Thursday, July 12, 2007

Prosecutors gone wild

This AP story chronicles the latest saga in the sad tale that is the Genarlow Wilson case (details in this archive) out of Georgia.  Here are snippets:

David McDade has handed out some 35 copies of a video of teenagers having sex at a party.  McDade is no porno kingpin, but a district attorney.  And he says Georgia's open-records law leaves him no choice but to release the footage because it was evidence in one of the state's most turbulent cases — that of Genarlow Wilson, a young man serving 10 years in prison for having oral sex with a girl when they were teenagers.  McDade's actions have opened him up to accusations that he is vindictively misusing his authority to keep Wilson behind bars — and worse, distributing child pornography.

UPDATE:  I see two remarkable new posts at Above the Law suggesting that Mr. McDade has a track record that should make good prosecutors cringe:

The saddest part of all this, of course, is that McDade continues to wreck havoc on Georgia justice while Genarlow Wilson remains behind bars.  It is a sad shame that Georgia's Attorney General and Governor are far less concerned about the unjustifiable activities of rogue prosecutors than about teenagers' consensual sexual activities.

July 12, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

Wednesday, June 27, 2007

Genarlow Wilson to remain in prison, despite ruling that his sentence is unconstitutional

Howard Bashman notes reports from the AP and from the Atlanta Journal-Constitution that a state judge has now ruled that Genarlow Wilson is not eligible for bond pending the state's appeal of a ruling that his sentence is unconstitutional.  As previously detailed here and here, lower court has already ruled that Wilson's original sentence was unconstitutional, although that ruling due to be review by the Georgia Supreme COurt in the fall (details here).

I do not quite understand why executive officials in Georgia believe it is necessary and appropriate — or even lawful — to keep Wilson in prison when the last state judge to review this case has declared Wilson's sentence unconstitutional.  I understand that the Georgia Attorney General regards the lower court's ruling as problematic.  But given that the AG apparently recognizes that Wilson presents no risk of flight or dangerousness, shouldn't he agree to Wilson's release pending appeal.  Indeed, might one argue that it is unconstitutional for the Georgia AG to continued Wilson's imprisonment under these circumstances?

June 27, 2007 in Examples of "over-punishment" | Permalink | Comments (11) | TrackBack

Tuesday, June 26, 2007

Putting money where the sentencing injustice is

As detailed in articles appearing in USA Today and the Atlanta Journal-Constitution, a "New York investment manager and 10 of his friends have pledged $1 million in cash to try to win the release of a Georgia man imprisoned for a consensual sex act."  Here are more details from the USA Today article:

Genarlow Wilson, 21, is serving a 10-year sentence for receiving oral sex from a 15-year-old girl when he was 17.  He has been behind bars for more than 28 months.  Two weeks ago, a Monroe County judge ordered his release.  Because Georgia Attorney General Thurbert Baker appealed, however, Wilson remains in prison.

"A miscarriage of justice has occurred here, yet he's still in jail," says Whitney Tilson, a mutual and hedge fund manager who will commit $100,000 of his own money to a bond fund for Wilson.  Tilson, who is founder and managing partner of T2 Partners Management LP and Tilson Mutual Funds, read about Wilson's case in December and thought his punishment was excessive.

Related posts will background on the Genarlow Wilson case:

June 26, 2007 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Thursday, June 14, 2007

Notable coverage of Genarlow Wilson saga

Coverage of the Genarlow Wilson case continues to provide interesting food-for-thought.  Anyone following the Wilson case closely will definitely want to check out these two interesting articles:

Following up the AJC article, this AP article has now hit the wires, headlined "Prosecutor meddling in teen sex case?  Mother of girl changed statement to newspaper after visit by assistant DA."

UPDATE:  This AP story reports that "Georgia's Supreme Court agreed Thursday to hear the state's arguments for keeping in prison a man who had consensual sex with a 15-year-old girl when he was 17.  The story also provides more details about reactions to the case and the decision by the Georgia AG to appeal.

June 14, 2007 in Examples of "over-punishment" | Permalink | Comments (6) | TrackBack

Parents start serving 27 months for serving alcohol at son's 16th birthday party

Cover_large The Washington Post in this editorial, and David Bernstein here at The Volokh Conpirary, are justifiably spotlighting the apparent injustice in this story of two parents given 27-month(!) jail terms for having provided beer and wine at a backyard birthday party for their son when he turned 16. 

According to the Post editorial, the prosecutors "originally sought a three-month sentence," but apparently a juvenile court judge "originally imposed eight-year sentences" only an appeals court cut the sentence to the 27 months now to be served.

Commentors at Volokh indicate that the parents' wrongdoing went beyond just serving alcohol.  But, geez, wouldn't the three-month sentence (or even six months or nine months) sought by prosecutors have been sufficient?  I have long thought that any sentence more than twice what a prosecutor requests should be considered presumptively (though not per se) unreasonable. 

More details about this case and related matters are available in this cover article from a publication called "The Hook."  The article spotlights that the long sentence given to the parents should have a profound deterrence effect, though I'd think a shorter sentence could do the trick.  Can anyone suggest reasons why such a long jail sentence is necessary under these circumstances?

June 14, 2007 in Examples of "over-punishment" | Permalink | Comments (7) | TrackBack

Wednesday, June 13, 2007

Genarlow Wilson faces at least another month in prison

As detailed in this Atlanta Journal-Constitution article, despite a big win in his state habeas action overturning his initial sentence, "Genarlow Wilson will remain behind bars at least until next month, when a judge will decide whether he should be released from prison pending an appeal."  Here are some more details:

Wilson, now 21, moved a step closer to freedom Monday when Monroe County Superior Court Judge Thomas H. Wilson granted his petition to throw out his 10-year prison sentence.  The judge agreed the sentence "would be viewed by society as 'cruel and unusual' in the constitutional sense of disproportionality." The judge also ordered him freed from prison and changed his felony conviction to a misdemeanor without the requirement that he register as a sex offender.

Within hours, however, state Attorney General Thurbert Baker filed notice that he would appeal the ruling to the Georgia Supreme Court.  Baker is arguing the judge overstepped his authority. Several civil rights activists demonstrated outside Baker's office Monday, calling on him to back off his appeal or resign. "I think he should be admired for standing up in the face of all that and doing his job," [Douglas County District Attorney David] McDade said. "His sworn duty is to protect all Georgians."

Related posts will background on the Wilson case:

June 13, 2007 in Examples of "over-punishment" | Permalink | Comments (4) | TrackBack

Monday, June 11, 2007

Georgia AG appeals to keep Genarlow Wilson locked up

This new CNN article disappointingly reports that the Attorney General of Georgia "quickly filed a notice of appeal, keeping Genarlow Wilson in prison for the time being" in the wake of the state court ruling earlier today reducing his crime and sentence (basics here and here).  Here are more details:

The prosecutor's move brought an abrupt halt to the jubilation Wilson's mother, Juannessa Bennett, and his attorney, B.J. Bernstein, were feeling, and the plans they were making for Bennett to be reunited with her son.  "It is extremely, extremely disturbing that the attorney general would take this action now," Bernstein said, adding that she did not know what message "he's trying to send" or "who he's representing."

In a written statement, Georgia Attorney General Thurbert Baker said he filed the appeal to resolve "clearly erroneous legal issues," saying that while the judge did have the authority to grant habeas relief, he did not have the authority "to reduce or modify the judgment of the trial court."  Separately, Baker noted that Douglas County recently had offered a plea deal "that would have allowed Genarlow Wilson to plead to First Offender Treatment, which would mean that he would not have a criminal record nor would he be subject to registering on the sex offender registry once his sentence had been completed."

I would be interested to hear reactions from current and former prosecutors about the Georgia AG's decision to so swiftly seek an appeal.  I also wonder, if Baker is comfortable with a plea deal that gets close to the same result as the court ruling, why the rush to appeal?

June 11, 2007 in Examples of "over-punishment" | Permalink | Comments (21) | TrackBack

Snippets from the Wilson ruling from Georgia

The Atlanta Journal-Constitution now has this coverage of the state court ruling reducing the crime and sentence of Genarlow Wilson (basics here).  There is a written opinion supporting the rule, and here are inspiring snippets:

In the Petitioner's case, the imposition of the rnandatory minimum 10-year prison sentence without parole and sex offender registration for consensual oral sex between teenagers would be viewed by society as "cruel and unusual" in the constitutional sense of disproportionality, especially in light of Petitioner's having never been convicted of a prior crime....

If this Court, or any Court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish — Justice being served in a fair and equal manner.

When I first heard about the Wilson case last December, I explained here and here why I thought Genarlow had a viable Eighth Amendment claim.  I am glad a state judge in this case agreed.  Now if the state prosecutors could have the good sense not to bother with an appeal.

June 11, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

Genarlow Wilson prevails in state habeas appeal

Good news for folks like me hoping that justice would prevail in the Genarlow Wilson case.  Here is the early report from the AP of today's major development in the case:

A judge on Monday voided a 10-year sentence for a man accused of having consensual oral sex with a 15-year-old girl when he was 17.  He instead gave Genarlow Wilson a 12-month misdemeanor sentence with credit for time already served.  The state is likely to appeal the ruling.

Wilson's original sentence, for aggravated child molestation, was widely criticized on the grounds it was grossly disproportionate to the crime, and state lawmakers later passed a law to close the loophole that led to the 10-year sentence. 

Wilson, now 21, has already served more than 27 months.  He could remain behind bars while the appeal proceeds.

I am not quite sure why (or even how) Wilson can remain incarcerated if he has now been given a sentence that has been fully served.  I suppose there may be a mechanism under state law for prosecutors to stay the sentence change ordered today, but I sure hope Wilson gets his release very soon.  He certainly does not seem like a flight risk or a danger to the community.

Related posts will background on the Wilson case:

June 11, 2007 in Examples of "over-punishment" | Permalink | Comments (6) | TrackBack

Friday, June 08, 2007

More strong calls for justice for Genarlow Wilson

Because I was in Atlanta this morning for an Eleventh Circuit argument (reported by the media here and here), I saw the print copy of this extended editorial in the Atlanta Journal-Constitution entitled, "Teen's search for justice: Genarlow Wilson's 10-year sentence for consensual sex ought to be thrown out by judge."  TChris at TalkLeft here discusses the editorial and the fact that former President Jimmy Carter has spoken out in favor of justice for Genarlow.  A ruling on Wilson's state habeas action is expected on Monday.

Recent related posts:

June 8, 2007 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Wednesday, June 06, 2007

Genarlow Wilson state habeas appeal update

A scheduled hearing on Genarlow Wilson's state habeas action has the Atlanta Journal-Constitution again discussing this remarkable case with this article, entitled "Sex landed him in prison; will petition bail him out?", and this op-ed by columnist Cynthia Tucker, entitled "Genarlow Wilson should be free."  For a lot more background, check out these prior posts about the case:

UPDATE:  This AP story provides a brief account of the argument in the Wilson case today, but it has no information about whether and when a ruling on the merits might be forthcoming.

MORE:  This updated AP piece indicates that the state judge "says he'll make a decision by Monday in the case of a Georgia man who was sentenced to 10 years in prison for having consensual oral sex with a 15-year-old when he was two years older than she was."

June 6, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Wednesday, April 18, 2007

Will Genarlow Wilson get Duke justice?

The sad Genarlow Wilson case from Georgia (background here and here and here) is generating more press in the wake of the upstanding way in which North Carolina's Attorney General admitted mistakes in the Duke case.  Here is some of the latest coverage and commentary:

Some recent related posts:

April 18, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Friday, April 13, 2007

Genarlow Wilson seeking state habeas relief

The sad Genarlow Wilson case from Georgia (background here and here) is back in the news because, as detailed in this news story, Wilson's lawyer, BJ Bernstein "filed a petition for writ of habeas corpus Thursday with the Superior Court of Monroe County."  In addition, as detailed on this website, advocates for Wilson are hoping to leverage the events in the Duke rape case to get justice for Wilson.  Here's what the website says:

Yesterday we saw the Attorney General of North Carolina step forward as the chief law enforcement officer to correct an injustice by a district attorney in the Duke rape case. Genarlow Wilson now appeals to the Attorney General of Georgia, Thurbert Baker to use his power to act justly, and review and consent to Wilson's habeas petition.  As the guardian of justice in this State, we appeal to him to correct this grave injustice.

Makes sense to me.

Some recent related posts:

April 13, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Tuesday, April 03, 2007

More attention for Genarlow Wilson

I am pleased to see continued major media coverage of Genarlow Wilson's case (prior examples here and here).  Here are too more pieces complaining about the extreme sentence Wilson is serving for a consentual sexual encounter with another teenager:

April 3, 2007 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Thursday, March 29, 2007

A new website inspired by Genarlow Wilson

I have not blogged about the Genarlow Wilson case much lately because there has not been much to report.  Despite a flurry of media coverage calling for Wilson's release (details here and here), Georgia officials have not responded and Wilson is now deep into his third year in prison serving a 10-year sentence for a crime that Georgia law now classifies as a misdemeanor subject to only 12 months imprisonment.

Meanwhile, Wilson's case has inspired the creation of a new non-profit organizarion called "My 5th," which has this intriguing new website.  The website's home page states, "With this website, blog and workshops, MY 5th wants to prevent you from paying the price for not knowing the law!!!! Use the law, don't let it use you!!!".  An intriguing and diverse set of individuals are on My 5th's board, and Wilson's lawyer is listed as the president and founder of the organization.  Not suprisingly, Wilson's case is featured here on the My 5th site.

Some related Genarlow Wilson posts:

March 29, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Wednesday, March 28, 2007

A Texas juve case creating controversy

Thanks to posts at TalkLeft and Grits for Breakfast, I have become away of a controversial case of seemingly unduly severe juvenile punishment coming out of Texas.  This AP story has these highlights:

A teenager has been jailed for more than a year for shoving a teacher's aide at her high school, sparking anger and heightening racial tensions in rural East Texas.  Shaquandra Cotton, now 15, claims the teacher's aide pushed her first and would not let her enter school before the morning bell in 2005.

A jury convicted her in March 2006 on a felony count of shoving a public servant, who was not seriously injured.  The girl is in the Ron Jackson Correctional Complex in Brownwood, about 300 miles from her home in Paris....  Under the sentence handed down by Lamar County Judge Chuck Superville, she will remain at the facility until she meets state rehabilitation standards or reaches her 21st birthday.

But her family and civil rights activists say they want her home now. They are condemning the sentence as unusually harsh and say it shows a justice system that punishes young offenders differently, depending on their race.  Creola Cotton, Shaquandra's mother, and activists argue that while Superville sent Shaquandra to the state's juvenile prison system, he gave a white 14-year-old arsonist probation. As many as 400 people marched and rallied in Paris on Tuesday, the second such protest in as many weeks by civil rights groups.

Meanwhile, the Paris school district fiercely denied claims of racism and chided the girl's mother for "playing a game" to start controversy.... Creola Cotton is preventing the district from fairly defending itself by refusing to let the school district make her daughter's entire record public, [Paris school district attorney Dennis] Eichelbaum said. "Mrs. Cotton has been wrongfully attacking the character of the district," Eichelbaum said. "She's being disingenuous with regard to her daughter being an innocent child."...

Prosecutors say they offered Shaquandra a plea agreement that would have reduced the felony charge to a misdemeanor and given her two years' probation.  But Creola Cotton rejected the plea behalf of her daughter, prosecutors said.

The Dallas South Blog, whose author Shawn Williams comes from Paris, Texas, offers lots of comments on the case here and here and here.  Also, there is a blog, Free Shaquanda Cotton, which pleads "Please help me, Shaquanda Cotton, receive proper justice. Leave me notes of encouragement, donate to my trust fund, and spread the word!"  That blog has links to other media coverage of this case.

March 28, 2007 in Examples of "over-punishment", Race, Class, and Gender | Permalink | Comments (18) | TrackBack

Thursday, March 01, 2007

Request for hearings on the border agent case

According to this (partisan?) news report, "[t]hirty-eight Republican congressmen have written to Speaker of the House Nancy Pelosi asking for hearings to investigate the prosecution of Border Patrol agents Ignacio Ramos and Jose Compean, who are in prison for their actions in the shooting of a drug smuggler given immunity to testify against them."  Here are more details:

The sharply worded letter, sent Tuesday, is critical of the prosecutor, U.S. Attorney Johnny Sutton, and federal investigators. The congressmen say "serious questions remain unanswered by our federal government over the apparently misguided prosecution of two distinguished U.S. Border Patrol Agents, Ignacio Ramos and Jose Compean."  The letter further charges that relevant federal agencies have "delayed or denied" congressional requests for information and that "certain federal investigators have even misled us about the case."...

The letter also was addressed to Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee; Rep. Bennie Thompson, D-Miss., chairman of the House Homeland Security Committee; and Rep. Henry Waxman, D-Calif., chairman of the House Oversight & Government Reform Committee. Among the Republican signatories are Reps. Ted Poe and John Culberson of Texas; Duncan Hunter, Dana Rohrabacher and Mary Bono of California; Dan Burton of Indiana; Frank Wolf of Virginia; and Tom Tancredo of Colorado.

As WND reported, Sen. Patrick Leahy, D-Vt., has given Sen. Dianne Feinstein, D-Calif., permission to investigate the prosecution and sentencing of Compean and Ramos.  Feinstein, who said she believes the sentences were "extreme," has postponed the Senate hearings, originally scheduled for Feb. 27.

Some recent related posts:

March 1, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Tuesday, February 27, 2007

Perhaps if Justices Kennedy and Breyer realized the world cares a lot...

about the cert denial in Berger (details here and here), the outcome might have been different.  Of course, notwithstanding Justice Kennedy's opinion in Roper and Justice Breyer's willingness to defend reliance on foreign precedents, it is unfair to assert that they would have voted for cert if they knew the cert denied would garner international attention.  (Moreover, it is possible that both Justices voted for cert but that there weren't enough other votes.) 

Nevertheless, I think it is notable that this afternoon I have been contacted by two members of the foreign press to talk about the Berger case.  Specifically, I just finished a long interview with a reporter from Brazil's Vision magazine, and in a few hours I will have the honor of doing an interview with BBC Radio 5Live, which is part of national talk radio in the UK.   (Perhaps this is a variation on the Greenhouse effect, since I believe Linda Greenhouse's kind use of my quote in her Berger story has led to my 15 seconds of international fame.)

Some related posts on the Berger case:

February 27, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

Monday, February 26, 2007

More on the cert denied in Berger

Thanks to How Appealing, I see that the AP has a short piece and Reuters has a longer piece on the Berger cert denial.  (The case involves first-offender Morton Berger challenging his 200-year prison sentence for possessing child pornography (basics here, commentary here).)

In this earlier post I suggested that, though cert was denied today in the Berger case (recently discussed here), some Ninth Circuit precedents should perhaps give Morton Berger some hope for a federal habeas action.  But Orin and Kent in the comments rightly note that Morton Berger's case faces additional hurdle in habeas: the statutory limits on granting relief set out in the AEDPA.  (Of course, the Ninth Circuit has been know to find ways around AEDPA.  But it was because of habeas headaches that I believed SCOTUS should take up Berger's case on direct review.)

So here is my question to Orin and Kent and anyone else interested in playing along: 

What should Berger and his lawyer do now? 

Since Berger has already lost in the Arizona Supreme Court, I doubt state collateral review is likely to be successful.  I suppose Berger could and should seek a commutation from the Arizona governor or a retroactive change in the law from the Arizona legislature, but the Genarlow Wilson saga highlights that other branches are not so good at doing justice in cases of extreme sentencing.  So, is the cert denial the end of the line for Berger?

February 26, 2007 in Examples of "over-punishment" | Permalink | Comments (22) | TrackBack

Friday, February 23, 2007

Another chance for cert in Berger

In my punitive damages commentary here and here after the SCOTUS Philip Morris decision, I have suggested that Justices eager to constitutionally second-guess some harsh corporate punishments should also be willing to constitutionally second-guess some harsh individual punishments.  And a case now being reviewed by the Court — in which first-offender Morton Berger challenges his 200-year prison sentence for possessing child pornography (basics here, commentary here) — presents a unique opportunity for the Court (and its new Justices) to grapple with its confusing non-capital Eighth Amendment jurisprudence.

As detailed in this docket sheet, the Berger case was discussed by the Justices at conference last week and is now slated to be discussed again today.  For various reasons developed in prior posts, the Berger case seems like a great vehicle for the Court to explore its doctrines on what constitutes cruel and unusual punishment:

February 23, 2007 in Examples of "over-punishment" | Permalink | Comments (9) | TrackBack