On January 6, 2011, the Supreme Court of Pennsylvania granted allocatur to determine whether a "25-year mandatory minimum sentence of imprisonment imposed under 42 Pa.C.S. § 9718.2 violates Article I, Section 13 of the Pennsylvania Constitution as it is grossly disproportionate to the crime?"
Baker was originally charged with possession of child-pornography in October of 2001. He pleaded guilty, and was sentenced to 60 months of intermediate punishment. He completed his sentence and, just four months later, he was again found to be in possession of child pornography. He was tried for his second offense, and convicted in 2008. As a result of his prior conviction, the trial court was required to sentence Baker to an aggregate term of imprisonment of 25-to-50 years. Baker appealed and, in a published opinion, the Superior Court affirmed. He petitioned for allocatur and the Supreme Court of Pennsylvania granted it, limited to the question above.
The language of the question, as accepted by the state Supreme Court, suggests what may be an inclination to reverse the Superior Court on this issue, and hold that the mandatory minimum sentence is indeed unconstitutional. This, however, would be an extraordinary departure from well-settled eighth amendment law.
Pennsylvania's constitution includes a provision that is essentially identical to the Eighth Amendment to the United States Constitution, and our courts treat the two constitutional provisions as equivalent. Federal law is therefore instructive on the relevant question, which is whether defendant's sentence is disproportionate to the crime he committed.
Federal courts, however, have indicated that possession of child pornography is an extremely serious offense. In United States v. Kiderlen, for instance, the Eighth Circuit upheld a sentence of twenty-years for distributing child-pornography. In a one paragraph dismissal of the defendant's Eighth Amendment challenge, the Court underscored the fact that "the distribution of child pornography is 'a grave offense' that victimizes the children depicted in the pictures." This judgment by the federal judiciary is seconded by the United States Congress imposition of a mandatory ten-year jail sentence for recidivist offenders.
Added to this background is the fact that the Eighth Amendment is grounded on the "evolving standards of decency" that we embrace as a society. In other words, Baker has to convince the Supreme Court that his second conviction for possession of child pornography -- just four months after his first sentence ended -- isn't that big of a deal. This doesn't bode well for Baker's appeal.
It's hard to prognosticate about which way a court will jump based on the question it poses. Whatever happens here, though, will have interesting effects on Pennsylvania's use of mandatory minimum sentences in the future.