ShareThisEvery day, "Misty" finds out that another pedophile has been caught with images of her. He could be a pastor, a cop or a mechanic busted with pornographic pictures taken when she was 8 or 9 years old. In each case, another person is making her a victim again and again, said her attorney James Marsh.
In each instance -- now at 350 and growing -- Marsh and Misty are seeking more than $3 million in restitution to help make her whole. It doesn't matter if the offender has one photo or thousands, Marsh said. Each offender should be just as liable as the next to pay full restitution.
"Right now, I am tracking 850 defendants," Marsh said last week. "The statute calls for restitution. Clearly the intent of the statute is to benefit the victims."
But does the law intend for the possessor of a single pornographic picture to be held as responsible as the man who took the pictures, or as someone who hoards thousands? Courts around the country are struggling with that question.
U.S. District Judge Patrick Schiltz could provide an answer in early March in a Minnesota case involving Misty. Last month the judge challenged a U.S. attorney's office decision not to seek restitution for her and ordered a written explanation why. A memorandum from the U.S. attorney's office in Minneapolis on Jan. 29 agreed that restitution is called for in child-porn-possession cases, but was silent on how much it should be.
Victims' lawyers argue that it is not enough to levy restitution against porn producers. Those who possess even a single image do harm, too, they say.
But the idea of making every child-porn purveyor equally responsible for full restitution is raising concern in the federal court system.
There has to be a way to measure the harm done by various offenders and divide the damages appropriately, some say. If not, the courts could face "an administrative nightmare," said Andrew Mohring, a federal public defender.
"The system isn't built to do this because this isn't what the system was built to do," Mohring said. "It's not enough to say 'There's a victim, therefore, restitution.' "
Misty's claims may best fit in a civil lawsuit, he said.
U.S. District Judge Donovan Frank once ordered an offender to pay $7,500 to the National Center for Missing and Exploited Children. It was considered "extraordinary" restitution; a victim did not request it. Frank acknowledges that the issue "is very difficult."
In child-porn cases, Frank said, restitution usually goes to pay for counseling and other types of care for victims where there is specific harm. If Misty's requests become the norm, he said, the entire restitution process could become drawn-out and contentious.
"It could potentially have an unintended consequence of dragging a victim and her family through a very expensive process," he said.
The issue took center stage in Minnesota last month in the case of Brandon Anthony Buchanan.
Buchanan had pleaded guilty in May 2009 to possessing child pornography. In exchange, a charge of distributing child pornography was dropped. Soon after the guilty plea, Marsh sent a letter requesting $3.4 million in restitution.
Buchanan was sentenced in November. Yet, both the prosecutor and defense attorney agreed restitution was not being sought.
On Jan. 4, Schiltz issued an order demanding to know why restitution was not requested. Congress has made it clear that restitution for child-porn victims must be considered, he said.
Assistant U.S. Attorney Erika Mozangue's Jan. 29 memo said that Misty is, indeed, entitled to restitution -- and it had been ordered in several other cases involving her pictures. The memo, however, made no recommendation regarding an amount in Buchanan's case. A spokeswoman for the U.S. attorney said the office would have no comment on the issue.
On Feb. 1, Schiltz sent a letter to Buchanan's defense attorney, giving him until Feb. 26 to submit a response to Mozangue's memo. Presumably, Schiltz will rule after that.
Misty's attorney acknowledged that few defendants have millions of dollars, but he said that's not her problem. Under the idea of "joint and several liability," it would be up to the offenders to go after other offenders to recoup their money.
(Distributed by Scripps Howard News Service, www.scrippsnews.com.)
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