Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

November 1, 2007

The Broader Implications of the Genarlow Wilson Verdict

by Stephen Littau

Last week’s 5-4 Georgia Supreme Court ruling in the Genarlow Wilson case is not only great news for Genarlow Wilson but also great news for others who have found themselves in a similar situation. With the ruling being as close as it was it’s clear that the court could have easily ruled the other way.

How is it that 4 of the justices arrived at the conclusion that Genarlow Wilson’s punishment was not cruel and unusual punishment? The dissent written by Justice George Carley explains:

(dissent pages 14-16)

[T]oday’s decision is rare because of its unprecedented disregard for the General Assembly’s constitutional authority to make express provision against the giving of any retroactive effect to its legislative lessening of the punishment for criminal offenses. If, notwithstanding a provision such as § 30 (c), the judiciary is permitted to determine that a formerly authorized harsher sentence nevertheless constitutes cruel and unusual punishment, then it necessarily follows that there are no circumstances in which the General Assembly can insulate its subsequent reduction of a criminal sentence from possible retroactive application by courts.

It seems that the main complaint by the court’s minority is that the court usurped the state’s legislative authority; perhaps the minority has a point. Justice Carley cites language from the 2006 bill which plainly states that individuals charged prior to the bill’s effective date of July 1, 2006 would be punished according to the old law (this would include Genarlow Wilson).

Regardless of the legislative intent, this seems unjust. Why should an individual who was charged the day before the law’s effective date be subject to a 10 year sentence while another individual commits the same exact crime one day later be sentenced to perhaps a year? Cruel and unusual punishment is prohibited by both the Georgia State Constitution and the U.S. Constitution. At some point or another, these justices each undertook an oath to defend these constitutions. While the minority can make the case that they upheld their oath by recognizing the separation of powers, the majority could make the argument that they upheld their oaths by their interpretation of what constitutes cruel and unusual punishment despite the intentions of the Georgia Assembly.

As a lay person, I cannot say which side is technically correct; one side is likely in error. But in cases where there is a grey area in the law, judges should err on the side of common sense, liberty, and justice. This is the side the court’s majority came down on.

Wilson is certainly not the only defendant convicted of aggravated child molestation who benefits at the expense of today’s judicial reduction of the General Assembly’s power to legislate. At present, any and all defendants who were ever convicted of aggravated child molestation and sentenced for a felony under circumstances similar to Wilson are, as a matter of law, entitled to be completely discharged from lawful custody even though the General Assembly expressly provided that their status as convicted felons would not be affected by the very statute upon which the majority relies to free them. […] Moreover, nothing in today’s decision limits its application to cases involving minors who engage in voluntary sexual acts. Any defendant who was ever convicted in this state for the commission of any crime for which the sentence was subsequently reduced is now entitled to claim that his harsher sentence, though authorized under the statute in effect at the time it was imposed, has since become cruel and unusual and that, as a consequence, he is not only entitled to the benefit of the more lenient sentence, but should be released entirely from incarceration. […]Accordingly, as a result of this “rare case,” the superior courts should be prepared for a flood of habeas corpus petitions filed by prisoners who seek to be freed from imprisonment because of a subsequent reduction in the applicable sentences for the crimes for which they were convicted.

Others who have been convicted and punished in circumstances similar to that of Genarlow Wilson will seek to overturn their convictions as well? I should hope so! Maybe the minority should think about the overall intent of both the old and the new laws: to protect children from child molesters. How is imprisoning teenagers who engage in sexual acts with other teenagers protecting children? What would be the benefit of registering Genarlow Wilson as a sex offender? As a parent of three small children, I want only the real predators to be registered. I don’t want to look at a neighborhood sex offender map on the internet and wonder which predators are real and which ones made typical bad choices when they were teenagers.

The effect of registering sex offenders (legitimately or not) has other negative consequences as well. Registered sex offenders have difficulty finding employment, housing, and many other freedoms we take for granted. What happens to an individual who cannot find work or a home? The likelihood is s/he engages in other dangerous criminal activity for sustenance such as burglary, drug trafficking, and/or prostitution (the latter 2 should not be crimes and have similar consequences which lead to real crimes).

This isn’t to say that I want to make life easy for genuine sex offenders – far from it. The answer is not the one-size-fits-all mandatory minimum sentencing laws but to punish offenders of each case based on the facts of each case using common sense. If a judge or jury finds that an individual is one who will likely offend again, then there should be no discussions of registration but incarceration. It should be extremely difficult if not impossible for a child molester to ever re-enter society.

Hopefully, this case surrounding Genarlow Wilson will start a discussion around the country about mandatory minimum sentences and the way we have chosen to deal with sex offenders. Its time to take a step back and examine our emotional response to these issues and search for more reasonable policies.

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