Reason and Justice Re-emerging in Decisions on Former Sex Offenders?

by Gus

The issue of punishing sex offenders more is always a popular one. The U.S. Supreme Court opened the door in Smith v. Doe (538 U.S. 84, 2003) for states to make sex offender registries as onerous as they’d like without worry about constitutionality, saying that registries were civil and regulatory, not punishment.
With a track record like that, and like the recent Kebodeauxdecision, its no surprise that those who view the punishment for sex offenders as unending would be skeptical about US v. Paroline, which was decided today.
The Paroline case involved restitution in cases where a defendant was convicted of child pornography charges where a victim depicted in one of the files seeks monetary damages from the defendant. To be sure, the continuing emotional damage from users downloading and keeping images of their sexual abuse is worthy of monetary damage awards.
“Amy,” the woman seeking damages in this case, estimates her total damages at $3.4 million over her lifetime. That number isn’t in question. Paroline, who possessed two images of her sexual abuse, should be on the hook to pay Amy. But how much?
Amy seeks the full $3.4 million from Paroline. The district judge awarded none and the appeals court said the full amount would be OK.
The issue then is this: should each defendant be on the hook to pay Amy $3.4 million each?
In a 5-4 split decision today, the U.S. Supreme Court said no.  However, they didn’t go further than that. Justice Kennedy penned the opinion and had this to say on the matter:
“There remains the question of how district courts should go about determining the proper amount of restitution. At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.”
This will ultimately make a mess of things at the district level and wind up back on the high court’s docket in a year or two. However, the silver lining is there, albeit hard to see: In the first decision in recent memory, the Supreme Court took an action that didn’t completely hammer a defendant just because he was a sex offender.
The tide may be turning up at that high court the way it is here in the real world. Not all people labeled as sex offenders are evil, predatory, child-rapist-murders whose punishments can never be harsh enough.

Three justices dissented saying that, without a high burden of proof, no restitution should be awarded. Sotomayor went the other way and said that each defendant should be on the hook for millions.
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