200 year child pornography sentence upheld by AZ Supreme Court
By Dr. Kardasz, May 2006
Morton Robert Berger - Child Pornography - AZ State Prisoner #174827
BACKGROUND
In Spring 2000, The US Postal Inspection Service and the Dallas Texas Internet Crimes Against Children (ICAC) Task Force initiated and led the investigation that uncovered the Arizona defendant in this case, Morton Berger.
Berger, a 51 year old high school history teacher was identified as a possible possessor of child pornography. In 2002 investigators of the Arizona ICAC, including a Phoenix Police detective and an FBI agent approached Berger’s home and conducted a “knock-and-talk”. The investigation led to a massive collection of child pornography.
In Arizona, the mandatory sentencing range for one image of child pornography is from 10 to 17 years. The Maricopa County (Arizona) Prosecutors offered Berger a plea of 17 years prison which he declined.
TRIAL
In 2003, Berger was charged with 20 counts of sexual exploitation of a minor (child pornography) and was found guilty at a jury trial. Berger received the mandatory minimum sentence, ten years prison for each of the twenty images. That’s 200 years as a guest of the Arizona State Department of Corrections.
The 200 year sentence caused the case to receive brief nationwide attention, including a short spot on TV’s O'Reily factor.
APPEALS
Berger appealed the sentence based on arguments of equal protection under the law and cruel and unusual punishment. In December 2004, the sentence was upheld by the Arizona Court of Appeals (Division One). The majority opinion included the following statements (citations omitted):
It is evident beyond the need for elaboration that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling.
…the victimization of a child continues when that act is memorialized in an image. The materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. Unfortunately, the victimization of the children involved does not end when the pornographer's camera is put away.
The legislative judgment…is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.
…the possession of child pornography drives that industry and…the production of child pornography will decrease if those who possess the product are punished equally with those who produce it.
…it (the law) will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand.
…the possession of child pornography inflames the desires of child molesters, pedophiles and child pornographers.
The State has more than a passing interest in forestalling the damage caused by child pornography: preventing harm to children is, without cavil, one of its most important interests. …we cannot fault the State for attempting to stamp out this vice at all levels in the distribution chain.
Berger downloaded images from the Internet, and every time he visited a website, he demonstrated to the producers and sellers of child pornography that there was a demand for their product. Berger's demand served to drive the industry; there need not have been a direct monetary exchange.
Berger maintains also that, because his possession of the pornographic images was passive and because he did not use threats or violence in the commission of his crimes, his sentence is grossly disproportionate. This logic is abstruse. As was described by this court in Hazlett, 205 Ariz. at 527 p 11, 73 P.3d at 1262, and as is evident from the violent pornographic images in this case, child pornography is a form of child abuse.
The materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation.
Berger's attorneys, with support from the American Civil Liberties Union of Arizona appealed to the Arizona Supreme Court. (State of Arizona v. Morton Robert Berger No. CR-05-0101-PR). In May 2006 the justices upheld the sentence saying (in part),
In light of the legislature’s intent to deter and punish those who participate in the child pornography industry, and Berger’s commission of twenty separate offenses, we hold that the twenty consecutive ten-year sentences are not grossly disproportionate to his crimes.
Berger's attorneys now have the option of appealing to the United States Supreme Court.
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Morton Berger is scheduled for release on June 22, 2175.
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Read the AZ Division One Court of Appeals ruling at:
http://www.cofad1.state.az.us/opinionfiles/cridx.htm
Visit Bergers State-sponsored web pages at the Arizona Department of Corrections:
http://www.azcorrections.gov/cgi-bin/ISentence.cgi/136249220049041219
Link to Maricopa County Arizona Superior Court documents
http://www.superiorcourt.maricopa.gov/docket/criminal/caseSearch.asp
Case # CR2002013657