Justice Rebecca White Berch, dissenting in part, had the last and most sensible word. She agreed that courts must defer to legislatures on the fixing of criminal sentences, but the Constitution prohibits sentences that are "grossly" disproportionate. In this instance, Arizona's sentence for possession of pornography "is by far the longest in the nation." It is more severe than sentences imposed in Arizona on first offenders for rape or aggravated assault.
In the federal courts, Justice Berch observed, where sentencing guidelines are fixed by an extra-judicial commission, Berger would have faced only five years in prison. Arizona's sentences for possession of child pornography are "not merely disproportionate, but grossly disproportionate to the crime."
She concluded: "I do not condone Berger's crimes. Child pornography is a serious offense. ... Nevertheless, we are asked to determine in this case whether 200 years is just punishment for a defendant who possessed child pornography but directly harmed no one. The sentence provides no opportunity for rehabilitation and provides no second chance."
This is a case the high court ought to hear. Morton Berger may be a creep, but on the record he's a pretty sad creep. The sentence is absurd.
(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or by e-mail to kilpatjj@aol.com.)
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