Restitution for Child Pornography Charges in Wisconsin

By Reddin & Singer

Restitution

Time spent in prison is not the only punishment that can be applied to defendants who are found guilty of committing a crime. Defendants may also be required to relinquish certain rights, such as the right to own a firearm, or may be forced to attend classes, such as a DUI class, related to their crime. Additionally, defendants may be required to pay restitution to the victims of their crime, as a small means of attempting to remedy the crime that has occurred. In child pornography cases, it is often difficult to implement restitution because the victims of the crime may be unidentifiable minors. Recently, however, a child pornography case before the Seventh Circuit dealt with restitution for a widely identified child pornography victim who had been greatly harmed by the sharing of images that involved her.

In the case, Jonathon M. Sainz was charged with transporting and possessing child pornography. He pled guilty to the charges, acknowledging that he had possessed several thousand child pornography images. Included in these images were six images of a young girl known by the pseudonym of “Cindy.” Pictures of Cindy had been circulated widely on the internet and were frequently seen in child pornography stings. By the time of Mr. Sainz’s charges, Cindy had been identified, and police had established that she had suffered, and was likely to continue to suffer, serious financial consequences from the circulation of her image, including lost future earnings, attorney fees, and the need for ongoing medical and mental health treatment.

Based on these facts, the prosecution sought to have Mr. Sainz punished not only with jail time but also with restitution to be paid to Cindy because of her losses, and because she was a victim of Mr. Sainz’s crimes. Mr. Sainz, however, argued that his actions had not caused Cindy’s losses because he did not create her image or distribute it. He was merely the recipient of such pictures. Mr. Sainz also argued that since Cindy’s images had been distributed thousands of times, any harm he may have caused was negligible if not nonexistent.

The district court declined to follow Mr. Sainz’s argument, finding instead that Mr. Sainz had contributed to Cindy’s losses because his continued viewing of her images “re-victimized” her and prevented her from moving forward with her life. This holding was supported by Supreme Court case law, which held that while child pornography defendants may not have created the images they view, they have contributed to the overall circumstances that lead to victims’ losses by continuing to view such photos. Accordingly, the district court granted restitution in the amount of $8,387.43. The government requested this amount as 1/136th of Cindy’s overall damages because Mr. Sainz was the 136th defendant convicted of viewing images of Cindy.

On appeal, Mr. Sainz acknowledged that Supreme Court caselaw allowed him to be sentenced to pay restitution for viewing child pornography images, but he disputed the amount he was sentenced to pay. He argued that the government’s method, known as the “1/n” method, incorrectly treats all offenders as the same, without consideration for the specific factual circumstances of each defendant’s case. Moreover, he noted that under this formula, while the third offender would pay a substantial amount of restitution to the victim (1/3), the 300th offender would pay only a very small fraction (1/300).

The Seventh Circuit acknowledged Mr. Sainz’s concerns but found that, under the circumstances, the district court’s sentencing of restitution was proper. The appeals court noted that the 1/n formulation is widely accepted as a benchmark formula for determining restitution in child pornography cases and adopted by the Supreme Court. While it admitted that in more extreme circumstances, such as an initial offender, the formula might result in very high, or very low, restitution numbers, the court determined that this did not eliminate the applicability of the formula. Instead, in all circumstances, courts should ensure that the restitution figure is reasonable. Here, it held that a payment of roughly $8,000 for restitution was more than reasonable under the circumstances.

If you have been charged with possessing child pornography in Wisconsin, or are considering a guilty plea, it is important that you consider the possibility of not only jail time but also a sentence of restitution. For a thorough understanding of your circumstances, you should speak with an experienced Milwaukee child pornography lawyer as soon as possible. To find out more about the types of sentencing you may face and any defenses available to you, do not hesitate to contact the law offices of Reddin & Singer, LLP online or give us a call at (414) 271-6400.