Supreme Court of Arizona Upholds 200 Year Sentence in Child Pornography Possession Case
State v. Berger, 2006 Ariz. LEXIS 58 (May 10, 2006 filed)
Arizona laws on possessing child pornography are the toughest in the nation, where a defendant commits a class two felony by knowingly “distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing, or exchanging any visual depiction…” Ariz. Rev. Stat. §13-3553(A)(2) (2002). Under subsection (C), if the children in the depictions are under 15 years of age, the offense is characterized as a “dangerous crime against children” and thus qualifies for enhanced sentencing. Each image of child pornography is charged as a separate offense under the AZ scheme, and with it comes sentencing terms of 10-24 years, to be served consecutively for each offense with no possibility of parole. Ariz. Rev. Stat. §13-604.01 (D),(F),(G),(K). Each conviction of “a dangerous crime against children,” under Ariz. Rev. Stat. § 13-604.01 (D), “shall be sentenced to a presumptive term of imprisonment for seventeen years.”
The evidence at trial established that Morton Robert Berger was in possession of numerous videos and photos of children being raped by adults, in sexual acts with other children, and engaging in bestiality. He had both hard copy and downloaded computer files of these depictions, many including children under ten years old. Berger was convicted of twenty separate counts of sexual exploitation of a minor under 15 years old and sentenced to twenty consecutive prison terms, serving 10 years for each image (the minimum mitigated sentences allowed), for a total of 200 years in prison. A divided Appeals Court affirmed his convictions and sentences. The AZ Supreme Court then granted his petition to reconsider the Eighth Amendment “cruel and unusual punishment” challenges to his lengthy prison sentence.
Upon review of Eighth Amendment case law from such U.S. Supreme Court cases as Harmelin v. Michigan, 501 U.S. 957 (1991) and Ewing v. California, 538 U.S. 11 (2003), the AZ Supreme Court centers the analysis around a gross disproportionality threshold by “comparing the gravity of the offense [and] the harshness of the penalty.” Ewing, 538 U.S. at 28; accord Harmelin, 501 U.S. at 1005. Only if this comparison leads to an inference of gross disproportionality will sanctions for other crimes and the same crime in other states be compared. Following precedent, when comparing the gravity of the crime to the harshness of the penalty, the court gives substantial deference to the legislature with regard to statutorily mandated sentences when analyzing the gross disproportionality threshold.
The Arizona legislature’s decision to criminalize the possession of child pornography is directly related to the state’s efforts to deter its production and distribution. The goal of combating further sexual abuse and exploitation of children drives the harsh penalties for possession of these images. The possession of child pornography is not a “victimless” crime and the Arizona legislature’s intent is to protect children and stop demand for the illegal contraband, which entails continuous and direct abuse of children for its production. The link between possession of the illegal images and the abuse of children is “at least as direct” as that link between possession of 672 grams of cocaine and drug-related violence in society, as expressed by Justice Kennedy in Harmelin, 501 U.S. at 1002-03.
In this light, the Court found that twenty consecutive ten-year sentences are not grossly disproportionate to Berger’s twenty crimes and the sentences were affirmed. The Vice Chief Justice wrote an opinion that concurred in part and dissented in part. One Justice wrote a concurrence in response to the Vice Chief Justice.
For a comparison list of state statutes for child pornography and other child abuse crimes, see our website at http://www.ndaa-apri.org/apri/programs/ncpca/statutes.html.
