[Marxism] Supreme Court upholds 200 year sentence for possession of 20 child pornography images

Louis Proyect lnp3 at panix.com
Tue Feb 27 08:01:43 MST 2007


NY Times, February 27, 2007
Justices Decline Case on 200-Year Sentence for Man Who Possessed Child 
Pornography
By LINDA GREENHOUSE

WASHINGTON, Feb. 26 — An Arizona man who received a 200-year prison 
sentence for possessing 20 pornographic images of children failed Monday to 
persuade the Supreme Court to consider whether the sentence was 
unconstitutionally excessive.

Arizona law imposes a mandatory minimum sentence of 10 years for “sexual 
exploitation of a minor,” and it requires that sentences for multiple 
convictions be served consecutively.

The sentence that the man, Morton R. Berger, received was consequently 
longer than the sentence any other state would have imposed for a similar 
offense, a justice of the Arizona Supreme Court wrote in an opinion last 
year dissenting from that court’s decision upholding the 200-year sentence.

A majority of the Arizona Supreme Court declined to examine the aggregate 
sentence as a whole, instead focusing on the sentence of 10 years for 
possessing a single pornographic image, which it found was not excessive or 
disproportionate. It was this aspect of the analysis that Mr. Berger, a 
57-year-old former high school teacher, challenged in his appeal to the 
United States Supreme Court.

“If this court reviews Berger’s entire punishment instead of examining the 
sentence for a single count,” the brief said, “it would find Berger’s 
punishment cruel, unusual and unconstitutional.”

His appeal said that in most states, sentences for similar crimes would run 
concurrently, and an offender would serve no more than five years, with the 
additional possibility of probation or early release. Both are barred under 
Arizona law. Had the offense been prosecuted under federal law, Mr. 
Berger’s brief said, the federal guidelines would have provided a five-year 
sentence.

The case, Berger v. Arizona, No. 06-349, has drawn considerable attention 
in criminal law circles as providing a possible occasion for the justices 
to take a fresh look at a subject they have treated only sparingly. While 
fully engaged in reconsidering the respective roles of judges and juries in 
criminal sentencing, the court has been extremely reluctant to strike down 
particular sentences as excessive.

Douglas A. Berman, a professor at the Moritz College of Law at Ohio State 
University and an authority on sentencing, also noted the difference in the 
court’s treatment of punitive damages and criminal sentencing.

In an interview on Monday, recalling that the court last week vacated an 
award of punitive damages against Philip Morris, Professor Berman said, 
“For a host of good reasons, the justices think they have a role in 
regulating extreme corporate punishment, but I fear the court doesn’t 
embrace a role in regulating extreme individual punishment.” Professor 
Berman has been writing about the Berger case for months on his blog, 
Sentencing Law and Policy.

Arizona vigorously opposed Supreme Court review of the sentence, telling 
the justices that it had been properly based on “overwhelming evidence” of 
Mr. Berger’s “large-scale, deliberate and long-term acquisition of child 
pornography.”

The state’s brief said that after Mr. Berger turned down a plea bargain, 
the prosecutor whittled the case to 20 counts out of fear of “deluging the 
jury” with highly graphic and disturbing images. The police had found the 
images in Mr. Berger’s possession after learning that his credit card 
number had been used to buy contraband images from a child pornography Web 
site based in Dallas.

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