« Effective coverage of the considerable challenges of sentencing reform in Louisiana | Main | "Four Decades and Counting: The Continued Failure of the War on Drugs" »

April 13, 2017

Florida judge imposes 100 years in prison for child porn possession for first offender claiming innocence

This local article about a state sentencing in Florida, headlined "Man, 37, sentenced to 100 years for child porn conviction," reports on a remarkably severe sentence handed down yesterday. Here are the details:

A 36-year-old St. Johns County man is looking at spending the rest of his life behind bars after Circuit Court Judge Howard Maltz sentenced him to 100 years in prison Wednesday morning. The sentencing came nearly two months after a jury found Jesse Graham Berben guilty on 20 counts of possession of child pornography at the end of a two-day February trial.

Berben, who maintained his innocence even through his sentencing hearing Wednesday, was arrested by St. Johns County Sheriff’s Office detectives in April 2015 after authorities obtained a search warrant for his Washington Street apartment — where he was living with his father at the time — and finding files containing the pornography on his computer.

His arrest report indicates that Berben denied knowing anything about the files or how they ended up on his computer. While he admitted to having a peer-to-peer file-sharing program that he used to download music, he denied using his computer to keep or download child pornography and said that if such files were found that it must have been compromised in some way.

Berben’s attorney, Tom Cushman, said after the sentencing that his client had maintained his innocence to him from the day that they first met, and that Berben had been offered a plea agreement from the state that would have netted him a prison sentence of about 5 years, “but he refused to plead because he said he was not guilty and he wasn’t going to plead guilty to something he didn’t do and become a registered sex offender with it.”

The sentence he ultimately received was more than four-times the “lowest permissible” sentence Maltz could have handed down based on sentencing guidelines submitted in court Wednesday (the maximum sentence was life in prison). It was also beyond even what Assistant State Attorney Mitch Bishop asked for while standing in for his colleague Chris Ferebee, who prosecuted the case.

Bishop, in his remarks before sentencing, said that the images — most of them movie files — found on Berben’s computer depicted children, some as young as 5-years-old, engaged in various sex acts. He pushed back on the notion, expressed by some, that merely possessing such images is not nearly as bad as carrying out the acts depicted.

“The problem with that is that viewing these images, possessing these images creates a market for someone else to produce them,” he said. “I don’t think that point should be overlooked.” Berben, he argued, not only downloaded the files but kept them in the file sharing program, making them available to others.

Bishop asked Maltz for a sentence that would include the rest of Berben’s “meaningful life,” arguing that someone who is “sexually gratified by” or even “sexually curious” by such images does not possess much “rehabilitative potential.”...

Cushman, citing his client’s 10 years of military service and lack of any criminal record, asked Maltz to consider something far less than Bishop asked for, and pointed out that the sentencing guidelines for the possession of child pornography made his client eligible for a punishment “possibly greater than if he’d actually committed the act.”...

Maltz, though, citing the images seen at the trial, called the case “quite troubling” and said he agreed with the state’s argument against any notion that possession of the images is a victimless crime. “I see little difference in culpability between those who actually sexually abuse and exploit children, and those who encourage and promote the conduct by downloading and sharing videos of such, which I think warrants a significant sentence,” he said.

Maltz sentenced Berben to five years in prison for each of the 20 counts, to be served consecutively. Cushman said Berben plans to appeal the sentence.

I am pretty sure that Florida lacks any general parole provisions, so the defendant in this case is certain to die in prison if his convictions or sentence is not modified on appeal.  Notably, a somewhat similar case from Florida a few years ago, the Vilca case discussed here where an LWOP sentence was imposed for child porn possession, had convictions reversed based on a discovery violation as noted here.  Also, in a similar case from South Dakota, the Bruce case discussed here, the South Dakota Supreme Court found a 100-year prison sentence for child porn possession constitutionally excessive.

It will be interesting to see if this case might get the level of attention that some others involving extreme prison terms sometimes do.  And it will be interesting to see how the Florida courts engage with these matters on appeal. 

April 13, 2017 at 11:19 AM | Permalink

Comments

While possession of child pornography is a serious crime that should be seriously punished, this sentence is totally disproportionate; it breeds disrespect for the law and brings the criminal justice system into disrepute. But nothing new under sun here as the following scholars and courts have noted:

“American punishment is comparatively harsh, comparatively degrading, comparatively slow to show mercy.” James Q. Whitman, Harsh Justice (Oxford Press 2003 paperback ed) at page 19 “Contemporary policies concerning crime and punishment are the harshest in American history and of any Western country.” The Handbook of Crime And Punishment (Oxford Press 1998) paperback ed. at page 3. See U.S. v Newhouse, 919 F.Supp.2d 955 (N.D.Iowa 2013) (“totally disproportionate, unduly harsh sentences breed disrespect for the law.”); See Testimony Of Justice Anthony Kennedy before the Senate Judiciary Committee February 14, 2007 in response to Senator Whitehouse (“Our sentences are too long, our sentences are too severe, our sentences are too harsh... [and because there are so few pardons] there is no compassion in the system. There’s no mercy in the system.”), video link accessible at Professor Berman’s Sentencing Law and Policy Blog of Feb. 15, 2007); Justice Kennedy ‘s ABA speech of 2003 (“A country which is secure in its institutions, confident in its laws should not be ashamed of the concept of mercy. As the greatest of poets has said 'mercy is the mightiest in the mightiest. It becomes the throned monarch better than his crown.'”);

Posted by: Michael R. Levine | Apr 13, 2017 12:01:15 PM

I agree completely with Mr. Levine. Such a draconian sentence, essentially a sentence of life, is the same sentence imposed on the Green River killer, and many other serial killers (Kacynski, the mail bomber, etc) . Where is our sense of justice? Absolutely outrageous. Both judge and prosecutor should hand their heads in shame.

Posted by: Dave from Texas | Apr 13, 2017 12:28:48 PM

Clearly, this is a horrible crime, if in fact, the guy is guilty. And that seems to be a big if. I know this--if I were the prosecutor, I'd want to be absolutely f'ing sure that this guy is guilty. From what I read here, I am not sure that's the case. The article may not tell the whole story.

Posted by: federalist | Apr 13, 2017 12:29:20 PM

Federalist, I agree it's a serious crime, and it should be seriously punished. But assuming he's guilty as sin, which I do, the sentence is still draconian. As Dave from Texas points out, why does this man deserve an effective sentence of life in prison, the same sentence imposed on the Green River Killer, Theodore Kacyznski, Jeffrey Dahmer, and many other maniacal killers? Give me a break. Justice is not served by such a disproportionate sentence.

Posted by: Sarah | Apr 13, 2017 12:46:43 PM

Given that I believe that any crime more serious than the theft of a couple hundred dollars should carry a presumptive death sentence I have no problems with this outcome as such. As presented the article does raise questions about actual guilt but I have encountered enough slanted reporting that I would have to see much more before those concerns became anything more than curiosity.

Posted by: Soronel Haetir | Apr 13, 2017 1:17:00 PM

Sara,

Accepting the jury's guilty verdict he deserves it because at the life end of the sentencing range once you get to a certain point of seriousness all offenders have earned their ticket to the slammer. I see making that gradation on the worst of those who draw such a sentence (instead of the least) as being a logical mistake.

An example of what I mean, if you were to accept my threshold for a presumptive death sentence then it would not matter how many offenders are beyond that point. There just isn't room for gradation once you reach the life sentence or execution range.

Posted by: Soronel Haetir | Apr 13, 2017 1:21:46 PM

Sorry, Sarah.

Posted by: Soronel Haetir | Apr 13, 2017 1:22:07 PM

There are so many things wrong here I don't know where to begin but I'll focus on the basics, which is his guilt. This case is ripe for overturning on that grounds alone because it confuses the possession of equipment with the act of downloading.

Here is the relevant fact:

"where he was living with his father at the time"

So how did they know the father didn't do it? Did the father testify that he didn't do it so it was an issue of credibility? Courts have routinely held that if a computer is in a shared environment where more than one person has physical access to the computer a jury is not allowed to impute the act of downloading to the person who owns the computer because that abrogates the governments burden of proving who downloaded the material.

I realize that this is a sentencing blog but I'd still like to know more about whether he is really guilty or not. We have seen in other jurisdictions defendants have their convictions overturned.

Posted by: Daniel | Apr 13, 2017 1:39:23 PM

I'll be the one to chime in and say: the prosecutor's theory for why this crime deserves a harsh sentence seems dubious. In a world of peer-to-peer file sharing, does downloading of child pornography create a market for it? There are other reasons why it's bad, but if there's little or no evidence of the "market" justification, that's another reason why this sentence is way out of line.

Posted by: MW | Apr 13, 2017 3:13:27 PM

Just as an aside...

If you watch the decapitation or other murderous videos that are released by terrorists, and you download the video and keep it as a file, does that make you liable for a prison sentence just as if you actually did the terrorizing or murder yourself? While other people may claim that child porn is different because "you only get killed once, but can be victimized over and over again," they negate the actual crime by minimizing the act itself and maximizing the non-physically-destructive viewing crime.

Posted by: Eric Knight | Apr 13, 2017 3:14:27 PM

I would love to see prosecutors and judges that do these kinds of things get wacked. They deserve it. They are clearly a danger to Americans.

No respect for government or their criminal employees. F them.

Posted by: FRegistryTerrorists | Apr 13, 2017 6:04:48 PM

Eric Knight | Apr 13, 2017 3:14:27 PM:

It doesn't make any sense to me why child porn is illegal yet it is not illegal to watch children being murdered. And frankly that doesn't make sense to any normal person with a brain.

It is nothing but America's idiotic obsession with s*x. It's a witch hunt.

Posted by: FRegistryTerrorists | Apr 13, 2017 6:09:28 PM

If he didn't pay for the porn, then how can he of created a market for it.
I have to guess that Florida Elects judges.
Hopefully when the pythons finish eating all the animals in Florida, they will start on the Government.

Posted by: Stephen | Apr 13, 2017 6:41:48 PM

I feel for him. I too was convicted of same offense. P 2 P file downloaded for nature images and had illegal images in it. Since they were coded and not previewable, I saw them after I downloaded. I did not keep them , but the goon squad came and that was the end of my life. I received 90 days and a forever sentence on a worthless list. The authorities know where this stuff thisbut would rather chase the innocents because it's easier for them. I am eligible for reduction, but so what, my life is ruined so that judges, politicians, and law enforcement can gain points with an ignorant public. I wish him the best, and hope the judge suffers horrible tragedies the rest of his life

Posted by: Chris | Apr 13, 2017 6:45:59 PM

*I am a member of an advocacy group working for the civil rights of registered citizens.


The judge in this case is an idiot who knows nothing of the research and facts associated with child pornography. CP is free on the Internet. No market can be driven on something that is free. Claiming that there is no difference between viewing and abusing is totally illogical. For centuries the public observed public executions-- is that the same as being the executioner??

I know of some men who were convicted of possession of child pornography and they did not serve one day in prison. I believe the usual sentence is five to seven years. Given the vast disparity of this sentence and the usual sentence, I would like to know what justification the judge could have for his decision. Whatever happened to "equal protection under the law?"

I have to assume that this judge is seeking re-election points and I believe he cannot possibly have a conscience and sentence a young man to live the rest of his life in prison for this offense!

Posted by: Margaret Moon | Apr 13, 2017 10:49:13 PM

I have proposed e-discovery of the judge's computers and devices, as a duty in professional standards of due care for all defense lawyers. The lawyers are unanimous, that will be left to a pro se litigant, even if they see the reasoning behind it.

Posted by: David Behar | Apr 14, 2017 2:00:21 AM

Sarah. Thank the feminist lawyer and its male running dogs for this witch hunt of the productive male. We males owe them payback.

Posted by: David Behar | Apr 14, 2017 2:03:35 AM

Judge and prosecutor should be so ashamed, how do they sleep at night?
Hope the appeal has a better end result for this young man who has maintained his innocense from day one. Wish he had taken the plea, but I totally understand, why would you want to go to prison for 5 yrs and be put on the registry if you are innocent?
I believe those P2P share websites can corrupt your computer with CP files you didn't ask for, even if you are just dowloading music. Have read too many stories on advocacy sites about it happening to others, and I seriously doubt all those people are "making up" the same story.
Can only imagine this guy's thoughts on how the law has failed him. So sad.

Posted by: kat | Apr 14, 2017 9:05:34 AM

kat:

Decisions like this, without EVIDENCE that there was a transfer of money or a deliberate search for said files demonstrates that the law has failed ALL of us. The protections provided by the Constitution and the Law aren't worth the paper their printed on.

This not only leads to disrespect for LE, judges, prosecutors and defense attorneys who do not cry out loud enough, but outright hatred of government, lawmakers and idiots which turn a blind eye to it.

Posted by: albeed | Apr 14, 2017 12:17:53 PM

Where is the evidence that criminalizing the viewing and possessing of KP eliminates any market for someone to produce it? When has criminalizing anything deterred the behavior being targeted? If it were even remotely possible, would there be a need for judges, criminal attorneys, or jailers? Giving this guy 100 years isn't going to put a dent into the KP "market."

Posted by: Huh? | Apr 14, 2017 6:38:08 PM

IN my experience, the judicial system probably has more porn on their computers and backgrounds. One hundred years for porn (pictures), a first time offender? Somebody sure thinks they are above the Law. Incompetent judicial system? Who made the porn? Who sent the porn? Where is the Law that you can not view material that is in public view? This is completely wrong in our society, he claimed to be innocent, what ever happened to innocent until proven guilty? Courts are lazy and waste money for profit.

Posted by: LC in Texas | Apr 15, 2017 10:46:15 PM

While CP should be illegal, it should be treated more so like a copyright case and focus on the producer. We don't prosecute people if they possess a torture video such an ISIS video of people getting burned,amputated,beaten,etc

In addition are "adult rape" videos treated the same? What about abu grahib? If the person committed a henious, there's a great chance he/she would receive a lesser sentence.

Posted by: ash | Apr 16, 2017 1:21:00 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB