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September 22, 2006

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.

Some related posts:

September 22, 2006 at 09:15 AM | Permalink


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Given SCOTUS's track record on this issue, I predict a denial of cert.

In the unlikely event of a cert. grant and a reversal, SCOTUS is not going to displace the public policy that led to this sentence in the first place. Berger will still wind up with the functional equivalent of a life sentence.

Even if his sentence were reduced by 90% (20 years, rather than 200), Berger stands a pretty good chance of dying in prison.

Posted by: Marc Shepherd | Sep 22, 2006 11:45:17 AM

The petition for a writ of certiorari was filed on September 7, 2006. Arizona's response is due October 11, 2006. The case is No. 06-349.

Posted by: Marc Shepherd | Sep 22, 2006 11:51:01 AM

I think that there is a realistic chance of cert in this case. What distinguishes it from the vast majority of other cruel and unusual cases is the defendants' lack of a prior criminal record.

Also, compared to the jurisprudence on the death penalty for juveniles and the retarded, this is a slam dunk. No U.S. state comes close, and don't even begin to discuss international standards.

Also, I think that quite a few justices might wish to argue for the "total sentence against the total crime" standard, and may have felt that Arizona inappropriately concluded that consecutive sentences can't be cruel and unusual if none of them in isolation is cruel and unusual.

It is a close case, but there might very well be four votes to grant cert on it.

Posted by: ohwilleke | Sep 22, 2006 9:15:32 PM

But if your the Governors son in Arizona and you stick a baton up other boys butts at daycamp you can get away with it? Arizona has a long way to evolve apparently.

Posted by: Griffin | Sep 23, 2006 9:07:33 AM

Sorry not the governor. State Senator is more like it. Here's the link. http://www.azcentral.com/arizonarepublic/local/articles/0402bennett02.html

Posted by: Griffin | Sep 23, 2006 9:11:41 AM

Links not working. Here's the story.

Families outraged at legislator's son's plea deal
Assault penalty called too soft

Robert Anglen
The Arizona Republic
Apr. 2, 2006 12:00 AM

The son of Arizona's Senate president confessed that he and another counselor shoved broomsticks and flashlights into the rectums of 18 boys in at least 40 incidents at a youth camp in June.

Now Yavapai County prosecutors say they will drop all but one assault charge and likely recommend little or no jail time if 18-year-old Clifton Bennett agrees to plead guilty.

A similar agreement has been offered to co-defendant Kyle Wheeler, 19, who faces an additional assault charge for choking three of the boys until they passed out. advertisement

The plea agreements were first presented in court last week and could be completed at a hearing Monday.

Prosecuting attorney James Landis explained the plea agreement in court, saying the "broomsticking" was a hazing ritual and a punishment, not sexual assault.

But legal experts, sex-crimes prosecutors and victims'-rights lawyers say the acts clearly fit the definition of sexual assault.

The pleas, which describe the assault charge as "a non-dangerous, non-repetitive offense," have outraged parents who say their sons were victims of violent sexual attacks. The boys, who were 11 to 14 years old at the time, have had trouble going to the bathroom, sleep with clothes on, are afraid at night, and have undergone sexual-assault counseling.

The parents want Bennett and Wheeler to face sexual-assault charges, undergo psychosexual evaluations and spend several days in jail per victim.

"Our biggest concern is that these kids are going to do it again," said the mother of an 11-year-old Tucson boy. "My son had something shoved up his butt seven or eight times. If that's not sexual assault, what is?"

Landis said in court that the case was never viewed as "sexual in nature," in part because prosecutors could not prove Bennett and Wheeler had sexual intent. Parents of the victims said Landis told them privately that the incidents occurred while the boys had on clothes or swimsuits and that there was no evidence the defendants are homosexuals.

"We would certainly start from a different perspective if it was girls (as victims)," he said in court.

36 counts for each man

Bennett and Wheeler were arrested in January and charged with 18 counts of aggravated assault and 18 counts of kidnapping because the victims were held down.

Landis would not comment on the case and referred questions to Yavapai County Attorney Sheila Polk, who said she was ethically barred from discussing an active case.

But experts who specialize in sex crimes say sexual intent is rarely a factor in charging sexual assault; and sexual orientation has nothing to do with it.

"They could have been charged with sexual assault," said Sue Eazer, supervisor of the Pima County Attorney's Special Victims Unit. "Sexual assault is oftentimes not motivated by sexual desire."

Eazer said she has prosecuted several sexual-assault cases involving objects being shoved into children's body cavities.

"It makes no difference to me if it is a male or female (victim)," she said, adding that intent can be a factor in cases of child molestation, where a parent might be accused of touching an infant while changing a diaper.

The Yavapai County case has national implications for the legal system, said Andrew Vachss, a lawyer specializing in child cases and a best-selling author who uses profits from his books to fund legal work for abused kids.

"This is a theory of prosecution that is based on taking the word of the perpetrators," Vachss said in a phone interview from his New York office. "That's what you have juries for . . . Let the perps tell a jury, 'I inserted a foreign object into the rectums of little boys, but I had no sexual intent.' "

Vachss, who was asked to comment on the case by The Arizona Republic, said most state laws on sexual assault require only insertion, not intent.

Intent called 'red herring'

He called the issue of intent a "red herring" meant to distract from the fact that a deal is being cut.

"The bottom line is you don't have to prove sexual intent when you have such gross assault," he said. "It looks like one of the most sweetheart deals of all time."

Vachss pointed to a sexual-assault case that was described as hazing in Mepham, Pa. Three football players used golf balls, pine cones and broomsticks to sodomize three other players during training camp last year. All of the defendants were charged with sexual assault.

The 18 Arizona kids were among the state's top student leaders at a weeklong camp in Prescott to learn student government leadership skills.

Public records show that Bennett and Walker were assigned to stay in a cabin with the boys. In the first hours of camp, Bennett and Wheeler announced that campers who broke rules would get a "brooming."

They were punished for flatulence, making messes, not following rules and sometimes for no reason at all, records show. The camp ended in June, but police weren't notified until six months later, when one of the boys told a school official what happened.

But parents say there were signs something bad happened. In a letter home to his mom, a 12-year-old boy described his experience:

"I don't like our counselors when their (sic) talking about shoving broomsticks up our butts," the boy said.

In court last week, Bennett apologized for his role. "The actions that occurred there, none of us considered the consequences that would follow," Bennett said. "The next time I saw these boys, I never expected to see them here."

Bennett said he was "trying every way he can to rectify the situation."

Parents of the victims described Bennett's remarks as self-serving.

"My son was barely 13, and he was grossly abused," the mother of a Phoenix boy said.

Bennett's father, Senate President Ken Bennett, R-Prescott, sat behind his son in court.A Prescott native and influential businessman, he has said little publicly about the case. After his son's arrest, he issued a brief statement expressing concern as a parent.

Lawyers for Bennett declined to comment. But in a letter to the Yavapai County attorney, Bennett's lawyers said he immediately "took responsibility for his role, showed remorse and admitted that this 'hazing' was inappropriate."

Mission in jeopardy

They described Bennett as an honor student and active member of the Church of Jesus Christ of Latter-day Saints, planning to go on a mission in September. "A felony conviction for assault will make his desire to complete his mission impossible," they wrote.

Under the plea agreements Bennett and Wheeler could face a maximum two years in prison. But the court could reduce the charges to a misdemeanor and no jail time.

Prosecutors have told parents that they are going to recommend Bennett and Wheeler get five days in jail on the one count, said Lynne Cadigan, a lawyer for two victims.

"If you rape 18 women, would you only be charged with one count?" she said.

Cadigan said allowing Bennett to go on a mission is preposterous. Both he and Wheeler need psychological counseling and should be in a place where their actions, particularly among children, can be observed, she said.

"Could he be a perpetrator in the future?" she asked.

Lawyer and author Vachss echoed that concern. He said the plea damages both victims and defendants.

Vachss said the prosecutor appears to be saying to kids, "if you didn't like it, you shouldn't have put up with it." And he said it is telling the defendants you can get away with it.

That has the potential to make victims angry and make perpetrators feel invulnerable, all of which could lead to future violence against children, he said.

"Everybody involved in this is being treated wrong, from the victims to the perpetrators

Posted by: Griffin | Sep 23, 2006 9:15:25 AM

because of such things like child pornography I'm going to buy a child tracking device for my little girl.I'm scared that it might happen something bad to her.

Posted by: Cara Fletcher | Jun 20, 2007 12:49:21 PM

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