I have long disputed assumptions about the deleterious effects of pornography: I don’t assume that it causes rape or other forms of violence, but I am beginning to believe that it drives some people crazy. How else can we explain the imposition of a two-hundred-year prison sentence on an Arizona man convicted merely of downloading child porn or the refusal of the Supreme Court even to consider his appeal?
Morton Berger, a fifty-seven-year-old first offender and former high-school teacher, received twenty consecutive ten-year sentences for downloading twenty images of child porn. He was not charged with involvement in producing the images or with intent to sell them. There was no evidence that he was ever involved in any assault on any child. Still, Arizona law treated his possession of each downloaded image as a separate felony, punishable by a mandatory minimum sentence of ten years in prison, without parole, and it required that sentences for all twenty felonies be served consecutively. The passage of this draconian law is not surprising: merely viewing or possessing—much less trafficking in—child porn is apt to be regarded with more horror than murder (in Arizona, it may be punished more severely), and legislatures regularly pass excessively harsh, irrational sentencing laws. The refusal of judges to strike down this horrific sentence under the Eighth Amendment’s prohibition on cruel and unusual punishment is, however, a bit of a shock. Courts are supposed to save us from legislative lunacies.
The Arizona Court of Appeals found Berger’s sentence reasonable partly by ignoring it: the court focused on each sentence of ten years instead of the cumulative two-hundred-year sentence. One judge managed to retain her sanity and dissented from this decision; one judge concurred uncomfortably, conceding that Berger’s sentence “intuitively seems too long.” But, he concluded, “the test for violation of the Constitution is not my personal conscience.”
That is a remarkable abdication of judicial responsibility. Of course, judges are supposed to abide by legal precedents; of course, they’re not supposed to turn their personal preferences into law. But a judge who checks his conscience at the courthouse door checks his sense of justice—and surrenders his ability to evaluate Eighth Amendment claims. How does a judge who declines to be guided by conscience determine whether a sentence is cruel and unusual? Would he or she be required to uphold a sentence of torture, despite any pangs of conscience, if unable to find a precedent for overruling it?
That’s probably a moot point, since people are tortured extrajudicially or unofficially. But the Supreme Court has reviewed and upheld extraordinarily long sentences for nonviolent crimes, providing a cruel precedent for the Arizona judges reviewing Morton Berger’s case. It’s hard to shock the conscience of this Court. In 2003, it rejected an Eighth Amendment claim and upheld life sentences for two repeat offenders convicted of shoplifting under Cali¬fornia’s three-strikes law. Gary Ewing had received a twenty-five-year-to-life sentence for stealing three golf clubs, with a total value of $1,200. Leandro Andreado had been sentenced to fifty years to life for stealing $84.70 worth of videotapes. They weren’t even pornographic.
But Andreado was prosecuted for theft, however overzealously. Pornogra¬phy can land you in prison even if you view it legally. Consider the case of Julie Amero, a substitute teacher recently convicted of risking injury to children by exposing students in her middle-school class to images of pornography on a classroom computer. (She is awaiting sentence; her “crimes” allow for a maximum sentence of forty years.) Amero, who described herself as technophobic, claimed that the offending computer was bombarded by ads for porn sites that she was unable to control. She also said she had been instructed not to turn the computer off. Amero called a computer expert in her defense, who confirmed that the school computer had been commandeered by spyware, but the judge excluded much of his testimony. A school official testified that the computer lacked security. Students testified that Amero tried to keep them away from the presumptively injurious images, not entirely successfully.
Given these facts, it’s virtually impossible to imagine a good reason to prosecute Amero but easy to imagine a bad one: hysteria about pornography and the risks that mere glimpses of it pose to children. We should at least question how much eleven- and twelve-year-old students are apt to be harmed by fleeting looks at Internet porn. Are the students in this case undergoing counseling as a result of the “injuries” they suffered? Did they feel injured or endangered by the pornography they saw in Amero’s class? Or did the reaction to their brief exposure to pornography persuade them that it must have been injurious? You have to wonder what was more traumatic for the students: the incident in Amero’s class or the criminal prosecution that followed it.
Julie Amero’s case has attracted considerable attention, ridicule, and outrage; she may yet be vindicated on appeal. But hysteria about pornography, broadly defined, shows no sign of abating. Recently, in Westchester, New York, three sixteen-year-old high-school girls were suspended for saying the word vagina during a recitation of The Vagina Monologues. They had been warned not to say the V word, and, with predictable illogic, school officials denied that they engaged in censorship by suspending the students for saying a word they had been told not to say: the school was simply punishing “insubordination.” Not surprisingly, and most appropriately, the students seemed to enjoy the controversy; their local paper, The Journal News, sported a picture of them grinning broadly. Unlike their principal, the prosecutors in the Amero and Berger cases, or the judges who upheld Berger’s two-hundred-year sentence, the V-girls don’t seem like candidates for rehab.
Wendy Kaminer is a lawyer and social critic. Her latest book is Free for All: Defending Liberty in America Today.
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OCTOBER 24-27 2013
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