Civil Liberties

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? 

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  1. 200 years? Crazy-some punishment is justified, but would even the PRODUCERS have gotten that long a sentence?

    And I’m disappointed in Thomas.

  2. It may be crazy, but the people of Arizona, through their elected representatives, are entitled to be crazy regarding their view of the approproate severity of punishment for contributing to the market for pictures of sexually exploited citizens who cannot provide informed consent. The alternative is to say that the people of Arizona cannot engage in self-government.

    Now, the larger issue is that the Federal Government’s criminal code is entirely too extensive, which greatly limits the ability of American citizens to vote with their feet regarding what sort of criminal punishment they find acceptable.

  3. Wait, so in Arizona, I could rape, torture, and kill a child, and still go to prison for less time than a high school senior with 10 pictures of his 17 yr old girlfriend’s tits onhis phone?! WTF

  4. Will Allen,

    All you’re endorsing there is the tyranny of the majority. Please pardon the Godwin-esque thread violation, but a similar argument can be used to justify any number of popular, unconstitutional atrocities.

  5. i’m all for self government but not if it violates the bill of rights

  6. While I feel this is a gross violation of constitutional rights (and am disappointed in Justice Thomas for his view otherwise, since he’s generally closest to my thinking on the constitution)… I have to admit I have a very hard time feeling sorry for Mr. Berger. Can’t stand anyone who exploits children in that way, and yes, even paying for the images is a huge part of such exploitation.

  7. wtf? why not just give this guy the death penalty? Or, do they not do that sort of thing in AZ??

    Not that I agree with the sentence, but 200 years, just kill the fucker…

  8. No, Rimfax, because using people who cannot provide informed consent for sexual gratification provides legitimate cause for the majority to violently impose it’s will, unlike a vast percentage of the things that our current majorities believe gives them legitimate cause to do so. Cultivating, trading, and consuming various vegetable products for purpose of intoxication is a illegitimate area for the majority to violently impose it’s will, and thus it is tyrannical for the majority to do so. Creating market demand for pictures of 6 year olds engaged in sex acts is a legitimate reason for the majority to violently impose it’s will, thus doing so is not tyrannical.

  9. Will: Your analogy is moot. No one is arguing that the majority doesn’t have the right to punish him. The problem is the extent of the punishment the people are imposing.

  10. Who is to decide the extent of punishment?

  11. I have no real sympathy for people in possession of pictures that were made by assaulting kids. But on the general issue of whether a court can decide if a punishment is just: Um, isn’t that what judges do every day?

    Yeah, yeah, legislatures have their role in the process, as does the executive branch (via prosecutors requesting sentences), but judges are already an integral part of the sentencing equation. And given that the Constitution already has a standard (although admittedly one that requires significant interpretation), and given that judges are in the business of applying standards, and given that they are in the business of deciding sentences, well, I guess I can’t see the problem with judges ruling on what an appropriate sentence is.

    I mean, they’re judges. It’s what they do.

  12. Should there be a distinction between a person who’s 6 years old or 16 years old being depicted? What about 17 years and 364 days old? And pictures of your underage girlfriend? I know it’s really difficult to “punish” based on circumstance but it should also be really difficult to send a teenager to jail for having pictures of his naked girl friend or sending the girlfriend to jail for taking pictures of herself.

  13. Thoreau:

    I completely agree with you. However, judges come to their decisions by looking at all the facts, seeing how the facts interact with other facts, assessing the threat of the convict, looking at the history of the convict, etc. This is how justice is done. Of course, none of that fits into the headline that says “Child Porn Perv Eligible for Parole.”

  14. Will Allen-Would an incoporationist view of the 14th Amendment also negate state’s right to self-government?
    I must admit that I’m confused by your standard for determining what is and is not a legitimate area for the majority violently imposing its will. I’m sure you have one, and it probably has something to do with the use of force, but your posts don’t tell us anything about it.

  15. Who is to decide the extent of punishment?

    Maybe the legislature with the judiciary acting as a check? Perhaps similar to the whole checks and balances thing the Constitution seems to favor?

  16. A guy in Georgia raped his three step daughters, all under the age of 12 and set up a webcam to take requests from web denizens for various acts they wanted to see performed. He got 60 years. Two hundred years for possession is nuts.

    Will Allen is right in that Arizona has a right to self government and to make whatever nutso laws they want. That, however, does not mean justice was served in this case. In an ideal world, the governor would use his clemency power to reduce the sentence to something more equitable like say 10 years. That is how the common law is supposed to work. The sovereign has the right to reduce sentences and pardon as a check on the system to insure against excesses. Today, however, governors almost never use their clemency power and we end up in many cases with justice by mob.

  17. Justice Thomlia sez:

    it merely forbids “cruel and unusual” forms of punishment.

    Ammendment VIII sez:

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    Is it me, or did Thomlia just add a word to the constitution? Strict construction my ass.

  18. So Scalia and Thomas aren’t strict constructionists. The 8th amendment says
    “cruel and unusual punishment” not “forms of punishment.” 200 years for this offense is
    certainly “unusual” by virtually everyone’s definition. The 8th also prohibits “excessive”
    bail and fines, so why is it so hard for SCOTUS
    to see that the disproportionality prohibited to bail and fines should not also apply to
    excessive punishments being unusual?

  19. If I were to take you literally, AC, it would seem as if you are advocating that the judiciary can act as a check whenever it deems fit, that only it’s only constraint, short of impeachment, is the limit of it’s desire to impose it’s will on a legislature.

    Thoreau, yes, judges exercise that judgement all the time. At the behest of legislatures who have granted them the power. Now I happen to think that legislatures are unwise to strip judges of all discretion in sentencing, but that is far different than saying what is unwise is illegitimate.

    Number 6, sure, the 14th Amendment prevents, the people (I never use the term “state’s rights”) in a given state from engaging in self government by, say, imprisoning a blogger for criticizing a governor. Now, given that life sentences are handed out for many crimes, there isn’t much basis for saying that the people of a state don’t have the legitimate power to do so to people who create a market for pictures of sexually exploited children.

    As to when the majority has the legitimate right to violently impose it’s will, yes, I pretty much limit to those situations in which people are being subject to non-legislatively imposed force, or in instances of fraud, or more generally, when failure of the majority to violently impose it’s will could reasonably be said to immediately threaten society with anarchy or tyranny.

  20. If I were to take you literally, AC, it would seem as if you are advocating that the judiciary can act as a check whenever it deems fit, that only it’s only constraint, short of impeachment, is the limit of it’s desire to impose it’s will on a legislature.

    Since the discussion involved the 8th and 14th amendments, I had assumed that was clearly the framework to guide and constrain the courts.

  21. creech, sentences which are essentially life without parole are not very uncommon. It is possible for such a federal sentence to be handed down for a very large property offense. Was Thomas to conclude that Congress has the power to lock someone up for life when found guilty of a large property crime, but the Arizona legislature lacks the power to do so to someome who helped create a market for images of children being raped or otherwise sexually exploited?

    John, I am not familiar with all the details of the Arizona cse, but I tend to agree with you.

  22. We didn’t have these hi tech (pre Polariod even) devices when I was a kid. Sure glad I can’t be prosecuted for remembering what my 16 year old girl friend looked like slightly underdressed. I’m not taking any chances though, I’m not going to AZ anyway. Might be some kind of retro punishment for an old guy with a good memory.

  23. Well, then, AC, I think the burden has yet to be met, in regards to establishing that a life sentence for creating a market for the sexual exploitation or torture of children is cruel and unusual. It may be unwisely harsh, but that isn’t the same thing.

  24. It would have been nice for the Court to take the case and let the various justices explain
    “cruel and unusual” in the 21st century.

  25. Yeah, I would agree, creech, that the phrase “cruel and unusual” is more problematic than nearly any of the others in the document which are commonly thought to be excessively opaque.

  26. If this guy intentially purchased child porn (not accidently downloaded by clicking the wrong link on YouTube), then 200 years is not sufficient. He should get life. By purchasing child porn you have declared yourself ineligable to be entrusted with freedom and, as far as I am concerned, you are no longer even human.

    As far as the guy in Georgia goes, or a rapist, send them up for life as well. But purchasing child porn is certainly vastly worse than bank robbery, and should be punished accordingly.

  27. The real issue here is the lack of concurrent sentencing for multiple charges. If Berger had been convicted of possessing 500 child-porn images, he would have received a minimum of 5000 years in prison.

    I don’t think doing 10 years for child-porn possession is unreasonable, but the lack of concurrent sentencing only encourages overzealous prosecutors to pile on cumulative charges.

  28. “…then 200 years is not sufficient. He should get life.”

    I really don’t know how to interpret this.

  29. Will Allen,

    The kid is not ‘patient zero’ of the entire child porn subculture.

    He’s not ‘creating a market’. At MOST he’s ‘participating’ in a market. While such participation is certainly worthy of punishment, your choice of words is inflamatory. I would not be surprised to learn that you have an emotional attachment to the subject.

    Accusing him of ‘creating a market’ is like accusing a drug user of masterminding the Columbian cartels.

    Watch those hyperboles someone could lose an eye.

    I would certainly accept it as ‘unusual’ to punish someone an order of magnatude more severely for one crime than we would punish someone for a far more serious crime (200 years for looking at a picture vs. 60 years for multiple rapes and production of pictures).

    At least, I’d like to think that in a system which calls itself ‘justice’ that such occurances are the exception rather than the rule and thus, by definition, unusual.

    In the end this is, sadly, a typical and altogether to ‘usual’, outcome of the tedious ‘lets get tough and send a message’ thoughtlessness of legislation. It’s political grandstanding of a shameless sort.

    The problem here isn’t the case, it’s the specifics of the law.

  30. Shameless political grandstanding does constitute unconstitutional legislative behavior, and yes, to participate in a market is to create a market, because markets are nonstatic, dynamic entities, which are recreated on an ongoing basis. Also, there is reasonable case to be made that is it more effective to devote more resources to destroying the demand side of an illegitimate market than the supply side.

  31. “By purchasing child porn you have declared yourself ineligable to be entrusted with freedom and, as far as I am concerned, you are no longer even human.”

    Personally I think murder is a far more serious crime. I don’t hear people calling for all murderers to given automatic life sentences.

  32. Actually, in many states, a premeditated murder conviction does result in automatic life without parole.

  33. markets are nonstatic, dynamic entities, which are recreated on an ongoing basis

    By that logic, as my cells are constantly being replaced by new ones, I’m not the same person who opened this bank account and I probably should be arrested for fraud.

    Good try though.

  34. My favorite part of the post is when Sullum insists the producer is more responsible for the market than the consumer.

  35. No, horse stockings, your brain cells have not been replaced.

    Good try though.

  36. Yeah, jon, there is some irony there.

  37. You know, maybe the Warren court wasn’t such a bad idea after all if this kind of insanity is what “strict constructionism” is going to give us.

    200 fucking years for possessing PICTURES!

    You know, if you possess pictures which depict (and thus lead to your conviction for) some heinous crime (rape, murder, etc.), then I can see the equation “pictures=200 years”.

    Any other context, it is plain fucking nuts.

    PS: Shit like this is rapidly devolving me into an anarchist.

  38. So, you’re saying as long as ‘some part’ of the original remains then it’s the same thing and not a new one?

    So, really, one component doesn’t ‘create’ anything. It’s just part of a larger whole and replaceable because the whole goes on.

    I don’t think anyone is saying the consumers are blameless. What they are saying is that looking at a picture is not the same as raping a six year old.

  39. No, Horse stockings, your brain controls your actions, not the cells of your intestine. Your brain is the same. Nothing has changed.

    Everytime a buyer or seller enters a market, a new market is created. That is why the guys who stand in pits at various exchanges are called “market makers” despite the fact that the exchange was there before the guy in the pit was born.

    No, looking at a picture is not the same as raping a six year old. I never said it was. I said a reasonable case can be made that the most effective way to destroy an illegitimate market is from the demand side.

  40. “I said a reasonable case can be made that the most effective way to destroy an illegitimate market is from the demand side.”

    Like the Rockefeller drug laws.

  41. Well, henry, I think drug markets are legitimate. Don’t you?

  42. This just proves that those elected punish that which creates the most emotional outrage.

    No one in Arizona ever said that common sense was required to run for office, just look at the sheriff of Maricopa County.

  43. You know, if you possess pictures which depict (and thus lead to your conviction for) some heinous crime (rape, murder, etc.), then I can see the equation “pictures=200 years”.

    Any other context, it is plain fucking nuts.

    You seem to be suggesting that molesting or sexually abusing children isn’t heinous or akin to rape. Or are you just being facetious? Your comments sincerely confuse me.

  44. smacky,

    I think he meant that pictures that depict you yourself committing those crimes would be worth 200 years, while possessing pictures of other people doing so would not.

  45. Yeah, Smacky, you read right–I’m vehemently against the rape of adults, but raping children is just hunky dory with me.


  46. “visual depiction in which a minor [under 15] is engaged in exploitive exhibition or other sexual conduct”

    Note carefully the [under 15]. That clearly includes FOURTEEN. An age, which until recently, was considerd old enough to marry. Indeed, some places still consider it old enough. Also note the “exploitive exhibition” which does not necessarily involve touching of any kind.

    As usual, the population rages on with a blood thirst to “get those baby rapers”. The government, more than happy to grant such a wish, then tacks on MUCH more. Hey, what good is power if you can’t abuse it?

  47. Looking at a picture should not be a crime no matter what is depicted in the picture. Even if it is a picture of drugs or some other illegal thing.

    What if somebody photo-shopped a picture to make it look like child porn (but no children were harmed in any way) and another person bought it and looked at it? Should the person who bought it go to jail forever? How about the photo-shopper? Who is the victim? Does it matter? Think of the children.

  48. I think initially in a web sting operation there was a fellow chatting with a police detective he thought was a 14 yo girl and they arranged to meet to have sex. Of course he was arrested at the meeting. They couldn’t charge him with trying to have sex with a minor, so they made up a new law which charges you are having sex with someone you THINK is a minor.
    Those two old dudes that had the 27 yo guy living with them (the one who enrolled in middle school to hit on chicks) – he told them he was 12 and they were charged with having sex with someone they THOUGHT was 12 even though he was 27. Hmmm

  49. Bobster – Here in England, that’s already a crime under the new Sexual Offences Act, and someone was prosecuted for it a couple of years ago. He took photos of models who over eighteen, and used Photoshop to reduce the size of their breasts.

    I can’t remember whether or not he was convicted – though in the current climate in this country which is just as bad as in yours I would be very surprised if he wasn’t – but if he was, punishment would have been nearly a decade in prison and being placed on the ‘Sex Offenders Register’ for life.

  50. Steve,

    If you don’t mind me asking, wasn’t it in England that a group of people attacked a man who said he was a pediatrician, since they confused that word with the word pedophile? Just out of curiosity, what happened, was this guy injured or killed or something? I just remember reading about that somewhere but don’t know if it was just some kind of urban legend or actually true.

  51. The funny thing is it is actually a bit of both. Some kids apparently did paint ‘paedo’ on a paediatrician’s front door, and the (female) paediatrician involved moved house shortly afterwards, obviously somewhat worried for her safety. However, the stories of mob violence and people physically threatening her are an urban myth. The full story is here:

    However, there is a certain amount of hysteria involved around the subject. In December, the biggest selling tabloid newspaper carried on its policy of naming and publishing addresses of known paedophiles, leading to ‘an angry crowd’ forming around his house:

    In another incident, in February, a man (a care worker no less) was the victim of a leafletting campaign accusing him of being under investigation for paedophilia, which was simply untrue. Police thought it ‘might be the result of a grudge’, people having now realised that a very cheap and easy way to make someones life complete hell is to falsely accuse them of what is now considered the most serious crime of all:

  52. In AZ it is illegal to have sex under the age of 18. This means if you are 17 having sex with a 17 year old both of you are a sex offender.

    It is illegal to posess pictures of a sexual nature of someone under 18. which means if a 15 year old girl sex texts her 15 year old boyfriend a picture she fully willingly sent without his knowldge or asking and he opens it he is a sex offender.

    Unlike mosts states with a maturity clause of 2 to 3 years allowing an 18 and 16 year old to date or a 17 and 15, arizona simply says 18 is 18 and anything less is illegal.

    No matter the reason (curiosity, scientific study or perverse desire) having had the pictures was a crime. However it does not make any sense that a person who rapes, mutilates and/or kills should get less time than the person owning the pictures. punishment is due, but 200 years is unusual in comparison or the soft nature of punishment for worse crimes.

    Honestly a petition should be started to have the governor step in. Let him serve 10-24 years, be registered and be paroled. If he has been a model prisoner and such a 10 year sentence then parole would probably be fine, i doubt he will ever do it again with the presence of the sex offender registration, the time served and regret im sure he feels. Consider how he feels for what he has put his family through.

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