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December 18, 2006

A Georgia case calling for executive clemency?

How Appealing here spotlights an extraordinary Georgia case.  As explained in this concurrence from the Georgia Supreme Court's decision not to reconsider the case, the defendant "was convicted of aggravated child molestation based upon an act of oral sodomy performed on him by victim T.C., which was documented on videotape and seems to show that the victim's participation in the act was voluntary."  The defendant was 17 at the time of the offense, the victim was 15; under "the aggravated child molestation statute then in effect, Wilson was sentenced to ten years imprisonment without possibility of parole."   Ten years ... yikes!  (For a little context, consider that 10 years in prison is nearly what Enron bad guy Andrew Fastow received.)

The Georgia Legislature thereafter amended the applicable statute to provide that "an act of sodomy is only a misdemeanor when the victim is between 13 and 16 years of age and the convicted person is 18 years of age or younger and is no more than four years older than the victim."  But, the Georgia Legislature "expressly chose not to allow the provisions of the new amendments to affect persons convicted under the previous version of the statute," and thus the Georgia Supreme Court decided the defendant was "not entitled to the misdemeanor treatment now accorded to identical behavior under" the revised statute. 

Som the Georgia Legislature has now said that the defendant's type of behavior should be treated as a misdemeanor, and many studies suggest that the defendant's behavior is quite common among teenagers even though prosecutions are rare.  Nevertheless, this defendant is still stuck serving 10 years in prison.  Certainly not my idea of "getting lucky," but rather a case screaming out for the exercise of executive clemency. 

I have a hard time thinking of any reasons why the defendant should remain in prison.  Can readers perhaps help me understand why this case does not involve a far greater injustice than all the hub-bub over lethal injection protocols?  [This paragraph has been tweaked for clarity.]

December 18, 2006 at 09:19 AM | Permalink


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Does anyone know why the Georgia Legislature did not make the fix retroactive? I understand (and generally respect) judicial restraint. At some level, however, it is dissapointing that the judiciary is so unwilling ever to say enough is enough, and apply the Eighth Amendment (or a state equivalent) or some other principle not to uphold sentences that shock the conscience. It seems as if there was a day when the judiciary was more robust and served as more of a real check on the excesses of the political process in the criminal area. After all, it is difficult for the political process to reach reasonable outcomes given the disparity of political power on sentencing issues. In the civil litigation area, for example, there are powerful opposing forces that battle to outcomes that generally smack of rough justice. But that just doesn't happen in the criminal area. So we see results like this case, Angelos, and hundreds of others. There just seem to be so many opinions like the concuring one here or Judge Cassell's opinion in Angelos, where -- when they even bother to comment -- judges say "this really stinks, but I just can't do anything about it." Any thoughts out there about this? Is anything that could be labeled judicial activism so out of fashion that we just cannot expect anything more bold from the courts?

Posted by: Mark | Dec 18, 2006 10:37:14 AM

Your last sentence leaves me confused -- do you think that this case does or does not involve a far greater injustice than the current lethal injection problems?

To this prosecutor, the Georgia case is very troubling. I understand the goal of the legislature, and I respect their judgment that the newly-amended statute not apply to previous convictions. But I agree with you that executive clemency is probably the best option here.

Oh, and as for this vs. the lethal injection debate, to me the answer is clear. Hmm -- ten years in prison for a consensual blowjob versus the pain *potentially* inflicted upon a convicted murderer while being executed? The state should take every step to insure that executions are carried out in a humane manner (if that's not an oxymoron), but as compared to the case referenced above, well, I choose to expend my compassion on the teenager's case.

Posted by: NCProsecutor | Dec 18, 2006 10:40:38 AM

Not to be harsh, but the commenter above ("Mark") seems to fall prey to the unfortunate belief that the courts must by necessity have the ability to correct every ill they come across. Nothing could be further from the truth, and that belief is the root of conservative agitation over an activist judiciary. Where, as here, the law has worked to convict a defendant of a crime of which he was admittedly guilty and for which the penalty was clearly laid down by the legislature (and the constitutionality of which is not at issue), a judicial override at this late date would have been unconscionable, IMHO.

Having said that, executive clemency is the safety valve in the criminal justice system, and is designed for just such cases. Here's hoping that the political system in Georgia will allow clemency to come into play here.

Posted by: NCProsecutor | Dec 18, 2006 10:53:51 AM

But perhaps the consitutionality of outcomes like this should be called into question. The logical extension of your argument is that there is no proper role for the judicial branch in checking the excesses of the legislative branch, and that the only check is from another political branch of government. I understand frustration with judicial activism. But there is just so much evidence of disfunction in the legislative branch in dealing with criminal justice -- particularly sentencing -- issues. And one cannot realistically expect the Executive Branch to function as an adequate check. Witness President Bush's failure to commute even one sentence in the drug area. It is pretty indisputable that the legislative process regularly leads to sentences in individual cases that most people find grossly excessive. And the political branches -- especially at the federal level -- just don't seem able to inject any real reform. If there were a political answer, that would be great. I just don't see where it is coming from in the forseeable future, and that makes me think the courts need to step in. Finally, I don't think the reason political reform is not coming is because the majority of reasonable people (or legislators) think things are fine with sentencing the way they are. The reality is we pretty indisputably have real problems with over-incarceration in this country, but it is an terribly hard issue for politicians to deal with.

Posted by: Mark | Dec 18, 2006 11:11:58 AM

We could both start hurling logical extensions at each other all day long and still end up where we are. You raise a compelling point about the difficulty of depending upon the political system to resolve these difficult issues, and I truly understand your perspective. But for me, the concern you raise is simply not the proper province of the appellate judiciary, and stretching Eighth Amendment jurisprudence to fit into this kind of case would be a dangerous exercise in judicial excess.

Posted by: NCProsecutor | Dec 18, 2006 11:23:25 AM

The studies indicate that many teens engage in oral sex. But not gay oral sex. Certainly not gay oral sex between males. Gay oral sex between males is much more likely than other kinds of teenage oral sex to be thought of as child molestation by a jury.

Posted by: Professor | Dec 18, 2006 12:00:12 PM

How many avenues are there for the judiciary to "do the right thing" when it comes to putting someone away who deserves to go away? Gross violation of your trial rights? Harmless error! Major mistake at trial missed by your trial lawyer? No plain error! Your lawyer was bad? Not so bad s/he affected the outcome of your case! You go to prison essentially because we know you did it and we're not going to let you get off on a "technicality."

So why not the flip side? NCProsecutor seems to agree that there's a real problem here, and that this person doesn't deserve to be in prison. But the judiciary should wash its hands of the matter because we can't find a neat constitutional package to wrap the issue up into? That's bull. Call is due process, call it fundamental fairness, call it equal protection, call it anything you want. Far from "unconscionable," a "judicial override" (otherwise known as a reversal of a criminal conviction, something that happens every now and then, I'm told) would be laudable. And right.

Posted by: Not Mark | Dec 18, 2006 2:38:59 PM

Must say, I tend to agree with Not Mark. It isn't fair for the law to work for the goose and not the gander.

Posted by: Major Mori | Dec 18, 2006 3:17:59 PM

This was undoubtedly not a jury trial, but I'm of the opinion that an informed jury with its perogative of legal nullification is a far more reliable 'safety valve' than executive clemency.

[I am completely unconnected to the legal profession]

Posted by: Penry | Dec 18, 2006 4:17:51 PM

"Professor": The GASC's concurrence did not reference the sex of the "victim", but according to How Appealing the act was performed by the accused's girlfriend. While I suppose an argument could be made that consensual under-age gay sex is more actively prosecuted than consensual under-age straight sex, the particulars of this case seem to inform otherwise. Don't let the facts, however, stand between your agenda and a convenient soap box.

[not affiliated with the legal profession]

Posted by: submandave | Dec 18, 2006 4:38:23 PM

I am a lawyer in Georgia. I do not know for sure, but I think the political process had something to do with the retroactivity thing. The General Assembly is elected every TWO years (both house and senate) and no one wants to be soft on crime. We have passed some really tough laws on criminals.

I think the problem here is not the legislature, but the prosecutor who decided to charge this case as a felony (or prosecute at all). Exercise some discretion folks.

Posted by: Percuriam | Dec 18, 2006 5:17:06 PM

Apologies for the mistake. The opinion itself lacks pronouns, as does the AP report. I took that as a cue that the judge and journalists were being overly solicitous of the victim because the victim was male. I had not read the How Appealing post until you provided it. Thanks.

Posted by: Professor | Dec 18, 2006 5:17:40 PM

BTW, we have a board of pardons and parole, and hopefully, this kid will get paroled.

Posted by: Percuriam | Dec 18, 2006 5:19:14 PM

Oh, Not Mark. We're all grownups here -- let's not pretend that appellate courts are reluctant to overturn criminal convictions on the very slightest of grounds. Agreed, I am sometimes amazed at what will get swept under the rug of "harmless error," but the state often loses on appeal, too, and over some pretty trivial issues at times.

The safety valve you describe is rule by judicial fiat and nothing more. Let's not forget that, under the law in effect at the time the offense was committed and charged, the defendant was a child molester as defined by the criminal law in the state of Georgia. You and I may disagree with that nomenclature -- and the harsh sentence which accompanied it -- but that's a loooong way from finding a judicially-enforceable right on these facts.

Posted by: NCProsecutor | Dec 18, 2006 11:03:44 PM

I'm 24 and nearly six years ago, when I was 18, and a senior in high school, I was arrested for having consensual sex with a kid four years my junior. Somehow I lucked out and was only given probation, that I completed in half the time for which I was originally sentenced, and required to register as a sex offender. I often ask myself what happened to people like me, and I'm sure there are a disgustingly large number of cases like mine, 15 or 20 years ago, before all of this sex offender hysteria emerged. I also ask myself if legislators really understand just how common and, dare I say, normal underage sex is (do you really need studies to determine that high schoolers screw around?), or how many people they would end up throwing in jail if every act of underage sex was prosecuted, or whether they really understand just how much havoc these trivial cases can cause on a young persons life--for the rest of their life? I really try to be positive when I read stuff like this, but I just fear it's all going to get much worse before it gets better. Our nation seems compelled to say that even though you can't yet legally vote or legally drink, you simply shouldn't be having sex, period. And if you do, well--to prison with you. I cannot imagine how anyone, with even the most minute amount of common sense, can accept that as right.

Posted by: sex offender | Dec 19, 2006 6:43:40 AM

NCProsecutor: what's more common, a court overturning a conviction on "slight" grounds or a court affirming a conviction by stretching harmless or plain-error beyond recognition? I'll bet you that it's the latter.

So for a court to do something in the Georgia case would be, according to you, rule by judicial fiat. Of course, so was Brown v. Board of Ed., but I digress. What's the difference between judicial fiat and legislative fiat (by granting retroactive application) or executive fiat (by granting clemency). I think judges in Georgia are elected, so it can't be the "responsibility to the people" junk. It's just sad when those of us involved in the criminal justice system think it's OK to spot a wrong, like this, and then pass the buck to someone else to solve the problem.

Thanks to "sex offender," and how disgusting is it that that title applies to you, for bringing some reality into this discussion.

Posted by: Not Mark | Dec 19, 2006 9:52:58 AM

HYPOCRISY! These judges and legislators are pure hypocrites. At least a large percentage of them are guilty of this very "crime." And the ones who are not guilty of the crime probably wish they could have been. Furthermore, there should be little doubt that most of their own children are also guilty.

This law is not being in enforced in about 99.999 percent of the cases it occurs. How can it be "just" to prosecute one while allowing the tens of thousands to commit the same crime daily with not censure?

Does the term "selective enforcement" apply here? When do they plan to throw their own children in jail? It's sickening to think that these legislators and judges consider appearing to disapprove of teenage sex more important than salvaging this teen's life.

It may be possible for the governor to pardon this teen, but the political considerations will no doubt prevent that from happening.

Posted by: Vick | Dec 19, 2006 4:34:40 PM

My husband got 10 years do 2 for "child molestation." Will he have to serve the total two years? Does his 7 months in jail count towards time served? I am just a citzen caught in the middle of a very horrible unjustice.

Posted by: wife | Dec 31, 2006 5:57:38 PM

ok, i mean every one obviously has a different opinion about all these cases, thats unavoidable, but im 16 yrs old and i have sex, so what? if the girl says she wants to have sex and we have sex does that mean im molesting her? im 16 and shes 15, she'll be 16 in 3 months, but by georgia laws, well the laws they used to have im consider a sexual offender.....why should i have to wait till im 18 just to have sex with the girl i love? i know why those underage sex laws were made, but if a teenager has sex with another teenager its not rape unless she says no why should the laws be subject to change if your not 18 years old? free country my ass, if america was free we wouldnt be having this conversation

Posted by: brian | Dec 3, 2007 1:47:18 PM

Isn't Georgia justice a contradiction in terms?

Posted by: Georgia Justice | Apr 12, 2008 10:33:00 PM

Concerned mom: I just found out tonight my 14year old daughter had sex with her 17 year old boyfriend. Im furious right now. We had a talk with this boy and warned him if he did any thing to her and it was as if we were talking to the wall. She went with her friend to a football game and he came there. They had sex in his truck. She is only 14. She is having a hard time with it because now she regrets what happened. This school should not allow the 9th graders to meet up with the seniors during school. I think this is why teenage pregnancy is high at this school. All my daughter has talked about since school started was all the senior boys talking to her and asking her out. I have talked to her and tried to warn her about what happens afterwards but she did it any ways. Now he's mean to her and everyone at school knows. PEER pressure by senior boys is horrible these days. Why can't they mess with someone their own age?

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