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 
2

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-
3

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 
4

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). 
5

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, ¶ 
6

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). 

 
7

¶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 
8

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 
9

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 
10

[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. 
11

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 
12

¶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.
13

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). 
14

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 flattime 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 
15

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. 

 
16

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 twentyfive 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; 
17

upheld a sentence of life in prison without parole for a firsttime 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 
18

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 
19

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.
20

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-yearold 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. 
21

¶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). 
22

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. 
23

¶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 resentencing 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.
24

¶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 
25

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 
26

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 
27

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 
28

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 tenyear 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. 
29

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 
30

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 twentyfive, 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). 
31

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 
32

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 
33

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). 
34

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 intrajurisdictional 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.”) § 
35

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. 
36

¶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.). 
37

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). 
38

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 
39

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). 
40

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 
41

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 
42

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. 
43

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, 
44

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 
45

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. 
46