The following is the opinion and analysis of the writer:
John Leonardo
During my forty-four-year career as a prosecutor and as a judge I participated in hundreds of sentencing hearings. Most of these sentences imposed were within the range I thought reasonable given the crime committed and the defendant’s background. Occasionally the law mandated an excessive sentence, but I had to impose it to comply with the law. By far the most egregious example of an excessive mandated sentence that I was ever required to impose came in 2007. The defendant, Carl, was a 47-year-old aviation mechanic with no criminal record other than a 15-year-old conviction for drug possession. His offense: the possession of 29 printed images of child pornography. He did not create the images, sell them or even share the images with anyone. Yet Arizona law required that his sentence be not less than ten years for each image with each sentence to be consecutive to the others, for a total of 290 years in prison.
Like most people, I abhor child pornography. The possession of such images should be illegal and severely punished. However, one of the guiding principles of our criminal justice system is that the punishment should be proportionate to and commensurate with the crime. A sentence of 290 years in prison (a life sentence in effect) for this conduct is not only completely disproportionate, it’s unconscionable.
This is not a question of Carl’s guilt. It is a question of whether the 17 years he has already spent in prison is an adequate penalty for his conduct. Reasonable people may differ on what the appropriate sentence should have been, but it is clear to me that 17 years far exceeds a reasonable sentence. This opinion is shared by eight other retired Pima County Superior Court judges who signed a petition in support of Carl’s application for commutation seeking his release. It is further supported by the fact that federal law, unlike Arizona law, mandates no prison time and provides for a maximum sentence of 10 years for similar offenses. A 2022 Federal Sentencing Commission report found that the federal sentences imposed for possession of child pornography for 1,435 defendants with profiles similar to Carl’s was an average of about 5 years. It is astounding to realize that Carl’s sentence far exceeds the minimum sentence provided in Arizona law for many crimes involving serious violence and physical injury to the victim, such as second-degree murder (10 years), rape (7 years) and sexual assault of a child under 12 (13 years). Arizona’s harsh sentencing scheme is out of step with all other state jurisdictions. In no other state would Carl have been exposed to as severe a sentence as he received here.
Some worry about releasing those convicted of possessing child pornography believing that they may graduate to sexual contact offenses. But this same Federal Sentencing Commission report found that for those convicted of non-production child pornography offenses, the overall sexual recidivism rate was 4.3% and for contact sex offenses it was 1.3%. This is miniscule compared to the overall recidivism rate of 43% for all released federal prisoners and approximately 40% for all Arizona released state prisoners.
The injustice of this sentence has haunted me for the 17 years since it was imposed. It is an embarrassment to our criminal justice system. To rectify this injustice, I have been working with the University of Arizona Law School on an application for commutation of sentence which is now pending before the Arizona Board of Executive Clemency.
The Board represents the last chance for the Arizona criminal justice system to correct this injustice by recommending that the Governor commute Carl’s sentence to time served. Furthermore, if this injustice is not to be repeated, the Arizona legislature must amend the mandatory sentencing law that allowed it to happen. Both acts will require political courage. I hope that justice will not be sacrificed for political expediency.
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