On October 30, the Supreme Court of Pennsylvania decided Commonwealth v. Baker, holding that the mandatory minimum sentence of 25 years for a second conviction of possession of child pornography does not violate the Eighth Amendment’s prohibition of cruel and unusual punishment. The court was persuaded by the Commonwealth’s argument that possession of child pornography is not merely a possessory offense, but actually encourages the victimization of children
In 2001, appellant/defendant Jeffrey Baker was first convicted of possession of child pornography and was sentenced to five years of intermediate punishment. Four months after he completed the intermediate punishment program, police received a tip that Baker was again sending and receiving pictures of child pornography. Police obtained a warrant and searched Baker’s residence, which revealed a computer and DVDs containing hundreds of pictures and dozens of videos of children engaging in sexual activity with adults. Baker was charged with child pornography charges, and after a trial by jury, was sentenced to a minimum of 25 years to a maximum of 50 years of incarceration. Given that this was his second child pornography conviction, Baker’s sentence was proper pursuant to 42 Pa.C.S.A. § 9718.2
Baker appealed to the Superior Court, arguing that the sentence violated the Eighth Amendment’s prohibition of cruel and unusual punishment. The Superior Court affirmed, Baker appealed to the Supreme Court of Pennsylvania, and the Defender Association of Philadelphia filed an amicus brief with the court. The Supreme Court of Pennsylvania granted certiorari to decide whether the sentencing statute violated the Eighth Amendment. To determine whether a sentence is cruel or unusual, a court will apply a three-prong test, analyzing: the gravity of the offense and the harshness of the penalty; the sentences imposed on other criminals in the same jurisdiction; and the sentences imposed for commission of the same crime in other jurisdictions.
Baker argued that his sentence was a violation of the Eighth Amendment because it was grossly disproportionate to the mandatory minimum sentence for forcible rape of a child under 13 years of age, which is ten years imprisonment. Baker attempted to distance his mere possessory offense from the more ‘physical’ offense of forcible rape of a child. In its amicus brief, the Defender Association argued that “from a purely subjective visceral standpoint, such a massive sentence for this possessory offense is disproportionately severe”, and that the sentence is an “anomaly” in that it exceeds by 500% the statutory maximum for a second degree felony elsewhere in the crimes code, where the maximum sentence is ten years imprisonment.
The Commonwealth argued that possession of child pornography is not mere possession, but in effect increasess the demand for child pornography, and therefore perpetuates the child pornography industry as a whole.
In its decision, the court sided with the Commonwealth, choosing not to distance the possession of child pornography from the victimization of the children. The court said that Baker “was…a willing voyeuristic participant in [sexual abuse of children] after the fact, and it is his demand to possess images of child sexual abuse which permits and, to an extent, causes, the production of child pornography.” Regarding the gravity of the offense, the court believed that it was not grossly disproportionate, because Baker will be between 56 and 81 years old when he gets out of prison, which is not tantamount to a life sentence. As such, the court found that the harshness of the penalty did not outweigh the gravity of the offense under the first prong of the cruel and unusual punishment test, and therefore it did not need to analyze the other two prongs.
If you have been charged with or convicted of a sex offense, contact one of our criminal defense attorneys today.