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State v. Berger - 5/22/2006

Arizona Supreme Court affirms 200 year sentence for possession of twenty images of child pornography.


In a 4-1 decision, the Supreme Court affirmed the sentence of a man convicted of twenty counts of possession of child pornography. The Court found that the sentence did not violate the Eighth Amendment's prohibition on cruel and unusual punishment because each separate conviction of ten years was not "grossly disproportionate" to the crime under Ewing v. California, 538 U.S. 11 (2003). Under Ewing, the Court rejected Berger's argument that the harshness of the penalty outweighed the gravity of the offense, paying "substantial deference" to the legislature and concluding that a ten year sentence without possibility of probation, early release or pardon for possession of one image of child pornography, served consecutively with convictions on other counts, "advance[d] the goals of Arizona's criminal justice system in a substantial way." Vice Chief Justice Berch dissented and would have included a comparison of Arizona's penological scheme against other states' penalties for the same offense and concluded that Berger's sentence of ten years for possession of each image and his sentence of 200 years for possession of twenty images was "grossly disproportionate." Justice Hurwitz concurred specially.

Posted On: 5/22/2006