Arizona's Perverted Sense of Justice


Remember Morton Berger, the former Arizona high school teacher who got a mandatory minimum sentence of 200 years for possessing 20 sexually explicit images of minors? I mentioned his case in my last post on Matthew Bandy, the Arizona teenager who at one point was facing 90 years in prison for nine pictures on his computer he may or may not have deliberately downloaded. This week the U.S. Supreme Court declined to hear Berger's argument that his sentence violates the Eighth Amendment's prohibition of "cruel and unusual punishments."

Antonin Scalia and Clarence Thomas both believe the Eighth Amendment does not require proportionality in sentencing; it merely forbids "cruel and unusual" forms of punishment. So if Berger had been sentenced to be flayed alive or burned at the stake, they might see a constitutional problem. But as far as they're concerned, state legislatures are free to choose a prison sentence of any length for any felony—1 million years for tax evasion, say. I'm not sure whether John Roberts or Samuel Alito have taken a position on this question yet, and I could see them siding with Scalia and Thomas. But the other justices (i.e., a majority) apply at least a "narrow proportionality principle" prohibiting "extreme sentences that are grossly disproportionate to the crime."

If Berger's sentence does not qualify as "grossly disproportionate," I don't know what does. As reprehensible as the production of child pornography is, Berger himself did not victimize anyone. Rather, he purchased images, either directly or indirectly, from people who abused children and thereby in a tiny way helped encourage further abuse by contributing to the market for child porn. He arguably deserves criminal punishment for that, in the same way that people who knowingly receive stolen merchandise may deserve punishment. But 200 years? No jurisdiction in America imposes anything like that penalty for mere possession  of child porn. Even under the notoriously harsh federal sentencing system, Berger would have gotten five years—i.e., 2.5 percent of the sentence that Arizona legislators, in all their tough-on-crime idiocy and protect-the-children hysteria, have determined is appropriate.

Under Arizona law, each "visual depiction in which a minor [under 15] is engaged in exploitive exhibition or other sexual conduct" is a separate offense, triggering a mandatory minimum sentence of 10 years, and the sentences must be served consecutively. The upshot is that a defendant who has a few of these pictures on his computer can easily serve a longer sentence than a bank robber, arsonist, rapist, or murderer. By what peverted standard of justice does that make any kind of sense?