Victim advocates on Tuesday applauded a Minnesota federal judge for demanding that prosecutors explain why they haven't asked those convicted on child pornography charges to pay restitution to their victims.
A day earlier, U.S. District Judge Patrick Schiltz ordered the U.S. Attorney's Office in Minneapolis to give reasons for not seeking restitution for a victim who had requested nearly $3.5 million in a specific child pornography possession case.
The Minnesota case and several others across the country could change how victims are compensated. Victims' advocates hope the discussion will lead to a clear standard that awards restitution to children who they say are victimized every time their image is viewed.
"He's the first judge that has come out aggressively asking the U.S. Department of Justice to fight for these rights or to at least say why they're not going to," said Meg Garvin, executive director of the National Crime Victim Law Institute based at Lewis & Clark Law School in Portland, Ore. "It's a great thing for victims that this judge has said we can't be silent on this issue anymore."
District courts have differed in how they handle restitution for child pornography issues. Some courts have awarded millions of dollars in restitution to victims while other courts have ordered no restitution.
Schiltz cited in his order a federal law that requires a court to order restitution in certain cases, including child pornography. But it's not always easy to assess the damage when a child's image is distributed over the Internet. And in some cases, the victim's identity isn't even known.
"It's an emerging issue nationally," said Jeanne Cooney, community relations director for the U.S. Attorney's Office in Minneapolis. While Cooney said she couldn't comment on how prosecutors will respond to Schiltz's order, she said U.S. Attorneys across the country are looking at how best to handle restitution in child pornography cases.
Advocates say restitution helps deter crime while acknowledging how a victim has suffered.
"We think it provides potential for some healing," said Ernie Allen, president of the National Center for Missing and Exploited Children.
Allen said new technology is helping law enforcement identify victims and get a better estimate of how many times an image was viewed. Staffers at the center examine 250,000 images and videos of children a week in an effort to help law enforcement identify and locate them, Allen said.
"It's really a daunting challenge, but I think we're making huge progress," Allen said. "Technology is going to help us identify more of these children, identify more of the distributors and the perpetrators, making restitution far easier to order in the future."
Garvin said she expects the question of restitution for child pornography victims to reach the Supreme Court within a couple years. Until then, there will likely be more inconsistencies in how different courts handle the issue.
In the Minnesota case, which involves Brandon Anthony Buchanan's May guilty plea to possession of child pornography, Judge Schiltz gave prosecutors a Jan. 29 deadline to respond.
Buchanan's attorney and the government had filed court papers saying neither side was seeking restitution. Schiltz wants to know if one of Buchanan's victims who had requested restitution received anything, and if not why. The judge said the case has put the court in a difficult position.
"Obviously, the court cannot enter a restitution order of nearly $3.5 million without any attempt by the government to demonstrate that the victim is entitled to this amount," he wrote. "At the same time, the court cannot altogether deny restitution without some explanation of why the victim is not entitled to even a single penny of restitution."