Might Berger get SCOTUS attention?
Earlier this year, the Arizona Supreme Court rejected a former Phoenix high school teacher’s claim that his 200-year prison sentence for possessing child pornography violated the Eighth Amendment (basics here, commentary here). I believe that the defendant has now appealed Azizona v. Berger to the US Supreme Court, and syndicated columnist James J. Kilpatrick has taken up the cause in this interesting column. Here are snippets:
There is no question of Berger’s guilt. He emerges from the record as an almost classic “dirty old man.” There is no evidence that he himself ever engaged in distributing, exhibiting, receiving, selling, purchasing, electronically transmitting or even “exchanging” pornographic images, all of which the Arizona law forbids. He was convicted solely of “possessing” such images. He collected them.
These facts should weigh in your calculus, for good or ill: He is 52 years old, married, a father of four, an award-winning teacher of world history. He has no criminal record of any sort. The state offered no evidence that he has ever created pornography or improperly touched a minor.
In their appeal to the Supreme Court, his counsel rely upon a single argument: The unservable sentence violates the Eighth Amendment to the Constitution. The amendment decrees that courts may not inflict “cruel and unusual punishments.” The 200-year prison sentence imposed on Berger is plainly “unusual.” At that punitive level, Arizona stands alone. Its minimum 10-year sentence for possession of a single piece of child pornography is greater than the maximum sentence for this offense in 35 states. It is equal to the maximum in nine others.
Is the 200-year sentence also constitutionally “cruel”? Who is to say? Manifestly, the question is hypothetical, or academic. On the record, Berger is a middle-aged, dirty-minded, part-time pedophile. But also on the record, he has never physically harmed anyone. He never even bought any of this stuff. He merely downloaded it….
This is a case the high court ought to hear. Morton Berger may be a creep, but on the record he’s a pretty sad creep. The sentence is absurd.
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