
Over the victim's lifetime, this sum can range into the millions of 
dollars. Our laws rightly allow victims to seek financial restitution 
from their abusers, but this is not the end of the story.
    Having endured horrific abuse, these children are often confronted 
with the fact that photos and videos of that abuse are being traded and 
collected by hundreds of thousands of pedophiles on the Internet. Even 
children victimized before digital cameras became widespread are now 
faced with the knowledge that in the Internet Age, a detailed visual 
record of the darkest moments of their lives exists, is in wide 
distribution online, and is hungrily sought by pedophiles around the 
world.
    To better compensate victims of child exploitation, Congress 
expanded restitution liability to those who produce and traffic in the 
pornographic images stemming from that exploitation. Unfortunately, to 
date, these efforts have done little to get sex offenders' money into 
the hands of their victims.
    In the nearly twenty years since the child exploitation restitution 
statute, 18 U.S.C. Section 2259, was enacted, only fifteen victims of 
child exploitation trafficking, out of more than 8,600 known victims, 
have actually sought restitution from those defendants trading their 
images.
    The Supreme Court case we are here to consider today, Paroline 
[Pear-a-line] v. United States, arose only because of the few brave 
victims who have sought the restitution they are due. In that case, a 
young woman, who goes by the name ``Amy,'' was raped by her uncle when 
she was a very young child. Like so many other victims, she was 
horrified to discover, years later, that pictures of her most painful 
memories were favorites of sick online communities.
    It is estimated that because of her initial abuse and constant 
revictimization through the trafficking in her images, the cost of 
Amy's lost wages and other damages will be more than three million 
dollars over the course of her lifetime. Using 18 U.S.C. Section 2259, 
Amy has sought restitution from hundreds of sex offenders caught with 
her images on their computers.
    In Paroline, the Supreme Court decided that one defendant with only 
two of Amy's images could not be held liable for the full restitution 
from the actions of thousands of offenders. They also rejected the 
notion that, at least under the existing statute, the first sued 
offender could simply sue subsequent offenders for contribution.
    We are here today to discuss what comes next. Clearly, even before 
the Paroline ruling, the system of child pornography restitution needed 
to be reworked. As I mentioned earlier, only 15 victims, out of the 
thousands we know of whose images are on the Internet, have sought 
restitution. That is proof that something is broken. Congress has a 
responsibility to ensure that those who harm children in this vile way 
are held accountable for the suffering of their victims.
    A well-functioning system must encourage and enable more victims of 
child exploitation to come forward. It must ensure that they can secure 
adequate restitution from those who continue their victimization by 
trading in their images. And, finally, any solution must be 
appropriately crafted within our Constitutional boundaries.
    I look forward to hearing from our panel and hope we can use what 
we learn today to address the Paroline decision in a thoughtful, 
responsible manner. As a father and soon-to-be grandfather, I am 
committed to doing all we can to protect our children and ensuring 
child victims receive the care they deserve.
    I thank our distinguished witnesses, and yield back the balance of 
my time.

                              

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
 Representative in Congress from the State of California, and Ranking 
   Member, Subcommittee on Crime, Terrorism, Homeland Security, and 
                             Investigations
    Mr. Chairman: We have no greater cause than to promote the health 
and well-being of our children. Today, we hear testimony to assist in 
crafting legislation to help the most vulnerable and injured of our 
children due to exploitation and sexual abuse.
    It is my hope that we can more effectively provide restitution to 
child victims in light of the Supreme Court's recent child pornography 
restitution decision. In Paroline v. United States, the Court addressed 
ambiguities in the current restitution provision of 18 U.S.C. Section 
2259.
    The Supreme Court acknowledged in Paroline that, ``the demand for 
child pornography harms children in part because it drives production, 
which involves child abuse.'' Unlike most crimes, the existence of 
child pornography creates a continuing, permanent record of the abuse 
which exacerbates the harm each time it is shared on the internet. It 
is for this reason that we strive to find a unique legislative 
solution, for a unique and continuing harm to children, to provide 
necessary restitution for their injuries.
    The extent of this harm cannot be underestimated. The National 
Center for Missing and Exploited Children (NCMEC) reported in 2014 
alone, they received 1,080,371 reports relating to child pornography 
images on the internet. NCMEC also reports that the number of images 
being collected and traded worldwide continues to expand exponentially. 
Of the millions of images, the Department of Justice notes that to date 
over 8500 children have been identified in these images.
    Sadly, of the total number of identified children with documented 
sexual abuse due to child pornography, only 15 have sought restitution 
through the federal courts to date. As I have said before, perpetrators 
of crime know that they are more likely to evade detection and 
punishment when their victims refuse to assist or cooperate with law 
enforcement. We need to find better ways to encourage child victims to 
come forward to address their injuries and pursue restitution.
    Despite evidence of a clear link between child pornography and 
ongoing harms to child victims, the Court in Paroline denied 
restitution to one such child victim known as ``Amy''. We are here 
today for Amy, and all child victims, both identified and yet to be 
identified.
    Understanding why the Court denied restitution is essential if we 
are to provide future relief to child victims. The ruling in Paroline 
establishes an unequivocal causation standard requiring a sentencing 
court to find `proximate cause' between a defendant's acts and a 
victim's harms before imposing restitution. The Court refrained from 
adopting a `joint and severable liability' standard to require a single 
defendant to pay `Amy' restitution for her total aggregated harms. The 
Court's stated reason for not adopting this standard is the lack of 
guidance in the restitution statute from Congress. Moreover, the Court 
relied on a bedrock standard of proximate cause between the defendant's 
acts and the victim's harm before it would order a restitution 
assessment. In this case, the Court found insufficient facts to 
establishment proximate cause liability to assess restitution.
    The ruling goes on to direct that, ``a court should order 
restitution in an amount that comports with the defendant's relative 
role in the causal process underlying the victim's general losses.'' To 
do otherwise could raise questions of workability under the Excessive 
Fines Clause of the Eighth Amendment. How best to provide a workable 
guide for sentencing courts to determine a defendant's relative role is 
one of the tasks before us.
    We should direct our attention to heeding the admonition in 
Paroline, that the punishment fits the crime, and in this context, that 
restitution reflects the relative harm committed by each defendant. The 
Court notes factors, such as whether a criminal defendant took part in 
production of the child pornography or possessed the images, how many 
images may have been possessed, and reliable estimates of the number of 
individuals who possessed the images, as possible guideposts in 
sentencing. I look forward to considering the testimony of today's 
witnesses in determining what statutory guidance Congress should 
provide.
    The necessary urgency to provide statutory relief for these child 
victims is without question. The United States Sentencing Commission, 
in its latest report to Congress, cites numerous studies documenting 
the long-term impact of child sexual abuse. Those impacts include low 
self-esteem, psycho-pathology, PTSD symptoms, distorted sexual 
development, as well as a higher risk of have multiple sex partners, 
becoming pregnant as teenagers, and experiencing sexual assault as 
adults. The Journal of the American Academy of Child and Adolescent 
Psychiatry documents studies linking child sexual abuse with higher 
rates of major depression, anxiety disorder, conduct disorder, 
substance use disorder, and suicidal behavior. The American Academy of 
Experts in Traumatic Stress documents long-term effects of child sexual 
abuse to include problems in relationships and intimacy, self-esteem, 
mental health disorders, and alcohol abuse. The need for restitution is 
clear.
    Clinical sources note that child sexual abuse victims, who are 
involved in lengthy unresolved criminal cases, appear to stay 
symptomatic for longer periods. Providing resolution and restitution 
brings relief to these child victims. That is why we need to act to 
provide clarity in the restitution statute and to provide more certain 
relief to those harmed by child pornography.
    Congress could provide additional statutory guidance by providing a 
right of contribution for restitution payments among multiple convicted 
defendants, or by directing sentencing courts to assess liability for a 
lifetime of the full amount of a victim's losses for each defendant. 
However, the Court in Paroline cautioned the possible Constitutional 
concerns in these approaches. I look forward to considering the 
opinions of today's witnesses to determine the best, workable statutory 
solution to providing restitution.
    The witnesses today in their written statements have each addressed 
the possibility of creating a separate fund to more readily assist 
victims. We should consider these and other remedies to more 
effectively provide resources to child victims.
    Child pornography offenses, which involve the internet, a number of 
wrong-doers, and individual victims pose unique restitution issues. 
There will be continuing difficulties getting restitution for victims 
with the requirements enunciated in Paroline, unless there is further 
statutory guidance from Congress. I look forward to working with my 
Judiciary Committee colleagues to develop legislation to provide this 
guidance.
    It is my hope that the hearing today will help refine the issues, 
provide a voice to child crime victims, and ultimately deliver 
restitution to those who most need it.

                               

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Member, Committee on the 
                               Judiciary
    Today's hearing concerns finding the best means to provide 
restitution to victims of child pornography in cases where the measure 
of liability is in question.
    In doing so, we need to remember that it is for children who have 
been harmed by exploitation that we are here today. These children 
represent a potential lifetime of repeated injury from the continued 
recirculation of these images. One of those documented child victims, 
known as `Amy' was the subject of the Supreme Court case, Paroline v. 
United States. Due to the ambiguity of the current restitution statute, 
18 U.S.C. 2259, the Court was unable to award Amy full restitution. We 
need to address the importance of the ruling by the Supreme Court in 
Paroline.
    However, as we seek to redress the harm we have identified, we 
should avoid a legislative reaction of overcriminalization. I'm 
concerned that placing mandatory minimum punishments into any 
legislation may produce unforeseen and unwanted results. The Court in 
its decision articulated familiar themes: measured judicial discretion, 
restitution based on unique facts, articulated statutorily imposed 
sentencing factors. We would be well advised to heed these signposts.
    By engaging with a broad range of stakeholders through various 
means, such as the bipartisan Task Force on Overcriminalization and 
Overfederalization, we have been considering a range of issues, one of 
which is mandatory minimum sentencing reform. As a general matter, I am 
concerned about expanding mandatory minimums and reducing judicial 
discretion, even in the context of financial penalties, as opposed to 
prison terms.
    Finally, as we address the best way to legislatively facilitate 
payment of restitution, we should be both true to fairness and the 
rights of victims to be made whole. To that end, we need to look very 
closely at the advisability of holding defendants liable for harms 
caused by other individual's conduct, as the Court cautioned, in this, 
a criminal case context. If and when legislation moves in this 
Committee, I plan to work on a bipartisan basis to make sure the 
necessary modifications are made to any legislation.
    I look forward to the discussion before us, and to considering 
remedies for these child victims.


                                
                     Prepared Statement of Victims of Child Pornography

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