Arizona law imposes a mandatory minimum sentence of 10 years for “sexual exploitation of a minor,” and it requires that sentences for multiple convictions be served consecutively.
The sentence that the man, Morton R. Berger, received was consequently longer than the sentence any other state would have imposed for a similar offense, a justice of the Arizona Supreme Court wrote in an opinion last year dissenting from that court’s decision upholding the 200-year sentence.
A majority of the Arizona Supreme Court declined to examine the aggregate sentence as a whole, instead focusing on the sentence of 10 years for possessing a single pornographic image, which it found was not excessive or disproportionate. It was this aspect of the analysis that Mr. Berger, a 57-year-old former high school teacher, challenged in his appeal to the United States Supreme Court.
“If this court reviews Berger’s entire punishment instead of examining the sentence for a single count,” the brief said, “it would find Berger’s punishment cruel, unusual and unconstitutional.”
His appeal said that in most states, sentences for similar crimes would run concurrently, and an offender would serve no more than five years, with the additional possibility of probation or early release. Both are barred under Arizona law. Had the offense been prosecuted under federal law, Mr. Berger’s brief said, the federal guidelines would have provided a five-year sentence.
The case, Berger v. Arizona, No. 06-349, has drawn considerable attention in criminal law circles as providing a possible occasion for the justices to take a fresh look at a subject they have treated only sparingly. While fully engaged in reconsidering the respective roles of judges and juries in criminal sentencing, the court has been extremely reluctant to strike down particular sentences as excessive.
Douglas A. Berman, a professor at the Moritz College of Law at Ohio State University and an authority on sentencing, also noted the difference in the court’s treatment of punitive damages and criminal sentencing.
In an interview on Monday, recalling that the court last week vacated an award of punitive damages against Philip Morris, Professor Berman said, “For a host of good reasons, the justices think they have a role in regulating extreme corporate punishment, but I fear the court doesn’t embrace a role in regulating extreme individual punishment.” Professor Berman has been writing about the Berger case for months on his blog, Sentencing Law and Policy.
Arizona vigorously opposed Supreme Court review of the sentence, telling the justices that it had been properly based on “overwhelming evidence” of Mr. Berger’s “large-scale, deliberate and long-term acquisition of child pornography.”
The state’s brief said that after Mr. Berger turned down a plea bargain, the prosecutor whittled the case to 20 counts out of fear of “deluging the jury” with highly graphic and disturbing images. The police had found the images in Mr. Berger’s possession after learning that his credit card number had been used to buy contraband images from a child pornography Web site based in Dallas.
These were some of the court’s other activities on a busy Monday:
Primary Elections
The justices agreed to decide the constitutionality of the open primary system adopted in 2004 by Washington State. Under that system, people can vote for any candidate without regard to the party affiliation of the candidate or the voter. Candidates, however, can designate their own party preference on the ballot. The top two vote-getters advance to the general election regardless of party label.
The Republican, Democratic and Libertarian parties in the state challenged the system on the ground that it violated their First Amendment right to freedom of association by depriving them and their members of the ability to control the selection of candidates running under their banner. Two lower courts agreed, on the basis of recent Supreme Court precedents upholding the rights of political parties to control their own affairs.
The justices granted and consolidated two separate appeals, one filed by the state (Washington v. Washington Republican Party, No. 06-730) and one by the Washington State Grange, an organization that advocated for the voter initiative that established the new system (Washington State Grange v. Washington Republican Party, No. 06-713).
Gun Use
In its latest effort to parse a federal law that makes it a crime to “use” a gun in relation to a drug offense, the court agreed to decide whether the receipt of an unloaded firearm as payment for drugs amounted to a prohibited “use.”
The federal appeals courts are divided on this question, which the Supreme Court did not directly resolve in 1995 when it ruled that “use” required “active employment” of the gun, a definition that the court said then included using a gun as an item of barter or commerce even if the gun was never fired.
In the new case, Watson v. United States, No. 06-571, the defendant, Michael A. Watson, acquired a gun from a police informant in return for 24 doses of the drug OxyContin. The United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected his argument that receipt of a gun under such circumstances did not meet the “active employment” test.
The question occurs often, in various permutations, because a violation of the statute in question carries a mandatory minimum sentence of five years in prison in addition to any underlying offense. More than one in 10 of all federal drug convictions carry an enhanced sentence for use of a firearm.