11 May 2006

Prison Overkill

A law abiding society does not require the imprisonment levels found in the United States. How do I know that? Every other country in the world imprisons people less often than we do. In fact, we imprison about a third more people per capita than the next runner up, and about five times as many as the median country.

The United States has the highest prison population rate in the world, some 714 per 100,000 of the national population, followed by Belarus, Bermuda and Russia (all 532), Palau (523), U.S. Virgin Islands (490), Turkmenistan (489), Cuba (487), Suriname (437), Cayman Islands (429), Belize (420), Ukraine (417), Maldive Islands (416), St Kitts and Nevis (415), South Africa (413) and Bahamas (410). . . almost three fifths of countries (58%) have rates below 150 per 100,000.

Sentencing decisions like a recent one upholding a 200 year sentence for possession of child pornography contribute to this trend. Possessing child porn, without creating it yourself or intending to distribute it, should be illegal. You are creating a market for the exploitation of children. But, you shouldn't be punished more severely than you would be for raping a child or causing that child's death through child abuse, simply for possessing child pornography. Yet, this is what a sentence like this does, even though the defendant had no prior convictions of any kind, unlike most all of the other U.S. Supreme Court cases that have upheld draconian sentences for less serious crimes which followed multiple felony convictions. And, our judges have lost all sense that there is an obligation under the U.S. Constitution for a sentence to be proportionate to the crime, which is what the 8th Amendment should mean, even if the courts have failed to interpret it that way.

One can, within the bounds of legislative discretion, say, as Arizona did, that possession of child pornography is a such a serious offense that a 10 year mandatory minimum sentence in appropriate, even though many states would disagree. But, Arizona was patently unreasonable when is legislatively decided that possessing twenty child porn pictures at the time of a single arrest is twenty times more serious than possessing one, and that this justified as 200 year sentence.

As dissenting Arizona Supreme Court Justice Berch notes in her dissenting opinion, the sentence under the federal sentencing guidelines for this offense would have had an upper range of less than six years. Arizona's ten year minimum sentence is more than the maximum in 36 states for any child pornography offense, and equal to the maximum sentence in 9 other states. Thus, only four other states permit a sentence longer than 10 years for any child pornography possession offense.

The next most harsh state is Florida, which requires a sentence of five years per immage with the possibility of parole, as opposed to ten years per image with no possibility of parole in Arizona. In most states the maximum sentence would be five years with a possibility of parole at an earlier date.

She also notes that in Arizona, the minimum sentence for second degree murder is the same as the minimum sentence for possession of child pornography, but unlike second degree murder, sentences for multiple crimes committed at the same time as a murder can be served concurrently. They frequently would be if they were committed at the same time by a first time offender. The presumptive sentence for second degree murder or rape of a child under twelve in Arizona is twenty years. It would be rare to receive more than ten years in prison for molesting a child in Arizona. The presumptive sentence for The presumptive sentence for rape of an adult in Arizona is seven years, and the presumptive sentence for aggravated assault in Arizona is 3.5 years.

A 200 year term without possiblity of parole is identical to a life sentence without possibility of parole. No one has ever lived that long and the defendant in this case, a high school teacher, was at least 22 years old. Even a 100 year sentence would have been equivalent to a life without possibility of parole sentence in this case. But, this sentence is only permitted for capital murder which would also could result in a death sentence and a couple of other crimes.

Given this gross failure to exercise responsibility by the Arizona Supreme Court, we can only help that the federal courts, or the Governor of Arizona will intervene to commute this sentence to a more reasonable one, perhaps ten years in prison, which is at the upper range of what any state other than Florida or Arizona would impose in this case.

No comments: