In Arizona v. Berger, the defendant, a 52 year old high school teacher with no criminal record was found to be in the possession of 20 pictures of child pornography, which he had downloaded for free from various websites. The trial court imposed 20 ten-year sentences, to be served consecutively, without the possibility of pardon or early release. The Arizona Supreme Court upheld the sentence, finding that it did not violate the Eighth Amendment of the Constitution, according to which “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Arizona Supreme Court concluded:
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.
Justice Berch captures the essence of the case in her dissent as follows:
Berger was sentenced to 200 years – more than two and one-half lifetimes, from birth to death – for possessing twenty lewd and obscene photographs.
I would never have thought that the following sentence could be considered controversial in a civilized society: It is morally and legally wrong to condemn a non-violent first-time offender to death in prison, solely for the possession (not the purchase, not the commission) of certain images. From a moral point of view, violent responses to undesirable behavior should be limited by the harm principle. Unless an offender’s action harms someone else in some reasonably direct way, no violent response, such as life imprisonment, is justifiable. From a legal point of view, the constitutional question is whether the government under the Constitution has the power to throw a first-time non-violent offender in prison for the rest of his or her life solely for the possession of certain contraband images. To be clear, there are valid reasons to criminally punish child molesters and those who produce, commission, and fund child pornography. But Berger is no such case. Berger is a case about life-long imprisonment for the mere possession of disfavored content. Free societies should not grant their governments the power to destroy someone’s life just for looking at pictures – no matter what those pictures show. It is all the more depressing that the Berger case has hardly made a ripple in the press or the blogosphere (with some exceptions).
The Berger case is one of the latest examples of enemy jurisprudence, of moral wrath using the legal system, and with it the government’s monopoly on the exercise of lawful violence, to destroy the lives of undesirables. The decision in Berger cannot be rationalized with arguments from traditional consequentialist or retributive theories of punishment, as it violates every requirement of proportionality. As the dissent points out:
Second degree murder, for example, like possession of child pornography, also carries a minimum sentence of ten years, but a term imposed for a murder may be served concurrently with sentences imposed for other crimes. Similarly, the minimum sentence for possession of an image of child pornography is longer than the presumptive sentence for rape or aggravated assault. A presumptive sentence for possession of two images of child pornography (thirty-four years) is harsher than the sentences for second degree murder or sexual assault of a child under twelve (twenty years). [p.38; citations omitted.]
The sentence in Berger is largely expressive conduct. It uses law as a means to display moral outrage. It is a celebration of moral hatred, as aptly described in the opening chapter of Michel Foucault’s Discipline and Punish. A free society under the rule of law critically depends on the separation of the legal and the moral system. The code of the moral system is right/wrong. The code of the legal system is lawful/unlawful. By incorporating notions of morality, the law has transformed them into legal categories. That transformation of moral into legal categories is of particular significance in the context of criminal law. Moral categories tend to be absolute. Legal categories never are. In the criminal law context, the law does not only capture a society’s sense of moral condemnation, but also and more importantly for a free society, it imposes limits on what a government can do to the offender. These limits are the essential contribution of the law in the process of punishment. And in cases like Berger, these limits have all but disappeared. In a recent article for the Buffalo Criminal Law Review, I wrote:
Another requirement for justifiable punishment is that the criminal must not be expelled from society into a natural state. “Punishment acknowledges the persistence of the criminal’s role as a citizen: He will not be excused from his responsibility for society” (95). This requirement of institutional recognition as the flip side of the individual’s inability to unilaterally renounce the bounds of society stands in the way of “enemy jurisprudence,” which is a troubling consequence of most contractual and purely interpersonal theories of recognition.
The Berger case is a vivid illustration of that point. Here, the offender was technically not punished, if we require punishment to be a meaningful intra-societal answer to the offense. Rather, the boundaries of society have been redrawn so as to exclude the offender. Ejected from society into a natural state, society is free to wage war, to lash out and crush the offender, unrestrained by considerations of proportionality. Justice Berch clearly felt a similar unease with the majority’s decision, when she wrote:
[S]entences must not only reflect the seriousness of the offense and deter the defendant and others from committing future crimes, they should also promote respect for law. … We are asked … to determine whether in this case, 200 years is just punishment for a defendant who possessed child pornography, but directly harmed no one. An objective examination of the 200-year sentence reveals that it far exceeds the sentence imposed for similar crimes in any jurisdiction and exceeds the penalties regularly imposed in Arizona for crimes that result in serious bodily injury or even death to victims. The sentence provides no opportunity for rehabilitation and provides no second chance. Instead, it imposes on the taxpayers the burden of supporting the defendant for the rest of his life. Such a sentence seems incompatible with “evolving standards of decency that mark the progress of a maturing society.” [p.44, emphasis added].
Gustav Radbruch wrote in an influential 1946 article:
The conflict between justice and legal certainty may well be resolved in this way: The positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as “flawed law”, must yield to justice.
The Arizona statute pursuant to which Berger was thrown in jail for 200 years for the possession of 20 contraband images is such an extremely unjust law, a law that was passed to express moral outrage, but not to promote justice. As such, it is invalid.
[tags]Arizona v. Berger, child pornography, criminal law, punishment, Radbruch[/tags]
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1. On Arizona v. Berger.
Sure, this sentencing seems completely disproportionate to the crime. But I find it very, very difficult to translate crimes qualitatively into proportional sentencing at all, which makes it all the more difficult to enter into this territory armed with anything besides intuitions. The crime and the sentence are apples and oranges; a crime doesn’t intuitively equal x number of years. If proportionality in this sense does exist, it is hard for me to see how.
Is possession of child porn worse or better than rape or assault? Well, it is trafficking in material which is indirectly linked to the production of rapes and assaults. Analogously: let’s say that there’s a kind of BDSM fetish that involves involuntarily raping and assaulting an adult person and recording it for sale; the person who buys the tape, is akin to the voyeur pedophile. Does the assault voyeur deserve better, worse, or equal sentencing than the one who actually produces the assault? At worst, equal, it seems. Yet by the figures cited, the minimum for possession of child porn is 34 years, and actual sexual assault of a minor is 20 (which is just lunacy, if true).
But there’s another important question. Does one attribute the discrepancy to the excessive treatment of child porn owners… or a relaxation of punishments of sexual assault on minors? I’m very much tempted to say the latter.
—
It is easier to talk about what’s necessary than what is proportional (and we can do so, I think, without ever leaving consequentialist grounds). First, as Hanno notes, it’s fairly clear that the real targets are, and ought to be, threefold: first, to rehabilitate; second, if rehab is impossible, to protect innocent civilians; third, to hold a collective (or network, or aggregate) of persons ultimately accountable for the things they do, simply by making it impossible to do (thus dispersing the group). Without the first option being tried, the rest ring hollow.
The particular of the case which probably motivated the excessive sentence – the moral hatred — was the fact that he was a schoolteacher, and in a way, violated an unwritten law and duty, the duty of proper stewardship over his pupils; and, thus, violated a kind of trust in a most horrifying manner (esp. for the parents). But if this is of legal significance, then it ought to be a law of its own. Packaging the greivance into a separate crime seems unjust.
Berger won’t get any notice, of course, by anyone. Only the virtuous will plead on behalf of the guilty without telling lies; and only the popular have a chance in hell of succeeding; which is a hell of an uncommon combination. Maybe a more keen awareness of the unwritten laws being violated would allow the judges to channel their intuitions more productively. Or maybe they just won’t care.
2. On foundational matters.
While I agree with the thrust of Hanno’s conclusions, I’m not entirely comfortable with how he gets there. I have two worries: one which is probably typical of me, and one which is novel.
The first worry involves the following segment of “The Three Dimensions”, mentioned above: “So long as the loss of the criminal’s freedom is traded off against gains in the
protection of everyone else’s freedom, consequentialist accounts provide an appealing strategy of vicarious justification. But once we require that for complete justification freedom must not only be realized for everyone else but also in the person of the criminal, a more sophisticated and inclusive strategy is required.” I would describe the latter as a kind of optimizing consequentialism, and the former as a kind of satisficing consequentialism. A utilitarian (say) would jump for joy at the prospect of improving even further the state of affairs (within the context of the greater state of affairs etc), including the welfare of the criminal (which presumably would require rehab, etc.) This arguably would eventually free the criminal of the burden of being socially ostracized (though that line of justification, while being true, sounds somewhat Machievellian).
My second worry is the following: “Another requirement for justifiable punishment is that
the criminal must not be expelled from society into a natural state”. This seems to forbid exile, let alone deportation. Yet that seems like a just (albeit perhaps inefficient) response to someone who refuses to abide by law. If there were such a thing as a social contract, it would be an appropriate punishment for those who refused to enter into it in the first place.
Moreover, what is a “natural state”? That’s been a puzzle since Hobbes, but various thinkers have emphasized different aspects. For Hobbes, the sovereign was in a state of nature, because he was outside of the social contract; but it is bizarre to describe a tyrant on a throne of gold as being in a natural state. And, taking that criterion (but flushing the rest of Hobbes’s beliefs), we might say that the political prisoner is in a state of nature, because he/she has dissented from the society in which they live; in which case it would seem that the prison itself is that sort of exile into a natural state.
I thought of Foucault’s Discipline and Punish, reading the foregoing post, which was explicitly referred to, so that’s hardly a surprise. In that framework, the sentence upheld by Berger is regressive, in harking back to an earlier pre-modern era. Instead of demanding the criminal’s eye be removed in some suitably painful manner, we’ve imposed an extended stay in a not-so-nice – to say the least! – place, for the remainder of Berger’s life. The post refers to the sentence as a “violent response”, and to the extent indicated by the genealogy of punishment, I’m inclined to agree.
However, won’t others become aware of Berger’s case? Won’t others be terrified into obeying the norm of not possessing forbidden images, because Berger’s fate could then be theirs? To be sure, ancient punishments – eye-gouging – could achieve much the same effect. Would a better system be something like Panopticon-style internet surveillance, that, say, the NSA could be watching?
See, the trouble is that if a life sentence is (much) too harsh, what else would be appropriate? Toward the more non-violent end of the spectrum, should we place Berger instead into a kind of Panopticon?
“In the criminal law context, the law does not only capture a society’s sense of moral condemnation, but also and more importantly for a free society, it imposes limits on what a government can do to the offender.”
But in the context of the working law in Arizona, is that much the case? After proportionality really only playing much of a role, really, in capital cases, it’s difficult to say that a non-capital sentence is disproportionate to the permissible range of punishment. We’re in the age of ‘three strikes and you’re out laws’, which can actually be ‘one strike and you’re out’. In my own jurisdiction, even during rather more favorable times, the onerous Rockefeller Drug Laws were upheld; see Carmona v. Ward, 576 F.2d 405 (2nd Cir. 1978).
One of the lines in that case is this: “The power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment.” I wonder if that allows judges, Pilate-like, to wash their hands of all this – if it removes the separation between law and morality. My feeling is toward an affirmative response – that is how normal and abnormal (or moral and immoral, if you like) have come to replace legal and illegal. The judge sits at the control panel, but as in the Milgram experiment, she is directed by a superior and is said not to have any responsibility for the sentence. The man in the lab coat or the legislator in his three-piece suit will take the responsibility.
Clearly, the mistake made by Berger was not in downloading child porn, but to do so in Arizona. The legislature of Arizona can set punishment as it likes; I have the right to have nothing to do with Arizona…which seems a generally wise position to take.
All right already, enough of the high sounding pontification and arcane references. Lets just cut through all the crap and get to the main point.
Either you are a person who is so morally impacted that you feel, a non-violent, “peeping Tom” type of crime provides sufficient justification for sending a middle aged, first time offender to prison until dead, or you feel that 200 years is an abusive, bastardization of judicial authority.
From the way I framed the issue, one might well perceive that I am of the latter point of view.
In my opinion, what Arizona’s “so called” justice system has done, is nothing less than shameful. The judges who passed and subsequently upheld this sentence are judicially, temperamentally and mentally unsuitable. It is my feeling that, if possible, the people of Arizona should remove of them from the bench.
Based upon what has been revealed in this article, I feel that an appropriate sentence would be no more than two or three years. Child pornography is wrong but two wrongs don’t make a right. A two hundred year sentence for looking at a few child pornography pictures is a modern which burning.
Getting 200 hundred years for cp for a first time offender is draconian at best. With that being said shouldn’t Berger have accepted a plea bargain? Usually someone whose charged with a crime has this option. If he accepted one surely he wouldn’t be spending 200 years in prison.
The issue here is the “Harm Principle”.
Berger has harmed no one.
He has been incarcerated nevertheless.
It is false imprisonment.
It is “cruel and unusual.”
It is judicial abuse of discretion.
I am outraged.