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March 8, 2007

On severe sex offender sentences

A helpful reader sent me this new piece at Reason, which he described as a "thoughtful commentary on civil commitment and the Berger Case."  The piece is by Jacob Sullum and is headlined, "To Life, to Life! Or Fry 'Em?  Even sex offenders can be punished too severely."  Here is one of many good snippets:

[I]t's important to keep in mind that "sex offenders" are a highly diverse group, ranging from teenagers who have consensual sex with younger teenagers to men who rape and murder children.  Arizona provides an excellent example of how not to draw the appropriate distinctions.

Under Arizona law, mere possession of pornography involving minors younger than 15 is punishable by a 10-year mandatory minimum sentence. Each picture is a separate offense, and the sentences must be served consecutively.  That's how Morton Berger, a former high school teacher, received a 200-year sentence without parole: 10 years for each of 20 images on his computer.

While the production of child pornography involves sexual abuse, Berger himself did not victimize anyone. He arguably deserved criminal punishment for encouraging abuse, in his own small way, by downloading the resulting images (although it's not clear he paid for them). But 200 years?

That's far longer than the sentence Berger would have received anywhere else in the country. It's also harsher than Arizona's penalties for violent crimes such as rape and second-degree murder. For looking at pictures of sexually abused children, Berger was punished more severely than he would have been for committing an actual sexual assault on a child.

Some related posts on the Berger case and other notable sex offender sentences:

March 8, 2007 at 12:42 PM | Permalink


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» Reason Article on Sex Offender Case from Sex Crimes
Sentencing Law Policy beat me to the punch, but there is an interesting article in Reason online about sex offender policy and the Morton Berger case in Arizona. From the article:Under Arizona law, mere possession of pornography involving minors younger [Read More]

Tracked on Mar 8, 2007 2:08:04 PM


Yes, even sex offenders can be punished too severely; but they rarely are.

Why, I wonder, do the extreme sentences get so much coverge and concern when the far more predominant lenient sentences get little or no attention? When I did a comprehensive study off all guilty dispostions over eight years on first-degree child molestation in my state--I am professor in Rhode Island--I found that 1/3 of the guilt did no time at all.

Those common and lenient dispositions seem to get no attention in the blogosphere.

Posted by: RCinProv | Mar 8, 2007 1:11:41 PM

RCinProv: Lenient sex offense sentences certainly seemed, at least for a while, to get a lot of attention on the O'Reilly Factor. If you are a regular reader, you'll also know that I often complain about sentences that seem too lenient for (a) drunk drivers, and (b) terrible offenders who cut sweet plea deals.

Posted by: Doug B. | Mar 8, 2007 1:44:50 PM

I think it sheer nonsense that viewing child pornography is a victimless crime. It is an ugly violation of the right to privacy of the victim. Berger victimized every single kid (the ones that were still alive, anyway) in those photos. It's one thing to say that he does not deserve 200 years, quite another to say that he didn't victimize anyone.

In addition, the purchase of this stuff creates sellers of it. And sellers need fresh kids, thus fueling more victimization.

Child pornography is a sick sick sick business, and while I appreciate that Berger's fate is of some intellectual interest, but he certainly is by no means the poster child for unfair sentences. It's time to stop treating him like one. To a certain extent, lightning struck him--but he was, metaphorically speaking, golfing during an electrical storm.

Posted by: federalist | Mar 8, 2007 2:15:54 PM

Well put, federalist.
Of course he helped victimize those children, because without individuals like him, there would be a lot less of a market for this abhorrent material.

Posted by: Brian | Mar 8, 2007 2:26:23 PM

I am a relative of a "sex offender" I agree 90 % of them get what they deserve.However not everyone is John Couey, Jessica Lunsford's killer.The laws lump everyone into the same category.It would be like someone caught with a joint of pot getting the same sentence as a heroin dealer.There has to be some sort of degree of classification.My nephew never physically touched,met,or attempted to meet his "victim".He basically talked to a girl on the internet who lied about her age.Now he's labeled for life.The restrictions placed on him are mind boggling.Over 90 % of sexual abuse happens in the home or the victim knows their abuser.Total strangers are NOT the problem.In all the current cases here in Florida,there seemed to be a parenting problem.Mark Lunsford lived with his girlfriend, not at the residence she was taken from.She lived with her 70+ grandparents.Certainly these kids did not deserve to die and the killers should burn in hell.The bottom line is YOU protect your children and don't rely on the government to give society false senses of security.YOU PROTECT YOU CHILDREN!

Posted by: William | Mar 8, 2007 4:22:54 PM

We all agree that there ought to be a penalty for viewing child porn, because it's the viewers who create the market in the first place.

But does it make sense that Morton Berger received a significantly harsher sentence than if he had actually raped a child? Or robbed a bank? Or hijacked a plane? Or committed second-degree murder?

Posted by: Marc Shepherd | Mar 8, 2007 5:14:59 PM

I am not sure that it makes sense that Berger gets more than some criminals who have committed arguably worse crimes. But where is the requirement that a criminal justice system be completely rational with respect to all offenders. Legislatures aren't required to create statutes that spit out perfectly fair and rational results.

And who is to say that ultimately, Mr. Berger will not get clemency. I think it premature to worry about the fate of this guy. And, by the way, if he does wind up spending the rest of his life in jail, it certainly is not the biggest injustice to ever come down the pike.

Posted by: federalist | Mar 8, 2007 6:54:41 PM

One doesn't have to believe that:

viewing child pornography is a victimless crime.

To find that Berger is indeed:

the poster child for unfair sentences.

There isn't any terribly difficult logic or arbitariness involved in the notion that more serious crimes should produce longer sentences than less serious crimes.

Even if you don't think that any non-jurisdiction sentences are relevant, more serious crimes in a given jurisdiction ought to be punished more seriously than less serious crimes in that jurisdiction.

Even if you think that lots of crimes are apples and oranges that can be only compared by the legislature, certainly there are some crimes that are similar in type and have an obvious hierarchy of seriousness.

Punishing someone for watching pictures of kids getting raped, without paying for doing so, which is what Berger was convicted of doing, is manifestly less serious a crime than actually raping kids. It follows then, that the punishment for someone who watches pictures of kids being raped should be less severe than the punishment for actually doing it.

When the punishment for raping kids is far less severe (like 95%+), than the punishment for watching pictures of kids be raped without paying for it, the system is broken.

In the same way, while negligent vehicular homicide is a bad thing, and premediated murder is also a bad thing, no one doubts that premeditated murder is a more serious crime. What if Arizona imposed a penalty of life in prison without possibility of parole for negligent vehicular homicide, and a maximum of four years in jail for premeditated murder? Would that also be constitutional? This is essentially what Arizona did in the Berger case.

Posted by: ohwilleke | Mar 8, 2007 7:20:30 PM

Ohwilleke, as a practical matter, to give criminals enforceable rights with respect to ordering of sentences would be problematic. Criminals don't get to search the criminal code for problems like this, walk into court, say "aha" and get out of jail or get their sentences reduced.

Posted by: federalist | Mar 8, 2007 7:55:08 PM

Y'all are ignoring that Arizona didn't make the punishment for possessing child pornography more severe than the punishment for rape -- that's a mischaracterization. If Berger had raped 20 different children, no one would be saying that it's only offense, he should only receive one sentence. But, he has pictures of 20 different children, each a victim in their own right, and suddenly we say he should receive only one punishment?

Posted by: LonesomeClerk | Mar 8, 2007 8:06:27 PM

Truly, sexual offenses should be dealt with on a case by case basis. the punishment should be *fitting for the offense that was committed.
Unfortunately, in light of the recent high profile cases in Fla, our legislature had a knee jerk reaction and decided to utilize a one size fits all approach to sex offenses. Further, it would appear that law enforcement is responding in a similar manner. Classification is non-existent.They are not only costing an exorbitant amount in taxpayer's dollars, and police manhours unnecessarily, but also taking the rights of innocent men to lead a normal life and provide a safe and stable enviroment for their families and children.

In Fla we believe in feel good legislation. Our current laws do little to protect our children from the true predators and only provide a false sense of security for anxious parents provoked to a witch hunt by hyped up high profile cases in the media.

This is why we're hot ... psssht

Posted by: heather sluss | Mar 8, 2007 8:23:41 PM

Some of the post-imprisonment consequences being added to sex crime convictions seem as tortuous as sterilization of the "criminally insane". We have automatic commitment, inability to live anywhere, web site posting, special license plates, pseudo-scientific techniques of measuring inappropriate sexual arousal, chemical castration. This is without mentioning the entrapment measures being used by the FBI and state law enforcement. There is no strong sex offender lobby (indeed, no convict lobby) to protect them from the "feel good" efforts of legislators. But in the final analysis, have we no shame?

Posted by: Roger Friedman | Mar 9, 2007 10:21:30 AM

Federalist, I see that you were too cowardly to actually respond to Ohwilleke's post. S/he may be too much of a gentleman/woman to call you on it, but I'm not. Got you in a box, eh?

Each of the kids in Berger's photos were victimized. But they weren't victimized by BERGER.

Posted by: Anon | Mar 9, 2007 11:38:04 PM

"Cowardly"? That's an interesting charge. I am an anonymous poster-courage or lack thereof really doesn't come into the equation.

I don't really see how I am in a box. With respect to Berger's sentence, I think my posts can be boiled down to some key points:

1) a wait and see approach may be best, as he has clemency options;

2) his sentence was probably too harsh, but he's certainly not a poster child for unjust sentencing, as his crime is a heinous one.

In any event, my response to Ohwilleke was simply to note that you cannot give criminals rights to a completely rational sentencing scheme. I don't think that's a controversial statement at all.

As for your belief that Berger didn't victimize the subjects in the kiddie porn, to be blunt, I find it repulsive. The bottom line is that I think most would agree that rape victims would not want a picture of their rape broadcast for all to see, and I think that all would agree that widespread dissemination of such pictures would visit a new evil upon the victim. Well, Berger decided, by affirmatively seeking out these pictures, to increase their circulation. That's harming the victims. Moreoever, Berger's demand for these pictures inceases the likelihood of future victims--given that supply will usually follow demand.

I must say, I find it interesting that you are willing, on behalf of a kiddie porn consumer, to advance bogus arguments minimizing the harm to kiddie porn victims. I am sure you consider yourself oh so enlightened because you are willing to take up the cause of a "victim" of the justice system. Instead, you are little more than a contrarian engaging in a bit of moral preening. Of course, if pooh-poohing the life-long suffering of kiddie porn victims is necessary for you to feel your moral superiority, I guess that's too bad for them.

Posted by: federalist | Mar 10, 2007 1:36:44 PM

You disgust me think of all the childre who did get abused in those pics. He did not commit the crime but he was an accesory to it, and he may have wanted to do it in his mind. Scum bags like you are the reason why kids are still getting tormented today by pervs. I don't think that he should get 200 years, I think that he should get his head cut off. That's a fitting punishment for someone that sick.

Posted by: Kill all Sex Offenders | Mar 22, 2007 1:25:45 AM

Looking at pictures should not be a crime, no matter how heinous or ugly the subject matter is. With the logic given by some people on this blog, anybody who looks at rotten.com should be incarcerated for life. How is looking at pictures of murder victims any different then pictures of abused children? Anyone could make the argument that pictures of murder victims fuels an "appetite" for more of the same, ultimately creating murderers!

Posted by: patrick henry | Aug 12, 2007 9:02:46 PM

Berger was punished more severely than he would have been for committing an actual sexual assault on a child.

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