February 27, 2007

200 years for possessing 20 photographs.

A prison sentence that the Supreme Court declined to review.
The case, Berger v. Arizona, No. 06-349, has drawn considerable attention in criminal law circles as providing a possible occasion for the justices to take a fresh look at a subject they have treated only sparingly. While fully engaged in reconsidering the respective roles of judges and juries in criminal sentencing, the court has been extremely reluctant to strike down particular sentences as excessive.

Douglas A. Berman, a professor at the Moritz College of Law at Ohio State University and an authority on sentencing, also noted the difference in the court’s treatment of punitive damages and criminal sentencing.

In an interview on Monday, recalling that the court last week vacated an award of punitive damages against Philip Morris, Professor Berman said, “For a host of good reasons, the justices think they have a role in regulating extreme corporate punishment, but I fear the court doesn’t embrace a role in regulating extreme individual punishment.”
Here's Berman, blogging about the Philip Morris case and before the Berman cert. denial:
[I]t remains to be seen if the five Justices who are prepared to constitutionally second-guess certain instances of harsh corporate punishment might also be willing to sometimes constitutionally second-guess certain instances of harsh individual punishment.
I guess now we've seen.

39 comments:

Fritz said...

What would the sentence be if the criminal jury were given the "punitive" sentencing powers that the civil jury has? It would be interesting if criminal juries had the latitude to tack on additional time.

Cedarford said...

I worry that disproportionate sentences undermine the respect for the law and make people understandably reluctant to trust their liberty to ambitious proscecutors and twelve ill-informed members of the public who will sit in judgement on them.

200 years for 20 pictures of child porn in one state when in another state actual child molesters get from probation to 2 years? And in the same state the guy got 200 years for 20 child porn pics they deliberately give illegal aliens accused of actual molestation bail so they can jump it, go back home, so they are "no longer Arizona's proble"??

Come on!

As long as SCOTUS lets states do ridiculous mandatory minimums and leaves justice to the hands of the Nifongs and nutty morons some regions jury pools deliver - you will have wildly disproportionate punishments.

Since a 5 minute porn video is actually 650-700 separate images, does that mean that 6,500 year sentences await while murder gets 15-20 and simple rape a 3-5 year stretch? Ridiculous.

As long as this is allowed, count me in on those that do not want Roe "sent to the States to decide". We could have it legal in California while the wise legislatures and low country geniuses in South Carolina decide to execute women who have had abortions as baby murderers.

Bruce Hayden said...

Cedarford,

That isn't necessarily an AZ problem but rather a Gov. Napolitano problem. Being what I consider a fairly liberal Democrat, she seems to have too much sympathy for the illegals, and absolutely zero tolerance for abuse of kids. When the two collide, esp. considering the money involved, oh, well, they jumped bail and won't be back. Maybe.

I am cynical becuase I think that she is much too liberal for the state. But like all those New Yorkers who didn't know anyone who voted Republican, I don't know anyone in AZ who voted for her, and I know a fair number there having lived there for maybe six years, but enough did that she was reelected.

Bruce Hayden said...

The difference here is that the punitive damages appear to have been assessed to punish the company for all the harm they have done to everyone, or at least, everyone in that state. And, of course, there is the problem that one plaintiff is benefitting from everyone else's woes. And then you have another plaintiff do this, and then another one...

It may be similar to if the guy who had the kiddie porn was penalized for all the other possessors of kiddie porn in the state. Or, maybe, for all the kiddie porn that they had had over the last 20 years, w/o having to indict and prove the case. Of course, that would be uncostitutional.

Bruce Hayden said...

My OT AZ kiddie porn story revolves around trying to get the boyfriend of someone I knew arrested and off the street. He was a typical tweaker (i.e. meth user) and was doing what he could to make money, all illegal, including check forgery, identity theft, manufacture of meth, and even ripping off the Mexican Mafia with bad drugs. We were feeding the Phoenix PD, the FBI, and Secret Service evidence as we got it, including copies of forged checks, social security numbers, etc. to no apparent avail.

And then they busted him, and charged him with some 20 felonies. About half were the small stuff that we had been feeding them, with a couple years each of prison time.

But what they really got him on was that he and another guy had a 13 and a 14 year old girl that they were pimping and having sex with for kiddie porn. The kiddie porn was evidence of slam dunk Class 1 Crime Against Children, with a mandatory 20 year sentence for each charge. So, he was looking at over a 100 years, and pled to two counts, served concurrently, with no chance of parole, for a guaranteed 20 years. But of course, having both ripped off the Mexican Mafia, and molested young girls, it is likely that the only way he can survive it is in solitary.

MadisonMan said...

Goodness, I agree with Cedarford!

The prosecution here apparently wants it both ways. They didn't want to (cough) harm the jury by making them see the entire load of evidence against the defendant, but wanted a sentence that reflected what the prosecution perceived to be the true nature of the crime. I don't buy it. If you think the crime is heinous enough for 200 years, present all the evidence.

And there's a word for someone who buys child porm with a credit card: Idiot.

SGT Ted said...

I'm not seeing a problem with this sentence for this crime. Except maybe other crimes rate a heavier sentence, rather than reduce this particular one.

It reminds me of the outcry over the disparate sentences for rock cocaine vs powder cocaine use and possession convictions. In all cases it was a push to reduce crack users sentences rather than up the sentences of snorters.

reality check said...

The Supreme Court was cowardly not to take this case.

If a 200 year sentence for ownership isn't cruel and unusual....

Maybe they can put him in a cell with the teacher that can get 40 years when her computer showed pop-up ads to kids at a school that had no working firewall or virus protection.

Thank god for Alito and Roberts. Woohoo! I certainly hope President Bush gets to appoint some more.

And thank you Professor Althouse for using your time and expertise as a constitutional law professor to defend our rights.

Hey look! Survivor is on. Gotta go.

Simon said...

UCLA's Laurence Claus made a superb textual point about the Eighth Amendment and proportionality in sentencing at the FedSoc symposium this weekend: the Eighth Amendment forbids excessive bail, and excessive fines, and cruel and unusual punishments. So clearly, whatever meaning we ascribe to "cruel and unusual," one that converts it to meaning "excessive" rests on thin reeds indeed.

Simon said...

"Thank god for Alito and Roberts. Woohoo! I certainly hope President Bush gets to appoint some more."

Reality Check - any four Justices can grant cert. That means that one or more of the liberal bloc - Stevens, Souter, Ginsburg or Breyer - or Kennedy, didn't think this case was certworthy. So don't try to hang this one on the mean, evil conservatives.

JohnK said...

We put "juicy" on the back of four year old's shorts, let the media tell our grade schoolers how to be "sexy", let stage parents whore out their 12 year old daughters to the music industry for millions but still can't scream enough about the "sexualization of children". Give me a break. Our society does nothing but sexualize children. Then every once in a while we feel a pang of conscience and we burn someone at the stake to make us all feel better. Two hundred years for having pictures, I dont' care if he had a million of them is cruel and unusual. This case is an embarassment.

Simon said...

John - it's certainly an excessive punishment. But it's less clear that excessive is necessarily cruel and unusual.

Simon said...

See Harmelin v. Michigan, before anyone else beats me to it. ;)

JohnK said...

True enough Simon. Actually the remedy for this in a perfect world is not the Courts but the governor. The common law tradition if for the sovereign to reduce excessive sentences and ensure that justice is done in each case. This is why governor's have clemency power. Unfortunately we live in a world where governor's, whether liberal or conservative, never use their clemency power except occasionally to save a connected crony.

Flexo said...

Why don't we ask the sexually exploited children who are depicted in these photographs whether or not a 10-year mandatory minimum consecutive sentence is "excessive" or whether it is cruel and unusual to aggregate such a sentence over 20 separate offenses against these children?

I suspect that the victims of child pornography often take more than 10 years to "get over" the sexual exploitation. Indeed, probably a large number of them never recover.

If the defendant wanted a lesser sentence, perhaps he should have thought ahead to commit his crimes in another state. And for a 57-year-old, does it really matter whether the sentence is 200 years or 20 years?

JohnK said...

"Why don't we ask the sexually exploited children who are depicted in these photographs whether or not a 10-year mandatory minimum consecutive sentence is "excessive" or whether it is cruel and unusual to aggregate such a sentence over 20 separate offenses against these children?"

He didn't take the pictures so how did he victimize them? Further, if he did victimize them, then didn't the prosecutor and everyone else who looked at them also victimize those children in the same sense? The looking at the pictures revictimizes the child theory does not work. The child was victimized by the creep who took the pictures. Why don't you ask the children in those pictures if they would somehow feel better about the experience if they knew no one had ever seen the pictures or only 10 people had seen them instead of a million? I don't think the numbers mean a lot to the victims. The guy had pictures, he didn't take them, he didn't distribute them. Does he deserve to be punished for having contraband? Yes. But 200 years is just making a human sacrifice out of him. Like I said, burn this guy at the stake so people can feel better about our messed up society.

Beth said...

Why make a distinction between the producer and the consumer of child porn? There's no market for the actual producer without guys like this one. I see no reason to be more lenient with someone wanting to buy pictures or films of children being fucked by adults than with the adults filming the rape of chilren. His desire to "just possess" it is what fuels the industry. There's no moral distinction between the makers and consumers.

That said, I actually agree with Cedarford (hey, it happens.) I don't sure don't want Roe sent to the states, for the same reason.

JohnK said...

"His desire to "just possess" it is what fuels the industry. There's no moral distinction between the makers and consumers."

So the people that make this stuff make it for the money and not for their own sickness? That is just stupid. Tamping out the "demand" is not going to slow child pornography. It never has. Further, making something a thought crime is never a good idea.

Flexo said...

He didn't take the pictures so how did he victimize them?

Well, if the children in the photographs believe that the possessor-defendant did not victimize them, then they can say so themselves. If they don't feel victimized, then they may very well agree that such a sentence is unwarranted.

Beth said...

JohnK, your argument is incomprehensible. The motive doesn't matter. If we believe there's something deeply wrong with child porn, we have to prosecute both maker and possessor. I don't care if the maker was sexually satisfied or simply got the cold pleasure of cash; in producing it they commit a crime, and in distributing it they commit another. The possessor becomes part of that criminal chain, and a moral actor in the industry.

Beth said...

Thought-crime has nothing to do with it. Anyone can think what they want, fantasize what they want. Putting the fantasy on film by using human players is an act, not a thought.

Our SCOTUS ruled that producing virtual child porn, using only cgi methods, is not a crime. So much for your thought crime fears.

JohnK said...

You peopel are truly fanatics. Never did I say that child porn should be legal or that this guy shouldn't be punished. The issue is whether 200 hundred years for twenty pictures is justice. The fact that Beth and her cohorts can't see that is very disapointing and sad. You should just be honest with yourself Beth and burn the guy at the stake, right after you drop him in the river to see if he floats or not to determine guilt.

JohnK said...

"Our SCOTUS ruled that producing virtual child porn, using only cgi methods, is not a crime. So much for your thought crime fears."

I am sure you were real happy about that decision. Further, if looking at the stuff vicimizes the child, why isn't the prosecutor and the jury just as guilty? How could we ever prosecute these cases if merely looking at the stuff was victimizing the child? Would we prosecute a rapist if doing so invovled raping the victim again? But of course we do prosecute these cases and should because merely looking at the pictures is not victimizing the child. Helping to create a market for this crap is helping to victimize the child and why these cases should be prosecuted, but mere possession does not and should never warrent a 200 year sentence.

Mark the Pundit said...

200 years for possession of child porn?

Sounds fine with me. I can only hope that Charles Rust-Tierney gets at least half that...

Beth said...

I have cohorts? Cool. I need to think of some way to make money from that.

JohnK, I haven't written a word, not a single one, about the sentence itself, other than to agree with Cedarford that it's an excellent example of why I don't want Roe going to the states--how you'd parse that as cheerleading the 200 year sentence is beyond me.

I focused quite narrowly on your statements trying to minimize the guilt in possessing of child porn. You argue that possessors don't exploit the children in the photos, and that's all I've taken exception to. So unless you can quote me actually cheering this sentence, back off your witch hunt metaphor. It's dishonest.

JohnK said...

Read my posts Beth. I said from the very start that these things should be criminal, but not warrenting a 200 year sentence. Further, you have never responded to my point, that if looking at the stuff victimizes the child, why isn't the jury and prosecutor just as guilty? Why not? The answer is becuase merely looking at a picture does not "victimize" the child. If it did, we would burn the picture upon finding it and the government wouldn't keep enormous databases of the stuff. If there is anyone who is being dihonest it is you.

Flexo said...

you have never responded to my point, that if looking at the stuff victimizes the child, why isn't the jury and prosecutor just as guilty? Why not?

Why not? Perhaps because merely "looking at the stuff" is not at issue here. Seeking, acquiring, and possessing it are the issue. The relevant Arizona statute states that a person commits sexual exploitation of a minor, a class two felony, by knowingly "[d]istributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct." Ariz. Rev. Stat. § 13-3553(A)(2). Nowhere in that list do we see anything about merely "looking" at it.

Moreover, the statute carries a sentence of 10 to 24 years for each offense, with a presumptive term of 17 years. So, the defendant in this case did catch quite a break in getting the minimum. But he was initially indicted "on thirty-five separate counts of sexual exploitation of a minor based on his possession of printed photographs, computer photo files, and computer video files depicting children in sexual acts."

"The trial evidence established that Berger possessed numerous videos and photo images of children, some younger than ten years old, being subjected to sexual acts with adults and other children, including images of sexual intercourse and bestiality. The jury also heard testimony indicating that, from 1996 to 2002, Berger had downloaded computer files containing child pornography; he had identified several 'favorite' websites with titles indicating they provided child pornography; he had recently viewed contraband material; and he had created both computer and hard copy filing systems to maintain his collection." -- State v. Berger, 212 Ariz. 473

Children less than 10 being subjected to sexual intercourse (rape) and bestiality????

Tell us again how the sentence is disproportionate or cruel and unusual.

Beth said...

Further, you have never responded to my point, that if looking at the stuff victimizes the child, why isn't the jury and prosecutor just as guilty? Why not?

It's an idiotic point. Trials do make things difficult for victims. That's why rape and child abuse often end up in plea agreements, to spare the victims having to encounter their abuser or the material that documents their abuse. But your point isn't about that, it's just a silly Sophistry about seeing the porn. There's obviously no way to prosecute a porn case without viewing the porn. That changes nothing about the nature of the maker's, and possessor's, offense. Nor does your argument about the justice officials seeing the porn have anything to do with advancing your argument that this particular sentence is too long. It's just a red herring. I have read all your comments, and you continually try to merge those two arguments, first, that the sentence is too long-which is an easy case to make, so I don't see why you're having such trouble making it. Others in this same thread have shown why that's excessive with no trouble at all.

But at the same time you keep trying to shape some muddled and inconsistent argument about viewing child porn. That second argument is all over the place and you evidently aren't sure what you think. On one hand you agree possession ought to be a crime and punished, then you float your precocious "but then what about the jury seeing it?" dilemma. Incomprehensible.

And, when are you going to quote me cheerleading the 200 year sentence? Still waiting.

JohnK said...

Why shouldn't you be cheerleading the 200 year sentence Beth? You seem seem to be out with the pitchforks and torches tonight? You said

"Why make a distinction between the producer and the consumer of child porn? There's no market for the actual producer without guys like this one. I see no reason to be more lenient with someone wanting to buy pictures or films of children being fucked by adults than with the adults filming the rape of chilren. His desire to "just possess" it is what fuels the industry. There's no moral distinction between the makers and consumers."

That is about as unhinged a rant as has appreared on this blog. You of course obviscate by saying "perhaps two hundred years is a bit harsh". What wouldn't be? A 100 years? You honestly don't see the moral difference and a punishment difference between someone who rapes a child and someone who has pictures on a hard drive. I don't care what you think about the 200 year sentence, if you can't see the difference between possession and producing, you are fantatic.

The fact that there is a huge difference between actually making the stuff and viewing it, is why the sentence is so cruel. If the guy had actually molested children and filmed it, then 200 years wouldn't be harsh at all. Of course he didn't and the fact that you can't see the difference between the two cases renders you a fanatic. If you do object to the 200 year sentence perhaps you shouldn't becuase your crazed arguments on the subject and compete inability to distinguish between crimes in this case should warrent your support of it or better yet just burning the guy at the stake.

Flexo said...

JohnK, before you go around calling other people crazy and unhinged, perhaps you ought to go read the caselaw on child pornography, ALL of which supports Beth's point.

As for this particular case, here is some more info --
"In its motion to dismiss fifteen of the thirty-five counts of the indictment, the State gave as its reason its wish to spare the jury the sights of more disturbing images, and, in fact, Berger does not dispute the State's assertion on appeal that he had a 'well-organized collection of thousands of photographs depicting children engaged in sexual activity.'" -- State v. Berger, 209 Ariz. 386.

Thousands of photographs. Thousands.

JohnK said...

"Thousands of photographs. Thousands"

Photographs, not acts. There is difference between possessing a photo of something and doing something. One is not as culpable as the other. That is what you and Beth cannot seem to understand.

JohnK said...

Yes, Flexico, I am very familiar with the caselaw on child porn and it is unjust and ill concieved and written by fanatics and politicians pandering to fanatics like you and Beth. We have a system where parents molest their children and get probation and people with pictures on harddrives get decades in jail. We have a system where hardcore child abusers get out on parole and are put on the same list as some poor 19 year old kid who got caught having sex with his 15 year old girl friend.

Cedarford said...

Flexo - Why don't we ask the sexually exploited children who are depicted in these photographs whether or not a 10-year mandatory minimum consecutive sentence is "excessive" or whether it is cruel and unusual to aggregate such a sentence over 20 separate offenses against these children?

I suspect that the victims of child pornography often take more than 10 years to "get over" the sexual exploitation. Indeed, probably a large number of them never recover.

If the defendant wanted a lesser sentence, perhaps he should have thought ahead to commit his crimes in another state. And for a 57-year-old, does it really matter whether the sentence is 200 years or 20 years?


An emotional argument made by a lunatic.

The problem with asserting some total moral authority to let victims determine what is a fair sentence is that many would be extraordinarily harsh and prone to make it collective. "Ask the Victims of 9/11 if they want all radical Muslims here executed!! They have the moral right!!""

A good portion would say "yes" to Muslim executions. Others not, but if you go with the extreme...

If you want to lock up everyone for 200 years to 3,000 years each for any crime they commit that "people never recover from", from drug pushing to negligent homicide to statements "encouraging America's enemies" - be prepared for a total Police State and your taxes to triple to pay for the prisons that have to be built.

If the defendant wanted a lesser sentence, perhaps he should have thought ahead to commit his crimes in another state.

That's about the stupidest thing I've heard. As if ordinary people would realize they will die in prison for a few photos on their gard drive or a black gang member realized that the gram of crack he sold to a 35-year old happened within 1500 yards of some school giving him a completely destroyed life with no chance of parole.

John K is right that laws are growingly based on fanatics (scared to death or manipulated by a manipulative tabloid media) - and politicans pandering to fanatics.

Even Beth senses the idiocy of regional fanatics at work, where abortion would be legal in New York and punishable by execution for premeditated baby murdering in a religious area where their OWN beliefs are as deep and strident as those who say 10 years of each kiddie porn pic, 6 months imprisonment for each mile above the speed limit for "deadly speeders".

I remember that there was an article a few years back on actress Traci Lords, who started as an 80's porn star. She left porn when it was found out she began shooting at age 15. And the porn industry had to destroy some 25 million dollars worth of product with Lords in it, with some 45 million in product already sold and owned by 3,5 to 4.5 million people - mostly videos.

Under the "Tell it to the Children that 10 years an image is too harsh...your sense that Victimhood Trumps All!!"

Well, as each video might have 3500 images of Ms. Lords, you apparantly have no problem with her video owners 4 million or so, having prison sentences of 35,000 years with no parole...and 10,000 dollar fines and no jail for the producers of Traci Lords porn...and no penalty to Ms. Lords for lying about her age.

Yeah, that's justice.

Beth said...

Why shouldn't you be cheerleading the 200 year sentence Beth? You seem seem to be out with the pitchforks and torches tonight?

Stop, you're making me laugh.

reality check said...

Cedarford, I want to congratulate you. Step 1 was difficult but you've done a remarkable job.

Best wishes and good luck on 2-12.

Jim H said...

What's with the fuss about this sentence? It's not as if Berger will have to serve the entire two hundred years.

Palladian said...

"Since a 5 minute porn video is actually 650-700 separate images, does that mean that 6,500 year sentences await while murder gets 15-20 and simple rape a 3-5 year stretch? Ridiculous."

Actually a 5 minute porn video is more like 9000 separate images. So we're looking at more like a 90,000 year sentence for the miscreant.

TMink said...

While I appreciate the legal arguments, especially those made with a cool head and logical exposition, I also understand the emotional aspects of sentencing in child abuse cases.

In my mind, I believe that 200 years for a wretched, exploitive photo collection is excessive.

In my heart, I hope that it saved one child from being victimized by this pervert.

And two years for sexually abusing a child is completely insufficient. 20 years would be much more in line with what is just.

Trey

Revenant said...

In my heart, I hope that it saved one child from being victimized by this pervert.

There doesn't appear to be any evidence that the guy had ever victimized ANY children. He just bought pictures. There's pretty good evidence that pornography serves as an outlet for people who would otherwise commit sex crimes, so his purchasing of kiddie porn might actually have saved children from molestation. A couple decades ago the argument could have been made that he was supporting people who WERE victimizing children, but odds are today that the website just stole all the content in the first place.

There is, in any case, something wrong with a legal system in which you can rape a child to death and get a lighter sentence than a guy who buys photographs of little girls masturbating. I can't think of any moral OR legal framework in which that makes any sense.