Morton Berger

Morton Robert Berger is an Arizona high school teacher who was sentenced to 200 years in prison (without the possibility of probation, parole or pardon) for the possession of 20 images of child pornography. This sentence, which was the minimum available in Arizona law, was upheld by the Arizona Supreme Court in 2006. On February 26, 2007 the Supreme Court of the United States declined to hear a further appeal.

The crime
In 2002, Berger was arrested after a police raid on his home for the possession of a large collection of child pornography that he had collected over the previous six years. He was charged with 35 specimen counts of sexual exploitation of a minor, each charge relating to one image; 15 of these charges were dropped, and Berger was convicted by a jury of the remaining 20 counts against him.

The sentence
The unusual 200-year sentence consisted of 10 years for each photograph, the minimum allowed by the state law. The state of Arizona argued that each image was a separate crime, so the sentencing judge ordered that the sentences had to run consecutively, and were, under state law, to be served without possibility of probation, parole or pardon. The maximum sentence proposed to the court by the prosecutor was 340 years, while the maximum sentence available was 480 years.

The appeals
Berger's lawyers appealed against the sentence, citing the Eighth Amendment to the United States Constitution, which prohibits "cruel and unusual punishment". They argued that although each 10-year sentence was not too long in itself, the cumulative total of 200 years was grossly disproportionate to Berger's conduct overall, given that if he had murdered or raped a child, he would have received a shorter sentence. Losing in the Arizona Court of Appeals, they appealed to the Arizona Supreme Court, which ruled on May 10, 2006.

Some judges of the Arizona Supreme Court were sympathetic to Berger's argument. Vice Chief Justice Rebecca Berch described the mandatory minimum, mandatory consecutive sentencing rule, and exclusion of probation, parole or pardon as a "triple whammy," observing 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."

Despite its reservations, however, the court considered itself bound by precedents to uphold the sentence, saying that consecutive sentences which add up to very long sentences are not unconstitutional, provided that each of the individual sentences which comprise it are not themselves unconstitutional. The decision was virtually unanimous, with Berch concurring in part and dissenting in part.

On February 26, 2007, the Supreme Court of the United States declined to hear a further appeal.