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February 23, 2007

Another chance for cert in Berger

In my punitive damages commentary here and here after the SCOTUS Philip Morris decision, I have suggested that Justices eager to constitutionally second-guess some harsh corporate punishments should also be willing to constitutionally second-guess some harsh individual punishments.  And a case now being reviewed by the Court — in which first-offender Morton Berger challenges his 200-year prison sentence for possessing child pornography (basics here, commentary here) — presents a unique opportunity for the Court (and its new Justices) to grapple with its confusing non-capital Eighth Amendment jurisprudence.

As detailed in this docket sheet, the Berger case was discussed by the Justices at conference last week and is now slated to be discussed again today.  For various reasons developed in prior posts, the Berger case seems like a great vehicle for the Court to explore its doctrines on what constitutes cruel and unusual punishment:

February 23, 2007 at 07:24 AM | Permalink


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Tracked on Feb 23, 2007 4:16:27 PM


Kent Scheidegger, could you please send me your email address at [email protected]?
I couldn't get it on the C and C website and
I wanted to send you my position about why the
word "penalty" in the Apprendi Rule means
"potential sentence to which the def is exposed"
not "actual sentence imposed."

Briefly, two of my main sources is Stevens'
statement in Apprendi immediately following
the Rule, that "It is unconstitutional for a
legislature to remove from the jury the
assessment of facts that increase the prescribed
range of penalties to which a defendant is

Secondly, in Cunningham Ginsburg says,
"This Court has repeatedly held that, under
the Sixth Amendment, any fact that EXPOSES a
defendant to a greater POTENTIAL sentence must
be found by a jury, not a judge, and established
beyond a reasonable doubt, not merely by a
preponderance." (emphasis added)

I look forward to hearing from you.


Posted by: bruce cunningham | Feb 23, 2007 9:43:35 AM

"The Berger case seems like a great vehicle for the Court..." Not with facts like these (taken from Arizona's brief in opposition to cert, available on Westlaw):

"As reflected in the State's response to Petitioner's motion for release, Petitioner's child-pornography collection was extensive, graphic, and extremely disturbing:

The images included bondage, torture, and young girls having intercourse with dogs. Children are blindfolded, hands tied, being urinated on, and wearing dog collars. There are numerous video files, most involving girls as young as 3 years old being forced to perform oral sex on adult men and being vaginally and anally raped by adults. There is a particularly disturbing video of a young (no more than 4 years old) girl struggling and crying and begging her abuser to stop as he holds her by the throat and ejaculates on her face and forces his penis into her mouth….

Almost all of his thousands of images were of children engaged in sexual acts, not just exploitative exhibition. On a more disturbing note, this defendant not only stored images of little children with blindfolds and hands tied, being raped, tortured, forced to have sexual intercourse with dogs mad other animals, wearing dog collars and being urinated on - but he even printed them in high quality glossy paper and neatly stored *3 them in binders so that he could look at them more easily. He has photos of children engaged in sexual acts with other young children as well as with adults sexually abusing them. The children in defendant's images are extremely young, including toddlers. Many of the videos contained on the defendant's hard drive and CD-ROMS are absolutely nauseating and too horrible to even describe. They are quite literally the worst images of child pornography/torture that the undersigned has seen in her career, an opinion also expressed by the State's very experienced expert pediatrician who determined the ages of the children and the experienced detective assigned to this case. One disturbing video actually has a loud audio file attached - a young girl no more than 4 years old, struggling and crying and begging her abuser to stop as he holds her by the throat and ejaculates on her face and forces his penis in her mouth."

Still want to argue that 200 years was constitutionally disproportionate to the crime?

Posted by: bill | Feb 23, 2007 8:43:36 PM

Bill: I'd be fine with 200 years for the folks who produced these materials, but Berger was never personally involved in the production of any of this. He was just a consumer of this horrible stuff. I am eager to have consumers of this stiff suffer some significant punishment, but should this consumption lead to a sentence much longer than most murderers and child rapists receive?

Posted by: Doug B. | Feb 24, 2007 10:06:57 AM

Prof. Berman -- re-read the last sentence you wrote: "should this" lead to a longer sentence than for most murderers and child rapists? Your question seems to frame the issue precisely as what it is, at bottom: a legislative choice on the part of the Arizona legislature to do just that. Might be silly, might be ineffective, but that's what they chose. You state that "you'd be fine" if only others involved in the process got higher sentences. Fine: run for Arizona state legislature; apparently they disagree with you and view consumers, as well as producers, as equally responsible and deserving of the same punishment.

My point is that the way you posed the question illustrates the failings of framing it as a constitutional issue. Any constitutional question framed in terms of "what I'd do" and what someone "should" receive is going to be a tough sell, especially in a subjective proportionality analysis.

And you do have to admit that those facts certainly don't make for a great vehicle, particularly given that the current "proportionality" Eighth Amendment test, being a highly subjective, sliding-scale one, necessarily takes into account every little factor that might contribute to a judicial decisionmaker's perception of whether a sentence was "just" or not. And the "little factors" in this case are all stacked against Berger (schoolteacher, categorization, nature of the child porn, etc).

Posted by: bill | Feb 24, 2007 11:51:31 AM

A 200 year prison sentence for a guy who never hurt anyone? Seems both cruel and unusual to me.

Bill, under your "run for the legislature" theory, then NO sentence can ever violate the 8th Amendmant, because all sentences result, at least in part, from legislative policy decisions. 8th A has to put SOME check on those policy decisions, and this seems like a good place to start.

Posted by: Anon | Feb 24, 2007 5:41:05 PM

Bill, I think Anon put a finger on the problem with your argument: unless you are prepared to say the 8th Amendment will not be enforced by the judiciary, the very text of the constitution requires this "at bottom" becomes at some point a constitutional issue.

What really irks me is that most everyone seems to welcome the Supreme Court making all sorts of "legislative choices" about the death penalty through its Eighth Amendment jurisprudence. As a result of modern 8th A doctrines, legislatures are now not allowed to have any mandatory death sentences, nor are they allowed to make repeat rapists or 17-year-olds or repeat drunk drivers even eligible for the death penalty.

And yet, even though the text of the 8th A suggests no death-based distinctions, the Supreme Court and lower courts rarely examine whether and how the literal terms of the 8th Amendment might suggest some real limits on insanely long prison sentences for non-violent offenders.

Posted by: Doug B. | Feb 25, 2007 6:42:16 AM


I have one simple and straightforward question for you: In your view, what is the longest constitutionally permissible prison term that can be imposed in this case? Given that you feel that the constitution places a numerical limit on the permissible prison term in this case, I am very interested in knowing precisely what number you have in mind.

Posted by: Orin Kerr | Feb 25, 2007 7:21:00 PM

Orin, I am going to resist your query because it frames the issue the wrong way. The Eighth Amendment does not call upon the Justices to define a formal punishment ceiling. Rather, it just calls upon the Justices to invalidate sentences that are cruel and unusual.

Without knowing all the facts that the prosecutor and sentencing court know about Berger, I do not think it would be appropriate to "resentence" Berger on appeal. Instead, the Justices should --- and yours truly would --- just strike down a sentence that is cruel and unusual, and then upon resentencing the prosecutor and sentencing judge will know (as they should) that there is some (admittedly vague) constitutional limit on the length of the prison term that can be given to Berger.

If you think a theory is needed to fill this out, I'd be happy to borrow the multiplier concepts from the due process arena. How appount a rule saying it is cruel and unusual to impose a sentence that is far more than, say, 3 times the sentence that was offered in a plea bargain for the offenses at issue. My understanding is that the prosecutor in Beeger offered 15 years, which means that anything over 50 years strikes me as quite constitutionally suspect.

Posted by: Doug B. | Feb 26, 2007 6:04:34 AM

Doug, what if the prosecutor offers no plea? What if the government offers a plea but then learns more about horrible stuff that the suspect did -- is your rule no longer applicable? Or does it simply change, and if so, how does it change? How formal would the plea offer have to be -- oral or in writing? Do periods of supervised release count towards the total, as they can lead to more prison time?

Posted by: Orin Kerr | Feb 26, 2007 12:34:02 PM

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