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.
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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,
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.
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.
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.
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.
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.
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.
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.
"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.
John - it's certainly an excessive punishment. But it's less clear that excessive is necessarily cruel and unusual.
See Harmelin v. Michigan, before anyone else beats me to it. ;)
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?
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.
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.
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.
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.
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.
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.
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, 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.
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.
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.
"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.
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
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.
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