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When does Restitution become Retribution?
64 Okla. L. Rev. 653 (2012)
  • Melanie M. Reid, Lincoln Memorial University - Duncan School of Law
  • Curtis L. Collier, Hon.

A defendant, charged with knowingly possessing material that contains images of child pornography which has been transported in interstate commerce by means of a computer, in violation 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), needs to be aware that he may be hit with a large restitution order at the time of his sentencing. At sentencing, the court not only sentences the defendant to a term of imprisonment, supervised release, and assessment, but also orders an amount of restitution to be paid to the identified victims of the child pornography. This restitution order must comply with 18 U.S.C. § 2259 which demands that the defendant pay the victim “the full amount of the victim’s losses.” Title 18, United States Code, section 2259 can be vague, confusing, and may potentially have some due process concerns. This article examines the 18 U.S.C. § 2259 restitution statute in detail in relation to the child pornography possession statute, 18 U.S.C. § 2252(a)(5)(B), and describes the issues facing defense attorneys and prosecutors alike as they tackle § 2259 restitution issues at the sentencing phase. The gray areas of 18 U.S.C. § 2259 are numerous: what constitutes a “victim” in a child pornography case, must the damages be closely linked or the “proximate result” of the defendant’s possession of the images, should joint and several liability exist in this area, what must the victim do to support the damage amount requested, and what are the due process concerns in relation to imposing such a restitution order. This article discusses possible solutions to issues faced by prosecutors and defense attorneys when arguing for or against § 2259 claims and possible suggestions on how judges could more uniformly handle these problems and discusses an overall proposal to be used by Congress to repair 18 U.S.C. § 2259 and provide guidance and consistency throughout the judicial system. A system that determines the full amount owed to victims in the first instance, sets forth percentage guidelines by apportioning the defendant’s fault in relation to other co-defendants, orders restitution based upon apportioned liability, and permits victims to seek contribution from other co-defendants would allow the court to fashion a just apportionment of damages to each possessor faced with a restitution request.

  • restitution,
  • child pornography laws
Publication Date
Summer 2012
Citation Information
Melanie M. Reid and Curtis L. Collier Hon.. 2011. "When does Restitution become Retribution?" __ Okla. L. Rev. ___ (Spring 2012). ExpressO Available at: