January 10, 2007
Potent commentary on the Genarlow Wilson case
Sherry Colb has this potent essay today at FindLaw discussing the sad case of Genarlow Wilson (which, as detailed below, I have been following closely). The commentary is entitled "The Harsh Wages of Sin: Why Genarlow Wilson is Languishing in Prison," and here are just a few of the many great insights from the piece:
Based on the evidence — which included a videotape of the crime while in progress — the conduct for which Wilson [was sentenced to spend 10 years] behind bars was consensual oral sex with a 15-year-old girl when he, Wilson, was himself only 17 years old....
If we did not know that Wilson's disturbing predicament had arisen in the United States, we might assume that we were hearing about a case in a theocracy. His case, however, sheds light on a disturbing fact regarding our criminal justice system, a reality about which we have grown complacent: people in the U.S. are routinely condemned to spend years in brutal prisons as punishment for behavior that harms no one....
Whatever role religion or other commitments of the Georgia electorate may have played in the criminalization of victimless sexual conduct and/or drug offenses, we cannot overlook the role of race. The fact that Genarlow Wilson, a promising young man who had no prior criminal record, is African-American, should be neither ignored nor considered irrelevant to the definition of "sin" as crime....
[A]s some have already observed, not everyone in Georgia suffers the treatment that Wilson did, even though white teenagers are presumably as sexually active as their African-American counterparts. [Prosecutor] David McDade much too blithely dismissed the racism accusation, saying that, "I'm standing up for African-American victims in this case." Since the "victim" in question did not want to press charges and did not even testify for the prosecution, McDade's assertion is not especially compelling....
The injustice to Wilson is thus complete: A person innocent of any wrongdoing is spending ten years of his life in prison, and there is reason to think that he would not be doing so if he were white. (The alternative hypothesis is that white teenagers always ask for identification when they receive oral sex, to make sure that their companions are not themselves teenagers a year or two younger than they). Such conduct should not be criminal at all, and it is shameful that a prosecutor has the audacity to act as though he had no choice but to pursue the case.
Recent related posts on Wilson case:
- Why isn't the severe Georgia sentence constitutionally problematic?
- Time for a common-person approach to the Eighth Amendment
- Provocative questions about Georgia sentencing injustice
- The nuance in my provocation
- Another editorial urging release of Genarlow Wilson
- NYT adds to chorus calling for Genarlow Wilson to be freed
January 10, 2007 at 07:45 AM | Permalink
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On Findlaw, Sherry Colb, a law professor at Rutgers-Newark, has an opinion piece about the severe sentence that I blogged about previously here, here, and here. From the article:If we did not know that Wilson's disturbing predicament had arisen in [Read More]
Tracked on Jan 10, 2007 8:34:27 PM
It looks as though she took a few posts off of this blog and made them sound a bit more formal. I'm a little disappointed in the column.
To my mind, the best argument in favor of the exercise of "prosecutorial discretion" is that the prosecutors thought they were prosecuting a gang rape.
Colb also equates "not guilty beyond a reasonable doubt" with "innocent."
And the race issue is front and center with no apparent basis other than that racism exists in the United States, and that Marcus Dixon is a black man who was also on the hook for 10 years for sex with a 15-yr-old. She also declines to mention the race of the victim.
Had she set up the best arguments for keeping Wilson in prison and then knocked them down, I'd find the column "potent." Instead, she selectively recites the facts, and makes it look as though the prosecution has an oral sex task force in its office. This looks more like Lucretia with reasonable doubt than "Romeo and Juliet." I'm troubled by this case, but Colb seems to me to be preaching to the choir.
Posted by: Bill | Jan 10, 2007 9:54:29 AM
The reality is that we do live in a theocracy. A majority of Americans believe that biblical morality trumps civil law. That being so, what's wrong with a written law that actually proscribes immoral conduct? Their answer when you complain about this state of affairs: there's more of us.....
Posted by: former defense attorney | Jan 10, 2007 10:02:25 AM
I can't help but point this out - there were 5 others involved as well. They all pled to lesser charges that were offered.
This guy (or maybe upon the advice of his defense attorney who pleads his cases in the press or thinks he can hang a jury despite a juror swearing an oath to follow the law as given to them by the judge), says no to the deal.
Now that he played the game, he wants a "do-over." He should have took the deal that was offered.
Furthermore, when do we decide that a kid can "consent?" Next the argument will be - well, yeah the defendant is 40 years old, but he has the mentality of a 17 year old.
Posted by: Deuce | Jan 11, 2007 1:06:44 PM
Was the girl he raped white or black?
Posted by: Dan | Jan 25, 2007 4:53:50 PM
The US constitution provides two ways this unjustice could be prevented:
1) The jury has the right to determine that the law "does not apply" or that the law "is just plain stupid". That is the peoples final check on a government from creating unjust laws.
Unfortunately, the jurors were coached, as they always are, incorrectly, that they are only to determine guilt or innocence.
2) The governor could simply sign a pardon.
Unfortunately, the lame governor has instead pursued a legislative path to have the law revoked (but not retroactively).
Posted by: GMB | Jan 27, 2007 10:00:26 PM
This morning, I watched a CNN feature story about how Genarlow Wilson has been admitted to Morehouse College, all expenses paid, through a generous donation from the Tom Joyner Foundation. OK, Morehouse is a fine institution; hopefully, it can instill the strength of character in Wilson he lacked earlier in his life.
The amount of the scholarship has not been made public, but the oversized check the smiling Wilson was holding on the news was made out for what looked like $275,000.
After months of litigation and media support for Wilson as "victim" of the Georgia criminal justice system and his release as "justice served", I can't help but wonder what became of the girl in question. She would be about 19 years old now. Is she in a good place? Did she get to go to college? Is there a fund for that? Can I contribute to it?
My point is, what Wilson did may not justifiably carry the sentence of, say, manslaughter, but he is no hero, and this was not a victimless crime. Some of the first sexual experiences of his life were of a sexually degrading and exploitive nature. Those girls were at a similar point in their lives where they sought positive reinforcement from male figures through misdirected acts of sexual gratification. Perhaps they were inexperienced with the intoxicating effects of alcohol (or maybe that was the goal). They were, after all, minors.
Whatever the case, Wilson acted in a way unbecoming a man, specifically, a black man. Those girls were his sisters in the human race, and he treated them as badly as they seemed to treat themselves - as dehumanized sex objects.
What complicates this matter is that these sex acts - fellatio, group sex, etc. - have, in our culture, shifted from being considered sexual pathology to sexual expression. Hence the legal confusion over age of consent, sentencing, oral versus vaginal sex, etc. Our acceptance of or revulsion toward these acts in our own lives is likely to color how we view the case.
Additionally, what I sense from the blogs is confusion over the racial component of the case. The outcry over sentencing seems to have been gauged on what a white man would receive for the same conviction. Shouldn't we as a society seek instead to do right by the girls and their families? This case elevates no one.
Posted by: Trish C. | Jan 19, 2008 1:58:37 PM