Sex Crimes

Florida Man Gets Insanely Harsh 100-Year Sentence for Possessing Child Pornography

The judge thinks committing a crime and looking at pictures of it are basically the same thing.

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St. John's County Sheriff's Office

While federal judges are rebellling against the harsh penalties recommended by federal sentencing guidelines for possession of child pornography, Florida judges seem to think there is no such thing as a prison term that is too long for this sort of offense. This week Circuit Court Judge Howard Maltz sentenced Jesse Berben, a 36-year-old resident of St. John's County with no prior criminal record, to 100 years in prison for 20 counts of possessing child pornography. That's five years for each count, to be served consecutively.

Berben will not literally serve 100 years, of course. The Florida Department of Corrections will not keep his moldering body in a cell until 2117. But the penalty imposed by Maltz is effectively a life sentence, since Florida abolished parole in 1983, and "gain-time" for good behavior is limited to 15 percent of the original term.

Berben was arrested in April 2015 after detectives from the St. John's County Sheriff's Office served a search warrant on the apartment he shared with his father. The St. Augustine Record says the detectives found videos on Berben's computer that "depicted children, some as young as 5 years old, engaged in various sex acts." Berben admitted using file sharing software to download music, but he has consistently denied dowloading the child pornography, saying his computer must have been compromised. According to Berben's lawyer, Tom Cushman, prosecutors offered Berben a plea deal under which he would have served about five years, "but he refused to plead because he said he was not guilty and he wasn't going to plead guilty to something he didn't do and become a registered sex offender with it."

Even if you don't believe Berben's claim of innocence, Maltz imposed a sentence 20 times as long as the one prosecutors were prepared to accept as part of a plea deal and four times as long as the minimum required by law. It is more than three times Florida's maximum penalty for rape, armed robbery, or second-degree murder. If Berben had actually molested a child, he could have easily ended up serving less time than he got for having images of that crime on his computer. As Cushman observed, "That's not justice."

What was Maltz's justification for putting Berben in a cage for the rest of his life? The judge said he agreed with the state's argument that Berben's crime should not be viewed as victimless. "Possessing these images creates a market for someone else to produce them," Assistant State Attorney Mitch Bishop told Maltz, asking for an effective life sentence. Maltz concurred, saying, "I see little difference in culpability between those who actually sexually abuse and exploit children, and those who encourage and promote the conduct by downloading and sharing videos of such, which I think warrants a significant sentence."

This mindlessly draconian attitude is by no means unique to Maltz. In 2011 another Florida judge, Fred Hardt, imposed a sentence of life in prison without the possibility of parole on 26-year-old Daniel Enrique Guevara Vilca, another first-time offender caught with child pornography. In 2007 the Arizona Supreme Court upheld a 200-year sentence for Morton Berger, a former high school teacher with no prior criminal record, for his collection of child pornography produced by others. Under federal sentencing guidelines, people who view child pornography can be punished more severely than violent criminals, including child molesters.

The arguments for these absurdly onerous penalties are plainly inadequate. Contrary to what Bishop, the prosecutor at Berben's sentencing hearing, implied, people nowadays typically obtain child pornography online for free, so there is no "market" for it in the sense that someone who produces it can expect to turn a profit. Even if money changed hands, the culpability of any single customer in contributing to the aggregate demand would pale beside the culpability of someone who responds to that demand by sexually abusing children. Someone who merely looks at the resulting images without paying for them is even less culpable. Even if producers of child pornography view downloads as validation, any given consumer's contribution to that effect is negligible.

Yet Maltz somehow "see[s] see little difference" between raping children and possessing images of such crimes. That is like saying that someone who watched the 2017 Facebook Live video of four people torturing a mentally disabled teenager is just as guilty as the assailants, or that anyone who sees an ISIS decapitation video is pretty much a terrorist himself. Not to put too fine a point on it, but there is a vast moral difference between attacking, abusing, or murdering people and looking at pictures of those acts—even if you enjoy looking at the pictures. Anyone who fails to recognize that difference has no business being a judge.

NEXT: Some cold water on the liquidation debate

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  1. anyone who sees an ISIS decapitation video is pretty much a terrorist himself.

    Shhh. They are taking notes…. and you’ll give them ideas…

  2. Anyone who fails to recognize that difference has no business being a judge.

    You don’t get votes by being nuanced in child porn cases.

    1. Exactly. You don’t want Bill O’Reilly on your ass.

  3. It’s Florida, yo. Nothing that happens there could ever surprise me.

  4. So what’s the law say when it comes to possessing or watching snuff flicks? Not the “Faces of death” stock footage sort, but where someone is murdered for the purpose of the film?

    That seems like the closest parallel to child porn.

    1. Except, you know, much worse because someone was killed.

    2. saying that they are close seems like a bit of a stretch. I saw somewhere reputable (i forgot where) that the majority of “child porn” that exists today is actually created by the so called victim. in other words, most of this material is just teenage girls or boys being dirty on the webcam or taking pics for their boyfriend etc.

    3. saying that they are close seems like a bit of a stretch. I saw somewhere reputable (i forgot where) that the majority of “child porn” that exists today is actually created by the so called victim. in other words, most of this material is just teenage girls or boys being dirty on the webcam or taking pics for their boyfriend etc.

    4. saying that they are close seems like a bit of a stretch. I saw somewhere reputable (i forgot where) that the majority of “child porn” that exists today is actually created by the so called victim. in other words, most of this material is just teenage girls or boys being dirty on the webcam or taking pics for their boyfriend etc.

    5. Last I heard, no such film had ever been discovered. It’s a persistent urban legend, but appears to have no basis in reality. Of course, I don’t obsessively follow the matter. I have different kinks.

  5. I’ve come to a realization that “justice” is whatever punishment is doled out by the state; by it’s very definition any state action is just and we the citizenry have no hold whatsoever on justice. This may seem confusing and fundamentally wrong to most people’s understanding but I believe they are simply trained to conflate notions of justice with morality.

    Plebs like us can participle in morality (or lack there of); the state does not do morality, the state does justice, of which morality has no bearing whatsoever.

    This may seem a pointless stipulation but nonetheless I posit it as true. Any man sent to jail or child put in the grave by a United States officer, is an act of justice — no matter how immoral. I don’t know what to make of this reflection — I guess that too much hubbub is made about justice and too low a premium is placed on morality.

  6. The fact that you can actually face prison time for having a picture (especially if the picture is drawn) seems so crazy to me. It is a complete violation of the constitution as well.

    1. It isn’t all that surprising. In a species with as long a childhood as humans have, protection of children has to be pretty hardwired. I’m not saying I think the overreaction is right, I’m saying it’s understandable and may be unavoidable. At least so long social morays hold children to be sexually off limits, and what (little) I know about societies that felt otherwise does not encourage me to emulated them.

  7. child porn possession is the digital ‘swatting’ v2017

  8. So what did he allegedly have? A copy of that 1970s Freikoerperkultur book?
    If the courts gave a reasonable sentence, that would run counter to their notion that spying on citizens in their privacy is good, proper, socially benevolent and altruistic. The whole idea of going after “loners” who, by definition, have no actual victims or defenders, is to ensure the cheap entering wedge for universal surveillance and more loony laws.
    In the 1920s Portugal licensed prostitutes at age 14, a fact screeched from US headlines in response to Portuguese criticism of prohibition laws making beer and wine a federal felony. That shut them up.

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  10. The code of Hammurabi from 1754 BC is often misunderstood.

    It was not groundbreaking in it’s call for vengence (it someone takes out your eye then you can take out there’s). It was a code decide to limit retaliation that was disporportionate to the crime. Judge Howard Maltz has in a single stroke taken our society back over 3,500 years in terms of fairness. To equate the act of watching a crime with committing it is equivalent to claiming that half a loaf of bread is no loaf at all.

    Over 1,500 later Jesus Christ would ensrine forgiveness and the “second change” doctine as a cultural value whether you are Christian or not. Apparently Judge Howard Maltz blew fight through that one also

    I understand that a crime must be punished, but the lack of self awareness and humilty in his own faiings as a humman it takes for this judge to permanently remove another humans right to a second chance immediately disqualifies his right to pass judgement on others. He should resign and spend the remainder of his life contemplating if he is entirely without sin, however you wish to define that.

  11. The code of Hammurabi from 1754 BC is often misunderstood.

    It was not groundbreaking in its call for vengeance (it someone takes out your eye then you can take out there’s). It was a code decide to limit retaliation that was disproportionate to the crime. Judge Howard Maltz has in a single stroke taken our society back over 3,500 years in terms of fairness. To equate the act of watching a crime with committing it is equivalent to claiming that half a loaf of bread is no loaf at all.

    Over 1,500 later Jesus Christ would enshrine forgiveness and the “second change” doctrine as a cultural value whether you are Christian or not. Apparently Judge Howard Maltz blew fight through that one also

    I understand that a crime must be punished, but the lack of self-awareness and humility in his own failings as a human it takes for this judge to permanently remove another human’s right to a second chance immediately disqualifies his right to pass judgement on others.

    Judge Maltz should resign and spend the remainder of his life contemplating if he is entirely without sin, however you wish to define that.

  12. The code of Hammurabi from 1754 BC is often misunderstood.

    It was not groundbreaking in its call for vengeance (if someone takes out your eye then you can take out there’s). It was a code designed to limit retaliation that was disproportionate to the crime itself. Judge Howard Maltz has in a single stroke taken our society back over 3,500 years in terms of fairness. To equate the act of watching a crime with committing that crime is equivalent to claiming that half a loaf of bread is the same as no loaf at all.

    Over 1,500 years later Jesus Christ would enshrine forgiveness and the “second chance” doctrine as a value whether you are Christian or not. Apparently Judge Howard Maltz blew fight through that one in his sentencing as well

    I understand that a crime must be punished, but the lack of self-awareness and humility in his own failings as a human it takes to permanently strip another human’s right to redemption immediately disqualifies him as a judge.

    Judge Maltz should resign and spend the remainder of his life contemplating if he is entirely without sin. That would be the only human qualified to give a sentence like this.

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