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.