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May 11, 2006

What ever happened to state constitutional law, textualism, and libertarianism?

As noted here, yesterday 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 U.S. Constitution's prohibition of "cruel and unusual punishments."  All three opinion in Arizona v. Berger, No. CR-05-0101-PR (Ariz. May 10, 2006) (available here) are fascinating, thoughtful, and worth the time to read if interested in these issues.  (Based on Berger and earlier Blakely work, perhaps the entire Arizona Supreme Court might merit a place in my Sentencing Hall of Fame.)

Though much could be said about Berger, three particular issues/questions came to mind as I reflected on the ruling and the Arizona Justices' opinions:

1.  What about state constitutional law?  Throughout Berger, the Arizona Justices seem to struggle with the Supreme Court's Eighth Amendment jurisprudence and hint that, absent controlling SCOTUS rulings, the case might have been resolved differently.  This led me to wonder about the distinct provision in the Arizona Constitution prohibiting the infliction of "cruel and unusual punishment."  Though bound by SCOTUS interpretation of the Eighth Amendment, the Arizona Justices have a unique authority and obligation to interpret state constitutional provisions (and many state supreme courts have provided defendants enhanced rights based on parallel state constitutional provisions).  Did a state constitutional law claim get raised in Berger?  Could (and should) the Arizona Justices have taken up the issue sua sponte even if not raised below?

2.  What about textualism?  Throughout Berger, the Arizona Justices debate whether there was "gross disproportionality" in the 200-year sentence.  Though this is the focal point of modern Eighth Amendment jurisprudence, I am always troubled that the actual constitutional text gets lost in these cases.  The opinions in Berger make clear that a 200-year sentence for a first-offender downloading terrible pictures is "unusual"; it also seems kind of "cruel."  This textualism concern dovetails with point 1 above: though perhaps bound to ignore the actual text of the Eighth Amendment, the Arizona Justices certainly could (and should?) give distinctive attention to the text of Arizona's constitution prohibition on inflicting "cruel and unusual punishment."

3.  What about libertarianism?  Shouldn't libertarians and folks concerned about privacy issues (such as those who blog here and here and here) be troubled by this case?   The defendant's criminal conduct in Berger essentially consisted of downloading the wrong type of dirty pictures using his computer in the privacy of his own home.  For this he gets a mandatory 200-year sentence, which apparently cannot even be reduced through a pardon or clemency under Arizona law.  Though it is well-settled that simply possessing child pornography can be a crime, shouldn't those who argue for constitutional limits on government power be troubled by how severely Arizona is punishing Mr. Berger?

May 11, 2006 at 01:07 PM | Permalink


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I took my first look at the Law & Society Blog today, and it is a clear winner. This brilliant post by Hanno Keiser, on a 200 year sentence for possession of child pornography in Arizona, is just a brilliant display of what blogging can be: deep, eng... [Read More]

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Tracked on Feb 23, 2007 12:06:01 PM


Here is what Berger did, from paragraph 5 of the opinion:

"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."

While it may be literally true to describe this as "downloading the wrong type of dirty pictures using his computer in the privacy of his own home," it is considerably more serious than that phrase implies.

These pictures were made by doing terrible things to children. If Berger paid for them, he helped create the market that gives people the incentive to commit such acts for profit. I have no problem with severely punishing people who have a casual role in the rape of children, although if I had a choice I would probably set the punishment below LWOP (which is what this is).

The problem, as the dissent points out, is that there is no evidence in the record that Berger bought them. Is this kind of stuff available for free on the Internet? I'm not sure why people would post this for free, but people do a lot of strange things.

Given that they had the defendant's list of favorite sites, it would seem to be fairly simple to determine if they were free or paid.

From the standpoint of public debate, I think it is a mistake to assume that a particular defendant's actual act is only the adjudicated elements. We can ask in the abstract whether an additional element should be added to the law, but we should not be outraged over this particular sentence without knowing the as-yet-missing fact.

Posted by: Kent Scheidegger | May 11, 2006 1:49:49 PM

Correction to the above post: I typed "casual" when I meant "causal."

Posted by: Kent Scheidegger | May 11, 2006 1:52:41 PM

I agree with Kent Scheidegger that there is probably more to the case than the opinion records. But the fact is that this defendant's sentence is worse than most murderers receive. Either we are grossly under-punishing murders (I don't think so), or we are grossly over-punishing possession of child pornography -- appalling though it is.

It is argued that possession contributes to the demand for such photographs, and therefore each perpetrator is contributing (indirectly) to the abuse of a child. Although the demand argument is no doubt true, this was the very argument that led to long-term sentences for mere possession of illegal drugs--an overly harsh policy that is now being rethought in most of the states.

Posted by: Marc Shepherd | May 11, 2006 4:43:53 PM

Although several states grant broader state-law protection, apparently the Arizona Supreme Court views the Arizona and federal constitutional standards as the same. But cf. State v. Davis, 79 P.3d 64 (2003), a post-Ewing holding, distinguished in Berger, that four consecutive 13-year- minimum sentences for statutory rape violated the federal constitution.

Another perspective on textualism is how different texts can produce very different proportionality review, depending on the context. Civil forfeitures (under the "excessive fines" clause), punitive damages ("due process"), and "takings" of private property all seem to get closer judicial scrutiny than life-long imprisonment.

Yes, libertarians ought to be outraged at such extreme invasions of liberty – at least as much as they are with invasions of property (above).

Some additional comments, after a quick read of the Berger opinion. First, the court asserts that consecutive sentences do not enter into proportionality analysis? Why not? Second, the court says it doesn't matter that Berger has no prior convictions -- so a long prior record can help the government, but the absence of any record can't help the defendant. Huh? Third, Mr. Berger did not get a full evidentiary hearing on proportionality issues in the trial court.

As for Kent Scheidegger's post, it's not surprising that a strong supporter of the death penalty isn't concerned about draconian prison sentences. Even so, his comments are as extreme, and superficial, as the Arizona Supreme Court's decision.

1. Scheidegger says it's important to know whether Mr. Berger paid for his downloads. There was no proof that he did. But even if he paid for all of it, are we going to give 200-year sentences to everybody who repeatedly buys illegal drugs or illegal weapons that can cause terrible harm to people?

2. If this sentence is OK, what greater sentence can we give the people who actually make and sell the porn? The death penalty? Even if that were held constitutional (doubtful, under Coker), what more could we do to murderers, let alone the worst murderers?

3. If the market for this material is so damaging, why is the stuff so readily available on the internet? Apparently our state and federal law enforcement officials believe their limited resources are better spent on other crimes.

4. What purposes of punishment are served by this sentence?

5. Wouldn't all of those purposes be adequately served by a much less severe sentence?

Bottom line: to decide whether Mr. Berger's sentence is excessive, we have to be precise -- a lot more precise than the Arizona Supreme Court was -- about what we're trying to achieve and the alternative measures available. Mr. Berger's sentence was clearly excessive in a retributive sense, relative to his minor role in causing harm and the penalties given to far more culpable offenders. It was also excessive in terms of crime-control purposes -- the costs and benefits of his 200-year sentence, and the lesser alternatives available. (For further discussion, see my article, subtitled "proportionality" relative to what? 89 Minn. L. Rev. 571.) These are important questions for legislative and executive officials, as well as for courts. The failure to address them is one reason the U.S. leads the world in locking people up (see the later Sentencing.typepad posting, today).

Posted by: Richard Frase | May 11, 2006 5:23:14 PM

As an interested layperson in this area I'd like to add another example to Marc's argument:

By the same token we should hold employers who hire illegal aliens as guilty of encouraging them to come to this country illegally. If this ever came up I wonder if each illegal hired would constitute a separate infraction - and the employer punished incrementally for each such hiring.

Posted by: Bill Prange | May 11, 2006 5:29:17 PM

Buying illegal drugs is not analogous. Drugs only cause direct harm to the people who use them. Buying drugs creates a market incentive to produce or import drugs, acts which in themselves cause no harm. While the market in illegal drugs does cause other harms, the causal connection is much more attenuated.

If you pay a person to kill someone, you are just as culpable as the triggerman. The people who buy a "snuff movie" have, collectively, paid for the murder. The people who buy a video of a child being raped are collectively guilty of rape for hire.

Of course it would be appropriate to take into account that this responsibility is spread over a great many people, each with a small contribution. What I object to is the characterization of this offense as merely possessing dirty pictures, placing it in the same category with possession of porn produced with consenting adults. This is fundamentally different.

For those who missed it the first time, I do not think this is the correct sentence for this crime. However, what I agree with and what is constitutional are two very different things. See Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).

Posted by: Kent Scheidegger | May 11, 2006 6:31:49 PM

Perhaps someone here can enlighten me as to HOW the state of Arizona gets away with some of these RIDICULOUS sentences?? Are there other states that carry the same or similiar sentencing guidelines? And why have "Post Conviction Relief" alternatives, if no one has a snowball's chance in hell of ever actually taking advantage of it? Please, someone, help me understand...I have a personal experience I could put down, but it would likely take up too much space!!

Posted by: Theresa | May 12, 2006 5:52:27 AM

I am not an expert in the AZ criminal code, but am I correct in assuming that the possession of this material has resulted in a punishment far worse than had the defendant actually engaged in some of these acts with a child?

Posted by: Ryan | May 12, 2006 9:43:27 AM

I disagree with Kent Scheidegger's categorical statement, "The people who buy a video of a child being raped are collectively guilty of rape for hire." As far as I can tell, the Arizona law would operate indiscriminately if the images were taken a hundred years ago, and the person who produced them wasn't paid a dime.

There's no dispute that child pornography is disgusting, regardless of the circumstances of its production. But categorical statements equating it to "rape for hire" obscure the ability to distinguish between one offender and another. The Arizona statute is so severe that this defendant would have been better off had he raped a child himself.

Posted by: Marc Shepherd | May 12, 2006 12:01:47 PM

Berger is more extreme than even many of the most notably harsh U.S. Supreme Court 8th Amendment jurisprudence.

First, Berger, unlike most of the cases in which very long sentences for relatively non-serious offenses have been upheld, has no prior criminal record. It is one thing to say that a very long or life sentence is justified for a repeat felony who commits another minor felony, and another to say that the same penalty is justifable without that serious aggravating factor.

As dissenting Arizona Supreme Court Justice Berch notes in her dissenting opinion, the sentence under the federal sentencing guidelines for this offense would have had an upper range of less than six years. Arizona's ten year minimum sentence for a single image is more than the maximum in 36 states for any child pornography offense, and equal to the maximum sentence in 9 other states. Thus, only four other states permit a sentence longer than 10 years for any child pornography possession offense.

The next most harsh state is Florida, which requires a sentence of five years per image with the possibility of parole, as opposed to ten years per image with no possibility of parole in Arizona. In most states the maximum sentence would be five years with a possibility of parole at an earlier date.

She also notes that in Arizona, the minimum sentence for second degree murder is the same as the minimum sentence for possession of child pornography, but unlike second degree murder, sentences for multiple crimes committed at the same time as a murder can be served concurrently. They frequently would be if they were committed at the same time by a first time offender.

The presumptive sentence for second degree murder or rape of a child under twelve in Arizona is twenty years. It would be rare to receive more than ten years in prison for molesting a child in Arizona. The presumptive sentence for rape of an adult in Arizona is seven years, and the presumptive sentence for aggravated assault in Arizona is 3.5 years.

A 200 year term without possiblity of parole is identical to a life sentence without possibility of parole. No one has ever lived that long and the defendant in this case, a high school teacher, was at least 22 years old. Even a 100 year sentence would have been equivalent to a life without possibility of parole sentence in this case. But, this sentence is only permitted for capital murder which would also could result in a death sentence and a couple of other crimes.

Kent Scheidegger rightly notes that child pornography is serious because it encourages the rape of children. Indeed, the Berger opinion makes essentially the same point as the primary justification for such a harsh sentencing regime. But, a sentencing scheme which punishes viewing pictures of child rape, in which the defendant had no direct involvement in creating and did not hold for the purpose of distributing, with a sentence ten times as long as the sentence for actually personally raping or killing a child doesn't even meet a rational basis standard in an equal protection analysis. California recently held part of California's statutory rape statute unconstitional, when presented with a much finer distinction, on 14th Amendment equal protection grounds.

The 8th Amendment wasn't put in the U.S. Constitution, and the Arizona State Constitution, to be a dead letter. It would be one thing if this sentence were upheld by a British judge prior to the UK assenting to the European Convention on Human Rights. They didn't have judicial review of legislation and don't have an 8th Amendment, or a 14th Amendment. The United States and Arizona each have judicial review on the grounds that punishments are cruel and unusual and on the grounds that statutes deny individuals equal protection of the laws without a rational basis for doing so.

Posted by: ohwilleke | May 12, 2006 12:25:20 PM

Here is a May 2, 2006 news story from KOAA Television in Colorado that points out how absurd Arizona's laws are. Doug Berman is righ to place the Morton Berger ruling in his Sentencing Hall of Fame (or should we say Shame):

Local authorities try to make tougher child porn laws
KOAA May 2, 2006

El Paso County District Attorney John Newsome questions what he calls a gap in Colorado's child pornography laws, and he is working with state lawmakers on a change.

House Bill 1092, which Newsome helped author, has passed the Colorado House of Representatives and is off to good start in the Colorado Senate. Distributing child porn is a felony in Colorado, but some are surprised to learn possessing child porn is currently a misdemeanor crime. The bill makes possessing child porn a felony. Newsome said, "We're sending a message now in the state, I'm confident the governor's going to sign the bill, that you get caught with one of these images, and you knowingly possess it, it's a felony."

If passed the law makes a possessing child pornography a class 6 felony. That carries a fine of between $1,000 to $100,000 and between 12 and 18 months in prison.

Posted by: Jim | May 12, 2006 8:05:41 PM

This quantity determination of 10 years per picture, like drug laws, punish the small offender the same as the major trafficker. There is no allegation, and I assume Berger was not charged with distribution of child pornography and he received a 200 year sentence, if he had possessed 1,000 pictures he would have received 10,000 years and a million pictures 10 million years, so tell me what is the difference in the sentences, “in for a penny in for a pound”, there is only so many years in a life. Child pornographers and child molesters and abusers all disgust me and deserve the punishment and ostracism they receive in and out of prison, but impose sentences with a possibility of performance. A picture is still just a picture, some people have pictures or paintings depicting horrible tortures and murders, these are not harmful, certainly prison space reserved for 200 years could be better utilized.

Posted by: Barry Ward | May 13, 2006 8:26:40 AM

Recently I went into Blockbuster to rent a DVD that would be good subject matter for a friend and her teenage son. I found a DVD with a cover that depicted the film as a redemptive film about a young man living on the street who found redemption in the taped story of his grandfather in WWI. That seemed innocent enough, but the movie turned out to be gay porn pure and simple, and propoganda for the gay lifestyle. My question is if Blockbuster violated the law in some way for not properly labeling or controlling access to such a DVD. Anyone could have rented this movie. When I asked Blockbuster for my money back they refused. I have since called their district manager and am waiting for his response. I'm just curious about the law on the matter.

Posted by: Dean Cozzens | Aug 10, 2006 10:37:19 PM

Recently I went into Blockbuster to rent a DVD that would be good subject matter for a friend and her teenage son. I found a DVD with a cover that depicted the film as a redemptive film about a young man living on the street who found redemption in the taped story of his grandfather in WWI. That seemed innocent enough, but the movie turned out to be gay porn pure and simple, and propoganda for the gay lifestyle. My question is if Blockbuster violated the law in some way for not properly labeling or controlling access to such a DVD. Anyone could have rented this movie. When I asked Blockbuster for my money back they refused. I have since called their district manager and am waiting for his response. I'm just curious about the law on the matter.

Posted by: Dean Cozzens | Aug 10, 2006 10:37:29 PM

I happen to know Berger and his family very well and have known them for the past 24 years. There is so much more to discuss about this case. You would be amazed to find out that the people that actually took the pictures got less then Berger did for one of his sentences!

Posted by: Stephanie Stone | Aug 30, 2006 4:01:30 PM

HELP my 16 yr old son got his 14 yr old girl friend pregnant, can her father have my boy arrested for statutory rape??

Posted by: kerry | Oct 14, 2006 3:12:13 AM

p.s. the state of az.

Posted by: kerry | Oct 14, 2006 3:13:58 AM

US Supreme Court refuses to consider the case of man sentenced to 200 years for possessing child pornography.

February 26, 2006

Morton Berger, a former high school teacher, argued that his sentence was grossly disproportionate to his crime, amounting to cruel and unusual punishment under the Eighth Amendment.

A judge in 2004 sentenced the former Cortez High School teacher to consecutive 10-year prison terms on each of 20 convictions for sexual exploitation of a minor. Each of the 20 counts was for possessing computer and printed images of child pornography, and 10 years was the minimum sentence for each count.

In 2002, Morton Berger was a married, 51 year old high school teacher when AZ ICAC Task Force investigators conducted a child pornography investigation at his home. Pursuant to a search warrant, investigators uncovered Berger's demented pornographic treasure trove including binders containing printed images and thousands of computer files of every imaginable style of pornography.

Arizona State Law contains serious penalties for possession of child pornography. A single image carries a sentencing range from 10-24 years mandatory prison with no early release provisions. Prosecutors offered Berger a plea of 17 years prison which he declined.

Prosecutors charged Berger with twenty of the unlawful images. After trial, the horrified jury quickly convicted, and Maricopa County Superior Court Judge Ruth Harris Hilliard sentenced Berger to the mandatory minimum, ten years prison for each of the twenty images.

Berger appealed the 200 year sentence based on arguments of equal protection under the law and cruel and unusual punishment. In December 2004, the conviction was affirmed by two of the three judges of the Arizona Court of Appeals (Division One). Judges Susan Ehrlich and Philip Hall dismissed Berger's appeal with well-reasoned and researched arguments including (citations omitted):

* It is evident beyond the need for elaboration that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling.

* …the victimization of a child continues when that act is memorialized in an image. The materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. Unfortunately, the victimization of the children involved does not end when the pornographer's camera is put away.

* The legislative judgment…is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.

* …the possession of child pornography drives that industry and…the production of child pornography will decrease if those who possess the product are punished equally with those who produce it.

* …it (the law) will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.

* …the possession of child pornography inflames the desires of child molesters, pedophiles and child pornographers.

* The State has more than a passing interest in forestalling the damage caused by child pornography: preventing harm to children is, without cavil, one of its most important interests. …we cannot fault the State for attempting to stamp out this vice at all levels in the distribution chain.

* Berger downloaded images from the Internet, and every time he visited a website, he demonstrated to the producers and sellers of child pornography that there was a demand for their product. Berger's demand served to drive the industry; there need not have been a direct monetary exchange.

* Berger maintains also that, because his possession of the pornographic images was passive and because he did not use threats or violence in the commission of his crimes, his sentence is grossly disproportionate. This logic is abstruse. As was described by this court in Hazlett, 205 Ariz. at 527 p 11, 73 P.3d at 1262, and as is evident from the violent pornographic images in this case, child pornography is a form of child abuse.

* The materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.

Posted by: Dr. Frank Kardasz | Feb 26, 2007 5:12:46 PM

This has nothing to do with constitutional law, textualism, and libertarianism!
This is about cretinism, American stupidity is OUTSTANDING!
This is a clear message to all Arizona's paedophiles :
Don't bother with child pornography, grab a child and rape her/him it will be more rewarding and "cheaper" if you get caught!

P.S. I am a nobody, just "philosophically" inclined.

Posted by: Kevembuangga | Feb 27, 2007 6:55:16 AM

It is interesting to see that the judges appear to have the belief that the child pornography is an industry and that it is being maintained by the persons who have downloaded the images. Mean while we read in newspapers how these images are being distributed almost exclusively inside child pornography 'rings' that have internal supply by some of its members.

The way how stamping out and punishing in such a cruel and unusual way some of the people possessing these pictures could have any deterring impact on the actual photographers and criminals is highly questionable and definately out of proportions. Since when have a photograph carried any other meaning besides being proof of a crime where someone molested a child? The amount of "victimization of the children", as the judges put it, does not get multiplied with every copy of the photograph made.

This punishment practice is like executing every fifth petty thief to discourage organized crime. I thought this kind of measures were part of the dark ages or martial law? Perhaps i missed it when the military took control of the administration of justice. It's year 2007 for crying out loud, it has been established that these methods do not work.

While molesting a child is a horrible thing and that person certainly deserves the 10-20 year sentence for it, possessing a picture of that crime is a far cry from actually doing it. Can't someone beat some sense into the justice system?

Posted by: Fuu | Mar 5, 2007 7:40:21 PM

Arizona legislators knew what they were doing when they drafted the law: There is no crime worse than to have an inappropriate photo. I’m sure they wanted the death sentence given but declined given that a person can’t be killed again and again for each separate photo.

Posted by: Bill | Mar 8, 2007 3:21:28 AM

This is what you get when real world facts are replaced by nonsensical dogmatic laws. Child abuse is indeed a horrible crime. If you download pictures and pay for them you are contributing to the crime. But I was shocked to read here that it wasn't even established that this person had indeed payed for the pictures.

One can conjecture all sorts of reasons why what he did contributes to the suffering of children who are abused for pornographic pictures. But these are not hard facts supported by scientific evidence at all. One could just as well say that the fact that pedophiles can download child porn will make them less inclined to abuse children.

In fact, the best way to fight the child abusers would be for the government to make massive amounts of child porn and to distribute that free of charge on the internet. That can be done purely in a digital way, so it wouldn't involve any child abuse. They could also copy pictures from illegal sites and distribute those.

This will cause the child abuse maffia to go out of business. Real child abuse would then be prevented. The objections against this plan can only be the flawed reasons for which Berger was sentenced to 200 years. So, I think it is high time we start to fight the real child abusers instead of the imaginary ones.

[I am a physicist who has very little knowledge and respect for the law.]

Posted by: Count Iblis | Mar 21, 2007 7:05:04 PM

I live in Arizona,, and I actually work in law enforcement, and I am familiar with the Berger case. Though I am not an attorney and only have a moderate level of knowledge of the legal system, I do know that this sentence is absolutely outrageous. I also know if Mr. Berger was convicted in federal court, as alot of child pornographers are, he would of gotten a much lesser sentence. Also, these teachers who have inappropriate relationships with their students and other child molesters who have actually caused harm to a minor, get lesser sentences than Mr. Berger. I do not think the law and sentencing statutes are intended to work this way. I also do not know if Judge Ruth Hilliard could of sentenced him concurrently and not consecutively, but I do not believe she understands what types of criminals should die behind bars. Truthfully, Mr. Berger would of been better off molesting a child or killing someone, as horrific as this sounds. I see repeat offenders that are actual threats to society get released back into the public and some of these incorrigible scums have committed worst offenses than Mr. Berger-look at Mark Gaedeau-the Baseline Killer suspect. As gross as Mr. Berger's crime was, and yes, he is a pervert-he absolutely should serve some time in prison, be required to register as a sex offender upon release and get lifetime probation-this crime does not fit the punishment. And I get bet the individuals who produced this stuff and marketed it, more than likely got lesser sentences than Morton Berger. Is this fair? I hope Mr. Berger can have a victory somewhere but I really dont see it coming. Until the sentencing statutes for this type of crime get re-written, and until the judges consider the person's criminal record (or lack of one), education,violent nature,person's impact on society,and how culpable the crime is, this type of sentence will likely be administered again. It is a shame.

Posted by: Kris | Nov 23, 2007 12:38:14 AM

Here is another example you can debate. A person that does not even pay for images, but simply trades them with other AOL users can and will be convicted of a Felony. They will call the trading of images "distribution" (how else can you get images...no one is just going to give them for free unless you give them something back). This carries mandatory jail time, even if you have never been convicted of anything in your life. There are 1000's of these images just floating around the net, free for the taking. You fall into a false sense of security, that if you are not paying for these images, or in a chat room dedicated to child porn, that you are just acting on a curiousity. They can even use deleted images against you. I can tell you that this person never had sophisticated files, etc, just some images on their computer, and they are facing 8-10 years in jail for looking at pictures. I hate to sound sensational, but this is turning into a Gestapo like country. Illegal aliens and meth labs don't seem to be a prime concern anymore.

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Posted by: | Oct 14, 2008 11:14:33 PM

Careful when casting stones. The logical extention supporters of Berger's sentence should agree to is that any consumer of any media depiction of harm to a child deserves severe punishment. We therefore have a nearly universal pool of suspected violators--the judges, communities and, I suppose, myself included. Consider: I have watched the classic and more recent films of the novel, Oliver Twist. I have also seen this classic in a play. Now that I have admitted this, I might anticipate law enforcement to knock on my door. Some months or years later I should expect that clips from the abuse of little Oliver to be proof conclusive to the jury of my peers that my admission in this email proves my support for the evil purveyor of images of child abuse. Thus, I am perpetuating an industry that makes money from a story of a child's suffering--albeit of a fictional nature. I have seen the classic movie twice and the more modern version once, and I have seen the play by my own admission. Therefore, by Arizona sentencing guidelines for child pornography and similar abuse, I should serve 3 consecutive 20 year sentences. I am 57 now so I will be a lifer if the moral guardians actually get around to prosecuting me and my kind for my evil thoughts and my support of an evil industry that continues to depict child abuse. Obviously we cannot have me and my kind--you--free in society with our illegal consumption of products. Watching is prima facia evidence of doing harm. And for you and my kind, there is no protection against cruel and unusual punishment.

Posted by: | Nov 23, 2008 1:07:52 PM

What I object to is the characterization of this offense as merely possessing dirty pictures, placing it in the same category with possession of porn produced with consenting adults

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