In Commonwealth v. Baker, No. 1 MAP 2012 (Pa. 2013), the Pennsylvania Supreme Court analyzed whether a 25-year minimum prison sentence is unconstitutional when applied to a defendant's second conviction for possession child pornography. Finding it not to be grossly disproportionate, the court affirmed the conviction.
The defendant was first convicted for possession in 2001, and later in 2007, police received a tip from NCMEC that he had received images of child pornography.
In a concurring opinion, three justices agreed that the sentence is not unconstitutional, but they suggested that the state should apply a different standard than the one used to apply the Eighth Amendment. Instead, the "comparative punishment scheme" should apply.
In short, the overall legislative framework logically recognizes differences in levels of gravity as between sexually assaulting a child (most serious), the filming of such crimes (next most serious), and distributing or possessing the resulting child pornography (third most serious). The recidivist provision, however, draws no such distinctions, and treats the third most serious offense the same as the most serious one. An individual such as appellant, who is convicted of possessing child pornography for the second time, is mandated to serve a least five more years of prison time than the maximum term allowable for a first time child rapist.
By way of further comparison, second time violent offenses such as third degree murder, voluntary manslaughter, manslaughter of a law enforcement officer, third degree murder involving an unborn child, aggravated assault, terrorism, human trafficking, burglary, robbery, drug delivery resulting in death, arson and criminal solicitation to commit murder each carry mandatory minimum sentences of only ten years. 42 Pa.C.S. § 9714(a), (g). Under the legislative scheme, an individual such as appellant, who is convicted of possessing child pornography for the second time, but through no act of violence, is mandated to serve at least fifteen more years of prison time than the minimum term required for a second time violent offender.
There appears to be a rational and carefully calibrated legislative scheme of offense gradation and punishment for first time sex offenders, which disappears when it comes to recidivist offenders. Even aside from potential constitutional concerns, I would invite the General Assembly to examine the issue.