Justice Rebecca White Berch filed an eloquent dissent in the Berger case. She began by noting that Arizona's sentence for child porn "is by far the longest in the nation and is more severe than sentences imposed in Arizona for arguably more serious and violent crimes." Indeed, Arizona's minimum punishment for possession of one image "is greater than the maximum sentence for possession of child pornography in 36 states and equal to the maximum sentence in nine other states." Is the punishment "unusual"?
"Moreover, the sentence at issue is longer than that imposed in Arizona for many crimes involving serious violence and physical injury to the victim. Second-degree murder, for example, like possession of child pornography, also carries a minimum sentence of 10 years, but a term for murder may be served consecutively with the sentence imposed for other crimes. Similarly, the minimum sentence for possession of an image of child pornography is longer than the presumptive sentence for rape or aggravated assault."
Justice Berch concluded by saying: "I do not condone Berger's crimes. Child pornography is a serious offense. I concur in the majority's analysis of the crime itself and of the legislature's right to impose severe penalties for it. I further agree that Berger's crimes ... were precisely the type of criminal acts the legislature intended to punish.
"Nevertheless, sentences must not only reflect the seriousness of the offense and deter the defendant and others from committing future crimes, they should also promote respect for law. We are not asked to determine in this case whether a sentence of 10 years would ever be appropriate for possession of a pornographic image. It might be. We are asked instead to determine whether in this case, 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. Instead, it imposes on the taxpayers the burden of supporting the defendant for the rest of his life. Such a sentence seems incompatible with 'evolving standards of decency that mark the progress of a maturing society.'"
Justice Kilpatrick, meaning me, concurs in Justice Berch's dissent.