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“It is a general popular error to suppose the loudest complainers for the public to be the most anxious for its welfare.”     Edmund Burke

October 26, 2007

Breaking: Justice For Genarlow Wilson

by Doug Mataconis

This morning the Supreme Court of Georgia ruled that Genarlow Wilson’s ten year prison sentence for having consenual oral sex with his 15 year old girlfriend when he was 17 constitutes “cruel and unusual punishment,” and ordered Wilson released immediately:

Georgia’s State Supreme Court has ruled that Genarlow Wilson’s 10-year sentence for having consensual oral sex when he was a teenager is “cruel and unusual punishment” and ordered him freed.

The state court announced the ruling Friday morning.

Wilson is being held in prison for having consensual oral sex when he was a teenager, despite a judge’s ruling that he should be freed.

Wilson was convicted of aggravated child molestation for having oral sex with a 15-year-old girl when he was 17.

He has served more than two years of a mandatory 10-year sentence.

The text of the Court’s opinion, in PDF format, can be found here.

Update: Further details from the Washington Post:

The 1995 law Wilson violated was changed in 2006 to make oral sex between teens close in age a misdemeanor, similar to the law regarding teen sexual intercourse. But the state Supreme Court later upheld a lower court’s ruling which said that the 2006 law could not be applied retroactively.

Chief Justice Leah Ward Sears wrote in the majority opinion that the changes in the law “represent a seismic shift in the legislature’s view of the gravity of oral sex between two willing teenage participants.”

Sears wrote that the severe punishment makes “no measurable contribution to acceptable goals of punishment” and that Wilson’s crime did not rise to the “level of adults who prey on children.”

Exactly the way this should have turned out to begin with.

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17 Comments

  1. How about “SHOULDN’T HAVE CONSTITUTED A CRIME AND GEORGIA NEEDS TO REPEAL THE GODDAMN LAW”

    Comment by Greg — October 26, 2007 @ 9:53 am
  2. Greg,

    The GA Legislature did change the law to provide that consenual acts like the one in this case would not be covered, they just didn’t make it retroactive to cover Wilson’s case.

    That was the injustice.

    Comment by Doug Mataconis — October 26, 2007 @ 10:04 am
  3. Doug,

    I’m actually a bit confused on what the Georgia legislators did. I understand that they didn’t make the law retroactive, but did they explicitly state that the law was not an ex post facto law? If, for example, I got caught dealing marijuana and was sent to prison for 10 years, but the next year marijuana was legalized so what I did would not constitute a crime under the current laws (for the sake of argument we’ll ignore the whole list of secondary crimes for trafficking such as tax evasion, violence, etc. and just focus on the act of distribution itself), wouldn’t this mean that my sentence would be automatically vacated or does the legislature specifically have to address the issue of people who were convicted under the previous law? I’m just not all that clear on the full scope of what ex post facto actually entails.

    Also, on the specifics of Genarlow Wilson, I can understand why they’d be loath to repeal sex crime laws in that it might release some predators from prison who belong there, but wasn’t the legislature’s action targeted narrowly enough to avoid legalizing pedophilia? They simply changed the law to address the issue of consensual sex among teenagers, right, not sex between minors and adults?

    Comment by UCrawford — October 26, 2007 @ 10:17 am
  4. Crawford,

    Time to put my lawyer’s hat on…..

    A criminal statute that creates a new crime cannot be retroactive in a way that would make something that someone did that was legal when they did it could lead to them being prosecuted under the new law, that’s an ex post facto law.

    When a law is changed to redefine the crime in a way that makes something that was previously illegal no longer criminal, the general rule is that the change is not retroactive unless the legislature specifically provides that it is. Also, Court’s are generally reluctant to read language into a statute that isn’t actually there. That, apparently, is why Wilson lost the first time he went to the GA Supreme Court.

    This time, they were making an argument under the 8th Amendment which apparently had not been raised in the first appeal — although why his lawyers didn’t make that argument back then I don’t know.

    Comment by Doug Mataconis — October 26, 2007 @ 10:24 am
  5. Georgia has jury nullification. Why didn’t the jury simply nullify this unjust law?

    Comment by js290 — October 26, 2007 @ 10:43 am
  6. Everyone keeps forgetting that he committed this act on a white girl and they just used the old oral sex law on the books to punish him and that is another reason 3 of the judges voted against Wilson. Remember there’s big money in running a prison, the more you lock up the more money someone is getting. Notice his hair is cut neat since jail unlike the braids and hip hop look from the old pictures and video of that party. Bet he will think twice about acting like a thug and keeping it real next time. Sometimes keeping it real can go wrong and the way we look and act to some people can also get us into trouble. Now even a GPS system could not track where this girl is since she did not pull a day in jail.

    Comment by eastcoastrocker — October 26, 2007 @ 10:58 am
  7. In that case Doug, the judge probably made the right call.

    Comment by Greg — October 26, 2007 @ 11:15 am
  8. Doug,

    According to this article http://www.blackamericaweb.com/site.aspx/bawnews/gwilson1218 Wilson’s attorney apparently targeted ambiguities in the law as it existed at the time of the act in question when she went before the GA Supreme Court last time. Maybe she just figured that would be the move most likely to pay off. Aren’t 8th Amendment arguments usually desperation moves or stalling tactics for the defense when they’ve got nothing else to go to or they’re trying to get favorable sentencing? You’d probably have more info on that than I would, so if I’m wrong I’d be interested in hearing it.

    Comment by UCrawford — October 26, 2007 @ 11:36 am
  9. U.C.

    I obviously can’t speak to any legal specifics but my lay understanding of why the 8th Amendment was envoked is because Wilson has already done some time (a little over 2 years if my memory serves me). One could argue that his 2 years is much more appropriate than a 10 year sentence. Imposing a 10 sentence on a crime such as this would probably be considered “cruel and unusual” by most people’s sensibilities (“cruel and unusual” seems to be a vauge enough definition which should give judges room for personal descretion).

    Comment by Stephen Littau — October 26, 2007 @ 1:16 pm
  10. Again, I could be completely off base. I’m very interested in what Doug’s professional opinion.

    Comment by Stephen Littau — October 26, 2007 @ 1:18 pm
  11. Stephen,

    I get that, I was just responding to Doug’s point about how it wasn’t brought up the first time around. The approach she used seemed reasonable at the time (from my own lay perspective) and the events that have transpired since then made the 8th Amendment approach reasonable now.

    Just a horrible case, though…the kid shouldn’t have served the time that he did (or any at all, for that matter).

    Comment by UCrawford — October 26, 2007 @ 1:20 pm
  12. I couldn’t agree more U.C. This is what happens when puritans take over the government. Thankfully, the puritans didn’t win the day this time.

    Comment by Stephen Littau — October 26, 2007 @ 1:29 pm
  13. Crawford,

    The 8th Amendment is usually a last ditch effort. Frankly, if it had not been for the press that this case had received, and the GA Attorney General’s stubborn decision to appeal the decision releasing Wilson, this appeal might not have been granted at all.

    The one thing that has me wondering is where the Governor of Georgia is in all of this. I don’t know the specifics of the case, so I don’t know if a request was ever made, but if ever there was a case calling out for clemency if not a full pardon, it’s this one.

    Comment by Doug Mataconis — October 26, 2007 @ 1:56 pm
  14. Doug,

    The governor of Georgia doesn’t have the authority to grant pardons. That authority lies with the Georgia Board of Pardons and Paroles:

    http://pap.georgia.gov/00/article/0,2086,683715_6170_11789008,00.html

    I saw it mentioned on a few sites that the authority for the board is not absolute either and that they’re constitutionally barred from granting pardon in sex offender cases where mandatory sentencing is involved. Don’t have a link on that, though.

    Comment by UCrawford — October 26, 2007 @ 2:23 pm
  15. Here’s a link…

    http://www.pap.state.ga.us/opencms/opencms/

    Genarlow Wilson was convicted of aggravated child molestation, which is on the list of crimes that make Wilson ineligible for consideration by the board for parole and since the crime was technically still a crime under Georgia law he’s not eligible for a pardon until he serves his sentence (since he’s not presenting new evidence to show he’s innocent).

    Comment by UCrawford — October 26, 2007 @ 2:34 pm
  16. Correction, he “wasn’t” eligible for parole or release until the Supreme Court decided otherwise.

    Comment by UCrawford — October 26, 2007 @ 2:35 pm
  17. No one is exempt from the law and the law does not discriminate based on age. Yet, young people are often misguided into believing that they can get by without getting caught. In fact, recent studies, concerning the ethical attitudes of youth, indicates that the majority of young people would make unethical choices if they felt they could “get ahead” as a result. Success at all costs seems to be a common theme.

    As former inmate from Federal prison, today I share with business executives and young people that simple message: Every choice has a consequence.

    I am pleased beyond belief that Genarlow is now getting the taste of freedom again. Genarlow’s plight, has helped other young people evaluate the power of their seemingly simple choices. As the founder of the Choices Foundation, perhaps Genarlow would consider stepping up and helping others understand the power of choice.

    After all…Every Choice has a Consequence.

    Comment by Chuck Gallagher — November 3, 2007 @ 8:46 am

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