State v. Berger
212 Ariz. 473, 478 Ariz. Adv. Rep. 17, 134 P.3d 378 (2006)
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Rule of Law:
Consecutive, mandatory minimum sentences for multiple, distinct offenses do not violate the Eighth Amendment's prohibition on cruel and unusual punishment if the sentence for each individual offense is not grossly disproportionate to the crime.
Facts:
- From 1996 to 2002, Morton Robert Berger downloaded and possessed numerous items of child pornography.
- His collection included printed photographs, computer photo files, and computer video files.
- The images depicted children, some younger than ten years old, being subjected to sexual acts with adults and other children, including sexual intercourse and bestiality.
- Berger maintained his collection using both computer and hard copy filing systems, identifying favorite websites and creating a 'kiddy porn' directory on recordable CDs.
- When confronted by police, Berger admitted to downloading images of people under eighteen involved in sexual conduct.
- The twenty convictions were based on different video or photo images involving approximately fifteen different child victims.
Procedural Posture:
- A grand jury indicted Morton Robert Berger on thirty-five counts of sexual exploitation of a minor.
- On the State's motion, the trial court dismissed fifteen counts.
- A jury in the trial court convicted Berger on the twenty remaining counts.
- The trial court judge sentenced Berger to twenty consecutive ten-year prison terms, rejecting his Eighth Amendment argument.
- Berger (appellant) appealed his convictions and sentences to the Arizona Court of Appeals (intermediate appellate court).
- A divided panel of the court of appeals affirmed the trial court's judgment.
- Berger (petitioner) sought review from the Arizona Supreme Court (highest state court), which granted his petition.
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Issue:
Do twenty consecutive, mandatory ten-year sentences for twenty separate counts of possessing child pornography involving minors under fifteen violate the Eighth Amendment's prohibition against cruel and unusual punishment?
Opinions:
Majority - Bales, Justice
No, the sentences do not violate the Eighth Amendment's prohibition on cruel and unusual punishment. The court's Eighth Amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence. A defendant has no constitutional right to concurrent sentences, and if the sentence for a single offense is not disproportionately long, it does not become so merely because it is served consecutively. Applying the Harmelin/Ewing framework, the court must first determine if there is a threshold showing of gross disproportionality by comparing the gravity of the offense to the harshness of the penalty, according substantial deference to legislative policy judgments. Given the state's compelling interest in protecting children from sexual exploitation, a ten-year sentence for possessing child pornography involving a minor under fifteen is not grossly disproportionate. Berger's conduct falls at the core of the statute's prohibitions, unlike the defendant in State v. Davis, so there is no basis to depart from the general rule of analyzing each sentence individually.
Concurring - Hurwitz, Justice
No. While the 200-year sentence intuitively seems harsh as a policy matter, as a judge, he is bound by Supreme Court precedent which this opinion faithfully applies. The Eighth Amendment test is not a judge's personal conscience. The analysis must focus on whether a ten-year sentence for one count is unconstitutional, and even under a broader inter-jurisdictional comparison, it is not, as other states and the federal system allow for similar penalties. Supreme Court precedent does not permit invalidating mandatory flat sentences or finding consecutive sentences unconstitutional if the individual sentences are permissible.
Concurring-in-part-and-dissenting-in-part - Berch, Vice Chief Justice
Yes, a minimum mandatory sentence of 200 years for possessing twenty pornographic images raises an inference of gross disproportionality that requires additional analysis. The majority errs by refusing to consider the cumulative sentence and by not conducting an objective inter- and intra-jurisdictional analysis as part of the threshold inquiry. Such an analysis would show that Arizona's sentence is by far the longest in the nation and is more severe than sentences for more violent crimes like second-degree murder in Arizona. While the legislature is owed deference, the unique 'triple whammy' of Arizona's scheme—long terms, mandatory stacking, and no early release—should not escape judicial scrutiny, and the totality of the sentence should be analyzed to determine if it is grossly disproportionate to the crime.
Analysis:
This case solidifies the extremely high barrier for defendants challenging lengthy prison sentences under the Eighth Amendment. It establishes that, in Arizona, proportionality review of mandatory consecutive sentences will focus on the constitutionality of the sentence for each individual crime, not the aggregate total, unless there are exceptional circumstances as in State v. Davis. The decision reinforces the principle of substantial judicial deference to legislative penological judgments, even when they produce sentences that seem extreme from a policy standpoint. This holding significantly narrows the path for future Eighth Amendment challenges based on the cumulative length of consecutive sentences in the state.
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