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Under Arizona law, I would be required to send a man to prison for 290 years.

During my career as a judge, I have sent many people to prison. Now I am working to get a man out, and not because I believe he is innocent.

John Leonard
| Opinion piece

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I have participated in hundreds of sentencing hearings in my 44-year career as a prosecutor and judge.

Most of the sentences imposed were within a range that I considered appropriate given the crime committed and the defendant's previous history.

Occasionally the law provided for an excessive punishment which I had to impose.

By far the most egregious example of excessive sentencing that I have ever had to impose occurred in 2007. The defendant, Carl Ray Buske, was a 47-year-old aircraft mechanic with no prior criminal record other than a 15-year-old drug possession conviction.

His crime: possession of 29 printed images of child pornography.

I had to sentence him to 290 years

Buske neither created, sold nor passed on the images to third parties.

However, Arizona state law required that his sentence for each image be at least ten years, with each sentence to be served consecutively—that is, one on top of the other—for a total sentence of 290 years in prison.

Like most people, I abhor child pornography. Possession of such images should be illegal and severely punished.

However, one of the guiding principles of our criminal justice system is that punishment should be proportionate to the crime.

A sentence of 290 years in prison (de facto a life sentence) for this conduct is not only disproportionate but also unconscionable.

The average prison sentence in other states is about 5 years

This is not a question of guilt.

The question arises whether the 17 years that the convicted man has already spent in prison represent an appropriate punishment for his conduct.

To me, the obvious and inescapable answer is yes. That opinion is shared by eight other retired Pima County Superior Court judges who have signed a petition supporting Buske's request for commutation and calling for his release.

This is also supported by the fact that, unlike Arizona state law, federal law does not provide for a prison sentence, but rather provides for a maximum sentence of ten years for similar offenses.

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According to a 2022 report by the Federal Sentencing Commission, federal sentences for possession of child pornography for 1,435 defendants with a profile similar to Buske's averaged about five years.

It is astonishing that his sentence far exceeds the minimum sentence provided by Arizona law for many crimes involving serious violence and physical injury to the victim, including second-degree murder (10 years), rape (7 years), and sexual abuse of a child under 12 (13 years).

The harsh penal system in Arizona is not comparable to that of other states. In no other state would he have received such a harsh sentence as here.

Child pornography offenses rarely lead to escalation of crime

Some worry about releasing people convicted of possessing child pornography because they fear they might then be guilty of sexual abuse. However, the same Federal Sentencing Commission report found that among people convicted of non-production of child pornography, the overall recidivism rate for sexual abuse was 4.3% and for sexual abuse, the recidivism rate was 1.3%.

This is negligible compared to the overall recidivism rate of 43% of all released federal prisoners and about 40% of all released state prisoners in the state of Arizona.

The injustice of this sentence has haunted me since it was imposed 17 years ago.

It is a disgrace to our criminal justice system. To right this wrong, I have been working with the University of Arizona Law School on a petition for commutation that is now pending before the Arizona Board of Executive Clemency.

The panel represents the last chance for the Arizona criminal justice system to right this wrong by recommending to the governor that Buske's sentence be commuted to the prison term he has already served.

If this injustice is not to be prevented from happening again, Arizona lawmakers must also change the mandatory sentencing law that made this possible.

Both measures require political courage. I hope that justice will not be sacrificed for political expediency.

John Leonardo is a retired Pima County Superior Court Judge and former Assistant United States Attorney and United States Attorney for the District of Arizona.

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