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February 23, 2007

Latest news and thoughts on Genarlow Wilson

ABC News has this long piece with background and the latest developments in the Genarlow Wilson saga.  The piece has me thinking again about the legality of Wilson's continued service of a 10-year prison sentence even though the Georgia legislature subsequently "reclassified Wilson's offense from a felony to a misdemeanor" for which the harshest sentence is a year in jail.

Consider this analogy.  Suppose the Maryland legislature repeals the state's death penalty, but does not address what to do about the nine persons current on Maryland's death row.  Would it be proper (or constitutional) for prosecutors to still seek the execution of these nine previously-convicted capital offenders? 

If it feels very wrong to imagine seeking the execution of previously convicted capital defendants after a legislative repeal of the death penalty, Genarlow Wilson's continued imprisonment should also feel very wrong.  Wilson has already served twice as long a sentence as Georgia law now currently provides for his crime.  I view continuing to imprison Wilson based on a conviction with a now-repealed sentencing term to be analogous to trying to execute a capital defendant even after a repeal of the death penalty.

Some related Genarlow Wilson posts:

UPDATE:  A loyal reader points to 1 U.S.C. § 109, a provision of federal law that states:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

I guess that means that, in 2009, if President Hillary Clinton signs a bill passed by Congress to repeal the federal death penalty, Attorney General Bill Clinton can and should still seek the execution of the roughly 50 defendants on federal death row unless that legislation expressly provides for a different sentence for these previously convicted capital killers.

February 23, 2007 at 06:52 AM | Permalink


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See 1 U.S.C. 109.

Hope you're well.

-A loyal reader

Posted by: | Feb 23, 2007 7:35:06 AM

Does the presidential pardon power extend to switching death sentences to LWOP, or is it only a binary thing (can only take a prisoner off of death row by setting him free entirely).

If it feels very wrong to imagine seeking the execution of previously convicted capital defendants after a legislative repeal of the death penalty, Genarlow Wilson's continued imprisonment should also feel very wrong.

As is often the case in these moral debates around criminal punishment, it wouldn't feel wrong to everybody.

Posted by: | Feb 23, 2007 10:08:10 AM

Instinctually, it would seem as though the continuing viability of a previously imposed, yet now defunct, sentence (whether in the Wilson or death penalty context) might hinge on the legislative history behind the change. In other words, if Congress abolishes the death penalty because of a SCOTUS opinion declaring the death penalty unconstitutional as violative of the Eighth Amendment (or Congress simply declares its constitutional concerns sua sponte perhaps because of proportionality concerns), then it would seem that prior death sentences should not be carried out. However, if Congress simply takes action as a matter of legislative policymaking, i.e., they decide that the death penalty is simply not desired from a policy perspective, then the question of whether prior death sentences remain viable would seem a much more difficult inquiry.

Posted by: SPD | Feb 23, 2007 10:13:05 AM

I was under the impression that the Georgia law explicitly stated that it was not retroactive. If the legislature has decided that to be the case, I don't see the problem with it, assuming that the original law itself was acceptable.

Posted by: jvarisco | Feb 23, 2007 11:47:02 AM

Doug, if Mrs. Pres. Clinton's law only forbids future prosecutions (possibly for cost reasons), then it seems like a nonretroactive procedural rule. But if it bans executions, we really need not reach the retroactivity question. If the lege says that "the death penalty is cruel and unusual," well, that looks more like the latter, and would have the effect of banning executions.

Here, though, the GA lege took a tack more like the former. Sure, the law is bad policy. But is it unjust, manifestly unfair, or cruel and unusual?

I'm inclined to say yes.

Posted by: rothmatisseko | Feb 23, 2007 1:40:10 PM

The Minnesota Supreme Court has held that sentences need to be reduced, as a due process matter, when the legislature reclassifies and lowers the penalty for an offense because the legislature has “manifested its belief that the prior punishment [was] too severe and a lighter sentence is sufficient.” State v. Coolidge, 282 N.W.2d 511, 514-15 (Minn. 1979). See also Ani v. State, 288 N.W.2d 719, 720 (Minn. 1980); State v. Hamilton, 289 N.W.2d 470, 474 (Minn. 1979) (same).

Posted by: A | Feb 23, 2007 1:49:06 PM

Update to update: the anti-nepotism act, 5 USC 3110, prohibits President Hillary from hiring Bill as Attorney General. I wonder the anti-appointment provision may not be unconstitutional as applied to the choice of Attorney General, but the prohibition on paying the salary of relatives should hold up. Maybe he could replace his salary by selling commutations for those death row inmates.

Posted by: John Carr | Feb 23, 2007 2:06:43 PM

The Supreme Court explained and enforced 1 USC 109 back in 1974 or so in Warden v. Marrero (I'm not bothering to look up the cite), following enactment of the Controlled Substances Act of 1970. Under the CSA (prior to 1987, of course, when the pendulum swung again) drug sentences became parolable. Prior to the CSA, under they old Harrison Act, they had been mandatory and non-parolable. The Court held under sec 109 that Harrison Act sentences remained non-parolable. (Isn't this in your sentencing law case book, Doug?)

Posted by: Peter G | Feb 24, 2007 5:39:50 PM

The Atlanta Journal and Constitution had the following article and blog concerning the case of Genarlow Wilson:

AJC.com > Talk of the town > Archives > 2007 > February > 26 > Entry

Should Genarlow Wilson be in prison?
By Maureen Downey | Monday, February 26, 2007, 06:23 AM

The Atlanta Journal-Constitution

Two years ago, Genarlow Wilson was convicted of aggravated child molestation: As a 17-year-old boy, he had had consensual oral sex with a 15-year-old girl. The conviction carried a mandatory 10-year sentence. Now, even the jurors who convicted Wilson wish they could take back the verdict, and the case has attracted national attention — most of it, but not all, focused on how to get Wilson out of prison.

Some state legislators have proposed a law that would enable the judge in Wilson’s case to reconsider the sentence, but the proposal has run into strong opposition among lawmakers who believe justice was done in the Wilson case. Read more about the case, and tell us what you think: Should Genarlow Wilson be freed from prison?

Below is an article that I submitted in the blog concerning the case that was rejected. Is my article too extreme for Americans?

Genarlow Wilson should not be in prison. The criminal justice system should focus its attention on individuals and powers who exploit young people for political purposes. Today, we allow people and institutions in society to mislead the young and punish the young for the mistakes they make. Adults today are insidious. There can be no greater enemy to children than some adults. On the right hand, we instruct our children that they should make better choices. On the left hand, we program children to make choices contrary to the law.

When people fifty years and older were children, most of us did not see a playboy magazine or pornography until we were men and women. That was our experience in the South. Only God knows what children were experiencing in the North fifty years ago. While in college, someone introduced me to Hustler Magazine and Larry Flint; it was extremely disappointing. Remember now, this was a time when white adults did not take advantage of children openly in this regard. They realized that if children were introduced to sexual images and topics before they were emotionally prepared, their development would be perverted. They gave children the space to mentally mature in the South before taking on adult issues. My God have times changed.

Genarlow Wilson is a product of misguided educated adults. I do use the terms educated and adults loosely. The boy should not be in prison. These adults today will say, "but this child broke the law." How insidious and sophomoric!

Posted by: Charles | Feb 26, 2007 2:38:27 PM

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