Under Arizona law, mere possession of pornography involving minors younger than 15 is punishable by a 10-year mandatory minimum sentence. Each picture is a separate offense, and the sentences must be served consecutively. That's how Morton Berger, a former high school teacher, received a 200-year sentence without parole: 10 years for each of 20 images on his computer.
While the production of child pornography involves sexual abuse, Berger himself did not victimize anyone. He arguably deserved criminal punishment for encouraging abuse, in his own small way, by downloading the resulting images (although it's not clear he paid for them). But 200 years ?
That's far longer than the sentence Berger would have received anywhere else in the country. It's also harsher than Arizona's penalties for violent crimes such as rape and second-degree murder. For looking at pictures of sexually abused children, Berger was punished more severely than he would have been for committing an actual sexual assault on a child.
The Arizona Supreme Court, in a decision the U.S. Supreme Court recently declined to review, nevertheless concluded that Berger's sentence was not disproportionate enough to violate the Eighth Amendment's prohibition of "cruel and unusual punishments." Constitutional issues aside, the penalty is plainly irrational.
That's par for the course on this hot-button subject. When I discussed Berger's case on Reason magazine's blog, one reader insisted that "200 years is not sufficient. He should get life."
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