Monday, August 30, 2010

U.S. v. Kuo (9th Cir. - Aug. 30, 2010)

Sometimes GVRs let the Court of Appeals know that it needs to change its mind. Here's an example.

The Ninth Circuit decides an appeal. There's a part about restitution. Defendants don't like that part, and petition to the U.S. Supreme Court. Which GVRs the case, sending it back to the Ninth.

Technically, a GVR -- granting certiorari, vacating the lower court's opinion, and remanding the case in light of a recent development (usually, intervening precedent) -- expresses no opinion by the Court about the merits of a case. Nonetheless, the practical reality is often a little different.

The Ninth Circuit gets the hint. And reluctantly reverses the restitution order.

As I said last year when the original Ninth Circuit opinion came out, I thought the defendants here got off very easy, and would likely have imposed a much harsher sentence had I been the trial judge. But I agree with today's opinion that the restitution order here isn't allowed.

True, the victims lost something as a result of the crime -- in particular, they lost the value of the services they performed, which inured to the financial benefit of the defendants. Normally, we think that the loss of valuable services in a "loss" and that the value of that loss is roughly the monetary benefit received by the defendants. You criminally force me to build you a shed, I sell the shed for $10,000, my "loss" is $10,000 since that's the presumptive value of my services.

But the services here didn't consist of building a shed. They were sexual services. That makes it a tougher case.

There's presumably a whole law review article here about the commodification of sex in the context of restitution orders. How we're reluctant to commodify these things, and how it differentially tugs on various heartstrings when we're asked to quantify how much a blowjob is "worth" and whether giving one is a "loss" to the victim of this amount. Plus, it gets even more complicated when you realize that we do (somewhat) commodify these things in particular laws relating to restitution but don't in other areas. But I think I've been writing particularly long (and potentially overly boring) posts recently, so will just relay the initial thought rather than spelling it in thousands of words.

The other thing I'll say about this case is that it's worth reading because it gives a real insight into the definite -- very severe -- harms of sex trafficking. Check it out. This is a big problem. With real victims for whom the consequences can linger for a lifetime.