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December 19, 2006

The nuance in my provocation

My intentionally provocative questions about the Georgia case here has provoked interesting comments here and these three posts from Eugene Volokh:

Let me just add a bit more nuance to ensure my points are understood:

1.  I am not accusing anyone of intentional racism or suggesting anyone made a consciously racist decision in this case.  Rather, my chief point was to get people thinking about whether events would have played out the same way had Genarlow Wilson been white.  Consider the contrast to Mark Foley. Arguably, his predatory acts were worse given his position of power and his purported maturity.  Did anyone even suggest 10 years in prison for him?  Why not?

2.  I do not mean in any way to suggest that our country should not criminalize some consensual behaviors.  Rather, I just continue to be troubled that libertarians and others who emphasize the importance of freedom in other areas (e.g., freedom of speech) do not get aghast when the state locks citizens up in small cages for extraordinarily long periods of time when their behavior does not clearly justify locking them up this way.

December 19, 2006 at 02:04 PM | Permalink


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How is the Mark Foley case even remotely similar? There is a substantial question as to whether Foley's behavior was even criminal.

Speaking of sick Congressmen--what about Mel Reynolds? Would he have been pardoned if he were a white Congressman?

Before anyone wants to make sweeping generalizations about the criminal justice system and racism, consider this fact: since 1976, non-Hispanic whites have made up close to 60% of those actually executed by the states and the federal government. Non-Hispanic white murderers are not 60% of all murderers in the US (at least the ones we know about).

Posted by: federalist | Dec 19, 2006 2:20:52 PM

1. There is substantial question about whether Genarlow Wilson's acts should be criminal. The point is not to say the cases are parallel, the point is to spotlight the ways in which race --- and wealth/power --- my impact perceptions and discretionary choices.

2. Moving to the death penalty, your statistics are skewed by the fact that white death row defendants are FAR more likely to be volunteers. If you look at who gets sent to death row, as opposed to executions, and especially if you add the race of the victim, the story looks A LOT different from a race perspective.

Posted by: Doug B. | Dec 19, 2006 3:05:21 PM

If the 15 year old chooses to shoot an 18 year old in the head, she may be tried as an adult for murder, but she/he will be held accountable in whichever court it falls. If the same 15 year old chooses to _________________, her/his willing involvement is deemed largely irrelevant.

Posted by: Stanley Feldman | Dec 19, 2006 3:10:28 PM

I suppose my point in the prior comments was that I don't see much reason to suppose that Mr. Wilson's race was a significant factor in the case.

I won't rehash what I said earlier, but the main differences, in my view, between Foley and this case are: (1) Foley is a senator, and lots of baggage comes with that that doesn't come with this (2) there were no allegations that Foley's "victim" didn't consent. Here, there was an allegation of gang rape and a bunch of other stuff too.

The strange result, in my view, comes largely from the fact that there were multiple charges against Wilson, and that he beat all but the least serious charge and still ended up with 10 years in prison. It is only once you strip away all of the charges on which Wilson was not convicted that the injustice shows up.

My question is how the court went from the verdict to the sentence.

Posted by: Bill | Dec 19, 2006 3:16:39 PM

Last post on this from me. I've probably said enough.

I think libertarians ARE aghast at this sort of thing. And even non-libertarians (see Paul Cassell in Angelos---I don't happen to know if he's a libertarian or not) are.

Posted by: Bill | Dec 19, 2006 3:20:57 PM

Mark Foley is not apposite. The fact is that what Wilson did was a crime, and there is asubstantial question as to whether Foley's actions constitute a crime.

Funny, Doug, in this case the victim is black, so does that mitigate the implication of racism in your question about a white person doing this and getting this punishment? Why do we look at DP victims, but not the victim here?

Also, with respect to "victim" discrimination and the death penalty--it is likely the result of where black victims tend to be concentrated and the jury pools/prosecutors of such jurisdictions, and the per murder resources in such jurisdictions.

And as for the percentage of executed non-Hispanic whites, it is a data point, and one that argues that racism is not a big component of capital sentencing.

Posted by: federalist | Dec 19, 2006 4:18:33 PM

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