Reason Article on Sex Offender Case

Sentencing Law & Policy beat me to the punch, but there is an interesting article in Reason online about sex offender policy and the Morton Berger case in Arizona.  From the article:

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.

The article being Reason is also notable because the periodical is mostly associated with libertarian and right-wing politics.  As I've argued before, fighting sex crimes really shouldn't be a heavily partisan issue because everyone is aiming for the same goal.  Unfortunately, the reality of the world makes such an understanding hard to realize.  I also recommend checking out Sentencing Law & Policy's post because it links to Professor Berman's extensive prior coverage of the Berger case.

Comments

[jvarisco]

What would have been the sentence for twenty rapes? I think the point of the statue is that each picture involved a separate abuse of a different girl. 10 years does seem like a lot, but there are worse things than locking up pedophiles a bit too long.

Also, equating libertarian with right-wing on crime does not work. They are basically opposite; libertarians like privacy; the right wing does not much care if you are guilty.

[Corey Rayburn Yung]

Comparing 20 rapes with ownership of 20 pictures seems a bit odd to me. You will rarely, if ever, find a child pornography owner who has just one picture. However, you will find many rapists who have committed only one rape. In the case of child pornography owner, the pictures may be of a single victim, but there will still be many pictures. They also may not depict a rape or violent crime.

None of this is to excuse the person who owns kiddie porn. However, the Arizona law gives no ability for a judge to tailor the sentence to the defendant. All pictures are treated the same and each picture carries a very harsh sentence (that is unprecented in the U.S.). The result is that your average kiddie porn defendant will serve a much longer sentence than a rapist or molester in Arizona. And that is a very odd outcome.

As for libertarian v. right-wing, I understand your point. However, among libertarians, there is a strong divide between those who are law-and-order libertarians and those that are genuinely pro-privacy. Around the web, the writers at Reason are more inclined to the privacy end of the spectrum. However, I think they are in the minority among legally-focused libertarians in the blogosphere (or which there are many).

[Chance]

So, does possesion of child pornography in a medium such as film net similar sentancing dependant on the film rate or or is the possessor getting a killer deal by being able to possess, say, a 198 fps video x 30 minutes (356,400 "images" and still only get a 10 year sentance?