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.