State v. Berger

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0101-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 03-0243
MORTON ROBERT BERGER, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2002-013657
)
__________________________________) O P I N I O N

Appeal from the Superior Court in Maricopa County
The Honorable Ruth H. Hilliard, Judge

AFFIRMED

Opinion of the Court of Appeals, Division One
209 Ariz. 386, 103 P.3d 298 (2004)

VACATED IN PART

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel
Criminal Appeals Section
Robert A. Walsh, Assistant Attorney General
Attorneys for the State of Arizona

LAW OFFICES OF LAURIE A. HERMAN Scottsdale
By Laurie A. Herman
And

LAW OFFICES OF BALLECER & SEGAL Phoenix
By Natalee Segal
Attorneys for Morton Robert Berger

MILLER, LASOTA & PETERS PLC Phoenix
By Donald M. Peters
Attorneys for Amicus Curiae American Civil Liberties
Union of Arizona
B A L E S, Justice

¶1 Based on his possession of child pornography, Morton

Robert Berger was convicted of twenty separate counts of sexual

exploitation of a minor under the age of fifteen and sentenced

to twenty consecutive ten-year prison terms. We hold that these

sentences do not violate the Eighth Amendment’s prohibition on

cruel and unusual punishment.

I.

¶2 Arizona severely punishes the distribution or

possession of child pornography. Under Arizona law, a person

commits sexual exploitation of a minor, a class two felony, by

knowingly “[d]istributing, transporting, exhibiting, receiving,

selling, purchasing, electronically transmitting, possessing or

exchanging any visual depiction in which a minor is engaged in

exploitive exhibition or other sexual conduct.” Ariz. Rev.

Stat. (“A.R.S.”) § 13-3553(A)(2) (2002). A “visual depiction,”

for purposes of this statute, “includes each visual image that

is contained in an undeveloped film, videotape or photograph or

data stored in any form and that is capable of conversion into a

visual image.” A.R.S. § 13-3551(11). If a depiction involves a

minor under the age of fifteen, the offense is characterized as

a dangerous crime against children. A.R.S. § 13-3553(C).

¶3 Under this statutory scheme, the possession of each

image of child pornography is a separate offense. A.R.S. §§ 13-

2
3551(11), -3553(A)(2); see also State v. Taylor, 160 Ariz. 415,

420, 773 P.2d 974, 979 (1989) (affirming fifty consecutive

sentences for possession of fifty contraband images obtained

over time). Consecutive sentences must be imposed for each

conviction involving children under fifteen, and each such

sentence carries a minimum term of ten years, a presumptive term

of seventeen years, and a maximum term of twenty-four years.

A.R.S. § 13-604.01(D), (F), (G), (K). Such sentences must be

served without the possibility of probation, early release, or

pardon. A.R.S. § 13-3553(C) (prescribing sentencing under § 13-

604.01).

¶4 A grand jury indicted Berger on thirty-five separate

counts of sexual exploitation of a minor based on his possession

of printed photographs, computer photo files, and computer video

files depicting children in sexual acts. On the State’s motion,

the trial court dismissed fifteen counts, and trial proceeded on

the twenty remaining counts.

¶5 The trial evidence established that Berger possessed

numerous videos and photo images of children, some younger than

ten years old, being subjected to sexual acts with adults and

other children, including images of sexual intercourse and

bestiality. The jury also heard testimony indicating that, from

1996 to 2002, Berger had downloaded computer files containing

child pornography; he had identified several “favorite” websites

3
with titles indicating they provided child pornography; he had

recently viewed contraband material; and he had created both

computer and hard copy filing systems to maintain his

collection. The jury convicted Berger of twenty counts of

sexual exploitation of a minor and found that each depiction

involved a child under the age of fifteen.

¶6 The trial judge sentenced Berger to a ten-year

sentence – the minimum mitigated sentence allowed – for each of

his crimes and, as required by statute, ordered the sentences to

be served consecutively. A.R.S. §§ 13-604.01, -3553(C). The

court rejected Berger’s argument that his sentences violated the

Eighth Amendment’s prohibition on cruel and unusual punishment.

Berger appealed, and a divided panel of the court of appeals

affirmed his convictions and sentences. State v. Berger, 209

Ariz. 386, 103 P.3d 298 (App. 2004). He petitioned for review,

arguing that the rulings below conflict with this court’s

opinion in State v. Davis, 206 Ariz. 377, 79 P.3d 64 (2003).

¶7 We granted Berger’s petition to again consider the

framework for reviewing Eighth Amendment challenges to lengthy

prison sentences. We have jurisdiction pursuant to Article 6,

Section 5(3), of the Arizona Constitution and A.R.S. section 12-

120.24 (2003).

4
 II.

¶8 The Eighth Amendment to the United States Constitution

bars the infliction of “cruel and unusual punishments.” U.S.

Const. amend. VIII. This provision “guarantees individuals the

right not to be subjected to excessive sanctions.” Roper v.

Simmons, 543 U.S. 551, 560 (2005). “The right flows from the

basic precept of justice that punishment for crime should be

graduated and proportioned to the offense.” Id. (internal

quotation marks and citation omitted).

¶9 The Supreme Court has long recognized that the Eighth

Amendment limits permissible sanctions in various contexts. For

example, the Court has held that the death penalty cannot be

imposed for the rape of an adult woman, on mentally retarded

defendants, or on those who commit their crimes as juveniles.

See id. at 568-69 (collecting cases). Likewise, the Court has

held that a sentence to “12 years jailed in irons at hard and

painful labor for the crime of falsifying records was

excessive.” Atkins v. Virginia, 536 U.S. 304, 311 (2002)

(citing Weems v. United States, 217 U.S. 349, 367 (1910)). The

Court has also observed that “[e]ven one day in prison would be

a cruel and unusual punishment for the ‘crime’ of having a

common cold.” Robinson v. California, 370 U.S. 660, 667 (1962).

¶10 Although “the Eighth Amendment has been applied to

lengthy sentences of incarceration,” Davis, 206 Ariz. at 381, ¶

5
13, 79 P.3d at 68 (citation omitted), courts are extremely

circumspect in their Eighth Amendment review of prison terms.

The Supreme Court has noted that noncapital sentences are

subject only to a “narrow proportionality principle” that

prohibits sentences that are “grossly disproportionate” to the

crime. Ewing v. California, 538 U.S. 11, 20, 23 (2003)

(O’Connor, J., concurring in the judgment) (quoting Harmelin v.

Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring

in part and concurring in the judgment)).

¶11 This court reviews Eighth Amendment challenges to the

length of prison sentences under the framework outlined by

Justice Kennedy in his concurring opinion in Harmelin and later

employed by Justice O’Connor in announcing the judgment of the

Court in Ewing. Davis, 206 Ariz. at 383, ¶ 30, 79 P.3d at 70.1

1
The Supreme Court’s Eighth Amendment proportionality decisions
“have not established a clear or consistent path for courts to
follow.” Lockyer v. Andrade, 538 U.S. 63, 72 (2003). In
rejecting challenges to prison sentences in Harmelin and Ewing,
a majority of the Court did not agree in any one opinion. In
each case, two justices concluded that prison sentences cannot
be challenged on proportionality grounds under the Eighth
Amendment and stated they would overrule contrary precedent.
Ewing, 538 U.S. at 31 (Scalia, J., concurring); id. at 32
(Thomas, J., concurring); Harmelin, 501 U.S. at 994 (Scalia, J.,
joined by Rehnquist, C.J., concurring). Justice Kennedy’s
opinion in Harmelin and Justice O’Connor’s opinion in Ewing are
the controlling opinions in those cases because they reflect the
views of the justices concurring in the judgments on the
narrowest grounds. See Marks v. United States, 430 U.S. 188,
193 (1977).

6
¶12 Under this analysis, a court first determines if there

is a threshold showing of gross disproportionality by comparing

“the gravity of the offense [and] the harshness of the penalty.”

Ewing, 538 U.S. at 28; accord Harmelin, 501 U.S. at 1005

(Kennedy, J., concurring in part and concurring in the judgment)

(same). If this comparison leads to an inference of gross

disproportionality, the court then tests that inference by

considering the sentences the state imposes on other crimes and

the sentences other states impose for the same crime. Ewing,

538 U.S. at 23-24; Harmelin, 501 U.S. at 1004-05 (Kennedy, J.,

concurring in part and concurring in the judgment).

¶13 In comparing the gravity of the offense to the

harshness of the penalty, courts must accord substantial

deference to the legislature and its policy judgments as

reflected in statutorily mandated sentences. The threshold

inquiry is guided by several principles that include the primacy

of the legislature in determining sentencing, the variety of

legitimate penological schemes, the nature of the federal

system, and the requirement that objective factors guide

proportionality review. Ewing, 538 U.S. at 23 (citing Harmelin,

501 U.S. at 997 (Kennedy, J., concurring in part and concurring

in the judgment)). These principles inform the broader notion

that the Eighth Amendment “does not require strict

proportionality between crime and sentence” but instead forbids

7
only extreme sentences that are “grossly disproportionate to the

crime.” Id. at 23 (quoting Harmelin, 501 U.S. at 1001 (Kennedy,

J., concurring in part and concurring in the judgment))

(internal quotation omitted).

¶14 In Ewing, the Court rejected an Eighth Amendment

challenge to a prison term of twenty-five years to life under

California’s “three strikes law” for a recidivist offender

convicted of stealing three golf clubs worth nearly $1200.

Justice O’Connor’s plurality opinion first considered the three

strikes law in its general application. While recognizing that

the law had been criticized for its lack of wisdom and lack of

effectiveness, she noted that the State of California had a

“reasonable basis” for believing the law would substantially

advance the goals of incapacitating repeat offenders and

deterring crime. Id. at 24-28. Against this backdrop, Justice

O’Connor considered and rejected Ewing’s argument that his

sentence was unconstitutionally disproportionate. Acknowledging

that his sentence was long, she concluded that “it reflects a

rational legislative judgment, entitled to deference, that

offenders who have committed serious or violent felonies and who

continue to commit felonies must be incapacitated.” Id. at 30.

¶15 Similarly, in Harmelin, the Court rejected an Eighth

Amendment challenge to a mandatory sentence of life imprisonment

without parole for a first-time offender convicted of possessing

8
672 grams of cocaine. 501 U.S. at 994-95. In his plurality

opinion, Justice Kennedy noted “that the Michigan legislature

could with reason conclude that the threat posed to the

individual and society by possession of this large an amount of

cocaine — in terms of violence, crime, and social displacement —

is momentous enough to warrant the deterrence and retribution of

a life sentence without parole.” Id. at 1003-04 (noting

Michigan legislature had a “rational basis” for determining to

impose mandatory life sentence).

¶16 Recognizing that the penalty imposed on Harmelin was

“severe and unforgiving” and that the deterrent effect of

Michigan’s law was still uncertain, Justice Kennedy nonetheless

concluded that “we cannot say the law before us has no chance of

success and is on that account so disproportionate as to be

cruel and unusual punishment.” Id. at 1008. Because there was

no threshold showing of gross disproportionality, it was

unnecessary to compare the sentence with others in Michigan or

in other states. Id. at 1005.

¶17 Harmelin and Ewing reaffirm that only in “exceedingly

rare” cases will a sentence to a term of years violate the

Eighth Amendment’s prohibition on cruel and unusual punishment.

Ewing, 538 U.S. at 22 (citation omitted). A court must first

determine whether the legislature “has a reasonable basis for

believing that [a sentencing scheme] ‘advance[s] the goals of

9
[its] criminal justice system in any substantial way.’” Id. at

28 (quoting Solem v. Helm, 463 U.S. 277, 297 n.22 (1983))

(second and third alteration in original). In light of that

conclusion, the court then considers if the sentence of the

particular defendant is grossly disproportionate to the crime he

committed. Id. A prison sentence is not grossly

disproportionate, and a court need not proceed beyond the

threshold inquiry, if it arguably furthers the State’s

penological goals and thus reflects “a rational legislative

judgment, entitled to deference.” Id. at 30. This framework

guides our review of Berger’s Eighth Amendment challenge to his

sentence.

III.

¶18 States may criminalize the possession of child

pornography to advance the compelling interest of protecting

children from sexual exploitation. As the Supreme Court has

recognized:

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 legislative judgment, as well as
the judgment found in relevant literature,
is that the use of children as subjects of
pornographic materials is harmful to the
physiological, emotional, and mental health
of the child.

10
Osborne v. Ohio, 495 U.S. 103, 109 (1990) (quoting New York v.

Ferber, 458 U.S. 747, 756-58 (1982) (citations omitted))

(affirming Ohio’s criminal ban on possession of child

pornography). Child pornography not only harms children in its

production, but also “causes the child victims continuing harm

by haunting the children in years to come.” Id. at 111

(citation omitted); see also United States v. Sherman, 268 F.3d

539, 547 (7th Cir. 2001) (“The possession, receipt and shipping

of child pornography directly victimizes the children portrayed

by violating their right to privacy, and in particular violating

their individual interest in avoiding the disclosure of personal

matters.”).

¶19 Criminalizing the possession of child pornography is

tied directly to state efforts to deter its production and

distribution. Given that the distribution and production of

this material occurs “underground,” the legislature must be

permitted to “stamp out this vice at all levels in the

distribution chain.” Osborne, 495 U.S. at 110. Moreover,

criminalization encourages the destruction of such materials.

Id. at 111. The goal of combating the sexual abuse and

exploitation inherent in child pornography animates Arizona’s

severe penalities for the possession of such material.2

2
The importance of the state’s interest justifies prohibiting
the mere possession of child pornography, even though the

11
¶20 In 1978, the Arizona legislature determined that

existing state laws were inadequate and enacted legislation

specifically aimed at the child pornography industry. The new

law, the predecessor to A.R.S. sections 13-3551 to -3553,

declared its purposes to include protecting children from sexual

exploitation and to “prevent any person from benefiting

financially or otherwise from the sexual exploitation of

children.” 1978 Ariz. Sess. Laws, ch. 200, § 2(B)(1), (3). The

legislature specifically identified a series of harms to child

victims, including the use of the material by defendants in

luring new victims and the fact that such materials cause

continuing harm to the children depicted. Id. § 2(A)(5)-(6).

¶21 In 1983, lawmakers extended this criminal ban to

include possession itself, an amendment that prosecutors claimed

would aid in prosecuting child molesters. 1983 Ariz. Sess.

Laws, ch. 93; Hearing on H.B. 2127 Before the H. Comm. on

Judiciary, 36th Legis., 1st Reg. Sess. 2 (Ariz. 1983) (comments

of Elizabeth Peasley, Pima County Attorney’s Office). Such

legislation also recognizes the fact that producers of child

Supreme Court held in Stanley v. Georgia, 394 U.S. 557, 565-66
(1969), that the First and Fourteenth Amendments prevent states
from criminalizing the in-home possession of adult obscenity.
The Court in Osborne noted that child pornography has “de
minimis” First Amendment value and “the interests underlying
child pornography prohibitions far exceed the interests
justifying the Georgia law at issue in Stanley.” 495 U.S. at
108.

12
pornography exist due to the demand for such materials. “The

consumers of child pornography therefore victimize the children

depicted . . . by enabling and supporting the continued

production of child pornography, which entails continuous direct

abuse and victimization of child subjects.” United States v.

Norris, 159 F.3d 926, 930 (5th Cir. 1998) (applying federal

sentencing guidelines).

¶22 Correspondingly, the legislature soon thereafter

included the possession of child pornography among crimes

targeted in § 13-604.01 for enhanced sentencing as “dangerous

crimes against children.” 1985 Ariz. Sess. Laws, ch. 364, § 6.

This legislation provides “lengthy periods of

incarceration . . . intended to punish and deter” “those

predators who pose a direct and continuing threat to the

children of Arizona.” State v. Williams, 175 Ariz. 98, 102, 854

P.2d 131, 135 (1993) (reviewing the legislative history of § 13-

604.01).

¶23 Given this history, we conclude that the legislature

had a “reasonable basis for believing” that mandatory and

lengthy prison sentences for the possession of child pornography

would “advance [] the goals of [Arizona’s] criminal justice

system in [a] substantial way.” Ewing, 538 U.S. at 28 (internal

citation omitted).

13
 IV.

¶24 It is “[a]gainst this backdrop,” id., 538 U.S. at 28,

that we consider Berger’s claim that his sentences are grossly

disproportionate to his offenses. Berger, as did Ewing,

incorrectly frames the issue at the threshold. Ewing argued

that his three strikes sentence of twenty-five years to life was

based on his “shoplifting three golf clubs”; the Supreme Court

noted that in fact Ewing had been sentenced for felony grand

theft of nearly $1200 after having already been convicted of at

least two violent or serious felonies. Id.

¶25 Berger contends that he has received a “200 year flat-

time sentence . . . upon his conviction of possession of child

pornography . . . .” But Berger in fact was convicted of twenty

separate counts of possession of child pornography involving

minors under fifteen, and he was sentenced to a ten-year term

for each count. Each ten-year sentence must, by statute, be

served consecutively. A.R.S. § 13-604.01(K).

¶26 Berger has not argued that the State’s charging him in

twenty separate counts was improper. Nor could he, as each

count was based on a different video or photo image, the images

involved some fifteen different child victims, and Berger had

accumulated the images over a six-year period. Cf. Taylor, 160

Ariz. at 420, 773 P.2d at 979 (declining to decide if individual

could be prosecuted or sentenced on separate counts for multiple

14
images acquired simultaneously). Nor does Berger dispute that

possession of child pornography is a serious crime punishable as

a felony under federal law and most state laws. Cf. Ewing, 538

U.S. at 28 (noting theft of $1200 is a felony under federal and

most state laws). For purposes of our analysis, Berger

committed twenty separate, and very serious, felonies.

¶27 In comparing the gravity of Berger’s crime and the

severity of the punishment, we focus on whether a ten-year

sentence is disproportionate for a conviction of possessing

child pornography involving children younger than fifteen. “A

defendant has no constitutional right to concurrent sentences

for two separate crimes involving separate acts.” State v.

Jonas, 164 Ariz. 242, 249, 792 P.2d 705, 712 (1990).

Accordingly, as a general rule, this court “will not consider

the imposition of consecutive sentences in a proportionality

inquiry . . . .” Davis, 206 Ariz. at 387, ¶ 47, 79 P.3d at 74.3

¶28 “Eighth amendment analysis focuses on the sentence

imposed for each specific crime, not on the cumulative

sentence.” United States v. Aiello, 864 F.2d 257, 265 (2d Cir.

1988). Thus, if the sentence for a particular offense is not

3
The court in Davis concluded that a departure from the general
rule was appropriate in light of the specific facts and
circumstances of that case. 206 Ariz. at 387, ¶ 47, 79 P.3d at
74. The general rule, rather than the exception recognized in
Davis, applies here, for reasons explained infra.

15
disproportionately long, it does not become so merely because it

is consecutive to another sentence for a separate offense or

because the consecutive sentences are lengthy in aggregate. See

Jonas, 164 Ariz. at 249, 792 P.2d at 712. This proposition

holds true even if a defendant faces a total sentence exceeding

a normal life expectancy as a result of consecutive sentences.

See, e.g., Lockyer, 538 U.S. at 74 n.1 (rejecting, in context of

federal habeas review, dissent’s argument that two consecutive

sentences of twenty-five years to life for separate offenses

were equivalent, for purposes of Eighth Amendment analysis, to

one sentence of life without parole for thirty-seven-year-old

defendant); United States v. Beverly, 369 F.3d 516, 537 (6th

Cir. 2004); Taylor, 160 Ariz. at 422, 773 P.2d at 981.

¶29 Given the principles established by prior decisions,

we cannot conclude that a ten-year sentence is grossly

disproportionate to Berger’s crime of knowingly possessing child

pornography depicting children younger than fifteen. Cf.

Harmelin, 501 U.S. at 1004 (Kennedy, J., concurring in part and

concurring in the judgment) (noting severity of Harmelin’s drug

possession crime brought life sentence “within the

constitutional boundaries established by our prior decisions”).

¶30 The Supreme Court has affirmed a sentence of twenty-

five years to life for the grand theft of three golf clubs worth

nearly $1200 by a recidivist felon, Ewing, 538 U.S. at 30-32;

16
upheld a sentence of life in prison without parole for a first-

time offender possessing 672 grams of cocaine, Harmelin, 501

U.S. at 996; and found no Eighth Amendment violation in two

consecutive twenty-year prison terms for possession of nine

ounces of marijuana with intent to distribute, Hutto v. Davis,

454 U.S. 370, 374 (1982) (per curiam). Similarly, this court

has upheld a sentence of twenty-five years without parole for a

twenty-one-year-old defendant convicted of selling a $1

marijuana cigarette to a fourteen-year-old, even though this

sentence was consecutive to a twenty-one-year sentence for the

defendant’s trafficking in stolen property with the same

juvenile. Jonas, 164 Ariz. at 249, 702 P.2d at 712.

¶31 In fact, only once in the past quarter-century has the

Supreme Court sustained an Eighth Amendment challenge to the

length of a prison sentence. In that case, Solem v. Helm, a

judge sentenced a non-violent repeat offender to life

imprisonment without parole for the crime of writing a “no

account” check for $100. 463 U.S. at 279-82. In concluding

that this life sentence, “the most severe punishment that the

State could have imposed,” id. at 297, was grossly

disproportionate, the Court noted that Solem’s crime was quite

minor, Solem, id. at 296. Indeed, the Court stated that the

crime of uttering a no account check was “one of the most

17
passive felonies a person could commit.” Id. (internal

quotation omitted).

¶32 Solem also did not involve a mandatory sentence, but

instead concerned a judge’s discretionary decision to impose the

maximum authorized sentence. Thus, Solem did not implicate the

“traditional deference” that courts must afford to legislative

policy choices when reviewing statutorily mandated sentences.

See Ewing, 538 U.S. at 25 (O’Connor, J., announcing judgment of

the Court); Harmelin, 501 U.S. at 1006-07 (Kennedy, J.,

concurring in part and concurring in the judgment); Solem, 463

U.S. at 299 n.26 (noting that Court’s decision “d[id] not

question the legislature’s judgment”).

¶33 Berger is in a fundamentally different situation than

was the defendant in Solem. Berger received a statutorily

mandated minimum sentence for each of his separate, serious

offenses. The ten-year sentence imposed for each offense is

consistent with the State’s penological goal of deterring the

production and possession of child pornography.

¶34 The evidence showed that Berger knowingly gathered,

preserved, and collected multiple images of child pornography.

When confronted by the police, he acknowledged that he had

“downloaded some things that he was not proud of, and was not

sure if he should have downloaded them or not.” Additionally,

in response to police questions, Berger admitted he had

18
downloaded images of people under eighteen and that he believed

these people were involved in sexual conduct. He also possessed

a news article describing a recent arrest of another person in

Arizona for possession of child pornography.

¶35 The images for which Berger was convicted, graphically

depicting sordid and perverse sexual conduct with pre-pubescent

minors, were well within the statutory definition of contraband.

Nor did Berger come into possession of these images fleetingly

or inadvertently. Berger had obtained at least two images in

1996, some six years before his arrest. The websites Berger

flagged as “favorites” included graphic titles indicating that

they provide underage, and illegal, pornographic depictions.

His computer contained “cookie” files and text fragments

indicating he had searched for or visited websites providing

contraband material. Berger also had recordable CDs indicating

he had specifically set up a “kiddy porn” directory, which

included other subfolders with titles indicating a collection of

contraband images.

¶36 Taken together, this evidence indicates that, in the

terminology of Ewing, Berger’s sentences are “amply supported”

by evidence indicating his “long, serious” pursuit of illegal

depictions and are “justified by the State’s public-safety

interest” in deterring the production and possession of child

pornography. Ewing, 538 U.S. at 29-30.

19
 V.

¶37 Berger nonetheless argues that our holding in Davis

compels the vacating of his sentence. In Davis, this court

vacated four consecutive thirteen-year sentences imposed on a

twenty-year-old man of below average intelligence convicted of

having uncoerced sex at different times with two fourteen-year-

old girls. 206 Ariz. at 380, ¶¶ 7-10, 79 P.3d at 68.

¶38 Davis represents an “extremely rare case” in which the

court concluded prison sentences were grossly disproportionate.

In so holding, the court observed that a sentence violates the

Eighth Amendment if it is “so severe as to shock the conscience

of society.” Id. at 388, ¶ 49, 79 P.3d at 75 (quotation

omitted). This language, however, must be understood as a

restatement of the court’s conclusion that the sentences were

“grossly disproportionate” under the standard set forth in the

plurality opinions in Harmelin and Ewing, which Davis expressly

followed. Davis was not suggesting a different standard by its

use of the phrase “shock the conscience of society.”4

4
In State v. Davis, 108 Ariz. 335, 337, 312 P.2d 202, 204
(1972), this court rejected an Eighth Amendment challenge to a
mandatory ten-year sentence for a recidivist offender, but noted
that “in a proper case and at a proper time we may find that a
particular penalty is so severe as to shock the conscience of
society” and thus violate the Eighth Amendment. Prior to Ewing
and Harmelin, this court said that it would judge whether a
sentence “shocks the conscience of the community” for Eighth
Amendment purposes by whether it is “overly severe or
disproportionate to the crime.” State v. Bartlett, 164 Ariz.

20
¶39 Davis acknowledged, and we here reaffirm, that a

sentencing scheme that does not violate the Eighth Amendment in

its general application may still, in its application to “the

specific facts and circumstances” of a defendant’s offense,

result in an unconstitutionally disproportionate sentence. Id.

at 384, ¶ 34, 79 P.3d at 71. Berger, however, misunderstands

how the “specific facts and circumstances of the offenses” enter

into the Eighth Amendment analysis under Davis.

¶40 The court in Davis effectively concluded that it could

not reconcile the particular sentences imposed with any

reasonable sentencing policy it could attribute to the

legislature. Most significantly, the defendant in Davis, who

had no prior criminal record, was caught up in the “broad sweep”

of a statute that made no distinction between the perpetrators

of incest, serial pedophiles, and an eighteen-year-old man

engaging in sex initiated by a fifteen-year-old girlfriend. Id.

at 384-85, ¶¶ 36-37, 79 P.3d at 71-72. The statute’s breadth in

terms of imposing liability was coupled with a sentencing scheme

229, 233, 792 P.2d 692, 696 (1990), vacated, 501 U.S. 1246
(1991). The Supreme Court itself has not used the “shocks the
conscience” language in its Eighth Amendment review of prison
sentences, although it has used such language with respect to
the different issue of whether state action is so arbitrary as
to violate substantive due process. See Rochin v. California,
342 U.S. 165, 172 (1952).

21
mandating lengthy consecutive sentences for each offense. Id.

at 385, ¶ 37, 79 P.3d at 72.

¶41 In Davis, objective facts about the offenses indicated

that the defendant’s conduct was at the edge of the statute’s

broad sweep of criminal liability. Davis was twenty years old

and his maturity and intelligence fell far below that of a

normal adult. Id. at 384-85, ¶ 36, 79 P.3d at 71-72. The girls

involved not only participated willingly, but they had sought

Davis out and gone voluntarily to his home. Id. If the girls

had been fifteen or older and Davis within two years of their

age, he would not have been criminally liable at all. A.R.S. §

13-1407(F). But because his conduct was “swept up in the broad

statutory terms,” Davis, 206 Ariz. at 385, ¶ 37, 79 P.3d at 72,

Davis was subject to four consecutive thirteen-year sentences.

¶42 Only after concluding that objective factors about

Davis’s offense showed he had been caught up in the expansive

reach of the statute did the court determine that the

consecutive nature of his sentences was relevant to the Eighth

Amendment analysis. Id. at 387, ¶ 47, 79 P.3d at 74. In so

doing, however, the court noted that its conclusion rested on

the “specific facts and circumstances of Davis’s offenses,” and

reaffirmed that the court “normally will not consider the

imposition of consecutive sentences in a proportionality

inquiry . . . .” Id. at 387-88, ¶¶ 47-48, 79 P.3d at 74-75.

22
¶43 Berger argues that, in light of Davis, the court must

consider the consecutive nature of his sentences in the Eighth

Amendment analysis, along with the “victimless” nature of his

crime, and that this court must, at the least, order a re-

sentencing hearing so he can present “mitigation evidence.”

¶44 Berger’s conduct is at the core, not the periphery, of

the prohibitions of A.R.S. § 13-3553(A)(2) – the knowing

possession of visual depictions of sexual conduct involving

minors – and he, unlike Davis, cannot be characterized as

someone merely “caught up” in a statute’s broad sweep. Thus,

there is no basis here to depart from the general rule that the

consecutive nature of sentences does not enter into the

proportionality analysis.5

5
Berger has no prior criminal record, and Davis noted that the
defendant there had no prior adult criminal record. 206 Ariz.
at 385, ¶ 36, 79 P.3d at 72. This fact is not in itself a basis
for challenging a mandatory prison sentence as grossly
disproportionate. See Harmelin, 501 U.S. at 994-95 (rejecting
defendant’s contention that mandatory life sentence for first
time offender was “cruel and unusual”). An offender’s lack of
prior convictions also does not alter the general rule that
proportionality review focuses on the particular sentence for
each offense rather than the cumulative sentences. For purposes
of proportionality review, a prior criminal record may, however,
increase the gravity of the offense that underlies a challenged
prison sentence. See Ewing, 538 U.S. at 29 (“In weighing the
gravity of Ewing’s offense, we must place on the scales not only
his current felony, but also his long history of criminal
recidivism.”). For example, this court may well have reached a
different result in Davis if the defendant had prior adult
criminal convictions.

23
¶45 Nor do we accept Berger’s assertion that his crimes

were “victimless” merely because he did not touch or even

photograph any children himself. The defendant in Harmelin

similarly argued that his sentence to life without parole was

unconstitutional because his possession of 672 grams of cocaine

was a victimless and non-violent offense. In rejecting this

argument, Justice Kennedy noted the pernicious effects of the

drug trade, including drug-related violence. 501 U.S. at 1002-

03. Here, the link between possession of the contraband images

and the abuse of children is at least as direct. Production of

the images Berger possessed required the abuse of children, and

Berger’s consumption of such material cannot be disassociated

from that abuse for purposes of the Eighth Amendment

proportionality analysis. Cf. Norris, 159 F.3d at 930 (noting,

for purposes of federal sentencing guidelines, that “the

victimization of a child depicted in pornographic materials

flows just as directly from the crime of knowingly receiving

child pornography as it does from the arguably more culpable

offenses of producing or distributing child pornography”).

¶46 Alternatively, Berger asks this court to remand his

case for an evidentiary hearing in light of Davis. He notes

that, when he was sentenced, our court’s Eighth Amendment case

law did not allow a judge to consider the individual facts and

circumstances of the crime committed, see State v. DePiano, 187

24
Ariz. 27, 29-30, 926 P.2d 494, 496-97, and Davis overruled that

holding, 206 Ariz. at 384, ¶ 34, 79 P.3d at 71.

¶47 Davis, however, does not interpret the Eighth

Amendment to generally require evidentiary hearings to allow

defendants to offer “mitigation evidence” to show that a

particular sentence is disproportionate. The specific facts and

circumstances considered relevant in Davis are those that go to

the defendant’s degree of culpability for the offense, not to a

showing that the defendant is, apart from the crime at issue, a

good person or a promising prospect for rehabilitation. Cf.

Davis, 206 Ariz. at 384, ¶ 32, 79 P.3d at 71 (citing cases from

other jurisdictions that consider defendant’s culpability and

harm caused by offense as part of proportionality analysis).

¶48 In Harmelin, the Court held that the Eighth Amendment

does not require courts to consider mitigation evidence before

imposing mandatory prison sentences, even when a mandatory life

term results. 501 U.S. at 996 (Scalia, J., announcing judgment

of the Court); id. at 1006 (Kennedy, J., concurring in part and

concurring in the judgment). Justice Kennedy noted that the

Court’s Eighth Amendment decisions “reject any requirement of

individualized sentencing in noncapital cases,” and that the

Court had “never invalidated a penalty mandated by a legislature

based only on the length of a sentence, and especially with a

crime as severe as this one, [a court] should do so only in the

25
most extreme circumstance.” Id. at 1006-07 (Kennedy, J.,

concurring in part and concurring in the judgment). Davis does

not question these propositions.

¶49 Further, Berger has not identified any fact that he

might offer on remand that would alter our conclusion that his

sentences are not grossly disproportionate. At the time of his

arrest, Berger was a fifty-two-year-old high school teacher, was

married, and had no prior criminal record. These facts, which

are in the record, do not reduce his culpability. The trial

evidence showed that Berger knowingly sought and possessed

numerous items of contraband child pornography over an extended

period of time. Accordingly, considering “the specific facts

and circumstances” of Berger’s crimes only amplifies the

conclusion that he consciously sought to do exactly that which

the legislature sought to deter and punish. See Seritt v.

Alabama, 731 F.2d 728, 737 (11th Cir. 1984) (rejecting habeas

claimant’s argument for an evidentiary hearing when

circumstances of the crime were demonstrated in the record).

VI.

¶50 Penalties as severe and unforgiving as those imposed

here, as Justice Kennedy noted in Harmelin, present “a most

difficult and troubling case for any judicial officer.” 501

U.S. at 1008 (Kennedy, J., concurring in part and concurring in

the judgment). But “the fixing of prison terms for specific

26
crimes involves a substantive penological judgment that, as a

general matter, is properly within the province of legislatures,

not courts.” Id. at 998 (internal quotations omitted).

Moreover, subject to constitutional limits, “[w]e recognize

society’s strong interest in protecting children and understand

and appreciate that it is the legislature’s province to assess

the appropriate punishment for crimes against children.” Davis,

206 Ariz. at 385, ¶ 37, 79 P.3d at 72.

¶51 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. We vacate the part of the

opinion of the court of appeals that addresses the Eighth

Amendment issue, and we affirm the sentences.

________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

27
H U R W I T Z, Justice, concurring

¶52 I fully concur in the analysis and result reached by

the majority in this case. I write briefly in response to

Justice Berch’s eloquent concurring and dissenting opinion. As

a policy matter, there is much to commend Justice Berch’s

suggestion that the cumulative sentence imposed upon Mr. Berger

was unnecessarily harsh, and my personal inclination would be to

reach such a conclusion. As a judge, however, I cannot conclude

under the Supreme Court precedent or even under the alternative

test that Justice Berch proposes that Berger’s sentences violate

the United States Constitution.

A.

¶53 The issue in this case is whether the twenty

consecutive sentences that Berger received for twenty separate

crimes violate the cruel and unusual punishment clause of the

Eighth Amendment.6 In my view, proof of an Eighth Amendment

violation can only be premised on (a) a conclusion that a ten-

year sentence for one count of sexual exploitation of a minor

through knowing possession of child pornography itself is so

disproportionate to the crime as to be cruel and unusual, or (b)

6
This case does not require us to confront the question of
whether the Eighth Amendment can in some circumstances be
violated by consecutive sentences for crimes essentially
constituting one occurrence. Thus, for example, we need not
today decide whether similar sentences would be appropriate if
Berger downloaded the images at one sitting, or possessed a book
with twenty illegal photographs inside.

28
that even if a ten-year sentence for one count is

constitutional, twenty such consecutive sentences are not.

¶54 As Justice Berch quite correctly suggests, and as the

Supreme Court itself has admitted, the Court’s “proportionality

decisions have not been clear or consistent in all respects.”

Harmelin v. Michigan, 501 U.S. 957, 996 (1991) (Kennedy, J.,

concurring). I therefore find merit in Justice Berch’s

suggestion that objective analysis would be easier if courts

were allowed to conduct an intra- and inter-jurisdictional

analysis at the outset in order to find an inference of gross

disproportionality. However, as Justice Berch candidly admits,

the Court has expressly eschewed this very approach. Id. at

1005.

¶55 But even if we were free to follow Justice Berch’s

suggested approach, I would not conclude that an inference of

gross disproportionality can be drawn here. The initial

question is whether a ten-year sentence for one count of this

kind of sexual exploitation of a minor is itself

unconstitutional. That the Arizona penalty is purportedly the

longest in the nation does not of course, establish

disproportionality. See Rummel v. Estelle, 445 U.S. 263, 281

(1980). There will always be one state with the longest

penalty, and if that were enough to establish an Eighth

Amendment violation, the result would be a revolving door under

29
which the penalty for the next state in line would then be

automatically unconstitutional. See id. at 282.

¶56 Nor can I conclude that inter-jurisdictional

comparisons demonstrate that the penalty Berger received for a

single count is disproportionate to the penalty that could be

imposed elsewhere for a single such offense. The federal

sentencing guidelines in effect when Berger was sentenced

recommended a sentence of fifty-seven to seventy-one months for

possession of one (or more) proscribed depictions, but the

governing statute allowed a sentence of up to fifteen years for

one offense.7 As Justice Berch notes, at least nine other states

allow (but do not require) a ten-year penalty, and four states

permit a greater penalty. Such is not the stuff of gross

disproportionality.

¶57 Nor does an intra-jurisdictional comparison lead to a

different result. It is tempting to compare Berger’s

accumulated consecutive sentences to the maximum sentence for

second degree murder or sexual assault. But the question, of

course, is not what a defendant who commits one murder or one

7
This range is based on an assumed violation of 18 U.S.C. §
2252(a)(2) (2000), an assumed offense conduct level of twenty-
five, U.S. Sentencing Guidelines (“USSG”) § 2G2.2 (2002), and a
criminal history category for a first-time offender, USSG Ch. 5,
pt. A, Sentencing Table. The federal guidelines today recommend
a sentence of seventy-eight to ninety-seven months for one such
offense, USSG § 2G2.2 (West, Westlaw through 2006), but the
governing statute allows a sentence of up to twenty years, 18
U.S.C. §§ 2252(b)(1) (West, Westlaw through 2006).

30
sexual assault faces as a potential sentence, but rather what

one who commits twenty such offenses faces. It cannot be

suggested that a 200-year sentence for twenty murders or twenty

rapes would be disproportionate.

¶58 As Justice Berch suggests, her real concern is not

that a defendant can receive a ten-year sentence for each

offense, or that a court can impose consecutive sentences for

multiple offenses, but rather that Arizona law requires that a

court impose consecutive ten-year sentences for each offense.

Yet, as Justice Berch correctly notes, the Supreme Court – whose

Eighth Amendment interpretations bind us – has rejected the

notion that mandatory flat sentences violate the Constitution

because they do not allow consideration of the particular

situation of the offender. Harmelin, 501 U.S. at 1006-07

(Kennedy, J., concurring). Nor does Supreme Court precedent

allow us to find consecutive sentences for separate crimes

unconstitutional if the individual sentences for each crime are

not. See Lockyer v. Andrade, 538 U.S. 63, 74 n.1 (2003).

B.

¶59 I thus conclude that the majority opinion faithfully

applies the Supreme Court’s Eighth Amendment disproportionality

jurisprudence. I do so reluctantly, however. What is

troublesome here – as Justice Berch points out – is that the

punishment for Berger’s admittedly serious offenses intuitively

31
seems too long. If I were a legislator, I would be free to find

such a long sentence shocking to my conscience and vote for a

less draconian sentencing scheme. But the test for violation of

the Constitution is not my personal conscience nor whether a

sentence subjectively is bothersome to me. The Supreme Court

has held that a defendant may receive a life sentence for the

commission of three felonies, none of which in and of themselves

could result in a long term of imprisonment. Ewing v.

California, 538 U.S. 11, 30-31 (2003). If this is the case, I

cannot conclude that consecutive sentences for separate felonies

turns an otherwise legal sentence into one that violates the

Constitution.

¶60 Benjamin Cardozo long ago noted the correct role of

the judge in difficult areas such as this:

The judge, even when he is free, is still not wholly
free. He is not to innovate at pleasure. He is not a
knight-errant, roaming at will in pursuit of his own
ideal of beauty or of goodness. He is to draw his
inspiration from consecrated principles. He is not to
yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed
by tradition, methodized by analogy, disciplined by
system, and subordinated to “the primordial necessity
of order in the social life.” Wide enough in all
conscience is the field of discretion that remains.

B. Cardozo, The Nature of the Judicial Process 141 (1921).

¶61 This is the kind of case that tests the limits of

Cardozo’s wisdom and our discipline as judges. But unless and

until the Supreme Court changes its interpretation of the Eighth

32
Amendment, I am constrained to conclude that the legislature is

empowered to require the sentences that Berger received.

__________________________________
Andrew D. Hurwitz, Justice

B E R C H, Vice Chief Justice, concurring in part and dissenting
in part

¶62 A mitigated sentence of 200 years for possession of

twenty images of child pornography, without the possibility of

pardon or early release, is extraordinarily long. While courts

must defer to the legislature in setting sentencing ranges, the

Supreme Court has recognized a “narrow proportionality

principle” inherent in the Eighth Amendment that prohibits

sentences that are “grossly disproportionate” to the crime.

Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J.,

concurring).8

¶63 The question is how to determine whether the sentence

at issue is grossly disproportionate. The Court has stated that

reviewing courts must compare the “gravity of the offense” to

the “harshness of the penalty.” Ewing v. California, 538 U.S.

11, 28 (2003) (plurality opinion). If this inquiry gives rise

8
Although substantial deference is due to legislative
judgments regarding sentencing, the notion that the legislature
may set any non-capital sentence without regard to
proportionality has garnered only two votes. See Harmelin, 501
U.S. at 994 (Scalia, J., joined by Rehnquist, C.J.); Ewing v.
California, 538 U.S. 11, 31 (2003) (Scalia, J., concurring), 32
(Thomas, J., concurring).

33
to an “inference” of gross disproportionality, the court must

then examine the punishment for similar offenses in other

jurisdictions (the inter-jurisdictional analysis) and the

punishment for other offenses in the forum jurisdiction (the

intra-jurisdictional analysis). Solem v. Helm, 463 U.S. 277,

291 (1983). The inquiry is not supposed to be subjective, yet

courts are directed not to conduct an inter- and intra-

jurisdictional analysis to assist in ascertaining whether a

sentence is too long unless they first find an “inference of

gross disproportionality,” see Harmelin, 501 U.S. at 1005

(Kennedy, J., concurring), which the courts reviewing this case

have not found. My point in this opinion is merely to

demonstrate that were we able to conduct such an objective

inquiry as a part of our determination of whether a sentence

gives rise to an inference of gross disproportionality, the

analysis would demonstrate that Arizona’s sentence for this

crime is by far the longest in the nation and is more severe

than sentences imposed in Arizona for arguably more serious and

violent crimes. Such objective facts support finding an

inference of gross disproportionality.

¶64 For example, in the federal system, the sentencing

guidelines recommend a sentence of approximately five years (57-

71 months) based on the number and type of images Berger

possessed. U.S. Sentencing Guidelines Manual (“U.S.S.G.”) §

34
2G2.2 (Supp. 2005) & § 5A (1996).9 While the Arizona Legislature

is free to set its own sentencing ranges, of course, the federal

sentences are set by a professional Sentencing Commission, whose

opinions the federal courts have deemed entitled to “great

weight” because of the Commission’s expertise in matters of

sentencing. United States v. Hill, 48 F.3d 228, 231 (7th Cir.

1995); see also Mistretta v. United States, 488 U.S. 361, 379

(1989) (stating that Sentencing Commission is an “expert body”).

In setting sentence ranges, this congressionally established

Commission examines abundant data and consults experts in each

field. That this Commission recommends approximately five years

as an appropriate sentence for possession of twenty images

suggests that a minimum term of 200 years probably is not merely

disproportionate, but grossly disproportionate to the crime.

9
This sentence is based on an offense level of 25, which
both Justice Hurwitz and I agree is the appropriate level under
the 2002 sentencing guidelines for one possessing multiple
pornographic computer images of children under 12. See supra ¶
56 and n.7. Two recent amendments have increased the offense
level, resulting in a recommended sentence for twenty images of
about nine years (97-121 months), or, if a defendant is charged
with possessing more than 600 images, a range of eleven to
fourteen years (135-168 months). U.S.S.G. §§ 2G2.2 & 5A.
Although the federal maximum statutory sentence is, as Justice
Hurwitz correctly notes, fifteen years, Berger’s conduct would
not warrant a maximum sentence. See 18 U.S.C. § 2252 (2000).
Even if it did, fifteen years would be the total sentence for
possession of all twenty images. While the ranges and maximum
sentence have been increased to twenty years, Berger’s crimes
would fall under the 2002 version of the statute.

35
¶65 Arizona’s mandatory minimum 200-year sentence also

exceeds that imposable in any other state. See Harmelin, 501

U.S. at 1005 (Kennedy, J., concurring) (requiring examination of

sentences imposed in other jurisdictions for similar crimes to

validate an inference of gross disproportionality). It is the

unique combination of long mandatory minimum sentences, coupled

with the requirements that each image be charged separately and

that the terms be served consecutively and fully – that is,

without possibility of early release – that renders Arizona’s

sentences extraordinarily long. See A.R.S. §§ 13-3553, -604.01

(Supp. 2005). Indeed, the minimum ten-year sentence in Arizona

for possession of one image is greater than the maximum sentence

for possession of child pornography in thirty-six states and

equal to the maximum sentence in nine other states.10

Additionally, most other states permit concurrent sentences or

10
These figures are based on possession of one image, and are
based primarily on the copies of all fifty states’ child
pornography possession and sentencing statutes provided to the
court by the parties in January and February, 2006. The states
that allow maximum sentences greater than ten years for one
image – Georgia, Mississippi, Tennessee, and Utah – all have
minimum sentences of less than ten years. In those states,
moreover, sentences may be served concurrently, they need not be
served day-for-day, and probation is available. Ga. Code Ann.
§§ 16-12-100(b)(8), 42-8-34(a) (West, Westlaw through 2005 Spec.
Sess.); Miss. Code Ann. §§ 97-5-33(5), 97-5-35, 47-7-33(1)
(West, Westlaw through 2005 5th Extraordinary Sess.); Tenn. Code
Ann. §§ 39-17-1003, 40-35-111, 40-35-303(a) (West, Westlaw
through 2005 Sess.); Utah Code Ann. §§ 76-5a-3(1), 76-3-203, 77-
18-1 (West, Westlaw through 2005 2d Spec. Sess.).

36
grouping of charges. E.g., State v. Christensen, 663 N.W.2d

691, 693 (S.D. 2003) (imposing two one-year sentences, to be

served concurrently). Only Florida appears to require each

image to be a separate count, but each charge there carries a

five-year term and is probation eligible.11 Fla. Stat. Ann. §§

827.071(5), 775.082(3)(d) (term), 948.01 (probation) (West,

Westlaw through 2005 ‘B’ Sess.). In Arkansas, Berger would have

been eligible for a sentence of three to ten years, and in

Connecticut, possession of twenty images requires a sentence of

one to ten years. Ark. Code Ann. §§ 5-27-304(b), 5-4-401(a)

(West, Westlaw through 2005 Sess.); Conn. Gen. Stat. Ann. §§

53a-196e, -35a (West, Westlaw through 2006 Supp.).

¶66 While some states provide for enhanced penalties for

“second or subsequent” offenses, that term is defined as later

offenses not charged at the same time. See, e.g., Miles v.

State, 51 So. 2d 214, 215 (Miss. 1951); McGervey v. State, 958

P.2d 1203, 1207 (Nev. 1998). By that definition, Berger is a

first-time offender. In most states, Berger’s sentence would

not exceed five years, and he would also have the possibility of

probation or early release. See, e.g., Cal. Penal Code §

311.11(a) (West, Westlaw through 2006 Sess.) (up to twelve

11
Tennessee allows each image to be charged separately if
there are fewer than fifty. Tenn. Code Ann. § 39-17-1003(b).
In Utah, each minor depicted gives rise to a separate charge.
Utah Code Ann. § 76-5a-3(3).

37
months); N.M. Stat. Ann. §§ 30-6A-3(A), 31-18-15(A)(9) (West,

Westlaw through 2006 Sess.) (up to eighteen months). Thus, if

the Supreme Court’s jurisprudence permitted the court to examine

the sentences imposed in other jurisdictions for similar crimes

– the inter-jurisdictional analysis mentioned in Solem,

Harmelin, and Ewing – the analysis would support the inference

that Berger’s 200-year sentence is grossly disproportionate.

¶67 Moreover, the sentence at issue is longer than that

imposed in Arizona for many crimes involving serious violence

and physical injury to the victim. Second degree murder, for

example, like possession of child pornography, also carries a

minimum sentence of ten years, see A.R.S. § 13-710(A) (2001),

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. See A.R.S. §§ 13-1406(B) (2001) (seven years for

rape), 13-1204(B), -701(C)(2) (2001) (3.5 years for 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). See A.R.S. § 13-604.01(B), (D)

(Supp. 2005). Even a mitigated sentence for possession of five

images (fifty years) amounts as a practical matter to a life

38
sentence without parole, more serious than the sentence imposed

for virtually any crime in the state. For molesting a child,

one might receive the same sentence that Berger has received for

possessing one picture.12 See A.R.S. § 13-604.01(D). Indeed,

sexual exploitation of a minor, the offense with which Berger

was charged, is the only “dangerous crime against children” that

by definition does not involve contact with any children. Yet a

defendant may easily accrue a very lengthy sentence. The

Supreme Court has said that “[i]f more serious crimes are

subject to the same penalty, or to less serious penalties, that

is some indication that the punishment at issue may be

excessive.” Solem, 463 U.S. at 291. This factor as well

indicates the extraordinary nature of the sentence in this case.

See id. at 299.13

¶68 The majority correctly observes, however, that Berger

was convicted of not one, but twenty serious felonies. Op. ¶

12
These facts might lead victims of violent crime to think
that the legislature and justice system care less about their
injuries and losses than it does about punishing those who
possess pornographic images. See United States v. Angelos, 345
F. Supp. 2d 1227, 1251 (D. Utah 2004) (“[C]rime victims expect
that the penalties the court imposes will fairly reflect the
harms that they have suffered.”), aff’d by 433 F.3d 738 (10th
Cir. 2006).
13
Terrorist co-conspirator Zacarias Moussaoui was recently
sentenced to two life sentences in prison – the equivalent of
the sentence Berger received – for Moussaoui’s involvement in
the terrorist acts that led to the deaths of nearly 3000 people
on September 11, 2001. United States v. Moussaoui, Crim. No.
01-455-A (E.D. Va. May 4, 2006).

39
25. Moreover, my colleagues note, we must look at the sentences

for the individual crimes, Op. ¶ 27, and defer to the

legislature’s requirement of mandatory sentences. Op. ¶ 32.

From this, my colleagues derive the proposition that the court

may not consider the consecutive nature of Berger’s sentences in

determining whether the total is grossly disproportionate to the

seriousness of Berger’s crimes, Op. ¶ 27, nor may we consider

the mandatory flat nature of the sentences.

¶69 I agree that the Supreme Court has implied as much

when dealing with statutes different from those now before us.

Lockyer v. Andrade, 538 U.S. 63, 74 n.1 (2003) (consecutive

sentences); Harmelin, 501 U.S. at 1006-07 (Kennedy, J.,

concurring) (mandatory sentences). But in determining whether a

total sentence is grossly disproportionate to the crime for

which it was meted out as punishment, we must deal with the

sentence imposed as a whole and not shield ourselves from the

full impact of the sentence by analyzing only one charge and

sentence. Arizona’s sentencing scheme requires very long,

mandatory sentences that must be served consecutively and fully,

with no possibility of probation, pardon, or early release.

These combined features affect the real-world sentences

defendants must serve, and we should not allow these unique

features and the resulting sentences to escape review by

focusing only on the sentence for one charge. We suggested as

40
much in State v. Davis, 206 Ariz. 377, 387-88, ¶ 47, 79 P.3d 64,

74-75 (2003).

¶70 Arizona’s sentencing scheme is unique in coupling

extraordinarily long terms with mandatory stacking requirements,

and in requiring that each sentence be fully served, without

possibility of early release. The compounding impact of this

triple whammy should not escape scrutiny. While great deference

is owed to the legislature’s choice to impose stringent

sentences, the constitution imposes on this court the obligation

to determine whether the resulting sentence is cruel and unusual

in light of the circumstances of an individual case.

¶71 The Supreme Court requires the court to measure the

gravity of the crimes for which Berger was convicted –

possession of twenty graphic images of child pornography –

against the severity of the sentence imposed. Harmelin, 501

U.S. at 1005 (Kennedy, J., concurring). In weighing the gravity

of the offenses, the court may consider the defendant’s criminal

history, see Ewing, 538 U.S. at 29 (plurality opinion), as well

as the “harm caused or threatened to the victim or society, and

the culpability of the offender.” Solem, 463 U.S. at 292.

¶72 Berger has no prior criminal record. He was convicted

of possessing twenty grossly obscene images depicting young

children engaged in lewd acts. He was not involved in making

any of the photographs and the record contains no evidence that

41
he purchased the items or intended to sell them. They appear to

be images he downloaded from the Internet. Although purchase of

such items undoubtedly drives the market for their production,

it is unclear that mere possession does so.

¶73 While the legislature may choose to punish severely

those who support the child pornography industry because of

pornography’s extremely deleterious effect on those degraded and

harmed in its making, due process notions of individualized and

appropriate sentencing require consideration of the fact that

Berger engaged in no force or violence, made no threats of force

or violence, and did not physically injure anyone. See Burns v.

United States, 287 U.S. 216, 220 (1932) (setting forth due

process requirement of individualized sentencing). Indeed,

there is no evidence that Berger has ever touched any child

improperly. That absence of direct violence affects the

assessment of society’s interest in punishing his acts so

severely. See Rummel v. Estelle, 445 U.S. 263, 275 (1980).

¶74 Although the Supreme Court has confirmed that a

limited proportionality principle inheres in the Eighth

Amendment to prevent sentences that are “grossly

disproportionate” to the crime committed, Ewing, 538 U.S. at 23

(plurality opinion), that Court has only twice struck a sentence

as being so grossly disproportionate to the crime as to violate

the Eighth Amendment. See Solem, 463 U.S. at 303; Weems v.

42
United States, 217 U.S. 349, 382 (1910). In Solem, the Court

held that imposing a life sentence for passing an “insufficient

funds” check violated the Eighth Amendment’s requirement that

sentences not be grossly disproportionate to the crime

committed. 463 U.S. at 303. In the case before us, Berger was

sentenced to 200 years – more than two and one-half lifetimes,

from birth to death – for possessing twenty lewd and obscene

photographs.

¶75 While one can rationalize that the defendant here was

convicted of twenty felonies rather than one, other

considerations mitigate the importance of that factor. Unlike

other crimes, which tend to occur in relative isolation, those

who possess pornography tend to possess more than one image.

Because possession of each image constitutes a separate crime

and the minimum sentence for each crime is ten years, the

sentences quickly mount up. Moreover, in this case, Berger had

no chance to rehabilitate between convictions because he was

convicted on all twenty counts on one occasion.

¶76 I do not condone Berger’s crimes. Child pornography

is a serious offense. See 1978 Ariz. Sess. Laws, ch. 200, § 2;

see also State v. Taylor, 160 Ariz. 415, 422, 773 P.2d 974, 981

(1989). I concur in the majority’s analysis of the crime itself

and of the legislature’s right to impose severe penalties for

it. See Op. ¶¶ 18-23. I further agree that Berger’s crimes,

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unlike the crimes at issue in Davis, were precisely the type of

criminal acts the legislature intended to punish. 206 Ariz. at

385, ¶ 37, 79 P.3d at 72. Berger was not “swept up” in an

overly broad categorization, as was the defendant in Davis. Id.

¶77 Nonetheless, sentences 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 not asked to determine in this case whether a

sentence of ten years would ever be appropriate for possession

of a pornographic image. It might be. We are asked instead 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.” Trop v. Dulles, 356 U.S. 86,

101 (1958).

¶78 The foregoing analysis would support an inference of

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gross disproportionality, if the court had drawn such an

inference. But it didn’t. Given that result, it is difficult

to envision when the court would ever find a term of years to be

disproportionate to the gravity of the crime and the harm to the

public.14

¶79 In conclusion, I concur in the court’s statements of

the rules emanating from the Harmelin line of Supreme Court

cases and its interpretation of Davis. I also agree that

exploitation of children is a serious crime and that the

legislature has responsibility for defining crimes and setting

the sentencing ranges for those crimes. I disagree only in that

I would find that a minimum mandatory sentence of 200 years for

possession of twenty pornographic images raises an inference of

gross disproportionality that requires additional analysis

before ultimately the court determines whether the sentence is

unconstitutionally disproportionate.

_______________________________________
Rebecca White Berch, Vice Chief Justice

14
The governor generally has the power to grant pardons or
commute sentences. A.R.S. § 31-443 (2002). In this case,
however, the statute setting forth the sentence purports to
preclude that remedy. A.R.S. § 13-604.01(G) (providing that
defendant is not subject to pardon or early release). Moreover,
it would be a brave politician who ventured to reduce the
sentence of a sex offender. For those reasons, among others,
courts have a role, although a limited one, in determining the
constitutionality of sentences of terms of years.

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