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.

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.


James J. Kilpatrick

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

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