State v. Berger

.5 Justice, PELANDER, Judge and A. JOHN

134 P.3d 378 Arizona, Appellee,

STATE of BERGER, Appellant.

Morton Robert

No. CR-05-0101-PR. Arizona, Court of

En Banc.

May Two, 5. Pursuant to Article designated Section 3 of the Arizona Division to sit in this mat- Constitution, Pelander, the Honorable A. John ter. Judge Appeals, Chief of the Arizona Court of

OPINION BALES, Justice. por- of Based on

nography, con- Morton Robert twenty separate of counts of victed sexual exploitation age of a minor under the of fifteen and sentenced to consecutive ten-year prison hold terms. that these We sentences do not violate the Amend- prohibition pun- ment’s on cruel and unusual ishment.

I. severely punishes Arizona distribu- possession of pornography. tion or law, person a Under Arizona commits sexual minor, felony, exploitation a class two of by knowingly “[djistributing, transporting, exhibiting, receiving, selling, purchasing, electronically possessing ex- transmitting, or changing any depiction in a mi- visual which or engaged exploitive nor is exhibition sexual conduct.” other Ariz.Rev.Stat. (“A.R.S.”) 3553(A)(2)(2002). § A “visual 13— statute, “in- depiction,” purposes of this image is cludes each visual contained film, videotape photo- or undeveloped or form that is graph data stored image.” capable of conversion into a visual 13-3551(11). depiction § in- If a A.R.S. fifteen, age under of volves minor dangerous offense characterized as against § 13- crime children. A.R.S. 3553(C). scheme, statutory pos- 3 Under image pornography is session of each - 13-3551(11), §§ separate offense. A.R.S. Goddard, Terry Attorney Arizona General 3553(A)(2); Taylor, Ariz. also State v. see Counsel, By Howe, Randall M. Chief Crimi- (affirming 773 P.2d Walsh, Section, A. nal Robert Assis- Appeals possession of fifty consecutive sentences for General, Phoenix, Attorney Attorneys tant time). fifty contraband obtained over of the State Arizona. imposed for sentences must be Consecutive fif- involving conviction children under each By A. Herman Lau- Law Offices Laurie teen, and carries a mini- each such sentence Herman, Scottsdale, and

rie A. Law Offices years, presumptive term mum term of ten Segal By Segal, Phoe- & Natalee Balleeer years, and a maximum term of seventeen nix, Berger. Attorneys for Morton Robert 13-604.01(D), § twenty-four years. A.R.S. (K). (F), (G), Miller, must By Donald Such sentences be served Lasota & Peters PLC early Peters, Phoenix, probation, Attorneys possibility Amicus without M. 13-3553(0 release, pardon. American Liberties Union A.R.S. Curiae Civil 13-604.01). (prescribing under Arizona. jury thirty- punishments.” Berger on and unusual U.S. grand 4 A indicted “cruel Const, separate exploitation provision “guaran- five counts of sexual VIII. This amend. printed subjected a minor based on his right tees not to be individuals files, Simmons, photographs, computer photo and com- Roper to excessive sanctions.” puter depicting files sexual video children motion, the trial court (2005).

acts. On State’s right 1 “The flows from the L.Ed.2d counts, proceeded fifteen dismissed and trial justice punishment of that for precept basic twenty remaining on the counts. graduated proportioned be and crime should (internal quotation to Id. the offense.” ¶ 5 The trial evidence that established omitted). marks and citation Berger possessed pho- and numerous videos children, images younger to some than ten ¶ recog Supreme long Court 9 The has old, being subjected to sexual acts with Eighth per limits nized that the Amendment children, including adults and other in For missible sanctions various contexts. bestiality. of sexual intercourse and The example, Court has death held that the jury testimony indicating that, also heard penalty of an rape cannot be for the 2002, Berger from 1996 to had downloaded woman, mentally adult on defen retarded computer containing pornography; files dants, or on those who commit their crimes he had identified several “favorite” websites juveniles. as See id. at S.Ct. 125 indicating they provided por- with titles cases). Likewise, (collecting 1183 the Court nography; recently he had contra- viewed years jailed has a sentence to “12 in held that material; band and he had both created painful at crime irons hard labor for the computer copy systems and hard filing to falsifying records excessive.” Atkins his jury maintain collection. The convicted 304, 311, 122 2242, Virginia, v. 536 U.S. S.Ct. exploita- counts of sexual (2002) 335 v. (citing 153 L.Ed.2d Weems depiction tion of a minor and found that each States, 217 United U.S. S.Ct. 30 a child age involved under the of fifteen. (1910)). 544, 793 has 54 L.Ed. The Court ¶ judge The trial 6 sentenced to a “[ejven prison day also that in observed one ten-year mitigated sentence —the minimum punishment would be a cruel unusual and, sentence allowed—for each of his crimes having Rob ‘crime’ of common cold.” statute, by required as ordered the sentences 667, 660, California, inson v. 370 U.S. 82 consecutively. §§ to be served A.R.S. 13- (1962). 1417, S.Ct. L.Ed.2d 758 8 -3553(C). 604.01, rejected The Ber- court ¶ Although Eighth 10 “the Amend ger’s argument his violated applied lengthy ment has been to Eighth prohibition Amendment’s on cruel incarceration,” Davis, 381, 206 Ariz. at punishment. Berger appealed, and unusual ¶ (citation 13, omitted), 79 P.3d courts panel appeals and a divided of the court of extremely circumspect Eighth are their affirmed convictions and sentences. prison review of The Berger, Amendment terms. State v. 209 Ariz. 103 P.3d 298 noncapital review, has noted that petitioned Court (App.2004). argu- He subject only pro sentences are to a “narrow ing rulings below conflict with this principle” portionality prohibits sen Davis, opinion court’s State v. 206 Ariz. (2003). “grossly disproportionate” to tences that are 79 P.3d Ewing California, the crime. ¶ granted Berger’s again petition 7 We to (2003) 20, 23, 123 S.Ct. L.Ed.2d 108 reviewing Eighth consider the framework for J., (O’Connor, concurring judgment) in the challenges prison lengthy Amendment Michigan, (quoting Harmelin v. jurisdiction have pursuant sentences. We 957, 996-97, S.Ct. 115 L.Ed.2d 5(3), Article Section Consti- the Arizona J., (Kennedy, concurring part tution and A.R.S. section 12-120.24 judgment)). concurring in II. Eighth court reviews Amend- This challenges length sen- prison Amendment the ment Constitution infliction Jus- United States bars the tences under framework outlined Kennedy concurring opinion (quoting in his Id. at tice crime.” employed Harmelin and later Justice judgment concurring concur- announcing

O’Connor (internal ring judgment)) Ewing. quotation 206 Ariz. omitted). at 70.1 P.3d analysis, Ewing, rejected a court 14 In Under first de- the Court showing challenge if is a termines there threshold gross by comparing twenty-five years term to life disproportionality “the under Cali gravity of the offense the harshness of fornia’s “three strikes law” a recidivist [and] stealing penalty.” golf convicted of three clubs offender 1179; nearly plu accord at worth O’Connor’s Justice $1200. J., (Kennedy, concurring rality opinion 111 2680 first considered the three S.Ct. part general application. in in its concurring judgment) and in the strikes law While (same). comparison to recognizing If this leads an infer- that the law had been criticized gross lack of disproportionality, ence of the court its lack wisdom and effective ness, by considering then that noted that the State of tests inference the she California believing state other had the law imposes sentences the on crimes a “reasonable basis” substantially goals impose and the other states for the advance the of inca would 23-24, Ewing, pacitating repeat deterring same at 123 offenders and crime. 538 U.S. Harmelin, 1004-05, 1179; 24-28, 123 Against 501 U.S. at crime. Id. at S.Ct. 1179. S.Ct. J., (Kennedy, concurring backdrop, 111 in S.Ct. 2680 Justice O’Connor considered Ewing’s in part concurring judgment). rejected argument that his sen the unconstitutionally disproportion tence was comparing gravity 13 In the the of- Acknowledging his was ate. that penalty, fense to the harshness of the courts long, she concluded that “it reflects a rational leg- must substantial deference to the accord deference, legislative judgment, to entitled policy judgments islature and its as reflected that who have serious offenders committed statutorily sentences. The mandated felonies to com violent and who continue inquiry guided by princi- is threshold several at incapacitated.” mit must Id felonies be ples primacy legisla- include the that 30, 123 determining sentencing, variety ture Harmelin, schemes, Similarly, in re- legitimate penological the nature of jected system, requirement Eighth challenge that Amendment federal and the imprisonment objective guide proportionality mandatory of life factors re- Ewing, parole for first-time offender con- view. 538 U.S. at 123 S.Ct. 1179 without (citing possessing grams cocaine. at 111 S.Ct. victed of U.S. J., 994-95, concurring 111 S.Ct. 2680. U.S. plurality opinion, Kennedy noted concurring judgment)). princi- in the These Justice ples Michigan legislature could with rea- inform the broader notion that “that the posed Eighth require that threat to the Amendment strict son conclude “does society by possession of this proportionality between crime and sentence” individual and vio- large an amount of cocaine—in terms of but instead forbids extreme sentences lence, crime, mo- displacement and social “grossly disproportionate are —is (Scalia, concurring); pro- Supreme Court's S.Ct. 1179 id. 1. The Amendment (Thomas, X, portionality concurring); decisions "have not established S.Ct. 1179 path X, (Scalia, clear for courts to follow." or consistent joined 111 S.Ct. Andrade, Lockyer C.J., concurring). by Rehnquist, Justice Kenne- (2003). rejecting L.Ed.2d 144 chal- dy’s opinion in and Justice O’Connor’s Harmelin lenges prison in Harmelin and Ew- controlling opinion Ewing opinions in are the agree ing, majority of the Court did not they because reflect views of those cases case, opinion. justices one In each two conclud- justices concurring judgments the nar- on challenged ed sentences cannot be on States, 430 grounds. See v. United rowest Marks grounds proportionality under 188, 193, L.Ed.2d they and stated would overrule con- trary precedent. III. enough mentous to warrant the deterrence and retribution a life sentence without pos 18 States criminalize the (not- parole.” Id. at 111 S.Ct. 2680 pornography session of child to advance the ing Michigan legislature had “rational ba- compelling protecting interest of children determining impose mandatory sis” for life exploitation. from sexual As the sentence). recognized: Court has beyond It is evident the need for elabo- ¶ Recognizing penalty imposed that the “safeguard- ration that a State’s interest on unforgiving” Harmelin was “severe and ing physical psychological well- Michigan’s and that the deterrent effect of being of a “compelling.” minor” is uncertain, Kennedy law was still Justice legislative judgment, as well as the say nonetheless concluded that “we cannot literature, judgment found relevant the law before us has no chance of success subjects the use of children as disproportionate and is on that account so as pornographic materials is harmful to the punishment.” to be cruel and unusual Id. at emotional, physiological, and mental health 1008, 111 S.Ct. 2680. Because was there no the child. showing gross

threshold disproportionali- Ohio, Osborne v. ty, unnecessary it compare the sen- 109 L.Ed.2d (quoting New Michigan Ferber, tence with others in 747, 756-58, other York v. 458 U.S. 102 3348, (1982) (citations 1005, states. Id. at 111 S.Ct. 73 L.Ed.2d S.Ct. 2680. 1113 omitted)) (affirming Ohio’s criminal on ban possession pornography). of por- child Child 17 Harmelin Ewing reaffirm nography only pro- harms children in its “exceedingly that rare” cases will a duction, but also “causes the child victims years sentence to a term of violate the continuing by haunting harm the children in prohibition Amendment’s on cruel 111, to come.” Id. at 110 1691 S.Ct. punishment. Ewing, and unusual 538 U.S. at (citation omitted); see also v. United States (citation 22, 123 omitted). S.Ct. 1179 A court Sherman, (7th 539, Cir.2001) 268 F.3d must first determine legislature whether the (“The possession, receipt shipping believing “has reasonable basis for that [a pornography directly child victimizes the goals scheme] ‘advance[s] the portrayed by violating right children their justice system criminal [its] substan privacy, particular violating and in their indi- ”way.’ 28, 123 tial Id. at (quoting S.Ct. 1179 avoiding vidual interest the disclosure of Helm, Salem v. 297 n. matters.”). personal (1983)) (second S.Ct. Criminalizing possession the of child original). and third alteration in light In pornography directly is tied to state efforts conclusion, that the court then considers if production to deter its and distribution. Giv- the particular sentence of the defendant is production en that the distribution and grossly disproportionate to the crime he com “underground,” this material leg- occurs prison mitted. Id. A grossly sentence is not permitted “stamp islature must be out this disproportionate, pro and a court need not at vice all levels the distribution chain.” beyond inquiry, ceed if argu threshold it Osborne, S.Ct. ably penological goals furthers the State’s Moreover, encourages criminalization the de- legislative judg and thus reflects “a rational struction of such materials. Id. ment, entitled to deference.” Id. goal combating S.Ct. 1691. The the sexual guides S.Ct. 1179. This framework our re exploitation abuse por- inherent child Berger’s view of Eighth Amendment chal nography penal- animates Arizona’s severe lenge to his sentence. possession ties for the of such material.2 importance justifies prevent 2. The of the state’s interest and Fourteenth Amendments states from prohibiting possession pornog- criminalizing possession the mere the in-home of adult raphy, though obscenity. even Court held in The Court in Osborne noted that child 557, 565-66, Stanley Georgia, pornography has "de minimis” First Amendment (1969), underlying pornog- L.Ed.2d 542 that the First value and “the interests child history of legislative (reviewing the deter- legislature Arizona 13-604.01). existing were inade- state laws mined specifically legislation quate and enacted ¶23 history, we conclude Given this industry. pornography aimed at basis for legislature had a “reasonable law, sec- predecessor to A.R.S. The new mandatory lengthy believing” that -3553, purposes its declared tions 13-3551 pornog- for the from sexual protecting children to include goals of [Ari- raphy [] would “advance any person from “prevent exploitation and justice system in substan- [a] criminal zona’s] from the benefiting financially or otherwise Ewing, 538 U.S. at way.” tial 1978 Ariz. exploitation of children.” sexual omitted). (internal citation Laws, 200, 2(B)(1), leg- ch. Sess. a series of identified specifically islature IV. victims, including the use to child harms ¶24 backdrop,” “[ajgainst It this luring new the material defendants id., 1179 that we that such materials cause victims and the fact Berger’s that his sentences consider claim depicted. the children continuing harm to disproportionate to his offenses. grossly are 2(A)(5)-(6). §Id. incorrectly frames the did Berger, as ¶21 extended lawmakers Ewing argued that issue at the threshold. itself, an include criminal ban to twenty-five three strikes sentence claimed would prosecutors amendment “shoplifting on his years to life was based child molesters. prosecuting aid in clubs”; Supreme Court noted golf three 93; Laws, Hearing on H.B. ch. Ariz. Sess. Ewing had been sentenced that in fact Judiciary, the H. Comm. on nearly after hav felony grand theft of $1200 Before (Ariz.1983) Legis., Reg. 1st Sess. 36th at least two already convicted of ing been (comments Peasley, Pima of Coun Elizabeth felonies. Id. violent or serious Office). legislation also ty Attorney’s Such he has received Berger contends that 25 producers of child fact that recognizes the upon ... sentence year a “200 flat-time the demand for pornography exist due to pornogra- possession of child of conviction of child “The consumers such materials. Berger in fact was convicted phy. ...” But children victimize the pornography therefore possession of child twenty separate counts of enabling supporting the by ... depicted fifteen, involving minors under pornography pornography, production of child continued ten-year to a term sentenced and he was abuse and entails continuous direct which must, ten-year sentence count. Each each subjects.” United victimization statute, consecutively. A.R.S. by be served (5th Norris, 926, F.3d 930 Cir. 159 States 13-604.01(K). 1998) sentencing guide federal (applying argued that Berger has not lines). twenty separate charging him State’s he, as each improper. Nor could legislature soon counts was Correspondingly, photo or on a different video child count was based included thereafter fifteen dif- images some image, §in involved targeted 13- among crimes pornography victims, Berger had accumu- “danger ferent child sentencing as 604.01 for enhanced six-year period. a over Ariz. lated children.” against crimes ous Cf. (de- 420, at 979 773 P.2d Taylor, 160 Ariz. at Laws, 364, legislation § 6. This ch. Sess. prose- be if individual could clining to decide periods of incarceration provides “lengthy counts for separate on sentenced cuted or and deter” “those punish ... intended simultaneously). images acquired multiple continuing a direct and pose who predators Berger dispute v. Nor does Arizona.” State the children of threat punish- crime is a serious pornography 98, 102, child Williams, P.2d Ariz. 108, justi- prohibitions exceed the interests raphy far Stanley." 495 fying Georgia at issue in law youn- depicting children felony pornography under federal law and most able as Ewing, state laws. 538 U.S. at 501 U.S. at ger than fifteen. Cf Cf. felony (noting S.Ct. 1179 theft of concurring $1200 S.Ct. 2680 laws). (not- For under federal and most state concurring judgment) purposes analysis, Berger our committed ing severity drug possession of Harmelin’s serious, very separate, and felonies. brought the con- crime life sentence “within pri- stitutional boundaries established our comparing gravity 27 In of Ber decisions”). or ger’s severity punish crime and the ment, ten-year on sen we focus whether ¶30 Court has affirmed disproportionate for a tence is conviction twenty-five to life for the involving chil possessing pornography nearly grand golf of three worth theft clubs younger dren than fifteen. “A defendant has felon, a recidivist $1200 right no constitutional concurrent sen 1179; upheld a involving separate sep tences for two crimes parole without for a first-time life Jonas, Ariz. arate acts.” State v. cocaine, grams possessing offender Accordingly, 792 P.2d 2680; rule, general as a this court “will not consider no Amendment violation found imposition of consecutive sentences in a twenty-year prison two consecutive terms for Davis, proportionality inquiry....” Ariz. marijuana possession of nine ounces of 79 P.3d at 74.3 distribute, intent to Hutto v. ¶28 analysis “Eighth amendment focuses 370, 374, 102 specific on the sentence for each curiam). (per Similarly, up this court has crime, not on the cumulative sentence.” twenty-five years held a sentence of without (2d Aiello, United States v. 864 F.2d parole twenty-one-year-old for a defendant Cir.1988). Thus, partic- if the sentence for a selling marijuana cigarette convicted of a $1 long, disproportionately ular offense is not it fourteen-year-old, though to a even this sen merely does not it is become so because twenty-one-year tence was consecutive to a sepa- consecutive to another sentence .for trafficking sentence for defendant’s rate sen- offense because the consecutive property juvenile. stolen with the same Jo Jonas, lengthy in aggregate. tences are See nas, 164 Ariz. at 792 P.2d at 712. 164 Ariz. at 792 P.2d at 712. This proposition ¶ holds true even if a defendant fact, only past quarter- In in once exceeding faces a total sentence life normal century has the Court sustained an expectancy as a result of consecutive sen- Eighth challenge length Amendment See, e.g., Lockyer, tences. at 74 n. case, prison of a In sentence. that Solem (rejecting, in context of S.Ct. Helm, judge repeat sentenced a non-violent review, argument federal habeas dissent’s imprisonment parole to life without offender twenty-five that two consecutive sentences of writing for of a “no account” check the crime separate to life for offenses were 279-82, 103 for at $100. equivalent, purposes of Amend- sentence, concluding In that this life “the analysis, ment to one sentence of life without punishment that could most severe the State defendant); parole thirty-seven-year-old imposed,” was have id. at S.Ct. 3001 Beverly, States v. 369 F.3d United disproportionate, grossly the Court noted (6th Cir.2004); Taylor, 160 Ariz. at Solem, minor, quite that crime was Solem’s P.2d at 981. 296,103 Indeed, id. at S.Ct. 3001. the Court ¶29 uttering stated that the crime of a no account principles by Given the established decisions, passive check was “one of the most felonies prior that a we cannot conclude (internal quota person commit.” Id. ten-year grossly disproportionate could sentence is omitted). knowingly possessing Berger’s crime of tion ¶ general departure 79 P.3d at 74. The that a 206 Ariz. at 3. The court in Davis concluded rule, exception recognized light in general appropriate rather than the rule was of from Davis, here, explained applies specific that case. for reasons facts and circumstances of infra. underage, indicating they provide also did not involve a mandato- ties 32 Solem sentence, judge’s depictions. ry illegal, pornographic but instead concerned a His discretionary impose the maxi- text computer decision contained “cookie” files and Thus, mum did fragments indicating authorized sentence. Solem he had searched for or implicate deference” that providing not the “traditional mate- visited websites contraband policy legislative must afford to courts indi- Berger rial. also had recordable CDs reviewing statutorily choices when mandated up “kiddy cating specifically he had set Ewing, 538 sentences. See directory, porn” which included other sub- (O’Connor, J., announcing judg- indicating folders with titles a collection Court); ment of the images. contraband 1006-07, 111 S.Ct. 2680 concur- together, this evidence indi- 36 Taken ring concurring judgment); in the that, terminology cates Ber- Solem, n. 463 U.S. at 299 103 S.Ct. 3001 ger’s “amply supported” are ques- (noting that Court’s decision not “d[id] indicating “long, pursuit his serious” evidence judgment”). legislature’s tion the “justified by the illegal depictions and are ¶ Berger fundamentally is in a different public-safety deterring interest” State’s situation than was the defendant Solem. production possession por- of child Berger statutorily mini- received a mandated 29-30, nography. Ewing, 538 U.S. at separate, seri- mum sentence for each S.Ct. 1179. ten-year im- ous offenses. The posed with the for each offense is consistent y. penological goal deterring pro- State’s pornography. ¶37 duction and of child argues that our Berger nonetheless compels vacating of his holding in Davis 34 The evidence showed four sentence. this court vacated gathered, preserved, collected knowingly thirteen-year consecutive pornography. multiple images of child When average twenty-year-old man of below on a acknowledged police, he confronted intelligence having uncoerced convicted things “downloaded some that he he had fourteen-year- times with two sex at different of, if proud and was not sure he was ¶¶ girls. 206 Ariz. at 79 P.3d old Addi- should have downloaded them or not.” at 68. questions, tionally, response police Ber- images ger he had downloaded admitted “extremely represents an rare 38 Davis people eighteen and that he believed under court concluded case” which the people these were involved sexual conduct. grossly disproportionate. sentences were describing a possessed a news article He also that a sen- holding, so the court observed person in Arizona recent arrest of another if it is violates the tence pornography. to shock the conscience “so severe as 388, ¶49, society.” 79 P.3d at which Id. 35 The omitted). language, howev- convicted, (quotation This graphically depicting sordid and er, must as a restatement pre-pubescent with be understood perverse sexual conduct minors, the sentences statutory defi- the court’s conclusion were well within the disproportionate” under the “grossly were Nor did come nition of contraband. in opinions in plurality set forth images fleetingly or standard into of these expressly which Davis inadvertently. Berger had obtained at Harmelin 1996, suggesting not a differ- years followed. Davis was images in some six least two phrase of the “shock ent standard its use The websites before his arrest. society.” graphic ti- the conscience flagged as “favorites” included Davis, penalty particular so severe as to that a 498 P.2d find In State v. 108 Ariz. society" (1972), Eighth and thus violate rejected the conscience of an shock this court Ewing and mandatory ten-year Eighth Prior challenge Amendment. to a Amendment offender, judge it would this court said but noted that sentence for recidivist may the conscience of the proper whether a sentence "shocks proper at a time we “in a case and criminally ¶39 age, he would not have been acknowledged, and we their Davis 13-1407(F). reaffirm, But be- sentencing scheme that at ah. A.R.S. that a liable here up in in Eighth “swept Amendment its was the broad does not violate the cause his conduct Davis, still, applica terms,” in its 206 Ariz. at general application statutory ¶ subject facts and circumstances” to four specific tion to “the at Davis was 79 P.3d offense, in an uncon result thirteen-year of defendant’s sentences. consecutive Id. stitutionally disproportionate sentence. ¶42 objective Only concluding that after ¶ however, 384, 34, Berger, at 79 P.3d at 71. had offense showed he factors about Davis’s “specific how the facts and misunderstands expansive of the caught up in the reach been of the offenses” enter into the circumstances court determine that the con- statute did the Davis. analysis Eighth Amendment under his sentences was relevant secutive nature of 40 The court in Davis effectively conclud- Id. at analysis. Eighth Amendment particular not reconcile the ed that it could 387, 47, doing, at 74. In so howev- 79 P.3d reasonable sen- er, rested noted that its conclusion court legisla- tencing policy it could attribute to the “specific facts and circumstances on the significantly, the ture. Most defendant offenses,” and reaffirmed that Davis’s Davis, record, prior who had no criminal was imposi- “normally not consider the court will caught up sweep” of a statute the “broad proportion- sentences in a tion of consecutive perpe- that made no distinction between ¶¶ 387-88, 47-48, inquiry____” Id. ality at incest, pedophiles, trators of serial at P.3d 74-75. eighteen-year-old engaging man sex initi- Davis, that, Berger argues light Id. at fifteen-year-old girlfriend. ated the court must consider the consecutive na- ¶¶ 384-85, 36-37, The 79 P.3d 71-72. Eighth ture of his sentences Amend- imposing statute’s breadth terms of liabili- analysis, along “victimless” ment with the ty coupled with a scheme crime, must, that this court nature of his mandating lengthy consecutive sentences for least, re-sentencing hearing so at the order a each offense. Id. at 72. 79 P.3d “mitigation present he can evidence.” ¶41 Davis, objective facts about the ¶44 core, Berger’s conduct is at the offenses indicated that the defendant’s con- periphery, prohibitions of A.R.S. of the edge duct was at the statute’s broad 13-3553(A)(2) knowing possession sweep liability. of criminal Davis was —the involving depictions of sexual conduct years visual maturity intelligence old and his he, minors —and unlike cannot be Id. far fell below that of normal adult. 384-85, 36, merely “caught up” girls characterized as someone 79 P.3d at 71-72. The Thus, sweep. there is no participated willingly, involved not but a statute’s broad they sought gone depart general from the rule had Davis out and volun- basis here to his home. Id. If the tarily girls had been that the consecutive nature sentences does analysis.5 proportionality fifteen or older and Davis within two of not enter into the community” purposes by challenging mandatory prison as Amendment grossly disproportionate. "overly disproportionate See whether it is severe or Bartlett, (rejecting defen- U.S. at State v. Ariz. to 233, crime.” vacated, mandatory (1990), dant's contention that life sentence 792 P.2d unusual”). was "cruel and for first time offender prior does An offender's lack of convictions also itself has not used the proportionality general not alter the rule that language in its "shocks the conscience" particular sentences, on the sentence for review focuses although review of the cumulative sen- each offense rather than language respect such to the it has used review, purposes proportionality tences. For of whether state action is so arbi- different issue however, may, prior increase a criminal record trary process. as to violate substantive due See gravity a chal- of the offense that underlies 165, 172, California, Rochin v. lenged prison sentence. See 96 L.Ed. 183 ("In weighing gravity 123 S.Ct. 1179 record, offense, Berger prior place and Davis Ewing's 5. has no criminal we on the scales not must long history prior only felony, noted that the defendant there had no adult but also his his current 385, 36, recidivism.”). ¶ example, this record. 206 Ariz. at 79 P.3d of criminal For criminal a different result in not a basis for court well have reached at 72. This fact in itself

482

¶ accept Berger’s culpability Nor do assertion consider defendant’s and harm we merely part that his crimes “victimless” be- proportionality were caused offense as photograph analysis). cause he did not touch or even any himself. The defendant in children held that the the Court similarly argued Harmelin that his sentence Eighth require courts Amendment does not parole unconstitutional to life without was impos- mitigation to consider evidence before grams because his of 672 of co- sentences, ing mandatory prison a even when caine was a victimless and non-violent of- mandatory life term results. 501 U.S. at rejecting argument, fense. Justice (Scalia, J., announcing judg- 111 S.Ct. 2680 Kennedy pernicious effects of the noted Court); ment of the id. trade, drug including drug-related violence. J., (Kennedy, concurring part in and Here, judgment). in concurring Justice Kenne- link between of the contra- dy Eighth noted that the Court’s Amend- images band and the abuse of children is at “reject any requirement ment decisions least as direct. Production of the sentencing noncapital individualized Berger possessed required the abuse of chil- cases,” and that the Court had “never invali- dren, Berger’s consumption and of such ma- penalty legislature dated a mandated cannot from that terial be disassociated sentence, only length and based on the purposes abuse for Amend- one, especially with a crime as severe as this Norris, proportionality analysis. ment Cf. only should do so in the most ex- [a court] (noting, purposes F.3d 1006-07, 111 treme circumstance.” Id. at guidelines, federal that “the vic- concurring S.Ct. 2680 depicted pornographic timization of a child concurring judgment). in the Davis just directly materials as from the flows question propositions. not these does knowingly receiving pornogra- crime of Further, has not identified phy arguably culpa- it more as does from the might fact that he offer on remand producing distributing ble offenses of or alter our conclusion that his sentences would pornography”). grossly disproportionate. are not At ¶46 Alternatively, Berger asks this court arrest, fifty-two- time of his was evidentiary hearing for an to remand his ease married, teacher, year-old high school was that, light of Davis. He notes when he prior criminal record. These and had no sentenced, our court’s Amend- facts, record, which are do reduce judge ment ease law did not allow a to con- culpability. The trial showed evidence facts circumstances sider the individual sought possessed Berger knowingly committed, v. DePi- of the crime see State pornog- numerous items of contraband child ano, 27, 29-30, Ariz. 926 P.2d 496- period of Ac- raphy over an extended time. holding, and Davis overruled that cordingly, considering specific “the facts and 384, 34, Ariz. at 79 P.3d at 71. Berger’s crimes am- circumstances” of ¶ Davis, however, interpret does not consciously plifies the conclusion that he generally require Eighth Amendment to evi- exactly legisla- sought to do which dentiary hearings to allow defendants to of- sought punish. See Seritt ture to deter “mitigation par- show that a fer evidence” to (11th Cir.1984) Alabama, 731 F.2d disproportionate. The ticular sentence is argument for an (rejecting habeas claimant’s specific facts and circumstances considered evidentiary hearing circumstances of when go those that relevant Davis are record). the crime were demonstrated culpability degree defendant’s the of- is, fense, showing not to a that the defendant VI. issue, good person apart from the crime at unfor 50 Penalties as severe and promising prospect for rehabilitation. here, as Justice giving Ariz. at 79 P.3d at 71 as those Cf. Kennedy present “a (citing jurisdictions that noted cases from other prior adult criminal convictions. Davis if the defendant had A. ju- troubling case for and most difficult 1008, 111 S.Ct. dicial officer.” the case is whether issue this 53 The J., part and concurring (Kennedy, Berger re- twenty consecutive fix- But “the judgment). in the concurring violate the twenty separate crimes for ceived in- specific crimes ing terms of the punishment clause and unusual cruel judgment penological volves a substantive view, my proof of Eighth Amendment.6 matter, that, properly within general is as a can be violation an Amendment courts.” Id. province legislatures, not the (a) ten-year that a a conclusion premised on (internal quotations exploitation count of sexual for one sentence omitted). Moreover, subject constitution- possession of through knowing minor of a strong in- limits, society’s recognize al “[w]e disproportion- so pornography itself is understand protecting children and terest unusual, to be cruel and the crime as ate to legislature’s it is the appreciate that and (b) ten-year for one if a sentence or that even appropriate punish- the province to assess constitutional, twenty such consecu- count is against children.” ment for crimes are not. tive sentences 385, 37, P.3d at 72. Ariz. at correctly sug- quite Berch 54 As Justice legislature’s intent to light of the 51 In itself has Supreme the Court gests, and as participate punish those who deter and admitted, “proportionality deci- the Court’s industry, Berger’s pornography in all or consistent not been clear sions have offenses, twenty separate we commission of Michigan, v. Harmelin respects.” ten-year twenty consecutive hold that disproportionate to grossly are not I concurring). therefore opin- vacate the his crimes. We suggestion in Justice Berch’s find merit appeals that addresses ion of the court of if analysis easier courts objective would be issue, and we affirm Eighth Amendment inter- an intra- and allowed to conduct were sentences. in order analysis at the outset jurisdictional gross disproportionali- to find an inference However, candidly ad- Berch ty. as Justice McGREGOR, RUTH V. CONCURRING: mits, this expressly eschewed the Court has RYAN and D. Chief Justice and MICHAEL very approach. Id. at HURWITZ, D. Justices. ANDREW if free to follow But even we were HURWITZ, Justice, concurring. approach, I would suggested Berch’s Justice gross ¶52 dis- that an inference of analysis not conclude fully I concur The ini- can be drawn here. majority proportionality case. by result reached ten-year question tial is whether briefly response Berch’s I write Justice exploita- of sexual one count of this kind concurring dissenting opinion. eloquent matter, unconstitutional. of a minor is itself much to com- tion policy there is As penalty purportedly That the Arizona suggestion that mend Justice Berch’s course, not of longest in the nation does imposed upon Ber- Mr. cumulative harsh, disproportionality. See Rummel my per- unnecessarily establish ger was Estelle, would be to reach such sonal inclination always be however, There will I L.Ed.2d 382 judge, cannot conclusion. As a if that longest penalty, and with the prece- one state conclude under Eighth Amend- enough to establish test that were under the alternative dent or even violation, a revolv- the result would be Berger’s ment sen- proposes Berch Justice next penalty for the ing which the door under States Constitu- violate the United tences automatically then be in line would state tion. would be today whether similar sentences decide require to confront does not us 6. This case appropriate can downloaded the question whether the if consecutive be violated sitting, possessed some circumstances a book with one constituting essentially one crimes sentences for photographs illegal inside. Thus, example, we need occurrence. unconstitutional. separate See id. 100 S.Ct. consecutive sentences for crimes unconstitutional if the individual sentences Lockyer for each crime are not. See v. An- inter-jurisdic- 56 Nor can I conclude that drade, 74 n. comparisons tional pen- demonstrate that the (2003). L.Ed.2d alty Berger single a received for count is disproportionate penalty that could be single elsewhere for a such offense. B. guidelines The federal sentencing in effect majority 59 I thus opin- conclude that the when was sentenced recommended a faithfully applies ion Supreme Court’s fifty-seven seventy-one sentence of to months disproportionality juris- Amendment (or more) for proscribed of one prudence. reluctantly, I do so however. depictions, governing but the statute allowed What is troublesome here —as Justice Berch a up sentence of to fifteen for one points punishment out —is that the for Ber- notes, offense.7 As Justice Berch at least ger’s admittedly intuitively serious offenses (but nine other states allow require) do not long. legislator, seems too If I were a I ten-year penalty, permit and four states would long be free to find such a greater penalty. Such is not the stuff of shocking my to conscience and vote for a less gross disproportionality. draconian scheme. But the test intra-jurisdictional 57 Nor does an com- my violation of the Constitution is not parison lead to a different result. It personal conscience nor whether a sentence tempting compare Berger’s to accumulated subjectively is bothersome to me. The Su- consecutive sentences to the maximum sen- preme Court has held that a defendant degree tence for second murder or sexual receive a life sentence for the commission of course, question, assault. But the is not felonies, three none of which in and of them- what a defendant who commits one murder long selves could result in a impris- term of or one sexual potential assault faces as a Ewing California, onment. sentence, but rather what one who commits 30-31, twenty such offenses faces. It cannot be case, If this is I cannot conclude suggested 200-year that a sentence for twen- separate that consecutive sentences for felo- ty twenty rapes dispro- murders or would be legal nies turns an otherwise sentence into portionate. one that violates the Constitution. suggests, 58 As Justice Berch her real ¶ Benjamin long ago Cardozo noted the concern is not that a defendant can receive a judge correct role difficult areas ten-year offense, sentence for each or that a such as this: impose court can consecutive sentences for free, judge, even when he is is still not offenses,

multiple but rather Arizona law wholly free. He is not to innovate at requires impose that a court consecutive ten- pleasure. knight-errant, He is not a roam- Yet, year sentences for each offense. as ing pursuit notes, at will of his own ideal of correctly Supreme Justice Berch beauty goodness. or of He is to draw his interpre- Court —whose inspiration principles. from consecrated rejected tations bind us—has the notion that sentiment, yield mandatory spasmodic He is not to flat violate the Consti- vague unregulated they tution because do not benevolence. allow consider- particular ation of the situation of the He is to exercise a discretion informed offend- tradition, by analogy, er. methodized disci- concurring). plined by system, Nor does and subordinated to “the precedent primordial necessity allow us to find of order the social range guidelines today 7. This is based on an assumed violation of federal recommend 2252(a)(2) (2000), § seventy-eight ninety-seven 18 U.S.C. an assumed of- months one offense, (West, twenty-five, fense conduct level of U.S. Sentenc- such USSG 2G2.2 Westlaw ("USSG”) (2002), 2006), ing through governing Guidelines 2G2.2 and a but the statute allows history category up twenty years, criminal first-time offend- sentence of 18 U.S.C. er, A, 2252(b)(1) (West, 2006). Sentencing pt. through §§ USSG Ch. Table. The Westlaw jurisdic- forum enough in is the ment for other offenses the life.” Wide all conscience (the intra-jurisdictional analysis). that of discretion remains. Solem field tion 277, 3001, Helm, 291, 77 463 U.S. 103 S.Ct. v. Cardozo, Pro- B. The Nature the Judicial of (1983). sup- inquiry is not L.Ed.2d 637 (1921). 141 cess subjective, yet courts are direct- posed to be tests the 61 This is the kind of case that intra-jurisdic- an not to conduct inter- ed discipline limits of wisdom and our Cardozo’s analysis ascertaining to tional assist judges. as But unless and until the they long unless whether a sentence is too changes interpretation its of the dispropor- gross first find an “inference of Amendment, I con- am constrained to 1005, tionality,” see 501 U.S. legislature empowered to clude that the is J., concurring), (Kennedy, 2680 S.Ct. require the sentences that received. reviewing case have not which the courts this merely My point opinion is found. this BERCH, Justice, concurring in Chief Vice that to conduct demonstrate were we able dissenting part. objective part of inquiry an as a our such mitigated years for 62 A sentence of 200 gives of determination whether a sentence twenty pornog- images gross disproportionali- an inference of rise to raphy, possibility pardon without analysis that Ari- ty, the would demonstrate release, early extraordinarily long. is While by for far zona’s sentence this crime is setting legislature must defer to the courts nation than longest in the and is more severe ranges, has sentencing Supreme Court arguably in Arizona princi- recognized proportionality a “narrow crimes. Such ob- more serious violent ple” inherent in the that support finding jective facts an inference of prohibits “grossly dispro- are disproportionality. gross portionate” to the crime. Harmelin v. Mich- 957, 2680, igan, 996-97, 111 501 U.S. example, system, 64 For in the federal (1991) J., 115 L.Ed.2d 836 concur- sentencing guidelines a sen- recommend ring).8 (57-71 approximately years tence of five months) type on based the number question V63 The to determine how Berger possessed. Sentencing images grossly whether the sentence issue is dis- (“U.S.S.G.”) § Manual 2G2.2 Guidelines proportionate. The stated that Court has (1996).9 Ari- 5A (Supp.2005) & While “gravity reviewing compare courts must Legislature is its own sen- zona free set pen- the offense” “harshness course, tencing ranges, of the federal sen- alty.” Ewing California, v. (2003) professional Sentencing are set (plu- tences L.Ed.2d 108 Commission, opinions whose the federal rality opinion). gives If this rise to inquiry “great have gross disproportionality, courts deemed entitled “inference” exper- punishment weight” must then because the Commission’s court examine the (the jurisdictions sentencing. in matters of United States similar offenses other tise (7th Cir.1995); analysis) Hill, inter-jurisdictional punish- and the v. 48 F.3d see level, resulting Although legisla- 8. in a substantial deference is due to have increased offense regarding sentencing, judgments twenty images tive the notion sentence for recommended non-capital legislature or, set sen- (97-121 months), years if a defen- about nine regard gar- proportionality tence without has charged possessing more than 600 dant is only two votes. See nered (135— range years images, a of eleven to fourteen (Scalia, J., joined Relin- 111 S.Ct. months). Although §§ & 5A. U.S.S.G. 2G2.2 C.J.); Ewing California, quish is, statutory maximum sentence as the federal (2003) (Scalia, notes, years, correctly fifteen Hurwitz Justice (Thomas, J., concurring), concurring). Berger’s conduct would not warrant maximum Even if sentence. See U.S.C. 9. based level of This sentence is on an offense did, fifteen would be the total it agree Justice I is the which both Hurwitz and twenty images. of all While the appropriate level under the 2002 ranges and have been in- maximum sentence guidelines possessing multiple porno- for one years, Berger's crimes would computer creased to graphic of children under statute. supra 56 and n. 7. recent amendments fall under the version of the See Two States, also Mistretta v. probation eligible.11 United Fla. Stat. Ann. 775.082(3)(d) 827.071(5), (term), §§ L.Ed.2d 948.01 (West, (stating Sentencing (probation) through ‘B’ Commission is an Westlaw Sess.). Arkansas, “expert body”). setting ranges, would have congressionally eligible been for a established sentence of three to ten Commission years, Connecticut, possession and in examines abundant data experts and consults twenty images requires a sentence of one to each field. That this Commission recom- 5-27-304(b), years. §§ ten approximately Ark.Code Ann. years appro- mends five anas 5-4-401(a) (West, through priate Westlaw possession sentence for im- - Sess.); 53a-196e, §§ Conn. Gen.Stat. Ann. ages suggests that a minimum term of 200 (West, through 35a Westlaw Supp.). years probably merely disproportion- is not ate, grossly disproportionate but ¶ provide 66 While some states for en- crime. penalties subsequent” hanced for “second or offenses, that term is defined as later of- mandatory 65 Arizona’s minimum 200- See, charged fenses not at the same time. year imposable sentence also exceeds that State, (Miss. e.g., Miles v. 51 So.2d other state. See 1951); State, McGervey v. 114 Nev. 111 S.Ct. 2680 concur- definition, By P.2d ring) (requiring examination of im- is a first-time offender. most posed jurisdictions in other for similar crimes states, Berger’s sentence would not exceed gross dispropor- validate an inference of years, possi- five and he would also have the tionality). It unique is the combination of See, bility probation early or e.g., release. sentences, long mandatory minimum coupled 311.11(a) (West, § Cal.Penal Code Westlaw requirements with the image that each be Sess.) months); through (up to twelve charged separately and that the terms be 30-6A-3(A), §§ N.M. Ann. Stat. 31-18- is, consecutively fully served and with- —that 15(A)(9) Sess.) (West, through Westlaw possibility early out release —that renders months). Thus, (up eighteen if the Su- extraordinarily long. Arizona’s sentences preme jurisprudence permitted Court’s §§ (Supp.2005). See A.R.S. -604.01 imposed court to examine the sentences Indeed, ten-year the minimum sentence in jurisdictions other for similar crimes —the possession image great- Arizona for of one is inter-jurisdictional analysis mentioned in So- er than the maximum for posses- sentence lem, Harmelin, Ewing analysis and —the pornography thirty-six sion of child states support Berger’s would the inference that equal to the maximum nine 200-year grossly disproportion- sentence is Additionally, other states.10 most other ate. permit group- states concurrent sentences or Christensen, ing charges. E.g., Moreover, State v. the sentence at issue is (S.D.2003) 663 N.W.2d (imposing longer imposed than that for Arizona sentences, one-year two many involving to be served concur- crimes serious violence and rently). Only appears require physical injury degree Florida to the victim. Second count, image murder, separate example, possession each to be a but each for like of child charge five-year pornography, there carries a term and is also carries a minimum sen- 33(5), 97-5-35, 47-7-33(1) (West, figures 10. These are based on of one Westlaw image, primarily copies Sess.); and are based on the through Extraordinary 2005 5th Tenn. fifty pornography possession all states' child 39-17-1003, 40-35-111, §§ Code Ann. 40-35- provided statutes to the court 303(a) (West, Sess.); through Westlaw Utah parties January February, 2006. The 76-5a-3(l), 76-3-203, §§ Ann. Code 77-18-1 greater states that allow maximum sentences (West, Sess.). through Spec. Westlaw 2005 2d years image Georgia, than ten for one Missis- — Tennessee, sippi, and Utah—all have minimum image charged 11. Tennessee allows each to be states, years. sentences of less than ten In those separately fifty. if there are fewer than Tenn. moreover, may concurrently, be served Utah, 39-17-1003(b). § Code Ann. each mi- they day-for-day, proba- need not be served depicted gives separate charge. nor rise to a §§ tion is available. Ga.Code Ann. 16-12- 76-5a-3(3). Utah Code Ann. 100(b)(8), 42-8-34(a) (West, through Westlaw Sess.); Spec. §§ Miss.Code Ann. 97-5- 13-710(A) ¶27, legislature’s re- Op. and defer years, tence of ten see A.R.S. Op. mandatory (2001), quirement of sentences. may a term for a murder but this, my colleagues derive the From im concurrently with sentences be served may not consider proposition that the court Similarly, the mini posed for other crimes. Berger’s sentences consecutive nature of image mum sentence for grossly is determining whether the total longer pre than the pornography the seriousness of Ber- disproportionate to sumptive rape aggravated crimes, consider ger’s Op. nor we 13-1406(B) (2001) §§ assault. See A.R.S. - mandatory sentences. flat nature of the (seven 13-1204(B), years rape), (2001) (3.5 701(C)(2) aggravated has that the agree 69 I assault). presumptive posses A sentence for dealing statutes implied as much when pornography two sion of Lockyer from those now before us. different (thirty-four years) is harsher than the sen Andrade, 63, 74 n. degree for second murder or sexual tences (consecutive 1166, 155 L.Ed.2d (twenty a child under twelve assault of sentences); at U.S. (D) 13-604.01(B), years). A.R.S. See J., concurring) (Kennedy, 111 S.Ct. 2680 (Supp.2005). mitigated Even a sentence for sentences). (mandatory determining inBut (fifty years) possession of five grossly dispro- whether a total sentence practical to a life sen amounts as matter it was portionate to the crime for which parole, than the tence without more serious punishment, out as we must deal with meted virtually any imposed for crime not the sentence as whole and child, molesting might For the state. one impact the full of the shield ourselves from Berger receive the same sentence that has charge by analyzing only one possessing picture.12 received for one See re- sentence. Arizona’s scheme 13-604.01(D). Indeed, A.R.S. sexual ex long, mandatory that quires very sentences minor, ploitation of a the offense with which consecutively fully, must be served Berger charged, only “dangerous was is the early probation, pardon, or possibility no against crime children” that definition the These combined features affect release. does not involve contact with children. serve, real-world sentences defendants must may easily very Yet a defendant accrue a unique fea- and we should not allow these lengthy Supreme The has sentence. Court escape resulting to tures and the sentences said that more serious crimes are sub “[i]f by focusing only review on the sentence ject penalty, to the same or to less serious charge. suggested one We as much State penalties, that is some indication that 377, 387-88, 47, v. Ariz. V 79 P.3d punishment may at (2003). issue be excessive.” So 64, 74-75 lem, 291, 463 U.S. at 103 S.Ct. 3001. This unique sentencing scheme is 70 Arizona’s extraordinary factor as well indicates the coupling extraordinarily long terms with nature of the sentence in this case. id. See mandatory stacking requirements, and in re- 299, 103 S.Ct. 3001.13 served, fully quiring that each sentence be observes, correctly majority early how- possibility 68 The release. without ever, one, whammy Berger impact triple that was convicted of not of this compounding twenty Op. scrutiny. great def- escape but serious felonies. should not While Moreover, note, my colleagues legislature’s choice we must look erence is owed sentences, crimes, the constitution impose stringent at the sentences for the individual co-conspirator Moussaoui might Zacarías 12. These facts lead victims of violent crime 13. Terrorist legislature justice system recently to think that to two life sentences was sentenced injuries than it care less about their and losses equivalent the sentence —the possess porno punishing does about those who received—for Moussaoui’s involvement Angelos, graphic images. See United States v. nearly 3000 acts that led to the deaths of terrorist 1227, (D.Utah 2004) F.Supp.2d September people Moussaoui, 2001. United States v. on ("[Cjrime expect penalties victims that the (E.D.Va. May 01-455-A Crim. No. fairly imposes reflect the harms that court will 2006). (10th suffered.”), they have 433 F.3d 738 aff'd Cir.2006). Eighth imposes obligation ple on this court the to deter- inheres in the resulting prevent “grossly dispro- mine whether the sentence is cruel are light committed, Ewing, and unusual of the circumstances of portionate” to the crime an individual case. (plurality 123 S.Ct. opinion), that has twice struck a Court requires 71 The the court being grossly disproportionate sentence as so gravity crimes for measure crime as to violate the Amend- which convicted— Solem, ment. See 463 U.S. at twenty graphic images pornogra 3001; States, Weems United U.S. severity phy against of the sentence — In 54 L.Ed. 793 imposed. 501 U.S. at Solem, imposing a life the Court held concurring). S.Ct. 2680 passing sentence for an “insufficient funds” offenses, weighing gravity check violated the Amendment’s re- court consider the defendant’s criminal quirement grossly dis- be history, see proportionate to the crime committed. 463 (plurality opinion), “harm as well as the U.S. at 103 S.Ct. 3001. the case society, caused or threatened to the victim or us, Berger was sentenced to 200 before Solem, culpability and the of the offender.” lifetimes, one-half than two and S.Ct. 3001. —more possessing from birth to death —for ¶ Berger prior no criminal has record. photographs. lewd and obscene possessing twenty gross- He was convicted of ly images depicting young obscene children 75 While one can rationalize that engaged in lewd acts. He was not involved here was convicted of felo- defendant making any photographs in and the one, nies rather than other considerations pur- record contains no evidence that he mitigate importance of that factor. Un- chased the items or intended to sell them. crimes, in like other which tend occur They appear to be he downloaded isolation, possess pornog- relative those who Although purchase from the Internet. raphy possess image. more than one tend undoubtedly such items drives the market image constitutes Because of each production, for their it is unclear that mere separate minimum crime and the sentence possession does so. years, crime the sentences each is ten legislature may Moreover, case, 73 While the choose to quickly up. mount in this punish severely support those who the child Berger had no chance to rehabilitate between pornography industry pornogra because convictions because he was convicted on all phy’s extremely deleterious effect on those twenty counts on one occasion. making, degraded and harmed its due Berger’s crimes. 76 I do not condone process appro notions individualized and pornography Child is serious offense. See priate sentencing require consideration of the Laws, 200, 2;§ Ariz. ch. see also Sess. Berger engaged fact in no force or P.2d Taylor, v. 160 Ariz. State

violence, or vio made no threats force (1989). majority’s I concur lence, injure anyone. physically not and did legisla- analysis of the crime itself and of the States, See Burns v. United penalties for it. right impose ture’s severe (setting 77 L.Ed. 266 ¶¶ agree I that Ber- Op. See 18-23. further process requirement of individual forth due crimes, ger’s the crimes at issue unlike Indeed, sentencing). there is no evi ized precisely type of criminal were any has ever touched dence punish. legislature intended to acts the improperly. That absence of direct violence 385, 37, P.3d at 72. Ariz. at society’s interest in affects the assessment of overly categoriza- “swept up” in an broad punishing severely. his acts so See Rummel tion, Id. as was the defendant Davis. Estelle, 263, 275, v. (1980). 63 L.Ed.2d 382 ¶ Nonetheless, must not of the offense Although has con- reflect the seriousness and others from commit- proportionality princi- deter the defendant firmed that a limited crimes, ting they promote the sentence is unconsti- future should also determines whether tutionally disproportionate. respect for law. are not asked to deter- We inmine this case whether a sentence of ten

years appropriate posses- would ever be pornographic image. might

sion of It be.

We are asked instead to determine whether case, just punishment

in this possessed pornogra-

a defendant who phy, directly objec- but harmed no one. An 134 P.3d 394 200-year tive examination of the County LaWALL, Barbara Pima im- reveals that it far exceeds the sentence Attorney, Plaintiff/Appellee, jurisdiction posed for similar crimes in penalties regularly imposed and exceeds the Arizona for crimes that result serious PIMA MERIT COUNTY SYSTEM COM- bodily injury or even death to victims. The MISSION; Brousseau, Georgia Chair- provides opportunity no for rehabil- Hellon, man; Huff, Mike Richard Man- provides itation In- no second chance. Mincheff, Medina, uel and Mike in their stead, imposes taxpayers it on the the bur- capacities, Defendants/Appel- official supporting den the defendant for the rest lants, of his incompati- life. Such a sentence seems “evolving decency

ble standards of progress society.” mark of maturing Scammon, single woman, Real Joann Dulles, Trop v. Party Interest/Appellant. 2No. CA-CV 2005-0140. foregoing analysis support 1178The would Arizona, Appeals Court of gross disproportionality, inference if 2, Department B. Division the court had drawn such inference. But result, it didn’t. Given that it is difficult to March envision when the court would ever find years disproportionate term of to be

gravity of the crime and the harm to the

public.14 conclusion, In79 I concur in the court’s emanating

statements of the rules from the

Harmelin line of Court eases and interpretation agree

its I Davis. also

exploitation of children is a serious crime legislature responsibility

that the has for de-

fining setting crimes and

ranges disagree only I for those crimes. mandatory

that I would find that a minimum

sentence of 200 of twen-

ty pornographic images raises an inference

gross disproportionality requires addi- analysis ultimately

tional before the court Moreover, release). governor generally grant politi- power 14. The has the it would be a brave pardons §31- or commute sentences. A.R.S. cian who ventured to reduce the sentence of a others, case, however, reasons, among statute sex offender. For those role, one, setting although purports preclude forth the sentence courts have a a limited 13-604.01(G) remedy. (providing determining constitutionality A.R.S. of sentences of subject pardon early years. that defendant is not terms of

Case Details

Case Name: State v. Berger

Court Name: Arizona Supreme Court

Date Published: May 10, 2006

Citation: 134 P.3d 378

Docket Number: CR-05-0101-PR

Court Abbreviation: Ariz.