James J. Kilpatrick

Without a murmur of comment or dissent, the Supreme Court last week effectively affirmed a sentence of life imprisonment imposed upon an Arizona man for possession of 20 dirty pictures. The court's indifference to the Constitution is arguably a more serious offense than the crime of Morton Berger.

This is not to defend Berger's conduct. His conduct was indefensible. Five years ago he was a 52-year-old husband, father of four, award-winning high school teacher. Outwardly he was a model citizen. Privately he was a connoisseur of pornography. His downloaded collection numbered in the thousands of images. Among these were some grossly obscene images of children. Justice W. Scott Bales laid out the facts in Arizona's Supreme Court.

"The trial evidence established that Berger possessed numerous videos and photo images of children, some younger than 10 years old, being subjected to sexual acts with adults and other children, including images of sexual intercourse and bestiality. ... He had created both computer and hard copy filing systems to maintain his collection."

Arizona's law on child pornography is unique. The mere possession of each image of child porn is a separate offense, punishable by a minimum sentence of 10 years in prison. Berger was indicted on 35 counts, but the state dropped 15 of them and a jury convicted on the remaining 20. His draconian sentence must be served without the possibility of probation, pardon or early release. He will die in his cell.

Some aspects of the case deserve special emphasis. Berger was a collector, not a creator. He had no criminal record of any kind. As a teacher he must have been tempted to lure some of his pupils into clandestine posing, but his trial produced no evidence of criminal subornation. His jollies were vicarious jollies. He will live out his life in prison for being, in private, merely a dirty old man. Is the punishment "cruel"?

Yes, the valid point is made that if it were not for such dirty old men, the serious evils of child porn could be abated. Point conceded. But criminal law historically has recognized that some evils are more evil than other evils and should be punished accordingly. In a federal court, at the time of his trial, Berger would have drawn a maximum sentence of five years. In Arizona, his sentence was death.

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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