Paroline v. United States

(Slip Opinion) OCTOBER TERM, 2013 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

PAROLINE v. UNITED STATES ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 12–8561. Argued January 22, 2014—Decided April 23, 2014

The respondent victim in this case was sexually abused as a young girl

in order to produce child pornography. When she was 17, she learned

that images of her abuse were being trafficked on the Internet, in ef-

fect repeating the original wrongs, for she knew that her humiliation

and hurt would be renewed well into the future as thousands of addi-

tional wrongdoers witnessed those crimes. Petitioner Paroline plead-

ed guilty in federal court to possessing images of child pornography,

which included two of the victim, in violation of 18 U. S. C. §2252.

The victim then sought restitution under §2259, requesting nearly $3

million in lost income and about $500,000 in future treatment and

counseling costs. The District Court declined to award restitution,

concluding that the Government had not met its burden of proving

what losses, if any, were proximately caused by Paroline’s offense.

The victim sought a writ of mandamus, asking the Fifth Circuit to di-

rect the District Court to order Paroline to pay restitution. Granting

the writ on rehearing en banc, the Fifth Circuit held, inter alia, that

§2259 did not limit restitution to losses proximately caused by the de-

fendant, and that each defendant who possessed the victim’s images

should be made liable for the victim’s entire losses from the trade in

her images.

Held:

1. Restitution is proper under §2259 only to the extent the defend-

ant’s offense proximately caused a victim’s losses. This provision has

a broad restitutionary purpose, stating that a district court “shall or-

der restitution for any offense” under Chapter 110 of Title 18, such as

Paroline’s possession offense; requiring district courts to order de-

fendants “to pay the victim . . . the full amount of the victim’s losses

as determined by the court,” §2259(b)(1); and expressly making “is-

2 PAROLINE v. UNITED STATES

Syllabus

suance of a restitution order . . . mandatory,” §2259(b)(4)(A). The

Government has the “burden of demonstrating the amount of the

[victim’s] loss.” §3664(e).

To say one event proximately caused another means, first, that the

former event caused the latter, i.e., actual cause or cause in fact; and

second, that it is a proximate cause, i.e., it has a sufficient connection

to the result. The concept of proximate causation is applicable in

both criminal and tort law, and the analysis is parallel in many in-

stances. Section 2259(c) defines a victim as “the individual harmed

as a result of a commission of a crime under this chapter.” The words

“as a result of ” plainly suggest causation, and the referent of “a

crime” is the offense of conviction. The “full amount of the victim’s

losses,” §2259(b)(1), includes “any costs incurred by the victim” for six

enumerated categories of expense, §2259(b)(3). The reference to

“costs incurred by the victim” is most naturally understood as costs

arising “as a result of ” the offense of conviction, i.e., the defendant’s

conduct. And the last of the six enumerated categories—for “other

losses suffered . . . as a proximate result of the offense,”

§2259(b)(3)(F)—clearly states that the causal requirement is one of

proximate cause. This reading is supported by the canon of construc-

tion that, “[w]hen several words are followed by a clause which is ap-

plicable as much to the first and other words as to the last, the natu-

ral construction of the language demands that the clause be read as

applicable to all.” Porto Rico Railway, Light & Power Co. v. Mor, 253

U. S. 345, 348. The reading also presents a commonsense way to im-

pose sensible limitations on claims for attenuated costs. Pp. 5–11.

2. Applying the statute’s causation requirements in this case, vic-

tims should be compensated and defendants should be held to ac-

count for the impact of their conduct on those victims, but defendants

should only be made liable for the consequences and gravity of their

own conduct, not the conduct of others. Pp. 11–25.

(a) A somewhat atypical causal process underlies the losses here.

It may be simple to prove aggregate losses, i.e., “general losses,”

stemming from the ongoing traffic in the victim’s images, but the

question for §2259 purposes is how much of these general losses were

the “proximate result” of an individual defendant’s offense. Here, the

victim’s costs of treatment and lost income resulting from the trauma

of knowing that images of her abuse are being viewed over and over

are direct and foreseeable results of child-pornography crimes, pro-

vided the prerequisite of factual causation is satisfied. The primary

problem, then, is the proper standard of causation in fact. Pp. 11–12.

(b) A showing of but-for causation is not the proper standard

here, for it is not possible to prove that the victim’s losses would be

less but for one possessor’s individual role in the large, loosely con-

Cite as: 572 U. S. ____ (2014) 3

Syllabus

nected network through which her images circulate. The victim and

the Government urge the Court to read §2259 to require a less re-

strictive causation standard in child-pornography cases like this.

They endorse the theory of “aggregate causation,” one formulation of

which finds factual causation satisfied where a wrongdoer’s conduct,

though alone “insufficient . . . to cause the plaintiff ’s harm,” is, “when

combined with conduct by other persons,” “more than sufficient to

cause the harm.” 1 Restatement (Third) of Torts: Liability for Physical

and Emotional Harm §27, Comment f. Tort law teaches that such al-

ternative causal tests, though a kind of legal fiction, may be neces-

sary to vindicate the law’s purposes, for it would be anomalous to

turn away a person harmed by the combined acts of many wrongdo-

ers simply because none of those wrongdoers alone caused the harm,

and nonsensical to adopt a rule whereby individuals hurt by the com-

bined wrongful acts of many would have no redress, while those hurt

by the acts of one person alone would. These are sound principles.

Taken too far, however, such alternative causal standards would

treat each possessor as the cause in fact of all the trauma and at-

tendant losses incurred as a result of all the ongoing traffic in the vic-

tim’s images. Aggregate causation logic should not be adopted in an

incautious manner in the context of criminal restitution, which dif-

fers from tort law in numerous respects. Paroline’s contribution to

the causal process underlying the victim’s losses was very minor,

both compared to the combined acts of all other relevant offenders

and compared to the contributions of other individual offenders, par-

ticularly distributors and the initial producer of the child pornogra-

phy. Congress gave no indication that it intended the statute to be

applied in an expansive manner so starkly contrary to the principle

that restitution should reflect the consequences of the defendant’s

own conduct. The victim claims that holding each possessor liable for

her entire losses would be fair and practical in part because offenders

can seek contribution from one another, but there is no general fed-

eral right to contribution and no specific statutory authorization for

contribution here. Her severe approach could also raise questions

under the Excessive Fines Clause of the Eighth Amendment. Pp. 12–

19.

(c) While the victim’s expansive reading must be rejected, that

does not mean the broader principles underlying aggregate causation

theories are irrelevant to determining the proper outcome in cases

like this. The cause of the victim’s general losses is the trade in her

images, and Paroline is a part of that cause. Just as it undermines

the purposes of tort law to turn away plaintiffs harmed by several

wrongdoers, it would undermine §2259’s purposes to turn away vic-

tims in cases like this. With respect to the statute’s remedial pur-

4 PAROLINE v. UNITED STATES

Syllabus

pose, there is no question that it would produce anomalous results to

say that no restitution is appropriate in these circumstances, for

harms of the kind the victim endured here are a major reason why

child pornography is outlawed. The unlawful conduct of everyone

who reproduces, distributes, or possesses images of the victim’s

abuse—including Paroline—plays a part in sustaining and aggravat-

ing this tragedy. And there is no doubt Congress wanted restitution

for such victims. Denying restitution would also be at odds with

§2259’s penological purposes, which include the need to impress upon

offenders that their conduct produces concrete and devastating

harms for real, identifiable victims. Thus, where it can be shown

both that a defendant possessed a victim’s images and that a victim

has outstanding losses caused by the continuing traffic in her images

but where it is impossible to trace a particular amount of those losses

to the individual defendant utilizing a more traditional causal in-

quiry, 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.

District courts should use discretion and sound judgment in deter-

mining the proper amount of restitution. A variety of factors may

serve as guideposts. Courts might, as a start, determine the amount

of the victim’s losses caused by the continuing traffic in the victim’s

images, and then base an award on factors bearing on the relative

causal significance of the defendant’s conduct in producing those

losses. The victim finds this approach untenable because her losses

are “indivisible,” but the Court is required to define a causal standard

that effects the statute’s purposes, not to apply tort-law concepts in a

mechanical way in the criminal restitution context. She also argues

she will be consigned to “piecemeal” restitution that may never lead

to full recovery, but Congress has not promised victims full and swift

restitution at the cost of holding a defendant liable for an amount

drastically out of proportion to his individual causal relation to those

losses. Furthermore, this approach better effects the need to impress

upon defendants that their acts are not irrelevant or victimless.

Pp. 19–25.

(d) Though this approach is not without difficulties, courts can

only do their best to apply the statute as written in a workable man-

ner, faithful to the competing principles at stake: that victims should

be compensated and that defendants should be held to account for the

impact of their own conduct, not the conduct of others. District

courts, which routinely exercise wide discretion both in sentencing

generally and in fashioning restitution orders, should be able to apply

the causal standard defined here without further detailed guidance.

P. 25.

Cite as: 572 U. S. ____ (2014) 5

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701 F. 3d 749, vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,

BREYER, ALITO, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissent-

ing opinion, in which SCALIA and THOMAS, JJ., joined. SOTOMAYOR, J.,

filed a dissenting opinion.

Cite as: 572 U. S. ____ (2014) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–8561

_________________

DOYLE RANDALL PAROLINE, PETITIONER v.

UNITED STATES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[April 23, 2014]

JUSTICE KENNEDY delivered the opinion of the Court.

This case presents the question of how to determine the

amount of restitution a possessor of child pornography

must pay to the victim whose childhood abuse appears in

the pornographic materials possessed. The relevant statu-

tory provisions are set forth at 18 U. S. C. §2259. Enacted

as a component of the Violence Against Women Act of

1994, §2259 requires district courts to award restitution

for certain federal criminal offenses, including child-

pornography possession.

Petitioner Doyle Randall Paroline pleaded guilty to such

an offense. He admitted to possessing between 150 and

300 images of child pornography, which included two that

depicted the sexual exploitation of a young girl, now a

young woman, who goes by the pseudonym “Amy” for this

litigation. The question is what causal relationship must

be established between the defendant’s conduct and a

victim’s losses for purposes of determining the right to,

and the amount of, restitution under §2259.

I

Three decades ago, this Court observed that “the ex-

2 PAROLINE v. UNITED STATES

Opinion of the Court

ploitive use of children in the production of pornography

has become a serious national problem.” New York v.

Ferber, 458 U. S. 747, 749 (1982). The demand for child

pornography harms children in part because it drives

production, which involves child abuse. The harms caused

by child pornography, however, are still more extensive

because child pornography is “a permanent record” of the

depicted child’s abuse, and “the harm to the child is exac-

erbated by [its] circulation.” Id., at 759. Because child

pornography is now traded with ease on the Internet, “the

number of still images and videos memorializing the

sexual assault and other sexual exploitation of children,

many very young in age, has grown exponentially.” United

States Sentencing Comm’n, P. Saris et al., Federal

Child Pornography Offenses 3 (2012) (hereinafter Sentenc-

ing Comm’n Report).

One person whose story illustrates the devastating

harm caused by child pornography is the respondent

victim in this case. When she was eight and nine years

old, she was sexually abused by her uncle in order to

produce child pornography. Her uncle was prosecuted,

required to pay about $6,000 in restitution, and sentenced

to a lengthy prison term. The victim underwent an initial

course of therapy beginning in 1998 and continuing into

1999. By the end of this period, her therapist’s notes

reported that she was “ ‘back to normal’ ”; her involvement

in dance and other age-appropriate activities, and the

support of her family, justified an optimistic assessment.

App. 70–71. Her functioning appeared to decline in her

teenage years, however; and a major blow to her recovery

came when, at the age of 17, she learned that images of

her abuse were being trafficked on the Internet. Id., at 71.

The digital images were available nationwide and no

doubt worldwide. Though the exact scale of the trade in

her images is unknown, the possessors to date easily

number in the thousands. The knowledge that her images

Cite as: 572 U. S. ____ (2014) 3

Opinion of the Court

were circulated far and wide renewed the victim’s trauma

and made it difficult for her to recover from her abuse. As

she explained in a victim impact statement submitted to

the District Court in this case:

“Every day of my life I live in constant fear that some-

one will see my pictures and recognize me and that I

will be humiliated all over again. It hurts me to know

someone is looking at them—at me—when I was just

a little girl being abused for the camera. I did not

choose to be there, but now I am there forever in pic-

tures that people are using to do sick things. I want it

all erased. I want it all stopped. But I am powerless

to stop it just like I was powerless to stop my un-

cle. . . . My life and my feelings are worse now because

the crime has never really stopped and will never re-

ally stop. . . . It’s like I am being abused over and over

and over again.” Id., at 60–61.

The victim says in her statement that her fear and trauma

make it difficult for her to trust others or to feel that she

has control over what happens to her. Id., at 63.

The full extent of this victim’s suffering is hard to grasp.

Her abuser took away her childhood, her self-conception of

her innocence, and her freedom from the kind of night-

mares and memories that most others will never know.

These crimes were compounded by the distribution of

images of her abuser’s horrific acts, which meant the

wrongs inflicted upon her were in effect repeated; for she

knew her humiliation and hurt were and would be re-

newed into the future as an ever-increasing number of

wrongdoers witnessed the crimes committed against her.

Petitioner Paroline is one of the individuals who pos-

sessed this victim’s images. In 2009, he pleaded guilty in

federal court to one count of possession of material involv-

ing the sexual exploitation of children in violation of 18

U. S. C. §2252. 672 F. Supp. 2d 781, 783 (ED Tex. 2009).

4 PAROLINE v. UNITED STATES

Opinion of the Court

Paroline admitted to knowing possession of between 150

and 300 images of child pornography, two of which depicted

the respondent victim. Ibid. The victim sought restitution

under §2259, asking for close to $3.4 million, consisting

of nearly $3 million in lost income and about $500,000

in future treatment and counseling costs. App. 52, 104.

She also sought attorney’s fees and costs. 672 F. Supp. 2d,

at 783. The parties submitted competing expert reports.

They stipulated that the victim did not know who Paroline

was and that none of her claimed losses flowed from any

specific knowledge about him or his offense conduct. Id.,

at 792, and n. 11; App. 230.

After briefing and hearings, the District Court declined

to award restitution. 672 F. Supp. 2d, at 793. The Dis-

trict Court observed that “everyone involved with child

pornography—from the abusers and producers to the end-

users and possessors—contribute[s] to [the victim’s] ongo-

ing harm.” Id., at 792. But it concluded that the Govern-

ment had the burden of proving the amount of the victim’s

losses “directly produced by Paroline that would not have

occurred without his possession of her images.” Id., at

791. The District Court found that, under this standard,

the Government had failed to meet its burden of proving

what losses, if any, were proximately caused by Paroline’s

offense. It thus held that “an award of restitution is not

appropriate in this case.” Id., at 793.

The victim sought a writ of mandamus, asking the

United States Court of Appeals for the Fifth Circuit to

direct the District Court to order Paroline to pay restitu-

tion in the amount requested. In re Amy, 591 F. 3d 792,

793 (2009). The Court of Appeals denied relief. Id., at

795. The victim sought rehearing. Her rehearing request

was granted, as was her petition for a writ of mandamus.

In re Amy Unknown, 636 F. 3d 190, 201 (2011).

The Fifth Circuit reheard the case en banc along with

another case, in which the defendant, Michael Wright, had

Cite as: 572 U. S. ____ (2014) 5

Opinion of the Court

raised similar issues in appealing an order of restitution

under §2259, see United States v. Wright, 639 F. 3d 679,

681 (2011) (per curiam). As relevant, the Court of Appeals

set out to determine the level of proof required to award

restitution to victims in cases like this. It held that §2259

did not limit restitution to losses proximately caused by

the defendant, and each defendant who possessed the

victim’s images should be made liable for the victim’s

entire losses from the trade in her images, even though

other offenders played a role in causing those losses. In re

Amy Unknown, 701 F. 3d 749, 772–774 (2012) (en banc).

Paroline sought review here. Certiorari was granted to

resolve a conflict in the Courts of Appeals over the proper

causation inquiry for purposes of determining the entitle-

ment to and amount of restitution under §2259. 570 U. S.

___ (2013). For the reasons set forth, the decision of the

Court of Appeals is vacated.

II

Title 18 U. S. C. §2259(a) provides that a district court

“shall order restitution for any offense” under Chapter 110

of Title 18, which covers a number of offenses involving

the sexual exploitation of children and child pornography

in particular. Paroline was convicted of knowingly pos-

sessing child pornography under §2252, a Chapter 110

offense.

Section 2259 states a broad restitutionary purpose: It

requires district courts to order defendants “to pay the

victim . . . the full amount of the victim’s losses as deter-

mined by the court,” §2259(b)(1), and expressly states that

“[t]he issuance of a restitution order under this section is

mandatory,” §2259(b)(4)(A). Section 2259(b)(2) provides

that “[a]n order of restitution under this section shall be

issued and enforced in accordance with section 3664,”

which in turn provides in relevant part that “[t]he burden

of demonstrating the amount of the loss sustained by a

6 PAROLINE v. UNITED STATES

Opinion of the Court

victim as a result of the offense shall be on the attorney for

the Government,” §3664(e).

The threshold question the Court faces is whether §2259

limits restitution to those losses proximately caused by the

defendant’s offense conduct. The Fifth Circuit held that it

does not, contrary to the holdings of other Courts of Ap-

peals to have addressed the question. Compare, e.g., 701

F. 3d, at 752 (no general proximate-cause requirement

applies under §2259), with United States v. Rogers, 714

F. 3d 82, 89 (CA1 2013) (general proximate-cause re-

quirement applies under §2259); United States v. Benoit,

713 F. 3d 1, 20 (CA10 2013) (same); United States v. Fast,

709 F. 3d 712, 721–722 (CA8 2013) (same); United States

v. Laraneta, 700 F. 3d 983, 989–990 (CA7 2012) (same);

United States v. Burgess, 684 F. 3d 445, 456–457 (CA4

2012) (same); United States v. Evers, 669 F. 3d 645, 659

(CA6 2012) (same); United States v. Aumais, 656 F. 3d

147, 153 (CA2 2011) (same); United States v. Kennedy, 643

F. 3d 1251, 1261 (CA9 2011) (same); United States v.

Monzel, 641 F. 3d 528, 535 (CADC 2011) (same); United

States v. McDaniel, 631 F. 3d 1204, 1208–1209 (CA11

2011) (same).

As a general matter, to say one event proximately

caused another is a way of making two separate but related

assertions. First, it means the former event caused the

latter. This is known as actual cause or cause in fact. The

concept of actual cause “is not a metaphysical one but an

ordinary, matter-of-fact inquiry into the existence . . . of a

causal relation as laypeople would view it.” 4 F. Harper,

F. James, & O. Gray, Torts §20.2, p. 100 (3d ed. 2007).

Every event has many causes, however, see ibid., and

only some of them are proximate, as the law uses that

term. So to say that one event was a proximate cause of

another means that it was not just any cause, but one with

a sufficient connection to the result. The idea of proximate

cause, as distinct from actual cause or cause in fact, defies

Cite as: 572 U. S. ____ (2014) 7

Opinion of the Court

easy summary. It is “a flexible concept,” Bridge v. Phoenix

Bond & Indemnity Co., 553 U. S. 639, 654 (2008), that

generally “refers to the basic requirement that . . . there

must be ‘some direct relation between the injury asserted

and the injurious conduct alleged,’ ” CSX Transp., Inc. v.

McBride, 564 U. S. ___, ___ (2011) (ROBERTS, C. J., dis-

senting) (slip op., at 3) (quoting Holmes v. Securities Inves-

tor Protection Corporation, 503 U. S. 258, 268 (1992)). The

concept of proximate causation is applicable in both crimi-

nal and tort law, and the analysis is parallel in many

instances. 1 W. LaFave, Substantive Criminal Law

§6.4(c), p. 471 (2d ed. 2003) (hereinafter LaFave). Proxi-

mate cause is often explicated in terms of foreseeability or

the scope of the risk created by the predicate conduct.

See, e.g., ibid.; 1 Restatement (Third) of Torts: Liability for

Physical and Emotional Harm §29, p. 493 (2005) (herein-

after Restatement). A requirement of proximate cause

thus serves, inter alia, to preclude liability in situations

where the causal link between conduct and result is so

attenuated that the consequence is more aptly described

as mere fortuity. Exxon Co., U. S. A. v. Sofec, Inc., 517

U. S. 830, 838–839 (1996).

All parties agree §2259 imposes some causation re-

quirement. The statute defines a victim as “the individual

harmed as a result of a commission of a crime under this

chapter.” §2259(c). The words “as a result of ” plainly

suggest causation. See Pacific Operators Offshore, LLP v.

Valladolid, 565 U. S. ___, ___ (2012) (slip op., at 13); see

also Burrage v. United States, 571 U. S. ___, ___ (2014)

(slip op., at 5). And a straightforward reading of §2259(c)

indicates that the term “a crime” refers to the offense of

conviction. Cf. Hughey v. United States, 495 U. S. 411,

416 (1990). So if the defendant’s offense conduct did not

cause harm to an individual, that individual is by defini-

tion not a “victim” entitled to restitution under §2259.

As noted above, §2259 requires a court to order restitu-

8 PAROLINE v. UNITED STATES

Opinion of the Court

tion for “the full amount of the victim’s losses,”

§2259(b)(1), which the statute defines to include “any costs

incurred by the victim” for six enumerated categories of

expense, §2259(b)(3). The reference to “costs incurred by

the victim” is most naturally understood as costs stem-

ming from the source that qualifies an individual as a

“victim” in the first place—namely, ones arising “as a

result of ” the offense. Thus, as is typically the case with

criminal restitution, §2259 is intended to compensate

victims for losses caused by the offense of conviction. See

id., at 416. This is an important point, for it means the

central concern of the causal inquiry must be the conduct

of the particular defendant from whom restitution is

sought.

But there is a further question whether restitution

under §2259 is limited to losses proximately caused by the

offense. As noted, a requirement of proximate cause is

more restrictive than a requirement of factual cause alone.

Even if §2259 made no express reference to proximate

causation, the Court might well hold that a showing of

proximate cause was required. Proximate cause is a

standard aspect of causation in criminal law and the law

of torts. See 1 LaFave §6.4(a), at 464–466; W. Keeton, D.

Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law

of Torts §41, p. 263 (5th ed. 1984) (hereinafter Prosser and

Keeton). Given proximate cause’s traditional role in cau-

sation analysis, this Court has more than once found a

proximate-cause requirement built into a statute that did

not expressly impose one. See Holmes, supra, at 265–268;

Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459

U. S. 519, 529–536 (1983); see also CSX Transp., Inc.,

supra, at ___ (ROBERTS, C. J., dissenting) (slip op., at 4)

(“We have applied the standard requirement of proximate

cause to actions under federal statutes where the text did

not expressly provide for it”); Lexmark Int’l, Inc. v. Static

Control Components, Inc., ante, at 13–14.

Cite as: 572 U. S. ____ (2014) 9

Opinion of the Court

Here, however, the interpretive task is easier, for the

requirement of proximate cause is in the statute’s text.

The statute enumerates six categories of covered losses.

§2259(b)(3). These include certain medical services,

§2259(b)(3)(A); physical and occupational therapy,

§2259(b)(3)(B); transportation, temporary housing, and

child care, §2259(b)(3)(C); lost income, §2259(b)(3)(D);

attorney’s fees and costs, §2259(b)(3)(E); and a final

catchall category for “any other losses suffered by the

victim as a proximate result of the offense,” §2259(b)(3)(F).

The victim argues that because the “proximate result”

language appears only in the final, catchall category of

losses set forth at §2259(b)(3)(F), the statute has no

proximate-cause requirement for losses falling within the

prior enumerated categories. She justifies this reading of

§2259(b) in part on the grammatical rule of the last ante-

cedent, “according to which a limiting clause or phrase . . .

should ordinarily be read as modifying only the noun or

phrase that it immediately follows.” Barnhart v. Thomas,

540 U. S. 20, 26 (2003). But that rule is “not an absolute

and can assuredly be overcome by other indicia of mean-

ing.” Ibid. The Court has not applied it in a mechanical

way where it would require accepting “unlikely premises.”

United States v. Hayes, 555 U. S. 415, 425 (2009).

Other canons of statutory construction, moreover, work

against the reading the victim suggests. “When several

words are followed by a clause which is applicable as much

to the first and other words as to the last, the natural

construction of the language demands that the clause be

read as applicable to all.” Porto Rico Railway, Light &

Power Co. v. Mor, 253 U. S. 345, 348 (1920). Furthermore,

“[i]t is . . . a familiar canon of statutory construction that

[catchall] clauses are to be read as bringing within a stat-

ute categories similar in type to those specifically enumer-

ated.” Federal Maritime Comm’n v. Seatrain Lines, Inc.,

411 U. S. 726, 734 (1973). Here, §2259(b)(3)(F) defines a

10 PAROLINE v. UNITED STATES

Opinion of the Court

broad, final category of “other losses suffered . . . as a

proximate result of the offense.” That category is most

naturally understood as a summary of the type of losses

covered—i.e., losses suffered as a proximate result of the

offense.

The victim says that if Congress had wanted to limit the

losses recoverable under §2259 to those proximately

caused by the offense, it could have written the statute the

same way it wrote §2327, which provides for restitution to

victims of telemarketing fraud. Section 2327, which is

written and structured much like §2259, simply defines

the term “full amount of the victim’s losses” as “all losses

suffered by the victim as a proximate result of the of-

fense.” §2327(b)(3). In essence the victim argues that the

first five categories of losses enumerated in §2259(b)(3)

would be superfluous if all were governed by a proximate-

cause requirement. That, however, is unpersuasive. The

first five categories provide guidance to district courts as

to the specific types of losses Congress thought would

often be the proximate result of a Chapter 110 offense and

could as a general matter be included in an award of

restitution.

Reading the statute to impose a general proximate-

cause limitation accords with common sense. As noted

above, proximate cause forecloses liability in situations

where the causal link between conduct and result is so

attenuated that the so-called consequence is more akin to

mere fortuity. For example, suppose the traumatized

victim of a Chapter 110 offender needed therapy and had a

car accident on the way to her therapist’s office. The

resulting medical costs, in a literal sense, would be a

factual result of the offense. But it would be strange

indeed to make a defendant pay restitution for these costs.

The victim herself concedes Congress did not intend costs

like these to be recoverable under §2259. Brief for Re-

spondent Amy 45. But she claims that it is unnecessary to

Cite as: 572 U. S. ____ (2014) 11

Opinion of the Court

“read . . . into” §2259 a proximate-cause limitation in order

to exclude costs of that sort. Ibid. She says the statute

“contextually and inferentially require[s] a nexus for why”

the losses were sustained—i.e., a sufficient connection to

child pornography. Id., at 46.

The victim may be right that the concept of proximate

cause is not necessary to impose sensible limitations on

restitution for remote consequences. But one very effec-

tive way, and perhaps the most obvious way, of excluding

costs like those arising from the hypothetical car accident

described above would be to incorporate a proximate-cause

limitation into the statute. Congress did so, and for rea-

sons given above the proximate-cause requirement applies

to all the losses described in §2259. Restitution is there-

fore proper under §2259 only to the extent the defendant’s

offense proximately caused a victim’s losses.

III

There remains the difficult question of how to apply the

statute’s causation requirements in this case. The prob-

lem stems from the somewhat atypical causal process

underlying the losses the victim claims here. It is perhaps

simple enough for the victim to prove the aggregate losses,

including the costs of psychiatric treatment and lost in-

come, that stem from the ongoing traffic in her images as

a whole. (Complications may arise in disaggregating

losses sustained as a result of the initial physical abuse,

but those questions may be set aside for present purposes.)

These losses may be called, for convenience’s sake, a vic-

tim’s “general losses.” The difficulty is in determining the

“full amount” of those general losses, if any, that are the

proximate result of the offense conduct of a particular

defendant who is one of thousands who have possessed

and will in the future possess the victim’s images but who

has no other connection to the victim.

In determining the amount of general losses a defendant

12 PAROLINE v. UNITED STATES

Opinion of the Court

must pay under §2259 the ultimate question is how much

of these losses were the “proximate result,” §2259(b)(3)(F),

of that individual’s offense. But the most difficult aspect

of this inquiry concerns the threshold requirement of

causation in fact. To be sure, the requirement of proxi-

mate causation, as distinct from mere causation in fact,

would prevent holding any possessor liable for losses

caused in only a remote sense. But the victim’s costs of

treatment and lost income resulting from the trauma of

knowing that images of her abuse are being viewed over

and over are direct and foreseeable results of child-

pornography crimes, including possession, assuming the

prerequisite of factual causation is satisfied. The primary

problem, then, is the proper standard of causation in fact.

A

The traditional way to prove that one event was a fac-

tual cause of another is to show that the latter would not

have occurred “but for” the former. This approach is a

familiar part of our legal tradition, see 1 LaFave §6.4(b),

at 467–468; Prosser and Keeton §41, at 266, and no party

disputes that a showing of but-for causation would satisfy

§2259’s factual-causation requirement. Sometimes that

showing could be made with little difficulty. For example,

but-for causation could be shown with ease in many cases

involving producers of child pornography, see §2251(a);

parents who permit their children to be used for child-

pornography production, see §2251(b); individuals who sell

children for such purposes, see §2251A; or the initial

distributor of the pornographic images of a child, see

§2252.

In this case, however, a showing of but-for causation

cannot be made. The District Court found that the Gov-

ernment failed to prove specific losses caused by Paroline

in a but-for sense and recognized that it would be “incred-

ibly difficult” to do so in a case like this. 672 F. Supp. 2d,

Cite as: 572 U. S. ____ (2014) 13

Opinion of the Court

at 791–793. That finding has a solid foundation in the

record, and it is all but unchallenged in this Court. See

Brief for Respondent Amy 63; Brief for United States 19,

25. But see Supp. Brief for United States 8–10. From the

victim’s perspective, Paroline was just one of thousands of

anonymous possessors. To be sure, the victim’s precise

degree of trauma likely bears a relation to the total num-

ber of offenders; it would probably be less if only 10 rather

than thousands had seen her images. But it is not possi-

ble to prove that her losses would be less (and by how

much) but for one possessor’s individual role in the large,

loosely connected network through which her images

circulate. See Sentencing Comm’n Report, at ii, xx. Even

without Paroline’s offense, thousands would have viewed

and would in the future view the victim’s images, so it

cannot be shown that her trauma and attendant losses

would have been any different but for Paroline’s offense.

That is especially so given the parties’ stipulation that the

victim had no knowledge of Paroline. See supra, at 4.

Recognizing that losses cannot be substantiated under a

but-for approach where the defendant is an anonymous

possessor of images in wide circulation on the Internet,

the victim and the Government urge the Court to read

§2259 to require a less restrictive causation standard, at

least in this and similar child-pornography cases. They

are correct to note that courts have departed from the but-

for standard where circumstances warrant, especially

where the combined conduct of multiple wrongdoers pro-

duces a bad outcome. See Burrage, 571 U. S., at ___ (slip

op., at 10) (acknowledging “the undoubted reality that

courts have not always required strict but-for causality,

even where criminal liability is at issue”).

The victim and the Government look to the literature on

criminal and tort law for alternatives to the but-for test.

The Court has noted that the “most common” exception to

the but-for causation requirement is applied where “mul-

14 PAROLINE v. UNITED STATES

Opinion of the Court

tiple sufficient causes independently . . . produce a result,”

ibid.; see also 1 LaFave §6.4(b), at 467–469; 1 Restatement

§27, at 376. This exception is an ill fit here, as all parties

seem to recognize. Paroline’s possession of two images of

the victim was surely not sufficient to cause her entire

losses from the ongoing trade in her images. Nor is there

a practical way to isolate some subset of the victim’s gen-

eral losses that Paroline’s conduct alone would have been

sufficient to cause. See Brief for United States 26, n. 11.

Understandably, the victim and the Government thus

concentrate on a handful of less demanding causation

tests endorsed by authorities on tort law. One prominent

treatise suggests that “[w]hen the conduct of two or more

actors is so related to an event that their combined con-

duct, viewed as a whole, is a but-for cause of the event,

and application of the but-for rule to them individually

would absolve all of them, the conduct of each is a cause in

fact of the event.” Prosser and Keeton §41, at 268. The

Restatement adopts a similar exception for “[m]ultiple

sufficient causal sets.” 1 Restatement §27, Comment f, at

380–381. This is where a wrongdoer’s conduct, though

alone “insufficient . . . to cause the plaintiff ’s harm,” is,

“when combined with conduct by other persons,” “more

than sufficient to cause the harm.” Ibid. The Restate-

ment offers as an example a case in which three people

independently but simultaneously lean on a car, creating

enough combined force to roll it off a cliff. Ibid. Even if

each exerted too little force to move the car, and the force

exerted by any two was sufficient to the move the car, each

individual is a factual cause of the car’s destruction. Ibid.

The Government argues that these authorities “provide

ample support for an ‘aggregate’ causation theory,” Brief

for United States 18, and that such a theory would best

effectuate congressional intent in cases like this, id., at

18–19. The victim says much the same. Brief for Re-

spondent Amy 42–43.

Cite as: 572 U. S. ____ (2014) 15

Opinion of the Court

These alternative causal tests are a kind of legal fiction

or construct. If the conduct of a wrongdoer is neither

necessary nor sufficient to produce an outcome, that con-

duct cannot in a strict sense be said to have caused the

outcome. Nonetheless, tort law teaches that alternative

and less demanding causal standards are necessary in

certain circumstances to vindicate the law’s purposes. It

would be anomalous to turn away a person harmed by the

combined acts of many wrongdoers simply because none of

those wrongdoers alone caused the harm. And it would be

nonsensical to adopt a rule whereby individuals hurt by

the combined wrongful acts of many (and thus in many

instances hurt more badly than otherwise) would have

no redress, whereas individuals hurt by the acts of one

person alone would have a remedy. Those are the prin-

ciples that underlie the various aggregate causation tests

the victim and the Government cite, and they are sound

principles.

These alternative causal standards, though salutary

when applied in a judicious manner, also can be taken too

far. That is illustrated by the victim’s suggested approach

to applying §2259 in cases like this. The victim says that

under the strict logic of these alternative causal tests,

each possessor of her images is a part of a causal set suffi-

cient to produce her ongoing trauma, so each possessor

should be treated as a cause in fact of all the trauma and

all the attendant losses incurred as a result of the entire

ongoing traffic in her images. Id., at 43. And she argues

that if this premise is accepted the further requirement of

proximate causation poses no barrier, for she seeks resti-

tution only for those losses that are the direct and foresee-

able result of child-pornography offenses. Because the

statute requires restitution for the “full amount of the

victim’s losses,” including “any . . . losses suffered by the

victim as a proximate result of the offense,” §2259(b), she

argues that restitution is required for the entire aggre-

16 PAROLINE v. UNITED STATES

Opinion of the Court

gately caused amount.

The striking outcome of this reasoning—that each pos-

sessor of the victim’s images would bear the consequences

of the acts of the many thousands who possessed those

images—illustrates why the Court has been reluctant to

adopt aggregate causation logic in an incautious manner,

especially in interpreting criminal statutes where there is

no language expressly suggesting Congress intended that

approach. See Burrage, 571 U. S., at ___ (slip op., at 11–

12). Even if one were to refer just to the law of torts, it

would be a major step to say there is a sufficient causal

link between the injury and the wrong so that all the

victim’s general losses were “suffered . . . as a proximate

result of [Paroline’s] offense,” §2259(b)(3)(F).

And there is special reason not to do so in the context of

criminal restitution. Aside from the manifest procedural

differences between criminal sentencing and civil tort

lawsuits, restitution serves purposes that differ from

(though they overlap with) the purposes of tort law. See,

e.g., Kelly v. Robinson, 479 U. S. 36, 49, n. 10 (1986) (not-

ing that restitution is, inter alia, “an effective rehabilita-

tive penalty”). Legal fictions developed in the law of torts

cannot be imported into criminal restitution and applied

to their utmost limits without due consideration of these

differences.

Contrary to the victim’s suggestion, this is not akin to a

case in which a “gang of ruffians” collectively beats a

person, or in which a woman is “gang raped by five men on

one night or by five men on five sequential nights.” Brief

for Respondent Amy 55. First, this case does not involve a

set of wrongdoers acting in concert, see Prosser and Keeton

§52, at 346 (discussing full liability for a joint enter-

prise); for Paroline had no contact with the overwhelming

majority of the offenders for whose actions the victim

would hold him accountable. Second, adopting the victim’s

approach would make an individual possessor liable for

Cite as: 572 U. S. ____ (2014) 17

Opinion of the Court

the combined consequences of the acts of not just 2, 5, or

even 100 independently acting offenders; but instead, a

number that may reach into the tens of thousands. See

Brief for Respondent Amy 65.

It is unclear whether it could ever be sensible to em-

brace the fiction that this victim’s entire losses were the

“proximate result,” §2259(b)(3)(F), of a single possessor’s

offense. Paroline’s contribution to the causal process

underlying the victim’s losses was very minor, both com-

pared to the combined acts of all other relevant offenders,

and in comparison to the contributions of other individual

offenders, particularly distributors (who may have caused

hundreds or thousands of further viewings) and the initial

producer of the child pornography. See 1 Restatement

§36, and Comment a, at 597–598 (recognizing a rule ex-

cluding from liability individuals whose contribution to a

causal set that factually caused the outcome “pales by

comparison to the other contributions to that causal set”).

But see id., §27, Reporters’ Note, Comment i, at 395 (“The

conclusion that none of ” two dozen small contributions to

a sufficient causal set was a cause of the outcome “is obvi-

ously untenable”). Congress gave no indication that it

intended its statute to be applied in the expansive manner

the victim suggests, a manner contrary to the bedrock

principle that restitution should reflect the consequences

of the defendant’s own conduct, see Hughey, 495 U. S., at

416, not the conduct of thousands of geographically and

temporally distant offenders acting independently, and

with whom the defendant had no contact.

The victim argues that holding each possessor liable for

her entire losses would be fair and practical, in part be-

cause offenders may seek contribution from one another.

Brief for Respondent Amy 58. If that were so, it might

mitigate to some degree the concerns her approach pre-

sents. But there is scant authority for her contention that

offenders convicted in different proceedings in different

18 PAROLINE v. UNITED STATES

Opinion of the Court

jurisdictions and ordered to pay restitution to the same

victim may seek contribution from one another. There is

no general federal right to contribution. Northwest Air-

lines, Inc. v. Transport Workers, 451 U. S. 77, 96–97

(1981). Nor does the victim point to any clear statutory

basis for a right to contribution in these circumstances.

She thus suggests that this Court should imply a cause of

action. Brief for Respondent Amy 58. But that is a rare

step in any circumstance. See, e.g., Stoneridge Investment

Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148,

164–165 (2008); Musick, Peeler & Garrett v. Employers

Ins. of Wausau, 508 U. S. 286, 291 (1993) (noting that this

Court’s precedents “teach that the creation of new rights

ought to be left to legislatures, not courts”). And it would

do little to address the practical problems offenders would

face in seeking contribution in any event, see Brief for

United States 45–46, problems with which the victim fails

to grapple.

The reality is that the victim’s suggested approach

would amount to holding each possessor of her images

liable for the conduct of thousands of other independently

acting possessors and distributors, with no legal or practi-

cal avenue for seeking contribution. That approach is so

severe it might raise questions under the Excessive Fines

Clause of the Eighth Amendment. To be sure, this Court

has said that “the Excessive Fines Clause was intended to

limit only those fines directly imposed by, and payable to,

the government.” Browning-Ferris Industries of Vt., Inc.

v. Kelco Disposal, Inc., 492 U. S. 257, 268 (1989). But

while restitution under §2259 is paid to a victim, it is

imposed by the Government “at the culmination of a crim-

inal proceeding and requires conviction of an underlying”

crime, United States v. Bajakajian, 524 U. S. 321, 328

(1998). Thus, despite the differences between restitution

and a traditional fine, restitution still implicates “the

prosecutorial powers of government,” Browning-Ferris,

Cite as: 572 U. S. ____ (2014) 19

Opinion of the Court

supra, at 275. The primary goal of restitution is remedial

or compensatory, cf. Bajakajian, supra, at 329, but it also

serves punitive purposes, see Pasquantino v. United

States, 544 U. S. 349, 365 (2005) (“The purpose of award-

ing restitution” under 18 U. S. C. §3663A “is . . . to mete

out appropriate criminal punishment”); Kelly, 479 U. S., at

49, n. 10. That may be “sufficient to bring [it] within the

purview of the Excessive Fines Clause,” Bajakajian, su-

pra, at 329, n. 4. And there is a real question whether

holding a single possessor liable for millions of dollars in

losses collectively caused by thousands of independent

actors might be excessive and disproportionate in these

circumstances. These concerns offer further reason not to

interpret the statute the way the victim suggests.

B

The contention that the victim’s entire losses from the

ongoing trade in her images were “suffered . . . as a proxi-

mate result” of Paroline’s offense for purposes of §2259

must be rejected. But that does not mean the broader

principles underlying the aggregate causation theories the

Government and the victim cite are irrelevant to deter-

mining the proper outcome in cases like this. The cause of

the victim’s general losses is the trade in her images. And

Paroline is a part of that cause, for he is one of those who

viewed her images. While it is not possible to identify a

discrete, readily definable incremental loss he caused, it is

indisputable that he was a part of the overall phenomenon

that caused her general losses. Just as it undermines the

purposes of tort law to turn away plaintiffs harmed by

several wrongdoers, it would undermine the remedial and

penological purposes of §2259 to turn away victims in

cases like this.

With respect to the statute’s remedial purpose, there

can be no question that it would produce anomalous re-

sults to say that no restitution is appropriate in these

20 PAROLINE v. UNITED STATES

Opinion of the Court

circumstances. It is common ground that the victim suf-

fers continuing and grievous harm as a result of her

knowledge that a large, indeterminate number of individ-

uals have viewed and will in the future view images of the

sexual abuse she endured. Brief for Petitioner 50; Brief

for Respondent Wright 4; Brief for United States 23; Brief

for Respondent Amy 60. Harms of this sort are a major

reason why child pornography is outlawed. See Ferber,

458 U. S., at 759. The unlawful conduct of everyone who

reproduces, distributes, or possesses the images of the

victim’s abuse—including Paroline—plays a part in sus-

taining and aggravating this tragedy. And there can be no

doubt Congress wanted victims to receive restitution for

harms like this. The law makes restitution “mandatory,”

§2259(b)(4), for child-pornography offenses under Chapter

110, language that indicates Congress’ clear intent that

victims of child pornography be compensated by the perpe-

trators who contributed to their anguish. It would un-

dermine this intent to apply the statute in a way that

would render it a dead letter in child-pornography prose-

cutions of this type.

Denying restitution in cases like this would also be at

odds with the penological purposes of §2259’s mandatory

restitution scheme. In a sense, every viewing of child

pornography is a repetition of the victim’s abuse. One

reason to make restitution mandatory for crimes like this

is to impress upon offenders that their conduct produces

concrete and devastating harms for real, identifiable

victims. See Kelly, supra, at 49, n. 10 (“Restitution is an

effective rehabilitative penalty because it forces the de-

fendant to confront, in concrete terms, the harm his ac-

tions have caused”). It would be inconsistent with this

purpose to apply the statute in a way that leaves offenders

with the mistaken impression that child-pornography

possession (at least where the images are in wide circula-

tion) is a victimless crime.

Cite as: 572 U. S. ____ (2014) 21

Opinion of the Court

If the statute by its terms required a showing of strict

but-for causation, these purposes would be beside the

point. But the text of the statute is not so limited. Al-

though Congress limited restitution to losses that are the

“proximate result” of the defendant’s offense, such unelab-

orated causal language by no means requires but-for

causation by its terms. See Burrage, 571 U. S., at ___ (slip

op., at 8) (courts need not read phrases like “results from”

to require but-for causality where there is “textual or

contextual” reason to conclude otherwise). As the authori-

ties the Government and the victim cite show, the availa-

bility of alternative causal standards where circumstances

warrant is, no less than the but-for test itself as a default,

part of the background legal tradition against which Con-

gress has legislated, cf. id., at ___ (slip op., at 10). It

would be unacceptable to adopt a causal standard so strict

that it would undermine congressional intent where nei-

ther the plain text of the statute nor legal tradition de-

mands such an approach.

In this special context, where it can be shown both that

a defendant possessed a victim’s images and that a victim

has outstanding losses caused by the continuing traffic in

those images but where it is impossible to trace a particu-

lar amount of those losses to the individual defendant by

recourse to a more traditional causal inquiry, a court

applying §2259 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. The

amount would not be severe in a case like this, given the

nature of the causal connection between the conduct of a

possessor like Paroline and the entirety of the victim’s

general losses from the trade in her images, which are the

product of the acts of thousands of offenders. It would not,

however, be a token or nominal amount. The required

restitution would be a reasonable and circumscribed

award imposed in recognition of the indisputable role of

22 PAROLINE v. UNITED STATES

Opinion of the Court

the offender in the causal process underlying the victim’s

losses and suited to the relative size of that causal role.

This would serve the twin goals of helping the victim

achieve eventual restitution for all her child-pornography

losses and impressing upon offenders the fact that child-

pornography crimes, even simple possession, affect real

victims.

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 indi-

vidual defendant’s conduct in light of the broader causal

process that produced the victim’s losses. This cannot be a

precise mathematical inquiry and involves the use of

discretion and sound judgment. But that is neither unu-

sual nor novel, either in the wider context of criminal

sentencing or in the more specific domain of restitution. It

is well recognized that district courts by necessity “exer-

cise . . . discretion in fashioning a restitution order.”

§3664(a). Indeed, a district court is expressly authorized

to conduct a similar inquiry where multiple defendants

who have “contributed to the loss of a victim” appear

before it. §3664(h). In that case it may “apportion liabil-

ity among the defendants to reflect the level of contribu-

tion to the victim’s loss . . . of each defendant.” Ibid.

Assessing an individual defendant’s role in the causal

process behind a child-pornography victim’s losses does

not involve a substantially different or greater exercise of

discretion.

There are a variety of factors district courts might con-

sider in determining a proper amount of restitution, and it

is neither necessary nor appropriate to prescribe a precise

algorithm for determining the proper restitution amount

at this point in the law’s development. Doing so would

unduly constrain the decisionmakers closest to the facts of

any given case. But district courts might, as a starting

Cite as: 572 U. S. ____ (2014) 23

Opinion of the Court

point, determine the amount of the victim’s losses caused

by the continuing traffic in the victim’s images (excluding,

of course, any remote losses like the hypothetical car

accident described above, see supra, at 10), then set an

award of restitution in consideration of factors that bear

on the relative causal significance of the defendant’s con-

duct in producing those losses. These could include the

number of past criminal defendants found to have con-

tributed to the victim’s general losses; reasonable predic-

tions of the number of future offenders likely to be caught

and convicted for crimes contributing to the victim’s gen-

eral losses; any available and reasonably reliable estimate

of the broader number of offenders involved (most of whom

will, of course, never be caught or convicted); whether the

defendant reproduced or distributed images of the victim;

whether the defendant had any connection to the initial

production of the images; how many images of the victim

the defendant possessed; and other facts relevant to the

defendant’s relative causal role. See Brief for United

States 49.

These factors need not be converted into a rigid formula,

especially if doing so would result in trivial restitution

orders. They should rather serve as rough guideposts for

determining an amount that fits the offense. The result-

ing amount fixed by the court would be deemed the

amount of the victim’s general losses that were the “prox-

imate result of the offense” for purposes of §2259, and thus

the “full amount” of such losses that should be awarded.

The court could then set an appropriate payment schedule

in consideration of the defendant’s financial means. See

§3664(f)(2).

The victim says this approach is untenable because her

losses are “indivisible” in the sense that term is used by

tort law, i.e., that there is no “reasonable basis for the

factfinder to determine . . . the amount of damages sepa-

rately caused by” any one offender’s conduct. Restatement

24 PAROLINE v. UNITED STATES

Opinion of the Court

(Third) of Torts: Apportionment of Liability §26, p. 320

(1999). The premise of her argument is that because it is

in a sense a fiction to say Paroline caused $1,000 in losses,

$10,000 in losses, or any other lesser amount, it is neces-

sary to embrace the much greater fiction that Paroline

caused all the victim’s losses from the ongoing trade in her

images. But that is a non sequitur. The Court is required

to define a causal standard that effects the statute’s pur-

poses, not to apply tort-law concepts in a mechanical way

in the criminal restitution context. Even if the victim’s

losses are fully “indivisible” in this sense (which is debata-

ble), treating Paroline as a proximate cause of all the

victim’s losses—especially in the absence of a workable

system of contribution—stretches the fiction of aggregate

causation to its breaking point. Treating him as a cause of

a smaller amount of the victim’s general losses, taking

account of his role in the overall causal process behind

those losses, effects the statute’s purposes; avoids the

nonsensical result of turning away victims emptyhanded;

and does so without sacrificing the need for proportional-

ity in sentencing.

The victim also argues that this approach would consign

her to “piecemeal” restitution and leave her to face “dec-

ades of litigation that might never lead to full recovery,”

Brief for Respondent Amy 57, which “would convert Con-

gress’s promise to child pornography victims into an empty

gesture,” id., at 66. But Congress has not promised

victims full and swift restitution at all costs. To be sure,

the statute states a strong restitutionary purpose; but that

purpose cannot be twisted into a license to hold a defend-

ant liable for an amount drastically out of proportion to

his own individual causal relation to the victim’s losses.

Furthermore, an approach of this sort better effects the

need to impress upon defendants that their acts are not

irrelevant or victimless. As the Government observes,

Reply Brief for United States 18, it would undermine this

Cite as: 572 U. S. ____ (2014) 25

Opinion of the Court

important purpose of criminal restitution if the victim

simply collected her full losses from a handful of wealthy

possessors and left the remainder to pay nothing because

she had already fully collected. Of course the victim

should someday collect restitution for all her child-

pornography losses, but it makes sense to spread payment

among a larger number of offenders in amounts more

closely in proportion to their respective causal roles and

their own circumstances so that more are made aware,

through the concrete mechanism of restitution, of the

impact of child-pornography possession on victims.

C

This approach is not without its difficulties. Restitution

orders should represent “an application of law,” not “a

decisionmaker’s caprice,” Philip Morris USA v. Williams,

549 U. S. 346, 352 (2007) (internal quotation marks omit-

ted), and the approach articulated above involves discre-

tion and estimation. But courts can only do their best to

apply the statute as written in a workable manner, faith-

ful to the competing principles at stake: that victims

should be compensated and that defendants should be

held to account for the impact of their conduct on those

victims, but also that defendants should be made liable for

the consequences and gravity of their own conduct, not the

conduct of others. District courts routinely exercise wide

discretion both in sentencing as a general matter and

more specifically in fashioning restitution orders. There is

no reason to believe they cannot apply the causal standard

defined above in a reasonable manner without further

detailed guidance at this stage in the law’s elaboration.

Based on its experience in prior cases of this kind, the

Government—which, as noted above, see supra, at 5–6,

bears the burden of proving the amount of the victim’s

losses, §3664(e)—could also inform district courts of resti-

tution sought and ordered in other cases.

26 PAROLINE v. UNITED STATES

Opinion of the Court

* * *

The Fifth Circuit’s interpretation of the requirements of

§2259 was incorrect. The District Court likewise erred in

requiring a strict showing of but-for causation. The judg-

ment of the Court of Appeals is vacated, and the case is

remanded for further proceedings consistent with this

opinion.

It is so ordered.

Cite as: 572 U. S. ____ (2014) 1

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–8561

_________________

DOYLE RANDALL PAROLINE, PETITIONER v.

UNITED STATES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[April 23, 2014]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA

and JUSTICE THOMAS join, dissenting.

I certainly agree with the Court that Amy deserves

restitution, and that Congress—by making restitution

mandatory for victims of child pornography—meant that

she have it. Unfortunately, the restitution statute that

Congress wrote for child pornography offenses makes it

impossible to award that relief to Amy in this case. In-

stead of tailoring the statute to the unique harms caused

by child pornography, Congress borrowed a generic resti-

tution standard that makes restitution contingent on the

Government’s ability to prove, “by the preponderance of

the evidence,” “the amount of the loss sustained by a

victim as a result of ” the defendant’s crime. 18 U. S. C.

§3664(e). When it comes to Paroline’s crime—possession

of two of Amy’s images—it is not possible to do anything

more than pick an arbitrary number for that “amount.”

And arbitrary is not good enough for the criminal law.

The Court attempts to design a more coherent restitu-

tion system, focusing on “the defendant’s relative role in

the causal process that underlies the victim’s general

losses.” Ante, at 21. But this inquiry, sensible as it may

be, is not the one Congress adopted. After undertaking

the inquiry that Congress did require, the District Court

in this case concluded that the Government could not meet

2 PAROLINE v. UNITED STATES

ROBERTS, C. J., dissenting

its statutory burden of proof. Before this Court, the Gov-

ernment all but concedes the point. See Brief for United

States 25 (“it is practically impossible to know whether

[Amy’s] losses would have been slightly lower if one were

to subtract one defendant, or ten, or fifty”). I must regret-

fully dissent.

I

Section 2259(a) of Title 18 directs that a district court

“shall order restitution for any offense under this chapter,”

which includes Paroline’s offense of knowingly possessing

child pornography in violation of section 2252. In case

Congress’s purpose were not clear from its use of “shall,”

section 2259(b)(4) then emphasizes that “[t]he issuance of

a restitution order under this section is mandatory.”

Section 2259(b)(1) spells out who may receive restitu-

tion, and for what. It provides that “[t]he order of restitu-

tion under this section shall direct the defendant to pay

the victim (through the appropriate court mechanism) the

full amount of the victim’s losses as determined by the

court pursuant to [section 2259(b)(2)].” The term “ ‘vic-

tim’ ” is defined as “the individual harmed as a result of a

commission of a crime under this chapter.” §2259(c). And

the term “ ‘full amount of the victim’s losses’ includes any

costs incurred by the victim for . . . medical services relat-

ing to physical, psychiatric, or psychological care”; “lost

income”; and “any other losses suffered by the victim as a

proximate result of the offense.” §§2259(b)(3)(A), (D), (F).

Section 2259(b)(2) then describes how the district court

must calculate restitution. It provides that “[a]n order of

restitution under this section shall be issued and enforced

in accordance with section 3664 in the same manner as an

order under section 3663A.” Unlike section 2259, sections

3663A and 3664 were not designed specifically for child

pornography offenses; they are part of the Mandatory

Victims Restitution Act of 1996 and supply general resti-

Cite as: 572 U. S. ____ (2014) 3

ROBERTS, C. J., dissenting

tution guidelines for many federal offenses. Most relevant

here, section 3664(e) provides that “[a]ny dispute as to the

proper amount or type of restitution shall be resolved by

the court by the preponderance of the evidence. The bur-

den of demonstrating the amount of the loss sustained by

a victim as a result of the offense shall be on the attorney

for the Government.”

A

As the Court explains, the statute allows restitution

only for those losses that were the “proximate result” of

Paroline’s offense. See ante, at 9–11 (citing §2259(b)(3)).

Contrary to Paroline’s argument, the proximate cause re-

quirement is easily satisfied in this case. It was readily

foreseeable that Paroline’s crime could cause Amy to

suffer precisely the types of losses that she claims: future

lost wages, costs for treatment and counseling, and attor-

ney’s fees and costs, all of which are eligible losses enu-

merated in section 2259(b)(3). There is a “direct relation”

between those types of injuries and Paroline’s “injurious

conduct.” Holmes v. Securities Investor Protection Corpo-

ration, 503 U. S. 258, 268 (1992). I therefore agree with

the Court that if Paroline actually caused those losses, he

also proximately caused them. See ante, at 12.

The more pressing problem is the statutory requirement

of actual causation. See Burrage v. United States, 571

U. S. ___, ___ (2014) (slip op., at 6) (the ordinary meaning

of the term “results from” requires proof that the defend-

ant’s conduct was the “actual cause” of the injury). Here

too the Court correctly holds that the statute precludes the

restitution award sought by Amy and preferred by

JUSTICE SOTOMAYOR’s dissent, which would hold Paroline

responsible for Amy’s entire loss. See ante, at 16–19;

contra, post, at 7–16. Congress has authorized restitution

only for “the amount of the loss sustained by a victim as a

result of the offense.” §3664(e). We have interpreted

4 PAROLINE v. UNITED STATES

ROBERTS, C. J., dissenting

virtually identical language, in the predecessor statute to

section 3664, to require “restitution to be tied to the loss

caused by the offense of conviction.” Hughey v. United

States, 495 U. S. 411, 418 (1990) (citing 18 U. S. C.

§3580(a) (1982 ed.); emphasis added). That is, restitution

may not be imposed for losses caused by any other crime

or any other defendant.1

JUSTICE SOTOMAYOR’s dissent dismisses section 3664(e),

which is Congress’s direct answer to the very question

presented by this case, namely, how to resolve a “dispute

as to the proper amount . . . of restitution.” JUSTICE

SOTOMAYOR thinks the answer to that question begins and

ends with the statement in section 2259(b)(1) that the

defendant must pay “the full amount of the victim’s losses.”

See post, at 1, 2, 10, 15. But losses from what? The

answer is found in the rest of that sentence: “the full

amount of the victim’s losses as determined by the court

pursuant to paragraph 2.” §2259(b)(1) (emphasis added).

“[P]aragraph 2,” of course, instructs that “[a]n order of

restitution under this section shall be issued and enforced

in accordance with section 3664 in the same manner as an

order under section 3663A.” §2259(b)(2). And it is section

3664 that provides the statute’s burden of proof and speci-

fies that the defendant pay for those losses sustained “as a

result of the offense”—that is, his offense. §3664(e).

The offense of conviction here was Paroline’s possession

of two of Amy’s images. No one suggests Paroline’s crime

——————

1 In a case “where the loss is the product of the combined conduct of

multiple offenders,” post, at 7 (SOTOMAYOR, J., dissenting), section

3664(h) provides that a court may “make each defendant liable for

payment of the full amount of restitution or may apportion liability

among the defendants to reflect the level of contribution to the victim’s

loss and economic circumstances of each defendant.” As the Court

notes, however, this provision applies only when multiple defendants

are sentenced in the same proceeding, or charged under the same

indictment. Ante, at 22; see also Brief for United States 43.

Cite as: 572 U. S. ____ (2014) 5

ROBERTS, C. J., dissenting

actually caused Amy to suffer millions of dollars in losses,

so the statute does not allow a court to award millions of

dollars in restitution. Determining what amount the

statute does allow—the amount of Amy’s losses that Paro-

line’s offense caused—is the real difficulty of this case.

See ante, at 12.

B

Regrettably, Congress provided no mechanism for an-

swering that question. If actual causation is to be deter-

mined using the traditional, but-for standard, then the

Court acknowledges that “a showing of but-for causation

cannot be made” in this case. Ante, at 12. Amy would

have incurred all of her lost wages and counseling costs

even if Paroline had not viewed her images. The Govern-

ment and Amy respond by offering an “aggregate” causa-

tion theory borrowed from tort law. But even if we apply

this “legal fiction,” ante, at 15, and assume, for purposes of

argument, that Paroline’s crime contributed something to

Amy’s total losses, that suffices only to establish causation

in fact. It is not sufficient to award restitution under the

statute, which requires a further determination of the

amount that Paroline must pay. He must pay “the full

amount of the victim’s losses,” yes, but “as determined by”

section 3664—that is, the full amount of the losses he

caused. The Government has the burden to establish that

amount, and no one has suggested a plausible means for

the Government to carry that burden.2

The problem stems from the nature of Amy’s injury. As

explained, section 3664 is a general statute designed to

provide restitution for more common crimes, such as fraud

and assault. The section 3664(e) standard will work just

——————

2 The correct amount is not the one favored by JUSTICE SOTOMAYOR’s

dissent, which would hold Paroline liable for losses that he certainly

did not cause, without any right to seek contribution from others who

harmed Amy.

6 PAROLINE v. UNITED STATES

ROBERTS, C. J., dissenting

fine for most crime victims, because it will usually not be

difficult to identify the harm caused by the defendant’s

offense. The dispute will usually just be over the amount

of the victim’s loss—for example, the value of lost assets or

the cost of a night in the hospital.

Amy has a qualitatively different injury. Her loss, while

undoubtedly genuine, is a result of the collective actions of

a huge number of people—beginning with her uncle who

abused her and put her images on the Internet, to the

distributors who make those images more widely avail-

able, to the possessors such as Paroline who view her im-

ages. The harm to Amy was produced over time, gradually,

by tens of thousands of persons acting independently from

one another.3 She suffers in particular from her

knowledge that her images are being viewed online by an

unknown number of people, and from her fear that any

person she meets might recognize her from having wit-

nessed her abuse. App. 59–66. But Amy does not know

who Paroline is. Id., at 295, n. 11. Nothing in the record

comes close to establishing that Amy would have suffered

less if Paroline had not possessed her images, let alone

how much less. See Brief for United States 25. Amy’s

injury is indivisible, which means that Paroline’s particu-

lar share of her losses is unknowable. And yet it is proof

of Paroline’s particular share that the statute requires.

By simply importing the generic restitution statute

without accounting for the diffuse harm suffered by vic-

tims of child pornography, Congress set up a restitution

system sure to fail in cases like this one. Perhaps a case

with different facts, say, a single distributor and only a

——————

3 The gang assaults discussed by JUSTICE SOTOMAYOR, post, at 8, are

not a fair analogy. The gang members in those cases acted together,

with a common plan, each one aiding and abetting the others in inflict-

ing harm. But Paroline has never met or interacted with any, or

virtually any, of the other persons who contributed to Amy’s injury, and

his possession offense did not aid or abet anyone.

Cite as: 572 U. S. ____ (2014) 7

ROBERTS, C. J., dissenting

handful of possessors, would be susceptible of the proof the

statute requires. But when tens of thousands of copies (or

more) of Amy’s images have changed hands all across the

world for more than a decade, a demand for the Govern-

ment to prove “the amount of the loss sustained by a

victim as a result of the offense”—the offense before the

court in any particular case—is a demand for the impos-

sible. §3664(e) (emphasis added). When Congress con-

ditioned restitution on the Government’s meeting that

burden of proof, it effectively precluded restitution in

most cases involving possession or distribution of child

pornography.

II

The District Court in Paroline’s case found that the

Government could not meet its statutory burden of proof.

The Government does not really contest that holding here;

it instead asks to be held to a less demanding standard.

Having litigated this issue for years now in virtually every

Circuit, the best the Government has come up with is to

tell courts awarding restitution to look at what other

courts have done. But that is not a workable guide, not

least because courts have taken vastly different approaches

to materially indistinguishable cases. According to the

Government’s lodging in this case, District Courts award-

ing less than Amy’s full losses have imposed restitution

orders varying from $50 to $530,000.4 Restitution Awards

for Amy Through December 11, 2013, Lodging of United

States. How is a court supposed to use those figures as

any sort of guidance? Pick the median figure? The mean?

Something else?

More to the point, the Government’s submission lacks

any basis in law. That the first district courts confronted

——————

4 Amy’s uncle—the initial source of all of her injuries—was ordered to

pay $6,325 in restitution, which only underscores how arbitrary the

statute is when applied to most child pornography offenses.

8 PAROLINE v. UNITED STATES

ROBERTS, C. J., dissenting

with Amy’s case awarded $1,000, or $5,000, or $530,000,

for no articulable reason, is not a legal basis for awarding

one of those figures in Paroline’s case. The statute re-

quires proof of this defendant’s harm done, not the going

rate. And of course, as the Government acknowledges, its

approach “doesn’t work very well” in the first case brought

by a particular victim. Tr. of Oral Arg. 24.

The majority’s proposal is to have a district court “as-

sess 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.” Ante,

at 22. Even if that were a plausible way to design a resti-

tution system for Amy’s complex injury, there is no way

around the fact that it is not the system that Congress

created. The statute requires restitution to be based

exclusively on the losses that resulted from the defendant’s

crime—not on the defendant’s relative culpability. The

majority’s plan to situate Paroline along a spectrum of

offenders who have contributed to Amy’s harm will not

assist a district court in calculating the amount of Amy’s

losses—the amount of her lost wages and counseling

costs—that was caused by Paroline’s crime (or that of any

other defendant).

The Court is correct, of course, that awarding Amy no

restitution would be contrary to Congress’s remedial and

penological purposes. See ante, at 20. But we have previ-

ously refused to allow “policy considerations”—including

an “expansive declaration of purpose,” and the need to

“compensate victims for the full losses they suffered”—to

deter us from reading virtually identical statutory lan-

guage to require proof of the harm caused solely by the

defendant’s particular offense. Hughey, 495 U. S., at 420–

421.

Moreover, even the Court’s “relative role in the causal

process” approach to the statute, ante, at 21, is unlikely to

make Amy whole. To the extent that district courts do

Cite as: 572 U. S. ____ (2014) 9

ROBERTS, C. J., dissenting

form a sort of consensus on how much to award, experi-

ence shows that the amount in any particular case will be

quite small—the significant majority of defendants have

been ordered to pay Amy $5,000 or less. Lodging of United

States. This means that Amy will be stuck litigating

for years to come. The Court acknowledges that Amy may

end up with “piecemeal” restitution, yet responds simply

that “Congress has not promised victims full and swift

restitution at all costs.” Ante, at 24.

Amy will fare no better if district courts consider the

other factors suggested by the majority, including the

number of defendants convicted of possessing Amy’s im-

ages, a rough estimate of those likely to be convicted in the

future, and an even rougher estimate of the total number

of persons involved in her harm. Ante, at 23. In the first

place, only the last figure is relevant, because Paroline’s

relative significance can logically be measured only in

light of everyone who contributed to Amy’s injury—not

just those who have been, or will be, caught and convicted.

Even worse, to the extent it is possible to project the total

number of persons who have viewed Amy’s images, that

number is tragically large, which means that restitution

awards tied to it will lead to a pitiful recovery in every

case. See Brief for Respondent Amy 65 (estimating Paro-

line’s “ ‘market share’ ” of Amy’s harm at 1/71,000, or $47).

The majority says that courts should not impose “trivial

restitution orders,” ante, at 23, but it is hard to see how a

court fairly assessing this defendant’s relative contribu-

tion could do anything else.

Nor can confidence in judicial discretion save the statute

from arbitrary application. See ante, at 22, 25–26. It is

true that district courts exercise substantial discretion in

awarding restitution and imposing sentences in general.

But they do not do so by mere instinct. Courts are instead

guided by statutory standards: in the restitution context, a

fair determination of the losses caused by the individual

10 PAROLINE v. UNITED STATES

ROBERTS, C. J., dissenting

defendant under section 3664(e); in sentencing more gen-

erally, the detailed factors in section 3553(a). A contrary

approach—one that asks district judges to impose restitu-

tion or other criminal punishment guided solely by their

own intuitions regarding comparative fault—would un-

dermine the requirement that every criminal defendant

receive due process of law.

* * *

The Court’s decision today means that Amy will not go

home with nothing. But it would be a mistake for that

salutary outcome to lead readers to conclude that Amy has

prevailed or that Congress has done justice for victims of

child pornography. The statute as written allows no re-

covery; we ought to say so, and give Congress a chance to

fix it.

I respectfully dissent.

Cite as: 572 U. S. ____ (2014) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–8561

_________________

DOYLE RANDALL PAROLINE, PETITIONER v.

UNITED STATES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[April 23, 2014]

JUSTICE SOTOMAYOR, dissenting.

This Court has long recognized the grave “physiological,

emotional, and mental” injuries suffered by victims of

child pornography. New York v. Ferber, 458 U. S. 747, 758

(1982). The traffic in images depicting a child’s sexual

abuse, we have observed, “ ‘poses an even greater threat to

the child victim than does sexual abuse or prostitution’ ”

because the victim must “ ‘go through life knowing that the

recording is circulating within the mass distribution sys-

tem for child pornography.’ ” Id., at 759, n. 10. As we

emphasized in a later case, the images cause “continuing

harm by haunting the chil[d] in years to come.” Osborne v.

Ohio, 495 U. S. 103, 111 (1990).

Congress enacted 18 U. S. C. §2259 against this back-

drop. The statute imposes a “mandatory” duty on courts

to order restitution to victims of federal offenses involving

the sexual abuse of children, including the possession of

child pornography. §2259(b)(4). And it commands that for

any such offense, a court “shall direct the defendant to pay

the victim . . . the full amount of the victim’s losses.”

§2259(b)(1).

The Court interprets this statute to require restitution

in a “circumscribed” amount less than the “entirety of the

victim’s . . . losses,” a total it instructs courts to estimate

based on the defendant’s “relative role” in the victim’s

2 PAROLINE v. UNITED STATES

SOTOMAYOR, J., dissenting

harm. Ante, at 21. That amount, the Court holds, should

be neither “nominal” nor “severe.” Ibid.

I appreciate the Court’s effort to achieve what it per-

ceives to be a just result. It declines to require restitution

for a victim’s full losses, a result that might seem incon-

gruent to an individual possessor’s partial role in a harm

in which countless others have participated. And it rejects

the position advanced by Paroline and the dissenting

opinion of THE CHIEF JUSTICE, which would result in no

restitution in cases like this for the perverse reason that a

child has been victimized by too many.

The Court’s approach, however, cannot be reconciled

with the law that Congress enacted. Congress mandated

restitution for the “full amount of the victim’s losses,”

§2259(b)(1), and did so within the framework of settled

tort law principles that treat defendants like Paroline

jointly and severally liable for the indivisible consequences

of their intentional, concerted conduct. And to the extent

an award for the full amount of a victim’s losses may lead

to fears of unfair treatment for particular defendants,

Congress provided a mechanism to accommodate those

concerns: Courts are to order “partial payments” on a

periodic schedule if the defendant’s financial circumstances

or other “interest[s] of justice” so require. §§3664(f )(3),

3572(d)(1). I would accordingly affirm the Fifth Circuit’s

holding that the District Court “must enter a restitution

order reflecting the ‘full amount of [Amy’s] losses,’ ” In re

Amy Unknown, 701 F. 3d 749, 774 (2012), and instruct the

court to consider a periodic payment schedule on remand.

I

A

There are two distinct but related questions in this case:

First, whether Paroline’s conduct bears a sufficient causal

nexus to Amy’s harm, and second, if such a nexus exists,

how much restitution Paroline should be required to pay.

Cite as: 572 U. S. ____ (2014) 3

SOTOMAYOR, J., dissenting

Beginning with causation, I agree with the majority that

proximate causation is beyond dispute because the medi-

cal and economic losses suffered by Amy are “direct and

foreseeable results of child-pornography crimes.” Ante, at

12; accord, ante, at 3 (ROBERTS, C. J., dissenting). The

real issue, then, is “the proper standard of causation in

fact.” Ante, at 12 (majority opinion).

The majority and I share common ground on much of

this issue. We agree that the ordinary way to prove cause-

in-fact is to show that a result would not have occurred

“but for” the defendant’s conduct. Burrage v. United

States, 571 U. S. ___, ___ (2014) (slip op., at 6). We also

agree that “ ‘strict but-for causality’ ” is “ ‘not always re-

quired,’ ” and that alternative standards of factual causa-

tion are appropriate “where there is ‘textual or contextual’

reason to conclude” as much. Ante, at 13, 21 (quoting

Burrage, 571 U. S., at ___ (slip op., at 8, 10). And most

importantly, we agree that there are ample reasons to

reject a strict but-for causality requirement in §2259. See

ante, at 21.

Starting with the text, §2259 declares that a court “shall

order restitution for any offense under this chapter.” The

possession of child pornography, §2252, is an offense

under the relevant chapter, and the term “shall” creates

“an obligation impervious to judicial discretion,” Lexecon

Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S.

26, 35 (1998). So the text could not be clearer: A court

must order restitution against a person convicted of pos-

sessing child pornography. Section 2259(b)(4) underscores

this directive by declaring that “[t]he issuance of a restitu-

tion order under this section is mandatory.” And the

statute’s title—“mandatory restitution”—reinforces it

further still.

Interpreting §2259 to require but-for causality would

flout these simple textual commands. That is because “a

showing of but-for causation cannot be made” in this case

4 PAROLINE v. UNITED STATES

SOTOMAYOR, J., dissenting

and many like it. Ante, at 12. Even without Paroline’s

offense, it is a regrettable fact that “thousands would have

viewed and would in the future view [Amy’s] images,” such

that “it cannot be shown that her trauma and attendant

losses would have been any different but for Parolin[e].”

Id., at 13. A but-for requirement would thus make restitu-

tion under §2259 the opposite of “mandatory”; it would

preclude restitution to the victim of the typical child por-

nography offense for the nonsensical reason that the child

has been victimized by too many.

Such an approach would transform §2259 into some-

thing unrecognizable to the Congress that wrote it. When

Congress passed §2259 in 1994, it was common knowledge

that child pornography victims suffer harm at the hands of

numerous offenders who possess their images in common,

whether in print, film, or electronic form. See, e.g.,

Shouvlin, Preventing the Sexual Exploitation of Children:

A Model Act, 17 Wake Forest L. Rev. 535, 544 (1981)

(describing the “enormous number of magazines” and

“hundreds of films” produced each year depicting the

sexual abuse of children, which were circulated to untold

numbers of offenders through a “well-organized distribu-

tion system [that] ensures that even the small towns have

access to [the] material”); Doyle, FBI Probing Child Porn

on Computers, San Francisco Chronicle, Dec. 5, 1991,

p. A23 (describing complaint that “child pornographic pho-

tographs” were circulating via the “America On-Line com-

puter service”). Congress was also acutely aware of the

severe injuries that victims of child pornography suffer at

the hands of criminals who possess and view the recorded

images of their sexual abuse. Congress found, for exam-

ple, that the “continued existence” and circulation of child

pornography images “causes the child victims of sexual

abuse continuing harm by haunting those children in

future years.” Child Pornography Prevention Act of 1996,

§121, 110 Stat. 3009–26, Congressional Findings (2), notes

Cite as: 572 U. S. ____ (2014) 5

SOTOMAYOR, J., dissenting

following 18 U. S. C. §2251 (hereinafter §2251 Findings).

It is inconceivable that Congress would have imposed a

mandatory restitution obligation on the possessors who

contribute to these “continuing harm[s],” ibid., only

to direct courts to apply a but-for cause requirement

that would prevent victims from actually obtaining any

recovery.

There is, of course, an alternative standard for deter-

mining cause-in-fact that would be consistent with the

text of §2259 and the context in which it was enacted:

aggregate causation. As the majority points out, aggre-

gate causation was, “no less than the but-for test itself,” a

“part of the background legal tradition against which

Congress” legislated. Ante, at 21. And under this stand-

ard, “ ‘[w]hen the conduct of two or more actors is so re-

lated to an event that their combined conduct, viewed as a

whole, is a but-for cause of the event, and application of

the but-for rule to them individually would absolve all of

them, the conduct of each is a cause in fact of the event.’ ”

Ante, at 14 (quoting W. Keeton, D. Dobbs, R. Keeton, & D.

Owen, Prosser and Keeton on Law of Torts §41, p. 268 (5th

ed. 1984) (hereinafter Prosser and Keeton)).1 Paroline and

his fellow offenders plainly qualify as factual causes under

this approach because Amy’s losses would not have oc-

curred but for their combined conduct, and because apply-

ing the but-for rule would excuse them all.

There is every reason to think Congress intended §2259

——————

1 The Fifth Circuit recognized this standard more than 60 years ago

when it observed that “ ‘[a]ccording to the great weight of authority

where the concurrent or successive acts or omissions of two or more

persons, although acting independently of each other, are in combina-

tion, the direct or proximate cause of a single injury,’ ” any of them may

be held liable “ ‘even though his act alone might not have caused the

entire injury, or the same damage might have resulted from the act of

the other tort-feasor[s].’ ” Phillips Petroleum Co. v. Hardee, 189 F. 2d

205, 212 (1951) (quoting 38 Am. Jur. Negligence §257, p. 946 (1941)).

6 PAROLINE v. UNITED STATES

SOTOMAYOR, J., dissenting

to incorporate aggregate causation. Whereas a but-for

requirement would set §2259’s “mandatory” restitution

command on a collision course with itself, the aggregate

causation standard follows directly from the statute.

Section 2259 is unequivocal; it offers no safety-in-numbers

exception for defendants who possess images of a child’s

abuse in common with other offenders. And the aggregate

causation standard exists to avoid exactly that kind of

exception. See Prosser and Keeton §41, at 268–269 (ag-

gregate causation applies where multiple defendants

“bea[r] a like relationship” to a victim’s injury, and where

“[e]ach seeks to escape liability for a reason that, if recog-

nized, would likewise protect each other defendant in the

group, thus leaving the [victim] without a remedy in the face

of the fact that had none of them acted improperly the

[victim] would not have suffered the harm”); Restatement

(Third) of Torts: Liability for Physical and Emotional

Harm §27, Comment f, p. 380 (2005) (similar).

At bottom, Congress did not intend §2259 to create a

safe harbor for those who inflict upon their victims the

proverbial death by a thousand cuts. Given the very

nature of the child pornography market—in which a large

class of offenders contribute jointly to their victims’ harm

by trading in their images—a but-for causation require-

ment would swallow §2259’s “mandatory” restitution

command, leaving victims with little hope of recovery.

That is all the “textual [and] contextual” reason necessary

to conclude that Congress incorporated aggregate causa-

tion into §2259. Burrage, 571 U. S., at ___ (slip op., at 8).

B

The dissent of THE CHIEF JUSTICE suggests that a con-

trary conclusion is compelled by our decision in Hughey v.

United States, 495 U. S. 411 (1990). Hughey involved a

defendant who had been convicted of a single count of

unauthorized credit card use, which resulted in $10,412 in

Cite as: 572 U. S. ____ (2014) 7

SOTOMAYOR, J., dissenting

losses. Id., at 414. The Government nonetheless re-

quested restitution for additional losses based on different

counts in the indictment that the Government had agreed

to dismiss. Id., at 413. We declined the Government’s

request, reasoning that restitution was to be tied to the

offense of conviction. Id., at 418.

That commonsense holding, of course, casts no doubt on

the ordinary practice of requiring restitution for losses

caused by an offense for which a defendant is convicted,

where the loss is the product of the combined conduct of

multiple offenders. What troubles my colleagues in this

case, then, is not the concept of restitution in cases involv-

ing losses caused by more than one offender. Their objec-

tion is instead to restitution in cases where the victim’s

losses are caused by too many offenders. As THE CHIEF

JUSTICE puts it, Congress wrote a law that would enable

Amy to recover if only her images had been circulated by

“a single distributor” to just a “handful of possessors.”

Ante, at 6–7. But because she has been victimized by

numerous distributors and thousands of possessors, she

gets nothing. It goes without saying that Congress did not

intend that result.

My colleagues in dissent next assert that no restitution

may be awarded because of §3664(e), which describes the

Government’s burden of showing the “loss sustained by a

victim as a result of the offense.” But that provision is

nothing close to a “direct answer” to this case. Ante, at 4.

It simply restates the question: What should a court do

when the losses sustained by a victim are the “result of the

[defendant’s] offense,” §3664(e), but that result is produced

in combination with the offenses of others? One answer is

that the defendant’s offense is a cause-in-fact only of losses

for which it was a but-for cause. A second is that the

offense is a cause-in-fact of losses for which it was part of

the aggregate cause. The former would preclude restitu-

tion in cases like this; the latter would allow it. Given

8 PAROLINE v. UNITED STATES

SOTOMAYOR, J., dissenting

Congress’ “mandatory” command that courts “shall order

restitution for any offense,” §§2259(a), (b)(4), it is beyond

clear which answer Congress chose.2

THE CHIEF JUSTICE’s dissent also fails to contend with

the ramifications of the suggestion that §3664(e) forecloses

entry of restitution in cases where a victim suffers indi-

visible losses as a result of the aggregate conduct of nu-

merous offenders. It claims that this reading of §3664(e)

“will work just fine” for “common crimes” such as assault.

Ante, at 5–6. But what about a victim of a vicious gang

assault, where a single offender’s conduct cannot be la-

beled a but-for cause of any discrete injury? Such offenses

are, unfortunately, all too common. See, e.g., Wheelock v.

United States, 2013 WL 2318145, *2 (ED Wisc., May 28,

2013) (defendant convicted for his participation in a gang

rape of a 13-year-old victim in which he “and several other

individuals had provided alcohol to the girl and, after she

became intoxicated and unconscious, sexually assaulted

her”); United States v. Homer B., 1990 WL 79705 (CA9,

June 14, 1990) (similar). I would have thought it beyond

refute that the victim of such a tragic offense would be

entitled to restitution even though none of her losses may

be attributed solely to any individual defendant. If the

opinion of THE CHIEF JUSTICE is in agreement, it does not

explain why the result should be any different for victims

like Amy, who have suffered heart wrenching losses at the

——————

2 THE

CHIEF JUSTICE’s dissent elides the distinction between aggre-

gate and but-for causation. Despite “assum[ing], for purposes of argu-

ment,” that §2259 incorporates aggregate causation, the dissent never-

theless applies but-for causation to determine the “full amount” of

losses Paroline must pay. See ante, at 5, and n. 2 (arguing that Paro-

line can only be asked to pay “the full amount of the losses he caused,”

not losses that he and others combined to cause). My dissenting

colleagues cannot have it both ways. Either §2259 incorporates aggre-

gate causation (in which case the full amount of Amy’s losses is all of

the losses aggregately caused by Paroline and like offenders), or it

requires but-for causation (in which case Amy gets nothing).

Cite as: 572 U. S. ____ (2014) 9

SOTOMAYOR, J., dissenting

hands of thousands of offenders rather than a few.3

II

The majority accepts aggregate causation at least to an

extent, ruling that §2259 requires possessors to pay some

amount of restitution even though “it is impossible” to say

that they caused “a particular amount of [a victim’s] losses

. . . by recourse to a more traditional [but-for] causal in-

quiry.” Ante, at 21. But the majority resists the “strict

logic” of aggregate causation for fear that doing so would

produce the “striking outcome” of an award against an

individual possessor “for the entire aggregately caused

amount.” Ante, at 15–16. The majority accordingly holds

that “a court applying §2259 should order restitution in an

amount that comports with the defendant’s relative”

contribution to “the victim’s general losses.” Ante, at 21.

The majority’s apportionment approach appears to be a

sensible one. It would, for instance, further the goal of

“proportionality in sentencing,” avoid “turning away vic-

tims emptyhanded,” and “spread payment among” offend-

ers. Ante, at 24–25. But it suffers from a far more funda-

mental problem: It contravenes the language Congress

actually used. Section 2259 directs courts to enter restitu-

tion not for a “proportional” or “relative” amount, but for

——————

3 THE CHIEF JUSTICE objects that gang assaults are not a “fair analogy”

because they involve a group of individuals acting “together, with a

common plan.” Ante, at 6, n. 3. But individuals need not act together

to trigger joint and several liability; such liability applies equally to

multiple actors who independently commit intentional torts that

combine to produce an indivisible injury. Infra, at 11–14. And in any

event, the offenders at issue in this case do act together, with the

common end of trafficking in the market for images of child sexual

abuse. See infra, at 12–13. While these offenders may not be physi-

cally in the same room when they commit their crimes, there is no rea-

son to read §2259(b)(4)’s “mandatory” restitution command out of the

statute for child abusers who hide behind the anonymity of a computer

screen.

10 PAROLINE v. UNITED STATES

SOTOMAYOR, J., dissenting

the “full amount of the victim’s losses.” §2259(b)(1). That

command is unequivocal, and it is buttressed by the tort

law tradition of joint and several liability within which

Congress legislated.

A

Once a defendant is found to bear a sufficient causal

nexus to a victim’s harm, §2259 provides a straightfor-

ward instruction on how much restitution a court is to

order: “The order of restitution under this section shall

direct the defendant to pay the victim . . . the full amount

of the victim’s losses.” §2259(b)(1). Because the word

“shall” imposes a “discretionless obligatio[n],” Lopez v.

Davis, 531 U. S. 230, 241 (2001), a court considering a

§2259 restitution request has no license to deviate from

the statute’s command. It must enter an order for the “full

amount of the victim’s losses,” regardless of whether other

defendants may have contributed to the same victim’s

harm.

If there were any doubt on the matter, Congress elimi-

nated it in §2259(b)(4)(B)(ii), which bars a court from

“declin[ing] to issue [a restitution] order under this sec-

tion” on the ground that a victim “is entitled to receive

compensation for his or her injuries from the proceeds of

insurance or any other source.” One “other source” from

which a victim would be “entitled to receive compensation”

is, of course, other offenders who possess images of her

sexual abuse. It is unthinkable that Congress would have

expressly forbidden courts to award victims no restitution

because their harms have been aggregately caused by

many offenders, only to permit restitution orders for a

single penny for the same reason.

B

As the majority recognizes, Congress did not draft §2259

in a vacuum; it did so in the context of settled tort law

Cite as: 572 U. S. ____ (2014) 11

SOTOMAYOR, J., dissenting

traditions. See ante, at 14–15; see also Meyer v. Holley,

537 U. S. 280, 285 (2003) (Congress “legislates against a

legal background of ordinary tort-related” principles).

Section 2259 functions as a tort statute, one designed to

ensure that victims will recover compensatory damages in

an efficient manner concurrent with criminal proceedings.

See Restatement of Torts §901, p. 537 (1939) (the purposes

of tort law include “to give compensation, indemnity, or

restitution for harms” and “to punish wrongdoers”); Dolan

v. United States, 560 U. S. 605, 612 (2010) (the “substan-

tive purpose” of the related Mandatory Victims Restitution

Act of 1996, §3664, is “to ensure that victims of a crime

receive full restitution”). And the nature of the child

pornography industry and the indivisible quality of the

injuries suffered by its victims make this a paradigmatic

situation in which traditional tort law principles would

require joint and several liability. By requiring restitution

for the “full amount of the victim’s losses,” §2259(b)(1),

Congress did not depart from these principles; it embraced

them.

First, the injuries caused by child pornography posses-

sors are impossible to apportion in any practical sense. It

cannot be said, for example, that Paroline’s offense alone

required Amy to attend five additional minutes of therapy,

or that it caused some discrete portion of her lost income.

The majority overlooks this fact, ordering courts to sur-

mise some “circumscribed” amount of loss based on a list

of factors. Ante, at 21, 22–23; see also ante, at 7–10

(ROBERTS, C. J., dissenting). Section 2259’s full restitu-

tion requirement dispenses with this guesswork, however,

and in doing so it harmonizes with the settled tort law

tradition concerning indivisible injuries. As this Court

explained this rule in Edmonds v. Compagnie Generale

Transatlantique, 443 U. S. 256 (1979), unless a plaintiff ’s

“injury is divisible and the causation of each part can be

separately assigned to each tortfeasor,” the rule is that a

12 PAROLINE v. UNITED STATES

SOTOMAYOR, J., dissenting

“tortfeasor is not relieved of liability for the entire harm

he caused just because another’s negligence was also a

factor in effecting the injury.” Id., at 260, n. 8; see also

Prosser and Keeton §52, at 347 (joint and several liability

applies to injuries that “are obviously incapable of any

reasonable or practical division”); Feneff v. Boston &

Maine R. Co., 196 Mass. 575, 580, 82 N. E. 705, 707 (1907)

(similar).

Second, Congress adopted §2259 against the backdrop of

the rule governing concerted action by joint tortfeasors,

which specifies that “[w]here two or more [tortfeasors] act

in concert, it is well settled . . . that each will be liable for

the entire result.” Prosser and Keeton §52, at 346. The

degree of concerted action required by the rule is not

inordinate; “if one person acts to produce injury with full

knowledge that others are acting in a similar manner and

that his conduct will contribute to produce a single harm,

a joint tort has been consummated even when there is no

prearranged plan.” 1 F. Harper, F. James, & O. Gray, The

Law of Torts §10.1, p. 699 (1st ed. 1956) (hereinafter 1

Harper and James); see also, e.g., Troop v. Dew, 150 Ark.

560, 565, 234 S. W. 992, 994 (1921) (defendants jointly

liable for uncoordinated acts where they were “working to

a common purpose”).

Child pornography possessors are jointly liable under

this standard, for they act in concert as part of a global

network of possessors, distributors, and producers who

pursue the common purpose of trafficking in images of

child sexual abuse. As Congress itself recognized, “posses-

sors of such material” are an integral part of the “market

for the sexual exploitative use of children.” §2251 Finding

(12). Moreover, although possessors like Paroline may not

be familiar with every last participant in the market for

child sexual abuse images, there is little doubt that they

act with knowledge of the inevitable harms caused by

their combined conduct. Paroline himself admitted to

Cite as: 572 U. S. ____ (2014) 13

SOTOMAYOR, J., dissenting

possessing between 150 and 300 images of minors engaged

in sexually explicit conduct, which he downloaded from

other offenders on the Internet. See 672 F. Supp. 2d 781,

783; App. 146. By communally browsing and downloading

Internet child pornography, offenders like Paroline “fuel

the process” that allows the industry to flourish.

O’Connell, Paedophiles Networking on the Internet, in

Child Abuse on the Internet: Ending the Silence 77 (C.

Arnaldo ed. 2001). Indeed, one expert describes Internet

child pornography networks as “an example of a complex

criminal conspiracy,” ibid.—the quintessential concerted

action to which joint and several liability attaches.

Lastly, §2259’s full restitution requirement conforms to

what Congress would have understood to be the uniform

rule governing joint and several liability for intentional

torts. Under that rule, “[e]ach person who commits a tort

that requires intent is jointly and severally liable for any

indivisible injury legally caused by the tortious conduct.”

Restatement (Third) of Torts: Apportionment of Liability

§12, p. 110 (2007). There is little doubt that the posses-

sion of images of a child being sexually abused would

amount to an intentional invasion of privacy tort—and an

extreme one at that. See Restatement (Second) of Torts

§652B, p. 378 (1976) (“One who intentionally intrudes,

physically or otherwise, upon [another’s] private affairs or

concerns, is subject to liability . . . if the intrusion would

be highly offensive to a reasonable person”).4

——————

4 Possession of child pornography under §2252 constitutes an inten-

tional tort notwithstanding that the offense requires a mens rea of

knowledge. See §2252(a)(3)(B) (punishing one who “knowingly sells or

possesses” child pornography). One is “said to act knowingly if he is

aware ‘ “that [a] result is practically certain to follow from his con-

duct.” ’ ” United States v. Bailey, 444 U. S. 394, 404 (1980). That

definition is, if anything, more exacting than the kind of “intent”

required for an intentional tort under the Restatement, which defines

“intent” to include situations where an actor “believes that . . . conse-

quences are substantially certain to result from [his act].” Restatement

14 PAROLINE v. UNITED STATES

SOTOMAYOR, J., dissenting

Section 2259’s imposition of joint and several liability

makes particular sense when viewed in light of this inten-

tional tort rule. For at the end of the day, the question of

how to allocate losses among defendants is really a choice

between placing the risk of loss on the defendants (since

one who is caught first may be required to pay more than

his fair share) or the victim (since an apportionment re-

gime would risk preventing her from obtaining full recov-

ery). Whatever the merits of placing the risk of loss on a

victim in the context of a negligence-based offense, Con-

gress evidently struck the balance quite differently in this

context, placing the risk on the morally culpable posses-

sors of child pornography and not their innocent child

victims.

C

Notwithstanding §2259’s text and the longstanding tort

law traditions that support it, the majority adopts an

apportionment approach based on its concern that joint

and several liability might lead to unfairness as applied to

individual defendants. See ante, at 15–22. The majority

finds this approach necessary because §2259 does not

provide individual defendants with the ability to seek

contribution from other offenders. Ante, at 17–18. I agree

that the statute does not create a cause of action for con-

tribution, but unlike the majority I do not think the ab-

sence of contribution suggests that Congress intended the

phrase “full amount of the victim’s losses” to mean some-

thing less than that. For instead of expending judicial

resources on disputes between intentional tortfeasors,

Congress crafted a different mechanism for preventing

inequitable treatment of individual defendants—the use of

periodic payment schedules.

Section 2259(b)(2) directs that “[a]n order of restitution

——————

(Second) of Torts §8A, p. 15 (1965).

Cite as: 572 U. S. ____ (2014) 15

SOTOMAYOR, J., dissenting

under this section shall be issued and enforced in accord-

ance with section 3664.” Section 3664(f )(1)(A) in turn

reiterates §2259’s command that courts “shall order resti-

tution to each victim in the full amount of each victim’s

losses.” But §3664 goes on to distinguish between the

amount of restitution ordered and the schedule on which

payments are to be made. Thus, §3664(f )(2) states that a

court “shall . . . specify in the restitution order . . . the

schedule according to whic[h] the restitution is to be paid,”

and §3664(f)(3)(A) provides that “[a] restitution order may

direct the defendant to make a single, lump sum payment”

or “partial payments at specified intervals.” Critically, in

choosing between lump-sum and partial payments, courts

“shall” consider “the financial resources and other assets

of the defendant,” along with “any financial obligations

of the defendant, including obligations to dependents.”

§§3664(f )(2)(A), (C).

Applying these factors to set an appropriate payment

schedule in light of any individual child pornography

possessor’s financial circumstances would not be difficult;

indeed, there is already a robust body of case law clarify-

ing how payment schedules are to be set under §3664(f ).

For example, Courts of Appeals have uniformly found it an

abuse of discretion to require defendants to make immedi-

ate lump-sum payments for the full amount of a restitu-

tion award when they do not have the ability to do so. In

such cases, Congress has instead required courts to im-

pose periodic payment schedules. See, e.g., United States

v. McGlothlin, 249 F. 3d 783, 784 (CA8 2001) (reversing

lump-sum payment order where defendant “had no ability

to pay the restitution immediately,” and requiring District

Court to set a periodic payment schedule); United States v.

Myers, 198 F. 3d 160, 168–169 (CA5 1999) (same). The

existing body of law also provides guidance as to proper

payment schedules. Compare, e.g., United States v. Cal-

bat, 266 F. 3d 358, 366 (CA5 2001) (annual payment of

16 PAROLINE v. UNITED STATES

SOTOMAYOR, J., dissenting

$41,000 an abuse of discretion where defendant had a net

worth of $6,400 and yearly income of $39,000), with United

States v. Harris, 60 F. Supp. 2d 169, 180 (SDNY 1999)

(setting payment schedule for the greater of $35 per

month or 10% of defendant’s gross income).

Section 3664’s provision for partial periodic payments

thus alleviates any concerns of unfairness for the vast

number of child pornography defendants who have modest

financial resources. A more difficult challenge is presented,

however, by the case of a wealthy defendant who would

be able to satisfy a large restitution judgment in an imme-

diate lump-sum payment. But the statute is fully capable

of ensuring just results for these defendants, too. For in

addition to an offender’s financial circumstances, §3664

permits courts to consider other factors “in the interest of

justice” when deciding whether to impose a payment

schedule. See §3664(f )(2) (district court shall specify

payment schedule “pursuant to section 3572”); §3572(d)(1)

(restitution order shall be payable in periodic installments

if “in the interest of justice”).

Accordingly, in the context of a restitution order against

a wealthy child pornography possessor, it would likely be

in the interest of justice for a district court to set a pay-

ment schedule requiring the defendant to pay restitution

in amounts equal to the periodic losses that the district

court finds will actually be “incurred by the victim,”

§2259(b)(3), in the given timeframe. In this case, for

example, Amy’s expert estimates that she will suffer

approximately $3.4 million in losses from medical costs

and lost income over the next 60 years of her life, or ap-

proximately $56,000 per year. If that estimate is deemed

accurate, a court would enter a restitution order against a

wealthy defendant for the full $3.4 million amount of

Amy’s losses, and could make it payable on an annual

schedule of $56,000 per year. Doing so would serve the

interest of justice because the periodic payment schedule

Cite as: 572 U. S. ____ (2014) 17

SOTOMAYOR, J., dissenting

would allow the individual wealthy defendant’s ultimate

burden to be substantially offset by payments made by

other offenders,5 while the entry of the full restitution

award would provide certainty to Amy that she will be

made whole for her losses.

* * *

Although I ultimately reach a different conclusion as to

the proper interpretation of the statutory scheme, I do

appreciate the caution with which the Court has an-

nounced its approach. For example, the Court expressly

rejects the possibility of district courts entering restitution

orders for “token or nominal amount[s].” Ante, at 21.

That point is important because, if taken out of context,

aspects of the Court’s opinion might be construed other-

wise. For instance, the Court states that in estimating a

restitution amount, a district court may consider “the

broader number of offenders involved (most of whom will,

of course, never be caught or convicted).” Ante, at 23. If

that factor is given too much weight, it could lead to ex-

actly the type of trivial restitution awards the Court dis-

claims. Amy’s counsel has noted, for instance, that in

light of the large number of persons who possess her im-

ages, a truly proportional approach to restitution would

——————

5 As the facts of this case show, the offset would be significant. Be-

tween June 2009 and December 11, 2013, Amy obtained restitution

awards from 182 persons, 161 of whom were ordered to pay an amount

between $1,000 and $530,000. See Restitution Awards for Amy

Through December 11, 2013, Lodging of United States. If these offend-

ers (and new offenders caught each month) were instead ordered to pay

the full amount of restitution in periodic amounts according to their

financial means, a wealthy defendant’s annual obligation would termi-

nate long before he would be required to pay anything close to the full

$3.4 million. For once a victim receives the full amount of restitution,

all outstanding obligations expire because §2259 does not displace the

settled joint and several liability rule forbidding double recovery. See

Restatement (Second) of Torts §885(3) (1979), see also, e.g., United

States v. Nucci, 364 F. 3d 419, 423 (CA2 2004).

18 PAROLINE v. UNITED STATES

SOTOMAYOR, J., dissenting

lead to an award of just $47 against any individual de-

fendant. Brief for Respondent Amy 65. Congress obviously

did not intend that outcome, and the Court wisely refuses

to permit it.6

In the end, of course, it is Congress that will have the

final say. If Congress wishes to recodify its full restitution

command, it can do so in language perhaps even more

clear than §2259’s “mandatory” directive to order restitu-

tion for the “full amount of the victim’s losses.” Congress

might amend the statute, for example, to include the term

“aggregate causation.” Alternatively, to avoid the uncer-

tainty in the Court’s apportionment approach, Congress

might wish to enact fixed minimum restitution amounts.

See, e.g., §2255 (statutorily imposed $150,000 minimum

civil remedy). In the meanwhile, it is my hope that the

Court’s approach will not unduly undermine the ability of

victims like Amy to recover for—and from—the unfathom-

able harms they have sustained.

——————

6 The Court mentions that Amy received roughly $6,000 from her

uncle, the person responsible for abusing her as a child. Ante, at 2.

Care must be taken in considering the amount of the award against

Amy’s uncle, however, ante, at 23, because as Amy’s expert explained,

Amy was “back to normal” by the end of her treatment for the initial

offense. App. 70. It was chiefly after discovering, eight years later,

that images of her sexual abuse had spread on the Internet that Amy

suffered additional losses due to the realization that possessors like

Paroline were viewing them and that “the sexual abuse of her has

never really ended.” Id., at 71.