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December 19, 2006

Provocative questions about Georgia sentencing injustice

19georgia Thanks to How Appealing, I see that both the New York Times here and the Atlanta Journal-Constitution here are discussing Genarlow Wilson (pictured here), the young Georgia man who was "sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year's Eve party" when he was 17 years old.  The Times article details that Mr. Wilson is an "honor student and the first homecoming king at Douglas County High School" and that he has already served nearly two years in prison.  The Atlanta Journal-Constitution rightly says in an editorial that the "legal system must stop offering Genarlow Wilson condolences and start giving him justice."

Upon learning more about this case, I cannot help but ask a number of provocative questions:

1.  Had Wilson been white, would he even had been charged with this offense, let alone sentenced to 10 years imprisonment?

2.  Had Wilson been white, would the Georgia legislature have made its subsequent change in the law retroactive to give Wilson the more sensible justice all others will now receive?

3.  Had Wilson committed his offense in other state, could he have even been sentenced to the 2 years he has already served, let alone received the 10-year prison term he is still serving?

4.  Doesn't this story sound like one we might hear from some repressive foreign country, and not from a state in a country that supposedly prides itself on liberty and freedom?

5.  Can anyone make a reasoned argument for keeping this honor student in prison any longer?

Some prior posts posing additional questions:

UPDATES:  I add nuance to my questions in this post, and I have now discovered this website asking "Why is Genarlow Wilson in Prison??"

December 19, 2006 at 10:00 AM | Permalink


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» Race and the Wilson Case: from The Volokh Conspiracy
Lawprof Doug Berman (Sentencing Law & Policy) asks: "Had Wilson been white, would he even had been charged with this offense, let... [Read More]

Tracked on Dec 19, 2006 12:31:36 PM

» Sex and Liberty: from The Volokh Conspiracy
Doug Berman (Sentencing Law & Policy) also asks, about the Wilson story (the 10-year prison term for a 17-year-old boy having oral... [Read More]

Tracked on Dec 19, 2006 1:02:19 PM

» Tuesday Roundup from ACSBlog: The Blog of the American Constitution Society
The federal government has declassified a document which it originally tried to seize from the ACLU. The document, which deals with policies for allowing press to photograph detainees, was initially classified as Secret. Jack Balkin comments on the bro... [Read More]

Tracked on Dec 19, 2006 1:30:43 PM

» Where Race Comes In from The Debate Link
The Genarlow Wilson case has been making the rounds in the blogosphere as an example of a breakdown of justice. For those of you who don't know, Wilson, a 17-year old boy with good grades and no prior police record, was convicted of aggrevated child ... [Read More]

Tracked on Dec 19, 2006 4:32:11 PM


Fifteen year olds have been giving blow jobs to 17 year olds for many generations in the South, save for the fact that in centuries past they might have been married.

To me, question number four is key here: How much consensual behavior can a free society reasonably condemn with prison time?

As to the other questions, Mr. Wilson might have received the same treatment from a jury (though maybe not the Legislature)if he were poor white trash, and I could see a small-town Texas jury giving out a max sentence like that. But as question 5 implies, the punishment is unreasonable on its face (IMO 2 years incarcerated is ridiculously long for this "offense").

Back during the Cold War there was a word for the mentality that justifies such harsh sentences for petty crimes: "totalitarianism." It's a concept perhaps that deserves revival - it appears today to be the dominant zeitgeist in the US criminal justice system.

Posted by: Gritsforbreakfast | Dec 19, 2006 10:53:24 AM

I agree that this is a sympathetic case and that there seems to be no good reason for keeping Mr. Wilson in jail. What I'm curious about, however, is the insinuation of racism. What is the basis for it? Is it that Mr. Wilson is black, that he was prosecuted in Georgia, and that the particular circumstances make the prosecution and conviction seem unjust?

To play devil's advocate for a moment, I suspect that the reason for bringing the prosecution in the first place is in these paragraphs:

---begin quote
On New Year’s Eve in 2003, Mr. Wilson and several friends rented a hotel room for a party at which they planned to have plenty of alcohol, marijuana and sex. One friend, goofing around with a video camera, captured much of the action on videotape. A 17-year-old girl reported after leaving the party that she had been gang raped. The tape showed that she was severely intoxicated.

A second girl, a 15-year-old, also attended the party, but did not drink or smoke. She had what she later said was consensual oral sex with Mr. Wilson. But according to the law, a 15-year-old is below the age of consent. Mr. Wilson went to trial on charges of rape and aggravated child molesting.
----end quote

The prosecution thought that Mr. Wilson and some friends had lured young women to a hotel room to gang rape them and film it. The inclusion of the lesser charge of aggravated child molestation seems more explainable in this light.

To be absolutely clear, I agree that, where the jury has found that the only criminal offense committed is consensual oral sex between a 17-yr-old and a 15-yr-old, the 17-yr-old should not be subjected to the sentence to which Mr. Wilson was subjected.

Regarding the length of the sentence, though, was this the trial judge's decision or was this a mandatory minimum (question 1)? It's not clear from the Supreme Court concurring opinion.

Posted by: Bill | Dec 19, 2006 10:56:42 AM

Grits, the jury found that Mr. Wilson didn't rape anyone, but that he had consensual oral sex with the 15-year-old. As such, the jury found him guilty of the latter, but not of the former. The newspapers report that the jury was shocked to learn of the ultimate sentence. It sounds like the jury did its job (most juries are not informed of what will happen to the defendant), but that the problem lies either with (1) the fact that what he did is a crime in the first place, or (2) the legal mechanism through which the jury's guilty verdict resulted in a 10-year sentence for Mr. Wilson.

As I indicated, I'm curious about how #2 happened. If this is a mandatory minimum, then it's the legislature's fault. If not, it's the sentencing judge's fault unless there are more facts of which I'm not aware but should be.

My point is that this doesn't look to me like a case of a black man being treated unfairly by a jury in the South.

Posted by: Bill | Dec 19, 2006 11:06:18 AM

Anyone remember the story of the San Antonio Spurs posse? Certainly, the law has the right to deal with such things. Maybe it should; maybe it shouldn't.

Posted by: federalist | Dec 19, 2006 11:06:21 AM

It should, but 10 years in prison is too much for this.

Posted by: Bill | Dec 19, 2006 11:10:07 AM

I don't quite understand why this post makes a big deal about his being an "honor student." Does that have any relevance at all? Should honor students get a lesser penalty? And who cares if he was a homecoming king?
What Bill describes in his first post does allow for genuine suspicions about what was really going on here (consensual or not). Mr. Wilson's race makes no difference. Not everything that occurs in the South can be blamed on racism.

Posted by: anonymous | Dec 19, 2006 12:00:37 PM

Here's the basis, Bill, for the insinuation of racism: I have never heard of a white teenager, especially one who is an honor student, getting this outcome anywhere in the US. Consider the contrast to Mark Foley. Arguably, his acts are far worse coming from a position of power and an older person who should surely know better than to prey on young kids. Did anyone even suggest 10 years for him? Why not?

Many people are eager to assert in cases like this that race has nothing to do with the outcome. I am not saying conscious racism is involved, but all the evidence suggests race "colors" every discretionary decision in the criminal justice system.

Posted by: Doug B. | Dec 19, 2006 12:05:26 PM

Sorry for the repeated posting, but to clarify, the quote is from the NYTimes story.

Posted by: Bill | Dec 19, 2006 12:05:59 PM

Fair point, Prof. Berman. Though there are far more differences between Mr. Wilson and Senator Foley, I also haven't heard of this outcome for a white teenager elsewhere in the US.

On the other hand, I haven't heard of this outcome for ANY teenager in the US in recent years (though I'm aware of the history of black sexual offenders getting worse sentences than the average, particularly where the victim was white).

I asked the question not to accuse, but to ask whether there's a detail I missed. My impression from reading the news stories and the Ga. Supreme Court opinion was that this guy was more the victim of bad sentencing law (e.g. Weldon Angelos) than selective prosecution (e.g. petitioner in Lawrence v. Texas).

I can see how others would be reasonable in concluding that racism is involved somewhere in the system, but I'm not ready to draw that conclusion yet.

Posted by: Bill | Dec 19, 2006 12:16:47 PM

Jumping to the "racism" conclusion is crappy. It unfairly tars a prosecutor (and a jury) with nothing more than speculation.

In any event, if the facts of the case are as people say--i.e., that the game plan was to get girls drunk and take advantage, then it could be argued that this guy should NOT be granted clemency. I understand the point about the crime for which he was convicted being the starting point and ending point for the analysis, but the bottom line is taking into consideration the surrounding facts is a fair basis for prosecutorial discretion. Let's take another hypo. Let's say that the two were boyfriend/girlfriend, and the girl's parents did not want their daughter to engage in that behavior--does the state have a right to back up the parents wishes? I would think so. The point is that if this "get them drunk" story is true, then the prosecutor, I think, has a right to bring the charges. And, I think, that Mr. Wilson may bear some responsibility for the mess in which he finds himself.

Let's not forget that Al Capone was a murderer and a gangster, yet convicted of tax evasion. Was it wrong to treat him differently from non-violent tax evaders?

I am not saying, of course, that this guy should be spending 10 years in the pokey. But I think that the reflexive criticism is a bit unfair.

Posted by: federalist | Dec 19, 2006 12:47:11 PM

federalist, the Al Capone analogy kind of undermines the reasonable doubt standard. It's probably unconstitutional under Booker, too.

Posted by: Bill | Dec 19, 2006 3:19:12 PM

Bill, it's not. Indeterminate sentencing schemes are ok under Booker.

Posted by: federalist | Dec 19, 2006 4:06:45 PM

There is more at WilsonAppeal.com.. The Alanta Magazine article linked there has more details.

Racists who say it is not racism are honest, because their racism is not purely ethnic racism. It is the racism of the eugenics period when racism had a much broader definition: inferior to God's Chosen Ones (the white, professional, middle class). Under that brand of racism, mostly white trash girls were sterilized, some as young as eleven or twelve. In that period, these two girls in the Wilson case would have been hauled off along with the boys to the penal colony and held until sterilized. Sterilization of gays was common as well.

There are a number of threats to the Chosen Ones that are history repeating itself today: gay marriage (not making white babies), abortion by whites resulting in a smaller white majority, immigration diluting racial purity, and the higher reproduction dangers the of the inferiors (see Grits' What happened to Texas kids seized under new meth law? for an example of this hypocrisy.)

The goal of these laws is not the protection of children, as Grits reveals, but they are a sort of "virtual reality" form of sterilization designed to get around SKINNER v. STATE OF OKLAHOMA, or they are a reaction to less white baby-making (especially white lesbians not doing their civic duty).

The goal now, like then, is a racial utopia, which is not solely ethnic racism. Their punitopia is actually a racial utopia. For some ethnic racism does play a large role, but that is not a necessary and sufficient role.

Race and racism in this sense was a common term during the passage of the 14th Amendment. As Nicole Hahn Rafter reveals in Creating Born Criminals, a genetic racism was well established by then, starting around 1850, long before the confirmation of genetics itself. Given that, it is not too far fetched to wonder if the word "race" should have this broader definition under the 14th's due process clause. That may be the only way to ensure a full blown American Holocaust never happens, as it did on a much smaller scale in the early 20th century.

Posted by: George | Dec 19, 2006 4:19:12 PM

Comment spam is the worst.

Posted by: Bill | Dec 19, 2006 4:25:30 PM

In reviewing the cert petition filed in the Georgia Supreme Court, it does not appear an 8th Amendment violation was argued below (although an Equal Protection claim was). Can anyone think of a reason why this would not have been raised?

Posted by: DEJ | Dec 19, 2006 6:33:45 PM

Professor Berman,

What does it mean to say that "race 'colors' every discretionary decision in the criminal justice system"? This strikes me as a sort of vague allegation that is easy to make and yet impossible to falsify. Does it mean that race always affects the outcome of every discretionary decision in the criminal justice system-- i.e., that black offenders are always given longer sentences, are always prosecuted, or otherwise always receive less favorable treatment when prosecutorial or judicial discretion is involved? I find this quite difficult to believe, since a single instance of a black suspect not being charged, or a black defendant receiving the minimum possible sentence, is enough to disprove such a bold claim.* Or do you mean that, generally speaking, every discretionary judgment is made within the context, and against the background, of the history of strained race relations in the United States, such that the prosecutor's or the judge's view of the case will inevitably be influenced by what he or she knows about this broad cultural background? I suppose that's true, in the same way it's true that a defendant's socioeconomic status or any number of other social axes will be known to the decision-maker in the exercise of his or her discretion, but I'm not sure how that gives rise to an inference of outcome-affecting racism in any particular case.

While it is of course irrefutable that the history of race relations forms a part of the social context that is known to government officials every time a black defendant comes before the criminal justice system, I'm not sure that it's responsible to infer from that fact that conscious or even latent racism affects the outcome of every one of those cases, and I don't see any legitimate basis for making that suggestion here, for a couple of reasons. First, it appears that, upon viewing the video, the prosecutor had a good-faith basis to believe that the defendant was actually guilty of the much more serious offense of rape. While the defendant was ultimately acquitted on that charge, I can't imagine that one could reasonably allege malicious prosecution where the government's evidence includes a videotape of a group of boys having sex with an intoxicated female and receiving oral sex from a second, underage, girl. Second, as Professor Volokh pointed out in his response to this post, both of the victims involved in this case were also black, and, had he chosen not to prosecute under these circumstances, critics could just as readily have alleged racism against the prosecutor for failing to protect the rights of black victims. When a prosecutor could be accused of racism no matter what he does in a particular case, it seems to me that perhaps the better course is to give him the benefit of the doubt and assume that he acted in good faith, and without ulterior racist motives, when he chose to protect the interests of black victims over the interests of a black defendant, even an honor student.

* In fact, the judge for whom I'm currently clerking has, at least once, given a black defendant the minimum guidelines sentence for the offense in question, so there's the falsification of the strong interpretation of your statement. I'm sure that my judge is not the only judge in the history of American jurisprudence ever to do so.

Posted by: James Dillon | Dec 20, 2006 10:30:25 AM

I don't quite understand why this post makes a big deal about his being an "honor student." Does that have any relevance at all?

Traditionally, the background of the offender figures in the sentence. When the offender has led an otherwise exemplary life, it suggests that the offense may have been an aberration, and doesn't justify the harshest penalty.

Posted by: Marc Shepherd | Dec 20, 2006 11:38:42 AM

Given that the legal nuances have been thoroughly exhausted and argued in the postings above, I will now try to bring in an element of common sense. Certainly, Mr. Wilson was guilty of a crime--assuming we take a literal interpretation of Georgia's law as a basis for this claim. Furthermore, he is obligated to spend ten years in prison based upon the Georgian legal code (former Soviet Republic this is not, though one could argue it resembles totalitarianism!). On the issue of applying the letter of the law, the prosecutor is well within the lines of civilized society. Is he a racist for doing so? Perhaps yes, perhaps no. Several questions still remain (in my humble eyes):
1. Can the executive branch of Georgia offer a pardon (or President Bush)?
2. If the prosecutor offered a plea bargain after the verdict, as he is quoted as having done, does this not render the law and sentence worthless ?
3. Why did Georgia's legislature negate the retroactive clause which would have freed the defendant?
4. Why does the application of this law only apply to African-Americans in the case history of this law?
5. Why has Georgia sent adult sex offenders--including a recent case involving teacher on student-- to much lighter penalties (the example above included a 90 day penalty)?
6. Are we kidding ourselves when we say this has nothing to do with race (or class), or are we just exercizing our pedantic romantic versions of legal inquiry and debate?
7. Why does these types of sensationalist media stories invariably lead us either to Texas, Georgia, or other rural towns in the Southeast (I am from the south, and have lived in Texas. Don't perceive this as me bashing the south)?

Posted by: David Hughes (student) | Jan 25, 2007 5:15:42 PM

Let me answer your fourth question from a European point of view: This is exactly the kind of story we only hear from the U.S. It's hypocritical to make stupid, inflexible laws designed to get everybody to jail as long as possible and then complain if stupid ignorant people apply these laws.

Don't get me wrong, I have many close ties to the U.S. and I honestly think that this once was a great country. But you ruined it.

Posted by: Tobias | Jan 28, 2007 11:57:33 AM

Too bad Clinton isn't President any longer. I am sure he would offer a pardon. After all, he claimed oral sex as not having sex at all, "I did not have sex with that women!"...........

Posted by: Linda | Feb 6, 2007 7:53:44 AM

I agree with the first five question, if this young man was white, the what if's. I am a mother of a son that was placed in prison on a plea. My son was 16 yrs. old and his court appointed attorney convinced him to sign a blank plea with the commitment of coming home to his family in 10 yrs. after fighting to get a copy of his transcripts for 4 1/2 yrs. only to find that my son had 55 yrs to serve. There must be a change in the system.

Posted by: Bridget Jackson | Jun 17, 2007 4:05:13 PM

Statutory rape is one thing that is needed to protect our young impressionable youth. However, politicians have taken sexual assualt laws and gone completely overbroad. Right now my 14yr old son is facing aggravated sexual assault charges for having consenual sex with his 13yr girlfriend in TX. Now please don't get me wrong I'm upset that he had sex at all. But there's no way my honor student, humble athlete, caring, mentoring, responsible, son should be prosecuted for having consenual sex with his girlfriend. The killer part is they both are in 8th grade she was my son's 1st & he was her 4th but my son is the one facing charges. The law is unfair and sexist. He is being charged with aggravated sexaul assualt becuase she was 13yr but yet science proves girls mature 2yrs faster than boys so mentally she was 15 & experienced while my son was 14 & a virgin. Now justify this.

Posted by: THINLINE | Jun 20, 2007 2:57:11 PM

It's hardly surprising there's sentencing injustice in Georgia. To some, just being in Georgia is an injustice.

Posted by: Georgia Injustice | Apr 12, 2008 9:58:39 PM

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