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December 18, 2006

Why isn't the severe Georgia sentence constitutionally problematic?

Eugene Volokh's extended riff here on the extreme consensual oral sex sentence for a teenager in Georgia (discussed here and with comments ablaze) includes Eugene's assertion that he doesn't "think there's any Cruel and Unusual Punishment Clause problem here."  I have been reflecting on this issue after this post, and I have come to wonder what arguments could be made, given the facts we know, that the Georgia teen's fate is not "cruel and unusual."   

Again, the key facts are that 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 sexual behavior is quite common among teenagers.  Yet prosecutions for consensual oral sex between teenagers is extremely rare, and I doubt anyone in recent decades has every received more than a year in prison for such an offense, let alone ten years.  Why don't these facts alone make out at least a plausible case of the infliction of a "cruel and unusual punishment"?

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December 18, 2006 at 11:08 PM | Permalink


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I am a self-employed contractor and have been for 20 years. I am absolutely outraged by Bakers appeal regarding the release of Wilson. This is morally reprehensible, outlandish and puts the entire State of Georgia in an extrememly bad light. No wonder people make fun of Southerners. Baker is an embarassment to the State. I, nor any of my colleagues who I have spoken to about this, will ever vote for this moron again. I am white, college educated (BS) , and amazed at the lack of common sense regarding this appeal. Who cares if all of the + or - 189 other offenders can appeal. When justice is not being served there is no excuse.....If there is a way for me to sign a petetion in support of Wilson please forward me the link. Thank you, David Youssi

Posted by: David Youssi | Jun 12, 2007 8:59:16 AM

Let the boy go he has served his time and should not have been there in the first place. relax and let him go Georgia.

Posted by: Melissa Cantrell | Jun 28, 2007 7:38:08 PM

i am a grand mother may be in the wrong place here
my grandson who is 26 on parole for useing drugs been in prison for 4 years out 34 months broke into place stole 34 dollars judge swntenced him 15 years in prison to serve day by day man who owns store testefied on his behalf drug rehab also pleaded with judge for help in their program for him to no avail
he has a 4year old and a baby giirl on the way 15 years in prison is too harsh if he had nit had a court apponited lawyer it could have been a mistrial because the judge said he would have shote him with a double barrell shot gun and many things unnessary things
15 years is too much for a 26 year old in this town muders d and sex offenders don't get thiss kind sentences
thanks for listeing

Posted by: MYRA DAVIS | Aug 14, 2007 8:34:06 AM

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