In February 2007 the U.S. Supreme Court refused to hear the appeal of Morton Berger, a former Phoenix, Arizona high school teacher sentenced to 200 years prison for possessing child pornography.
Bergers attorneys wished to argue that his sentence was grossly disproportionate to his crime, amounting to cruel and unusual punishment under the Eighth Amendment.
The U.S. Supreme Court refused to hear the appeal. After a jury trial in 2004, an Arizona judge sentenced the former Cortez High School teacher to consecutive 10-year prison terms on each of 20 counts of sexual exploitation of a minor (child pornography). Each of the counts was for possessing computer and printed images of child pornography, and 10 years was the minimum sentence for each count.
While Berger actually possessed hundreds of images and videos in his twisted collection but only 20 images were selected for prosecution. In 2002 Morton Berger was a married, 51 year old high school teacher when AZ ICAC Task Force investigators conducted a child pornography investigation at his home.
Pursuant to a search warrant, investigators uncovered Berger's demented pornographic treasure trove including binders containing printed images and thousands of computer files of every imaginable style of pornography.
Arizona State Law contains serious penalties for possession of child pornography. A single image carries a sentencing range from 10-24 years mandatory prison with no early release provisions. Prosecutors offered Berger a plea of 17 years prison which he declined. Prosecutors charged Berger with twenty of the unlawful images.
After trial, the horrified jury quickly convicted, and Maricopa County Superior Court Judge Ruth Harris Hilliard sentenced Berger to the mandatory minimum, ten years prison for each of the twenty images.
Berger appealed the 200 year sentence based on arguments of equal protection under the law and cruel and unusual punishment. In December 2004, the conviction was affirmed by two of the three judges of the Arizona Court of Appeals (Division One).
Judges Susan Ehrlich and Philip Hall dismissed Berger's appeal with well-reasoned and researched arguments including (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. -----------------------------------------------------------------------------------------
Morton Berger is scheduled for release on June 22, 2175. -----------------------------------------------------------------------------------------
Read the Arizona Appelate courts ruling at: http://www.cofad1.state.az.us/opinionfiles/cridx.htm -----------------------------------------------------------------------------------------
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