January 27, 2007
Two (feminist?) perspectives on the Wilson case
I want to address your wondering why more people of influence are not rushing to get Genarlow Wilson out of jail, since his sentence is so long that he is the victim of a clear and disturbing injustice.
I think that it is possible that the behavior of Genarlow and his friends on the night they got in trouble is deeply offensive to many who hear about it, and people simply do not like Genarlow well enough to fight for him. It is very troubling to know that high school football heroes invited hero-worshipping fifteen-year-olds to a party and got them drunk in order to have practically guaranteed sexual service. What a cowardly act!
Beyond ethical considerations, I'll bet that many women hearing about this, knowing what hero worshippers they were at fifteen, shudder at the thought that a lot of us could have been those vulnerable little girls at the party, taken advantage of in the most cynical way, and think that, while ten years is excessive, the guy basically got what he deserved. I can't say what men think along those lines, but they, too, are keeping their distance from Genarlow.
Providing a notably different female perspective is Becky C. at her blog, which purports to provide "observations and commentary by a post-modern neo-feminist libertarian cyberpunk on society, culture, politics and whatever." Here is a snippet from this long post entitled "A Blowjob in Georgia":
At lot of people are saying this law was a result of a hick Georgia legislature. That is not really fair.... The Georgia legislature did not sit down one day and decide that kids doing bjs was much more serious than doing the full deal. Laws are passed piece meal. Amendments are almost always not read by the lawmaker. And they never have a full understanding of the effect of the legislation....
But there is someone in the system that is suppose to prevent these problems, not exploit them. That is the prosecutor. I became a prosecutor, for a few years, because I wished to crush the balls of sexual perverts and woman beaters. While I like to think my motives were noble, many lawyers find this kind of power intoxicating. Prosecutor offices are mostly staffed with young lawyers directly out of law school. The pay is not good, but the experience is unparalleled....
But most people do not do this type of work for long. Some, like me, just get sick of the whole thing. Most, after a few years, can make tons more money by moving to the private side. However, there are some who pretty much make a career out of it. Now some of these have the best of intentions. But all too many stay because, even though the dough is a lot better in a private firm, you do not have the opportunity to lop off heads on a regular basis. And that is what this is all about. In legal parlance it is called "prosecutorial discretion."
Though the harsh mandatory sentences for two border agents (details here and here) and for Genarlow Wilson (latest here) have drawn my attention recently, the biggest news of the week was the Supreme Court's Cunningham decision declaring California's sentencing scheme unconstitutional. I will have some more analysis of Cunningham soon, but first I want review prior posts on the decision (all of which have great additional analysis in the comments):
- Cunningham arrives (and strikes down California sentencing)!
- Cunningham opinion basics
- Justice Ginsburg's majority opinion in Cunningham
- A few more observations on the Cunningham opinion
- CJ Roberts and sentencing law: his Cunningham work
- More reactions to and analysis of Cunningham
- A fine overview of the sentencing scrambles
- California chaos after Cunningham?
- Hoping for Cunningham scholarship
UPDATE: At the Ninth Circuit Blog here, Steve Sady provides his two cents on Cunningham and the ACCA and reasonable doubt. Here is how it begins: "The Supreme Court opinion in Cunningham once again demonstrates that the Nation's highest court is far ahead of the Circuits in protecting Fifth and Sixth Amendment rights."
CNN covers Genarlow Wilson case, who's next?
CNN now has this lengthy video providing lots of background on the Genarlow Wilson case, which includes interviews with Wilson and prosecutor Eddie Barker. It also details the start of legislative efforts to do justice.
Though the CNN piece effectively covers the basics of the case, it continues the failure of the media or anyone else to pressure the prosecutor to seek true justice. The CNN reporter indicates that the prosecutor is willing to cut Wilson's sentence down to five years, but then never follows up to ask why the prosecutor believes that a five-year sentence is appropriate for Wilson having consensual oral sex with a fellow teenage. Grrr!
Now that Wilson's plight is getting more coverage with ESPN and now CNN doing stories, I am wondering when powerful celebrities might use their clout to help achieve justice for Wilson. As I recall, some celebrities spoke out for the murderer Tookie Williams. Where are they now when a young kid who never hurt anyone needs help?
Though perhaps I put too much faith in the power of celebrities, a little attention from the likes of Angelina Jolie or Bono or Donald Trump (all of whom, I suspect, are supporters of consensual sex) might really make a difference. Where is Oprah when we really need her?
Some recent related posts:
- Will the Georgia legislature help Genarlow Wilson get justice?
- ESPN effectively covers Genarlow Wilson's sad saga
- Why isn't the severe Georgia sentence constitutionally problematic?
- 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
Watch Ohio for death debates
As noted here and here, the death penalty has taken some serious blows recently. As I have been suggesting since election night, the new Democratic administration in Ohio makes it an especially interesting state to watch as all action unfolds. Of course, ODPI covers this action better than anyone, and here are the latest headline:
- Cleveland Plain Dealer calls for Ohio death penalty study / lauds Strickland for execution delays
- Strickland interview on death penalty to be in Sunday Cincinnati Enquirer
- Different views on need for Ohio death penalty study
The last link references this article in today's Columbus Dispatch, which highlights that the traditional battle lines are being drawn in the Ohio death penalty debate:
Ohio's legal system hasn't sent anyone to Death Row who doesn't belong there, the head of the state prosecutors association says. He is urging Gov. Ted Strickland not to support a capital-punishment study. "There are no mysteries here. … The death penalty is in fact being applied to exactly those persons and to those crimes for which it was intended," John E. Murphy wrote in a Jan. 15 letter to the Democratic governor.
Murphy said a study, long advocated by capital-punishment opponents and Attorney General Marc Dann during his campaign last year, would "send the wrong message to the citizens of this state that there is something wrong with our death penalty." The only thing wrong, Murphy added, is that "it takes too long to get the penalty enforced."...
Ohio Public Defender David Bodiker strongly disagreed with Murphy's assurances about wrongly convicted inmates. "There are a dozen cases right now where there is considerable evidence that the guy is innocent," he said. "The problem is unringing the bell. If there's a conviction, the system is not likely to want to reverse the situation." Bodiker said Murphy and many county prosecutors take the attitude, "You haven't caught us, so nothing's wrong."
Jim Tobin of the Catholic Conference of Ohio said a study has always been a goal of Ohioans to Stop Executions. He said the group has had conversations with Strickland and Dann's staff about a study. "We would strongly encourage a nonbiased, professional study, an open dialogue and discussion," Tobin said.
UPDATE: I also see from this article that Catholic groups are actively working against the death penalty in two other states: " In separate actions the Maryland Catholic Conference and Bishop Blase J. Cupich of Rapid City, S.D., have called for an end to the death penalty in their states."
Will serious sentencing reform come to Colorado?
Though California's sentencing woes and need for reform are making lots of headlines, this news article from Colorado highlights another state trying to start on needed reforms:
The state legislature will look at reforming Colorado prison sentences this session, breaking a longtime taboo in state politics. "We will make a significant attempt at some kind of sentencing reform," Rep. Terrance Carroll D-Denver, chairman of the House Judiciary Committee, said Friday. He said his committee would be looking at a recent report from the Colorado Lawyers Committee that called for creation of a sentencing reform commission to propose changes.
Carroll said the state's new Democratic governor, Bill Ritter, is interested. Evan Dreyer, the governor's spokesman, said Ritter, a longtime prosecutor, "is interested in taking a closer look at many aspects of the criminal justice system," with emphasis on reducing recidivism....
Carroll spoke after a news conference about halting Colorado's soaring growth in prisoners. The gathering brought together a disparate group of supporters, including the free-market Independence Institute, Democratic legislators, the sheriff from conservative Colorado Springs and prison reformers.
The state expects to add more than 6,000 prisoners by 2011, requiring $800 million in prison construction. That figure is more than twice the amount Colorado expects to have for all capital construction other than roads during that period of time. A number of officials have concluded the state cannot afford it....
Carroll called state sentencing laws "byzantine" because they are so complex. Lawyers and judges often debate in court how indecipherable laws interact to mandate a particular sentence, said Maureen Cain of the Colorado Criminal Defense Bar. She cited a client who has been successfully managing probation for three years, supporting his children and passing his drug tests - but who is about to be sent to prison because he cannot afford his probation fees.
January 26, 2007
Giving voice to Virginia Orwig
Commentors have been in fine form all week, but I wanted to close the week by bringing up to a post a comment from a woman who knows a lot more about harsh sentencing realities than I ever will. Here is Virginia Orwig's comment (in response to other comments) following this post on the furor over border agents' long sentences:
My son is Ignacio Ramos, Former Border Patrol Agent.
Unless you have walked in his shoes in that 15 second moment, I feel that you would have a different perspective, unless you have been in that same exact situation. Unless you were at the 2-3 week trial and heard the testimony that was allowed to be given by and at Judge Cardone's mercy, you would have heard the lies, speculations and the drama that the US attorney brought into the case. And the last item is the transcript. We have not been able to obtain the transcript from the Court house in El Paso Texas.
Many questions are up in the air by the US Attorney, but they have transformed this case into a card game and/or chess game. But most important, they have allowed an illegal drug smuggler's word over two good men fighting and protecting you and me.
Amazing times for the death penalty
For anyone categorically opposed to the death penalty, the past week has to be a cause for celebration. As DPIC is now spotlighting on its home page, "seven executions in three states were stayed for various reasons between January 19 and the 25th." In addition, some recent posts at Capital Defense Weekly and Ohio Death Penalty Information report on developments I could not have imagined even six months ago. Here are some notable headlines:
- NC - stays & state announces it won't appeal
- Bills introduced in Maryland and South Dakota would replace death penalty with life w/o parole
- Maryland governor indicates support for death penalty repeal legislation
- Cleveland Plain Dealer calls for Ohio death penalty study / lauds Strickland for execution delays
I am becoming more and more confident about the soundness of my decision not to work on a Death Penalty casebook. It seems that, perhaps except in Texas and maybe a few other states, the death penalty really could become a matter of legal history. (Then again, that's how things must have looked in the late 1960s before Furman and the state backlash produced our modern death penalty era.)
Important California report on sentencing reform
Professor Kevin Reitz, a state sentencing guru and the reporter on the ALI's on-going MPC sentencing project, sends this note about an important report released today on California's sentencing woes and need for reform:
Check out today's new report from the Little Hoover Commission in CA (a bipartisan research and policy commission with a good track record for high quality analysis and recommendations). Among other proposals to address the prison crisis in California, the report strongly supports the creation of a permanent sentencing commission in California, authorized to promulgate sentencing guidelines and sentence revocation guidelines, and to be the research and information center of the California sentencing system.
From the Executive Summary at iii:
[T]he State should begin a comprehensive evaluation of its sentencing system by establishing an independent sentencing commission to develop guidelines for coherent and equitable sentencing guided by overarching criminal justice policy goals. This is not a short term solution, but a way to create rational long-term policy. Critics who suggest that a sentencing commission is code for shorter sentences are misinformed. Other states have used sentencing commissions to lengthen sentences for the most dangerous criminals, develop community-based punishment for nonviolent offenders and bring fiscal responsibility to criminal justice policies.
This strong report from a well-respected commission should give a shot in the arm to recent proposals for a permanent sentencing commission put forward by Governor Schwarzenegger and the majority leadership (Democratic) in the state legislature.
Friday forum: rate the injustices
My last three posts prompt me to seek feedback on which of three on-going sentencing debates involves the greatest injustice to the defendants. Here are the choices:
1. The federal sentences for two border patrol agents, Ignacio Ramos and Jose Alonso Compean, who each got more than 10 years' in prison for the shooting of a suspected Mexican drug dealer in Texas (details here).
2. The state sentence for Genarlow Wilson, who got 10 years' in prison for having consensual oral sex with a fellow teenager (details here).
3. The possible (but not certain) limited period of extreme pain that a convicted and condemned murderer might feel in the course of an execution.
I see cases 1 and 2 as presenting distinct but parallel examples of (a) extreme and unjust sentencesg that can result from mandatory minimums and (b) how challenging it is for anyone, except a prosecutor exercising his broad discretion, to remedy mandatory minimum sentencing injustice.
Meanwhile, I see very little injustice to defendants in case 3 (though I see a lot of injustice to victims of crime). By necessity, every condemned murderer has caused certain and extended extreme pain to his victims (both the murder victim and his/her family and friends). And yet, not only do these condemned murderers seem to have many more vocal advocates than Ignacio Ramos, Jose Alonso Compean and Genarlow Wilson, they also have been able to convince state and federal judges nationwide to dramatically disrupt the administration of duly imposed capital sentences.
UPDATE: I am pleased to see that Jeralyn at TalkLeft is also interested in this sad ratings game and has commentors giving interesting answers.
With NC execution stays, "these go to 11"
Henry Weinstein has this Los Angeles Times article today providing more details on yesterday's state judge ruling to stay "two executions in North Carolina, creating a de facto moratorium on capital punishment in the state until it changes its lethal injection procedure." As the article notes, the "ruling by Superior Court Judge Donald W. Stephens in Raleigh means that 11 states, including California, have now halted executions stemming from challenges to lethal injection."
Of course, this news all but demands a reference to a great scene and in what is surely one of the all-time greatest comedies. Indeed, at the end of an intense week, I cannot help enjoying all these great Spinal Tap quotes looking for other fitting references. Tellingly, the lyrics to the Tap's Hell Hole would better suit a post on imprisonment, so perhaps a lethal injection riff on Big Bottom is more fitting: "The badder the cushion, the sweeter the pushin' ... That's what I said... The looser the process, the more judges stop us... Or so I have read."
Poor taste jokes aside, the LA Times article details how lethal injection scrummages have now helped bring executions to a halt in North Carolina and 10 other states:
Illinois and New Jersey have a formal moratorium on all executions while the viability of the death penalty is considered. In mid-December, Florida Gov. Jeb Bush ordered a halt on executions until the state thoroughly reviewed its lethal injection procedure. In seven other states — California, Arkansas, Delaware, Maryland, Missouri, Ohio and South Dakota — almost all executions are being stayed as courts grapple with lawsuits asserting that lethal injection procedures violate the constitutional bar on cruel and unusual punishment.
Will the Georgia legislature help Genarlow Wilson get justice?
State Sen. Emanuel Jones, D-Decatur, [has] introduced legislation that he said he hopes would allow a judge to re-sentence Wilson under the more lenient sentencing provision.
Since the state Supreme Court issued its Dec. 15 ruling, the case has become a bit of a cause célèbre, with The New York Times publishing an editorial calling for Wilson's release and the The Atlanta Journal-Constitution saying Wilson deserves "justice," not "condolences." Thursday morning, ESPN.com's top story was an in-depth report on the legal case of the former high school football player, headlined "Outrageous Injustice."
"I read the editorials, I again went back and reviewed the comments from Justice Hunstein, and I said I would make it my … work this session to get him out of prison," said Jones. He added that he has bipartisan support, and one of his co-sponsors is Sen. Dan Weber, R-Dunwoody.... Senate Judiciary Committee Vice Chairman Seth Harp, R-Midland, said Thursday that he wanted to study the bill and its ramifications before determining his position on it.
Though I am encouraged some Georgia legislators are looking for solutions, I continue to be deeply troubled and mystified that there isn't more pressure being placed on executive branch officials to do justice for Genarlow Wilson. Recall this passage from the ESPN article:
"We can set aside his sentence," [prosecutor Eddie] Barker says. "Legally, it's still possible for us to set aside his sentence and give him a new sentence to a lesser charge. But it's up to us. He has no control over it." The position of Barker and the district attorney, McDade, who refused to comment, is that Wilson is guilty under the law and there is no room for mercy, though the facts seem to say they simply chose not to give it to Wilson.
What I find depressing (and what confirms the impact of race and class) is the contrast we see in reaction to this case and the Duke lacrosse case. In the Duke case, as detailed here, prosecutor Michael Nifong may be disbarred for purported "systematic abuse of prosecutorial discretion" simply because of the way he filed charges. In the Wilson case, in sad contrast, no one is even seriously questioning the prosecutors about their refusal to exercise their discretion to achieve justice.
UPDATE: A few commentors have already reacted strongly to my suggestion that distinct reactions to prosecutorial behavior shows the impact of race and class.
Please understand that I am not arguing that that the actions of Nifong and Barker/McDade are legally, morally or ethically parallel in any way. Rather, I am simply trying to note that when a NC prosecutor over-zealously prosecutes rich white kids, his decisions are question by the whole world; but when GA prosecutors continue to over-zealously prosecute a less-affluent black kid, far fewer questions are asked. My chief point is that, as Mike Connelly explains here, we ought to be much more willing to question the exercise of prosecutorial discretion in all cases (like Republican legislators are now doing in the border shooting case.)
The furor over border agents' long sentences
As first noted here, there is a lively debate over the sentences for two border patrol agents who each got more than a decade in prison for the shooting of a suspected Mexican drug dealer in Texas. This Washington Times article spotlights the case and the growing political furor:
The prosecutor who won lengthy prison sentences for two U.S. Border Patrol agents for shooting a suspected drug smuggler fleeing back into Mexico acknowledged this week the "punishment was high" but said the sentences were mandated by Congress. "I agree the punishment was high, but the sentencing guidelines were set by Congress and the judge acted in accordance with the law," U.S. Attorney Johnny Sutton told The Washington Times in a telephone interview.
Mr. Sutton said 11- and 12-year sentences, respectively, for Agents Ignacio Ramos and Jose Alonso Compean fell within the federal sentencing guidelines.... Ramos, 37, and Compean, 28, were convicted of causing serious bodily injury, assault with a deadly weapon, discharge of a firearm in relation to a crime of violence and a civil rights violation. A jury convicted the agents in March after a two-week trial of shooting Osbaldo Aldrete-Davila in the buttocks as he ran from a marijuana-laden van back into Mexico. Sentencing guidelines established by Congress say a person convicted of committing a crime of violence and using a firearm during that crime faces a 10-year mandatory minimum, in addition to what other charges are involved.
The convictions and sentences have drawn widespread criticism from several sources, including some members of Congress. Rep. Dana Rohrabacher, California Republican, called it "the worst betrayal of American defenders I have ever seen." Rep. Duncan Hunter, California Republican, introduced legislation calling for a congressional pardon. Rep. Joe Wilson, South Carolina Republican, described the case as a "grotesque misdirection of our judicial system."
Petitions with more than 260,000 signatures have been presented to President Bush calling for a pardon. Seventy members of Congress are co-sponsors of Mr. Hunter's bill. National Border Patrol Council President T.J. Bonner, whose organization represents all 10,000 of the agency's non-supervisory personnel, said Mr. Sutton was not required to bring the mandated firearms charge, saying "it is quite doubtful Congress ever intended that this provision be used against law-enforcement officers who carry firearms in the performance of their normal duties."
Rep. Walter B. Jones, North Carolina Republican, said in a letter to Attorney General Alberto R. Gonzales -- co-signed by Mr. Rohrabacher and Republican Reps. Ernest Istook of Oklahoma, Gary G. Miller and Ed Royce of California, and Tom Tancredo of Colorado -- the 10-year mandatory gun charges should have been dropped. "This statute has historically been used in violent crime and drug trafficking cases," Mr. Jones said in the letter. "It has also been applied to law enforcement when necessary, however, based on past applications ... it appears that its application in the present case is unwarranted."
In addition to being an interesting case on its substantive merits, this case would seem to present the perfect opportunity for the US Sentencing Commission and groups like FAMM to engineer bipartisan legislation to minimize the unfairness of mandatory minimum sentencing provisions.
Instead of legislation calling for a pardon (which arguably is unconstitutional), why isn't this case being used as the focal point for devloping broader safety-valve exceptions to the application of the federal mandatory minimum sentence applied here (which could be made retroactive in various ways)?
January 25, 2007
Lethal injection issues halt NC executions
As detailed here, there was good reason to suspect that North Carolina's scheduled execution for this might get disrupted by the lethal injection debate. And, as detailed here by the AP, the lethal injection scrummages have brought down yet another state's death penalty plans:
A judge on Thursday stopped two executions scheduled within the next eight days, saying a recent decision to change the role a doctor must play in the process must be approved by the governor and the Council of State.
North Carolina law requires a doctor be present at executions and until recently, they helped monitor a patient's vital signs. But the North Carolina Medical Board decided last week that any participation by a doctor, beyond merely attending the execution, violated its ethics policy. In a filing in a separate case that cited the medical board's decision, the state said Monday a doctor would no longer monitor the inmate's vital signs, a duty it has turned over to a nurse and emergency medical technician.
Citing a law from 1909 that requires the governor and the council of state to approve any change in the execution process, Wake County Superior Court Judge Donald Stephens ordered Thursday the executions of Marcus Reymond Robinson and James Edward Thomas be halted until they do so. "I believe this is a significant change in the execution protocol," Stephens said. "In order to carry out an execution under these circumstances the governor and Council of State should review that protocol and approve it."
Once again, I cannot help but comment that my prediction of a record-low number of executions in 2007 is looking pretty solid as of right now. Of course, that could change with a notable SCOTUS decision or two.
Advocating imprisonment as a last resort
The New York Times has this potent editorial that laments our nation's heavy reliance on incarceration and presents Congress with a to-do list for needed reform. Here's how it begins and ends:
The United States is paying a heavy price for the mandatory sentencing fad that swept the country 30 years ago. After a tenfold increase in the nation's prison population — and a corrections price tag that exceeds $60 billion a year — the states have often been forced to choose between building new prisons or new schools. Worse still, the country has created a growing felon caste, now more than 16 million strong, of felons and ex-felons, who are often driven back to prison by policies that make it impossible for them to find jobs, housing or education.
Congress could begin to address this problem by passing the Second Chance Act, which would offer support services for people who are leaving prison. But it would take more than one new law to undo 30 years of damage....
The only real way to reduce the inmate population — and the felon class — is to ensure that imprisonment is a method of last resort. That means abandoning the mandatory sentencing laws that have filled prisons to bursting with nonviolent offenders who are doomed to remain trapped at the very margins of society.
Making imprisonment a true last resort is a central theme that shapes much of my advocacy on this blog:
- I am a fan and advocate of any novel sentencing schemes — from shaming sanctions to GPS tracking to problem-solving courts — that might disrupt our status quo bias toward longer terms of imprisonment as the "solution" to every criminal justice problem. At Corrections Sentencing here, Michael Connelly right wonders whether our emphasis on imprisonment may actually imperil public safety.
- I am pulling for the defendants in Claiborne and Rita because I see few benefits from Mario Claiborne serving more than 15 months or from Victor Rita serving 33 months in federal prison. (And that's why, as explained here and here, I found the Senators' brief filed against Mario Claiborne so disappointing.)
- I am a fan and advocate of the original SRA because I read § 3553(a)'s parsimony provision as a statement that imprisonment should be a last resort, and because Congress in 28 U.S.C. § 994(j) also stressed "the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense." Sadly, these important provisions have received depressingly little attention in the 20+ years since the SRA's passage.
My personal crusade against over-reliance on imprisonment is based in part in my (naive?) belief that we are a country built upon, and committed to, principles of liberty and freedom. I view broad state power to lock up citizens in small cages for long periods of time — a power likely never even imagined by the Framers — to run contrary to these principles of liberty and freedom. In contrast, treating prison as a last resort would honor these principles.
The NYT editorial is powerful in part because it sets an agenda for the new Democratic Congress if it has any real interest in progressive reforms. Notably, at the federal level, Democrats bear much responsibility for our modern over-reliance on imprisonment. The Democrats controlled Congress in 1986 when the most significant federal mandatory minimum sentences were created. Also, Democratic President Bill Clinton played a key role in rejecting the US Sentencing Commission's 1995 efforts to fix the crack/powder disparity. Here's hoping the new Democratic Congress will find the courage to chart a new and sounder course.
January 24, 2007
ESPN effectively covers Genarlow Wilson's sad saga
As of this writing, the front page of ESPN.com features this lengthy article on the Genarlow Wilson case from Georgia (which I blogged about at length last month). The piece is entitled "Outrageous Injustice" and carries this sub-heading: "Genarlow Wilson, honor student and football star, had consensual sex with a fellow teenager. What happened to him next was a crime."
There are many intriguing facets and new details in this major article on Genarlow Wilson (and also many moving pictures of Wilson in prison). Here's is one notable passage:
No one involved believes Wilson should be in jail for 10 years. The prosecutors don't. The [Georgia] Supreme Court doesn't. The legislature doesn't. The 15-year-old "victim" doesn't. The forewoman of the jury doesn't. Privately, even prison officials don't.
Yet no one will do anything to free him, passing responsibility around like a hot potato. The prosecutors say they were just doing their job. The Supreme Court says it couldn't free him because the state legislature decreed the new law didn't apply to old cases, even though this case was the entire reason the new law was passed....
The legislature still could pass a new law that would secure Wilson's freedom, so [Wilson's lawyer, BJ] Bernstein is pushing hard for that. One such bipartisan bill was introduced this week, pushed by state Sens. Emanuel Jones, Dan Weber and Kasim Reed. This is Wilson's best shot. "I understand the injustice in the justice system," Jones says, "and when I heard about Genarlow and started studying what had happened, I said, 'This is a wrong that must be righted.' Everyone agrees that justice is not being served."
Every story needs a villain, and in this one, the villain's hat has been placed squarely on the head of [Eddie] Barker, the prosecutor and a former college baseball player. Barker doesn't write the laws in the books to the left of his desk. He simply punishes those who break them.
"We didn't want him to get the 10 years," he says. "We understand there's an element out there scratching their heads, saying, 'How does a kid get 10 years under these facts?' " In Barker's eyes, Wilson should have taken the same plea agreement as the others. Maintaining innocence in the face of the crushing wheels of justice is the ultimate act of vanity, he believes....
Barker is quick to point out that he offered Wilson a plea after he'd been found guilty — the first time he has ever done that. Of course, the plea was the same five years he'd offered before the trial — not taking into account the rape acquittal. Barker thinks five years is fair for receiving oral sex from a schoolmate. None of the other defendants insisted on a jury trial. Wilson did. He rolled the dice, and he lost. The others, he says, "took their medicine."...
The folks in Douglas County are playing god with Genarlow Wilson's life. "We can set aside his sentence," Barker says. "Legally, it's still possible for us to set aside his sentence and give him a new sentence to a lesser charge. But it's up to us. He has no control over it." The position of Barker and the district attorney, McDade, who refused to comment, is that Wilson is guilty under the law and there is no room for mercy, though the facts seem to say they simply chose not to give it to Wilson.
At the same time this trial was under way, a local high school teacher, a white female, was found guilty of having a sexual relationship with a student — a true case of child molestation. The teacher received 90 days. Wilson received 3,650 days. Now, if Wilson wants a shot at getting out, he must throw himself at the prosecutors' feet and ask for mercy, which he might or might not receive. Joseph Heller would love this. If Wilson would only admit to being a child molester, he could stop receiving the punishment of one. Maybe. "Well," Barker says, "the one person who can change things at this point is Genarlow. The ball's in his court."
Related posts on the Genarlow 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
Notable Tenth Circuit reasonableness ruling
A helpful reader sent me this account of the Tenth Circuit's notable recent decision on procedural reasonableness in US v. Hall, No. 05-1205 (10th Cir. Jan 23, 2007) (available here):
[The Hall] court reverses a substantial downward variance, on the government's cross-appeal [but] uses some good language about the district court's duty to explain its sentencing determinations and to tie them to the 3553(a) factors. In particular, the court explains, "[a]lthough we have never required a district court to recite any 'magic words' to show that it has fulfilled its obligation to be mindful of the factors Congress has instructed it to consider in sec. 3553(a), we have nevertheless required the court to give reasons for imposing a specific sentence." (citing its decision in Sanchez-Juarez).
The Court further explains that such reasons are necessary for "meaningful appellate review." Next, the Court says that the defendant's 151-month sentence (substantially below the Guidelines range) might be substantively reasonable, but says it is procedurally unreasonable because the district court's only basis for varying from the Guidelines range (which was also the range for his co-defendants) was his "comparatively minor" criminal history. The district court didn't discuss the offense characteristics or specifically discuss 3553(a), it just constructed a "hypothetical" Guidelines sentence based on a lower criminal history category AND a lower offense category.
Another execution stay in Texas?!?!
As detailed by DP bloggers here and here, the two executions planned in Texas this week have now both been stayed. If scheduled executions in Texas start being stayed regularly, my prediction of a record-low number of executions in 2007 is almost sure to come true.
Meanwhile, North Carolina has an execution scheduled for later this week, and the fighting seems to be about lethal injection protocols.
In praise of comments
Just a quick post to praise (and recommend) the many interesting comments to posts on the Emily Bazelon article and on my federal death penalty idea. On the many reasons I love this medium is because I get instant and thought-provoking feedback from so many informed and interested sources.
Keep up the great work, commentors.
An interesting crack/powder SCOTUS development
I just got an interesting bit of news from a reader about a notable crack/powder development at the Supreme Court cert stage. Here is the e-mail report:
I know that Rita/Claiborne examine the crack/powder disparity in the guidelines, so I thought you would be interested to know that SCOTUS has asked the S.G. to respond to a cert petition challenging the crack/powder disparities in 21 USC 841(a) as violating due process, equal protection and the 8th amendment. The case is US v. Jackson, SCOTUS number 06-8391.
Second Circuit reverses another below-guideline sentence
The Second Circuit has released today another decision reversing a below guidelines sentence in US v. Trupin, No. 05-2934 (2d Cir. Jan. 23, 2007) (available here). Here is the starting paragraph:
This appeal concerns the bounds of "reasonableness" after United States v. Booker, 543 U.S. 220 (2005). In particular, we must determine whether it was reasonable for the district court to prescribe a seven-month prison term — amounting to an eighty percent reduction from the bottom of the applicable Sentencing Guidelines range — for a defendant who engaged in a multi-year, multi-million dollar tax evasion scheme. We hold that the district court's decision was unreasonable; it failed to properly weigh all of the sentencing factors enumerated in 18 U.S.C. § 3553(a) and the record does not adequately support those factors on which the district court relied.
UPDATE: An insightful reader sent (and approved my posting) of this comment on Trupin:
Although the facts are not all that sympathetic, one point of particular note was the way CA2 criticized the district judge for complaining that the particular guideline was too harsh. It seems like district judges are certainly within their discretion, in considering whether to impose a guidelines sentence, to express this sort of view. Also, though one might disagree with the judge's conclusions about the defendant's age and the other factors, CA2 seems to go out of its way to engage in a sort of rigorous second-guessing that seems inappropriate.