Much like a Rube Goldberg machine, sometimes apparently innocuous changes in federal law cause unintended interactions, albeit for a less than sympathetic group: in 1994, the Violent Crime Control and Enforcement Act made restitution to victims (defined merely as a person who has been harmed by an applicable crime) mandatory for certain crimes, including for child pornography offenses. A decade later in 2004, Congress passed the Crime Victims’ Rights Act (CVRA), which among other things, gave crime victims the right to notice of any public court proceeding involving the perpetrator and full and timely restitution as provided in statute.

Prior to the CVRA, restitution for child pornography offenses could only, practically speaking, be obtained from the actual producers of child pornography and those who had direct contact with their victims. However, under the CVRA, notice is given to victims whenever a criminal defendant, anywhere in the country and who would otherwise have been unknown to the victim, is convicted of any child pornography offense involving their images, including cases where the defendant only possessed images without having done more. Suddenly, victims could go after a new and potentially massive group of defendants for restitution.

Indeed, in the past two years, two victims “Amy” and “Vicky”, who had been molested as children and whose pictures were distributed online, have intervened in hundreds of child pornography cases across the country, asking for restitution to the tune of $3.2 million and $188 thousand, respectively. The courts have found themselves in a bind – granting restitution is mandatory, but how much restitution ought to be demanded of defendants who had perhaps possessed only one photo of either “Amy” or “Vicky”? They have thus far diverged dramatically on the question with some courts refusing to grant restitution but at least one mandating restitution for the full amount of $3.2 million dollars.

There is no doubt that people like “Amy” and “Vicky” are victims of terrible crimes, and that possession of their images by itself contributes in some way to their suffering. Nonetheless, there are serious questions raised about the fundamental fairness of holding possessors of their images liable for restitution when (1) it’s not clear if there’s a sufficient causal link between their actions and the harm and (2) even if there were, it would be near impossible to determine what proportion of harm for which they ought to be liable. There has already been widespread criticism of the federal treatment of child pornographers; abandoning basic principles of proximate cause and not imposing arbitrary punishment will not help.

But last term, the VRA came under attack on numerous fronts. Much attention4 has been paid to Northwest Austin Municipal Utility District Number One v. Holder (“NAMUDNO”), an unsuccessful challenge to the constitutionality of Section 5 of the Act.  However, with the spotlight focused so intently on NAMUDNO, a pivotal case arising from North Carolina concerning the reach of another crucial provision of the VRA, has not received sufficient attention.

In Bartlett v. Strickland, a fractured Supreme Court narrowly construed the protections of Section 2 of the Act as imposing a bright-line rule regarding when parties can state a claim for minority vote dilution. Specifically, a minority group must be capable of constituting a numerical majority of the voting-age population in a geographically compact area before Section 2 requires the creation of an electoral district to prevent dilution of that group’s votes. With its ruling in Bartlett, the Court conclusively answered a question that it had avoided on four previous occasions. In doing so, the Court prohibited North Carolina, a state that had previously gone nearly a century without an African American representative in Congress, from voluntarily preserving an election district that had reliably provided its African American residents with an opportunity to elect their candidate of choice.

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