Sentencing Law and Policy

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  I view continuing to imprison Wilson based on a conviction with a now-repealed sentencing term to be analogous to trying to execute a capital defendant even after a repeal of the death penalty.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:

• Will the Georgia legislature help Genarlow Wilson get justice?
• CNN covers Genarlow Wilson case, who's next?
• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• CNN with additional coverage of Genarlow Wilson case
• Ugly debate in Wilson case

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.

Analogizing extreme punitive damages and extreme punitive sentences

My take on the Philip Morris decision has already generated many thoughtful comments, which prompt me to develop a bit more the analogies I see between extreme punitive damages and extreme punitive sentences.  Here goes:

1.  Both punitive schemes are authorized by legislatures.  Before a jury can impose extreme punitive damages, such damages have to be directly authorized or at least indirectly permitted by legislatures.  Legislatures can put caps on punitive damages.  The dissenters in Philip Morris likely believe that limits on punitive damages should come from democratic lawmaking and not from judicial constitutional creation.

2.  Extreme punitive outcomes are the product of case-specific decisionmakers gone wild.  Extreme punitive damages awards are typically the product of a particular jury deciding to bring the hammer down on a particular tortfeasor it does not like (for good or bad reasons).  Extreme punitive sentences are typically the product of a particular prosecutor deciding to bring the hammer down on a particular offender it does not like(for good or bad reasons). 

3.  The deep harms of extreme outcomes may come from the pressure to settle/plea.  A judgment of $80 million probably does not cause much of a blip in most major corporate balance sheets.  But, extreme awards drive up the costs of litigation and produce pressure on corporations to settle weak cases rather than run the risk of out-of-whack punitive damages.  Similarly, a harm of extreme sentences is that they are only imposed on defendants exercising their trial rights and ticking off prosecutors seeking a plea (see, e.g., Berger and Wilson and the border agent cases and just about every other out-of-whack criminal sentence).

4.  Judicial moderation of both types of extreme outcomes seems warranted in light of the Bill of Rights.  For the record, I am comfortable with some judicial regulation of extreme punitive damages awards.  Extreme out-of-whack jury awards surely can create real harms that legislatures will not always (and perhaps should not always) seek to address.  Extreme out-of-whack sentences surely can create real harms that legislatures will not always (and perhaps should not always) seek to address.

Activist liberty: second guessing corporate punishment by state juries and courts in Philip Morris

I have never quite understood Justice Breyer's concept of active liberty, especially since the concept seems hard to square with Justice Breyer's antipathy toward the Apprendi-Blakely line of constitutional decisions.  And Justice Breyer's majority opinion for an unusual coalition of justices in the Philip Morris punitive damages case does not help me understand his vision constitutional adjudication.  But, I do understand some other important realities after Philip Morris:

1.   At least five members of the Supreme Court remain willing and perhaps eager to place significant constitutional limitations through the Due Process Clause on punitive damages awards.  And, since Justice Stevens notes that there is "little difference between the justification for a criminal sanction, such as a fine or a term of imprisonment, and an award of punitive damages," criminal defense attorney might look for ways to use Philip Morris when attacking certain sentencing outcomes.

2.  Philip Morris champions federal judicial regulatory power over the authority of state juries and courts.  In Philip Morris, a state jury decided that a corporation deserved to be punished to the tune of $79.5 million; Oregon state courts ultimately found this punishment to be justifiable.  But the five members of the Supreme Court essentially overruled these judgments while announcing a new judicially-created constitutional limit on punitive damages awards.

3.  The five Justice in the Philip Morris majority includes both Chief Justice Roberts and Justice Alito, but neither Justice Scalia or Justice Thomas.  If President Bush's goal truly was to appoint justices in the mold of Scalia and Thomas, Philip Morris would suggest he failed. 

4.  As I suggest in my initial post on Philip Morris, it remains to be seen if the five Justices who are prepared to constitutionally second-guess certain instances of harsh corporate punishment might also be willing to sometimes constitutionally second-guess certain instances of harsh individual punishment.

SCOTUS continues to regulate corporate punishment

As detailed in this AP article and this early report from SCOTUSblog, the Supreme Court has ruled "that it is unconstitutional for a jury to award punitive damages out of a desire to punish a company for harming individuals other than those directly involved in the lawsuit in Philip Morris USA v. Williams Estate (05-1256)." 

I hope that the Court's continuing willingness to declare unconstitutional specific instances of excessive corporate punishment might, in some way, get extended to its review of cases involving excessive individual punishment.

Ugly debate in Wilson case

Instead of dealing with the fact that Genarlow Wilson is serving a 10-year sentence for a crime that the Georgia law now classifies as a misdemeanor subject to only 12 months imprisonment, the Georgia legislature is caught up in ugly name calling about Wilson's case.  Here's are some of the details from this news article:

A war of words has erupted over the highly publicized case of a Douglas County teenager sentenced to 10 years in prison for having consensual sex with a minor. Georgia Senate President Pro Tempore Eric Johnson (R-Savannah) released a column Sunday about the case of Genarlow Wilson, the day after he figured prominently in a CNN piece about Wilson....

Johnson, in an interview Monday, said Wilson is "choosing martyrdom," rather than take a plea deal.  Johnson dismissed [Wilson lawyer] Bernstein's criticisms.  "She's hired a publicist, got a Web site and is raising money," Johnson said of Bernstein. "As long as she can use any — whether it's the bill, or whether it's a press conference or whether it's an op-ed — to generate publicity and go on national TV, she will.  She is trying this case in the media because she lost it in court."

CNN with additional coverage of Genarlow Wilson case

I am told by a knowledgeable source that CNN is back on the Genarlow Wilson case (background here and here).  I was pleased to see all the attention this remrkable case received last month (including from CNN), but it seemed criticisms had started to die down.  Here's hoping a new round of coverage will bring a new hope for justice for Wilson.

Some recent related posts:

• Will the Georgia legislature help Genarlow Wilson get justice?
• CNN covers Genarlow Wilson case, who's next?
• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Provocative questions about Georgia sentencing injustice
• The nuance in my provocation
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed
• Two (feminist?) perspectives on the Wilson case

Still more buzzing about border agents sentence

As the buzzing continues about border agents case (background here and here), I am pleased to see a more refined focus on the exercise of prosecutorial discretion and the severity of the sentences received by Border Patrol Agents Jose Alonso Compean and Ignacio Ramos. 

As noted in this recent post, Senator Dianne Feinstein last week wrote various public letters (available here) in which she expressed her concern that "the sentences in this case are too extreme."  It is heartening to see Senator Feinstein asking AG Alberto Gonzales tough questions about the the exercise of prosecutorial discretion and the pursuit of enhanced sentences in this case.

Similarly, Debra Saunders now has this commentary in which she zeroes in on the sentencing unfairness that resulted from how prosecutorial discretion was exercised:

[U.S. Attorney Johnny] Sutton can point to inconsistencies in Ramos' and Compean's stories.  He is right to argue that law enforcement officials cannot be allowed to shoot at unarmed suspects or lie about what they do. 

For his part, Mr. Sutton offered both agents a plea bargain with a one-year sentence.  But at trial, the U.S. Probation Office [sic] sought 20-year sentences.  Prosecutors can argue that terms are stiff because of federal mandatory minimum sentences for crimes committed with guns, but it was Mr. Sutton's choice to throw the book at the agents -- charging them for assault with a dangerous weapon, obstructing justice, lying about the incident and willfully violating Aldrete-Davila's Fourth Amendment right to be free from illegal seizure -- as well attempted murder, for which they were acquitted.  That's a long sheet for acts begun in the heat of pursuit.

Some recent related posts:

• Senator Feinstein jumps into border agent case
• The furor over border agents' long sentences
• Friday forum: rate the injustices
• A valuable (but disconcerting) perspective on the border case
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Thoughtful reflection on Skilling sentence

Thanks to Stuart Taylor's amazing commentary in The National Journal yesterday (discussed here), I discovered that Frank Bowman has this terrific piece in The American Lawyer providing reflections on the federal sentencing of Jeff Skilling and other white-collar offenders.  Frank's piece is entitled "Sacrificial Felon: Life sentences for marquee white-collar criminals don't make sense."  Here is one of many notable insights:

[T]he fate of [Skilling, Bernie Ebbers and John Rigas] leaves me certain of one fact:  The rules governing high-end federal white-collar sentences are now completely untethered from both criminal law theory and simple common sense.

What are the odds of a cert grant in Berger?

Though my SCOTUS sentencing quota was hit by the cert grants in Claiborne and Rita, I am very pleased to see from SCOTUSblog here that the Berger case made on their "petitions to watch" for the Justices' Conference on Friday.  For a number of both simple and complicated reasons, I think the Berger case — in which a former Phoenix high school teacher claims that his 200-year prison sentence for possessing child pornography violated the Eighth Amendment (basics here, commentary here) — presents a terrific and perhaps rare opportunity for the Court (and its new Justices) to examine and refine its confusing non-capital Eighth Amendment jurisprudence.

Here is a line from the Reply Brief in Berger that nicely highlights one of many reasons why recent developments suggest the time might be ripe for SCOTUS to wade back into this part of the constitutional sentencing universe:

The Court's Eighth Amendment opinions have never expressly considered how the Amendment is to be applied when mandatory minimum sentences are required to be served consecutively, and lower court decisions are in substantial disarray.  Review at this time is especially appropriate in view of the sharply increasing use by Congress and the State legislatures of mandatory minimum sentences, coupled with consecutive sentence requirements.

Some related Berger posts:

• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• Might Berger get SCOTUS attention?
• Arizona Supreme Court upholds 200-year sentence for possessing child porn
• What ever happened to state constitutional law, textualism, and libertarianism?
• Liberty versus security in the war on ... sex offenders

Irrational (but presumtively reasonable?) federal sentencing

Stuart Taylor Jr. has has this great commentary in The National Journal entitled "Irrational Sentencing, Top To Bottom."  Here are snippets:

The spectacle of former CEOs Bernard Ebbers and Jeffrey Skilling getting sent to prison for 25 and 24 years, respectively, reminded me a bit of Roman emperors throwing criminals to the lions and bears to gratify circus crowds.  Yes, Ebbers and Skilling are world-class crooks.  The first helped inflate WorldCom's profits by billions of dollars. The second presided over the multiple frauds that caused the collapse of Enron, the largest corporate bankruptcy in history.  They helped squander the nest eggs and kill the jobs of thousands of people.

But does this justify locking them up for longer than we do most murderers?  (The average federal sentence for murder is less than 19 years.)  Does it call for keeping Ebbers in prison until he is 87 and Skilling until he is 73?  Those were the no-parole penalties specified by the U.S. Sentencing Commission's guidelines, even if both men earn the maximum 15 percent reduction for good behavior.

To be sure, these are not the most egregious examples of the savage severity of our sentencing laws. Worse still are the long terms imposed on the scores of thousands of nonviolent, nondangerous drug offenders now rotting in state and federal prisons around the country.  But while we have become numb to the minimum drug sentences mandated by Congress since 1986 (which have driven up the sentencing commission's guidelines as well), Ebbers' and Skilling's near-life-terms are fresh reminders of how wantonly our sentencing laws trash the lives of nonviolent convicts at the top and the bottom of the income scale.

To his great credit, Taylor goes on in his commentary to highlight the parsimony provisions of the Sentencing Reform Act, a provision that federal circuit courts and the US Sentencing Commission make a habit of ignoring (see here and here). 

It is a sad and telling reality that a thoughtful observer like Taylor recognizes that the federal guidelines often produce "irrational" sentences for nonviolent convicts (like Mario Claiborne and Victor Rita), while the US Department of Justice, the US Sentencing Commission and most circuit court asser that the federal guidelines are "presumptively reasonable" in all such cases.

Senator Feinstein jumps into border agent case

The border agent case (background here and here) — which I am following because it highlights many of the problems inherent in mandatory minimum sentencing — continues to make headlines.  Today, San Francisco Chronicle reports here on the involvement of a notable Democrat:

Sen. Dianne Feinstein intervened Friday in the cases of two Border Patrol agents who are imprisoned for shooting an alleged Mexican drug smuggler and who have become a cause celebre for anti-illegal immigration GOP politicians, conservative media and activists.  The California Democrat, who is a member of the Senate Judiciary Committee, wrote letters to three top administration officials -- Attorney General Alberto Gonzales, Homeland Security chief Michael Chertoff and Federal Bureau of Prisons Director Harley Lappin -- asking for specific information about their agencies' involvement in the case.

Feinstein is the first prominent Democrat to become involved in the case of the border agents, and her office said she has secured the agreement of Senate Judiciary Committee Chairman Patrick Leahy to conduct a committee investigation. She said Leahy is open to a hearing on the matter....

Feinstein told Gonzales in her letter that she strongly believes the agents' sentences are too extreme, given that the victim resisted arrest and was smuggling large quantities of drugs. Further, she wrote, the agents had to her knowledge no prior convictions or aggravating circumstances to warrant such long terms.

The U.S. attorney who prosecuted the case, Johnny Sutton, has maintained that Congress determined the penalty, setting a mandatory minimum 10-year sentence for discharging a firearm during a crime of violence.

Feinstein said she found it even more disturbing that Ramos was beaten in prison. "It is not hard to predict that two federal agents would be targeted in a prison population and that special precautions should have been employed to ensure their safety," Feinstein wrote.

For reasons detailed in some of the posts below, I am very pleased an encouraged to see some Democratic senators showing interest in this cases as an example of over-punishment.

• The furor over border agents' long sentences
• Friday forum: rate the injustices
• A valuable (but disconcerting) perspective on the border case
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

The latest on the border agents case

This AP story provides the latest developments in the border agent case (background here and here).  Here are excerpts:

A federal report released Wednesday on the shooting of a suspected drug smuggler by Border Patrol agents concurs with prosecutors that the men committed obstruction of justice by failing to report the shooting, destroying evidence and lying to investigators....  The U.S. Department of Homeland Security report on the investigation was drafted in 2006 after Ignacio Ramos and Jose Alonso Compean were convicted and each was sentenced to more than a decade in federal prison.  The 77-page report was made public Wednesday and offered few if any new details on the case....

A spokeswoman for U.S. Rep. Dana Rohrabacher, R-Calif., said the report only bolsters the congressman's support of the agents. "The OIG report has just emboldened our position because there is nothing in there that indicates these agents were not justified in shooting this individual," said Tara Setmayer. "This finally sheds some light on what these agents were thinking."...

"So far it looks to me like Agents Ramos and Compean may not have followed proper procedure following the shooting, which at most should have resulted in their suspension from the force, but not criminal procedure," Rep. John Culberson, D-Houston, said in a statement issued Wednesday afternoon.   Sen. Diane Feinstein, D-Calif., also asked Senate Judiciary Chairman Patrick Leahy, D-Vt., to pursue a Senate probe of the prosecution and sentencing.

I am pleased to see Senate Democrats taking interest in this case, which I consider to be an important example of the problems inherent in mandatory minimum sentencing.  As I have explained in prior posts (set out below), whether or not one believes the border agents should have been prosecuted, it is difficult to justify the extremely long sentences they received:

• The furor over border agents' long sentences
• Friday forum: rate the injustices
• A valuable (but disconcerting) perspective on the border case
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Harsh border agent sentences producing half-truths

The buzz over the border agent case (background here and here) continues to grow.  CNN has a new segment about the case, entitled Border outrage, in which there are accusations that federal prosecutor Johnny Sutton has not been fully truthful about granting immunity to the Mexican drug smuggler shot by the border agents.  The CNN piece also had various lawmakers suggesting that the government is covering up facts that might exonerate Agents Ignacio Ramos and Jose Alonso Compean.

Meanwhile, this news report from McClatchy Newspapers suggests President Bush in now misrepresenting his pardon power.  According to the news report, in "an interview on the Fox television network Wednesday, Bush again said he is bound by strict federal guidelines on pardons and cannot immediately grant a pardon to the two agents."  Though the Justice Department has its own internal pardon protocols, there are no legally binding restrictions on the President's pardon power and he can grant a pardon to any and all federal defendants at any time.

As I have said in post below, I think this case is fundamentally about the sad realities of mandatory minimums.  I think there can be a very reasonable debate over whether the agents committed criminal acts justifying some punishment.  Beyond debate, at least in my mind, is the notion that they deserve to be lcoked up for over a decade based on their behavior under these circumstances.  But, as often happens, a clear sentencing problem is lost in an over-heated debate of other issues.

Related posts on border case injustices:

• The furor over border agents' long sentences
• Interesting federal focal point for pardon/clemency debate
• Giving voice to Virginia Orwig
• Friday forum: rate the injustices
• A valuable (but disconcerting) perspective on the border case
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform

Another extreme mandatory sentence ... Update: is Wolf Blitzer next?

I am still trying to make sense of the extreme mandatory minimum punishments and prosecutorial choices in the Genarlow Wilson (background here and here) and border agent cases (background here and here).  But now, thanks to this post at How Appealing, I now see another example of an extreme mandatory minimum punishment.

In this case, as detailed by Judge Richard Clifton in this concurring opinion, at issue are "mandatory sentences of life imprisonment [for] young people, aged 25 and 21 at the time of conviction" as a consequence of a "terrible death of the victim here was an unintended consequence of the defendants' act of burning down a house they viewed as theirs, in order to end a long-running family disagreement."  Notably, Judge Clifton (an appointee of President George W. Bush), calls for the exercise of executive clemency at the end of his concurrence:

The President has the power to temper justice with mercy. I hope that the Executive Branch revisits this case and, if the facts truly are as they have been made to appear to us, will consider letting the defendants go after a more appropriate term of incarceration.

UPDATE:  Turning back to the Wilson case, a commentor wonder if CNN, which apparently has a copy of the videotape showing minors engaging in a sex act, might be guilty of posessing child pornography.

A valuable (but disconcerting) perspective on the border case

Andrew C. McCarthy has this must-read article in today's National Review Online about the border patrol agent case (background here and here).  The article includes lots of great insights, but also some troublesome rhetoric.  Here's a taste:

Myopic border-enforcement activists seem unconcerned about any of these facts [which shows the border agents' misdeeds] — for them, much like anti-death penalty obsessives, the cause is a higher calling.this case rankles ordinary Americans, too.  That's understandable given the severity, the equities, and the potential ramifications of the punishment.

There is broad recognition that bad agents should be weeded out of any police force. Compean and Ramos, however, have not just been terminated; they were socked with sentences of twelve and eleven years, respectively.  This, in connection with an incident that arose out of a job which — their appalling conduct aside — is undeniably dangerous; an incident instigated by a drug dealer who was not prosecuted for crimes worth at least as much jail time as the agents received — an illegal alien felon who may end up with a big cash windfall premised on the absurdity that his purported American "civil rights" were violated....

[D]id the indictment really have to be this severe?  After all, the sentences are extremely harsh.  Here, the agents have mainly themselves to blame. The government offered them very generous plea deals.  Compean and Ramos spurned them. If defendants decline to plead guilty and insist on proceeding to trial, it is standard operating procedure for the Justice Department to bring its best case — which includes charging the offense that carries the highest penalty among all readily provable crimes. Indeed, it is common for the government to insist on the most severe, readily-provable offense even at the plea-negotiation stage — something Sutton's office did not do.

Talk about an interesting example of blaming the victims (of overly harsh sentencing practices).  The two border agents opted to exercise their constitutional rights to force the government to prove its case to a jury, and now the National Review's columnist says they have "mainly themselves to blame" for their harsh sentences. I wonder if anyone at the National Review is actively urging Lewis Libby to cop a plea, since he will have only himself to blame if he ultimately gets convicted and receives a tough sentence.

Using the border agent case as a catalyst for federal sentencing reform

This year would seem to present a new opportunity for needed bipartisan federal sentencing reform.  Democrats have slim majorities in both houses of Congress, Booker declared aspects of the old rules unconstitutional, and most everyone agrees that mandatory minimum and crack sentencing rules are unfair.  The only snag would seem to be traditional "tough-on-crime" Republican opposition to moderating any federal sentencing rules.

But a new hot-button case — involving extreme sentences for two border agents due to the application of federal mandatory minimums — has lots of Republicans recognizing how federal sentencing can spin out of control.  Indeed, as this article details, Republican members of Congress are busy proposing all sort of kooky bills to try to remedy this case of sentencing injustice:

Several members of the House are drafting legislation to cut off funding specifically for the incarceration of border agents Ignacio Ramos and Jose Alonso Compean, sentenced to 11 and 12 years respectively.

The case unleashed a storm of criticism.  Lawmakers first called for hearings into why the Justice Department granted immunity to a suspected drug smuggler so he would testify against two agents who shot him.  Two bills were later introduced in the House — one calling on President Bush to pardon to the two agents and the other to vacate the federal court's conviction.

Rep. Ted Poe (R-Texas) has signed on to both proposals but knows the power of Congress is limited in vacating a court ruling, given the constitutional separation of powers. "There are constitutional issues with that," Poe told Cybercast News Service Friday.  "We do have the power of the purse. We can prohibit funds for the incarceration of the two border agents. That legislation was talked about last week. In the next week, it should be introduced."  Poe said while it was not his idea, he would sign on to the bill and expects many other members to do so as well, considering 50 members urged the president to pardon the agents and 70 signed on to a bill to vacate the court ruling.

It is a sad and telling commentary that the Republican reaction to these unfair sentences is to propose novel — and probably unconstitutional — new laws rather than to try to fix the old laws that has produced the injustice.  Though many may think the very prosecution of the border agents was unjust, the case is so troubling because of the sentences required by federal mandatory minimum sentencing law.  Had the agents received only, say, 11 and 12 months (rather than 11 and 12 years), this case would likely look a lot different.

Rather than bemoan reactions to the border agent cases, I want to issue a challenge to leaders in Congress: Will anyone in the House or Senate have the courage to use the border agent case as an opportunity to discuss and move forward with needed federal sentencing reforms?  I especially hope that Senators Edward Kennedy, Orrin Hatch, and Dianne Feinstein, who filed such a disappointing brief in Claiborne (details here and here), understand that the border agent case presents a unique and rare opportunity to start addressing the potential injustices of crude sentencing rules.

Some recent related posts:

• The furor over border agents' long sentences
• Interesting federal focal point for pardon/clemency debate
• Giving voice to Virginia Orwig
• Friday forum: rate the injustices

Two (feminist?) perspectives on the Wilson case

I am pleased the Genarlow Wilson case (background here and here) continues to generate buzz.  Some buzz appears in my e-mail in-box, where I received this note from a thoughtful female reader:

I want to address your wondering why more people of influence are not rushing to get Genarlow Wilson out of jail, since his sentence is so long that he is the victim of a clear and disturbing injustice.

I think that it is possible that the behavior of Genarlow and his friends on the night they got in trouble is deeply offensive to many who hear about it, and people simply do not like Genarlow well enough to fight for him.  It is very troubling to know that high school football heroes invited hero-worshipping fifteen-year-olds to a party and got them drunk in order to have practically guaranteed sexual service. What a cowardly act!

Beyond ethical considerations, I'll bet that many women hearing about this, knowing what hero worshippers they were at fifteen, shudder at the thought that a lot of us could have been those vulnerable little girls at the party, taken advantage of in the most cynical way, and think that, while ten years is excessive, the guy basically got what he deserved.  I can't say what men think along those lines, but they, too, are keeping their distance from Genarlow.

Providing a notably different female perspective is Becky C. at her blog, which purports to provide "observations and commentary by a post-modern neo-feminist libertarian cyberpunk on society, culture, politics and whatever."  Here is a snippet from this long post entitled "A Blowjob in Georgia":

At lot of people are saying this law was a result of a hick Georgia legislature.  That is not really fair.... The Georgia legislature did not sit down one day and decide that kids doing bjs was much more serious than doing the full deal.  Laws are passed piece meal.  Amendments are almost always not read by the lawmaker. And they never have a full understanding of the effect of the legislation....

But there is someone in the system that is suppose to prevent these problems, not exploit them. That is the prosecutor.  I became a prosecutor, for a few years, because I wished to crush the balls of sexual perverts and woman beaters.  While I like to think my motives were noble, many lawyers find this kind of power intoxicating.  Prosecutor offices are mostly staffed with young lawyers directly out of law school. The pay is not good, but the experience is unparalleled....

But most people do not do this type of work for long.  Some, like me, just get sick of the whole thing. Most, after a few years, can make tons more money by moving to the private side. However, there are some who pretty much make a career out of it. Now some of these have the best of intentions. But all too many stay because, even though the dough is a lot better in a private firm, you do not have the opportunity to lop off heads on a regular basis. And that is what this is all about. In legal parlance it is called "prosecutorial discretion."

CNN covers Genarlow Wilson case, who's next?

CNN now has this lengthy video providing lots of background on the Genarlow Wilson case, which includes interviews with Wilson and prosecutor Eddie Barker.  It also details the start of legislative efforts to do justice.

Though the CNN piece effectively covers the basics of the case, it continues the failure of the media or anyone else to pressure the prosecutor to seek true justice.  The CNN reporter indicates that the prosecutor is willing to cut Wilson's sentence down to five years, but then never follows up to ask why the prosecutor believes that a five-year sentence is appropriate for Wilson having consensual oral sex with a fellow teenage.  Grrr!

Now that Wilson's plight is getting more coverage with ESPN and now CNN doing stories, I am wondering when powerful celebrities might use their clout to help achieve justice for Wilson.  As I recall, some celebrities spoke out for the murderer Tookie Williams.  Where are they now when a young kid who never hurt anyone needs help? 

Though perhaps I put too much faith in the power of celebrities, a little attention from the likes of Angelina Jolie or Bono or Donald Trump (all of whom, I suspect, are supporters of consensual sex) might really make a difference.  Where is Oprah when we really need her?

Some recent related posts:

• Will the Georgia legislature help Genarlow Wilson get justice?
• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Provocative questions about Georgia sentencing injustice
• The nuance in my provocation
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed

Will the Georgia legislature help Genarlow Wilson get justice?

According to this new article, there is some possible legislative action afoot in Genarlow Wilson case from Georgia (sad details here).  Here are the highlights:

State Sen. Emanuel Jones, D-Decatur, [has] introduced legislation that he said he hopes would allow a judge to re-sentence Wilson under the more lenient sentencing provision.

Since the state Supreme Court issued its Dec. 15 ruling, the case has become a bit of a cause célèbre, with The New York Times publishing an editorial calling for Wilson's release and the The Atlanta Journal-Constitution saying Wilson deserves "justice," not "condolences."  Thursday morning, ESPN.com's top story was an in-depth report on the legal case of the former high school football player, headlined "Outrageous Injustice."

"I read the editorials, I again went back and reviewed the comments from Justice Hunstein, and I said I would make it my … work this session to get him out of prison," said Jones. He added that he has bipartisan support, and one of his co-sponsors is Sen. Dan Weber, R-Dunwoody.... Senate Judiciary Committee Vice Chairman Seth Harp, R-Midland, said Thursday that he wanted to study the bill and its ramifications before determining his position on it.

Though I am encouraged some Georgia legislators are looking for solutions, I continue to be deeply troubled and mystified that there isn't more pressure being placed on executive branch officials to do justice for Genarlow Wilson.  Recall this passage from the ESPN article:

"We can set aside his sentence," [prosecutor Eddie] Barker says. "Legally, it's still possible for us to set aside his sentence and give him a new sentence to a lesser charge.  But it's up to us. He has no control over it." The position of Barker and the district attorney, McDade, who refused to comment, is that Wilson is guilty under the law and there is no room for mercy, though the facts seem to say they simply chose not to give it to Wilson.

What I find depressing (and what confirms the impact of race and class) is the contrast we see in reaction to this case and the Duke lacrosse case.  In the Duke case, as detailed here, prosecutor Michael Nifong may be disbarred for purported "systematic abuse of prosecutorial discretion" simply because of the way he filed charges.  In the Wilson case, in sad contrast, no one is even seriously questioning the prosecutors about their refusal to exercise their discretion to achieve justice.

UPDATE:  A few commentors have already reacted strongly to my suggestion that distinct reactions to prosecutorial behavior shows the impact of race and class. 

Please understand that I am not arguing that that the actions of Nifong and Barker/McDade are legally, morally or ethically parallel in any way.  Rather, I am simply trying to note that when a NC prosecutor over-zealously prosecutes rich white kids, his decisions are question by the whole world; but when GA prosecutors continue to over-zealously prosecute a less-affluent black kid, far fewer questions are asked.  My chief point is that, as Mike Connelly explains here, we ought to be much more willing to question the exercise of prosecutorial discretion in all cases (like Republican legislators are now doing in the border shooting case.)

Should the prosecutor request clemency for Genarlow Wilson?

I just read this detailed article in Atlanta Magazine, which provides lots of background on Genarlow Wilson's crime and trial that landed him in a Georgia prison for 10 years for consensual oral sex.  This passage about David McDade, the elected district attorney who prosecuted Wilson, jumped out at me:

McDade says that he agrees that consensual teenage sex, including oral sex, does not necessarily warrant a decade-long prison sentence, but he insists there were no other options to consider in this case as long as that law remains on the books.

As noted in prior posts (linked here), "that law" requiring 10 years for Genarlow Wilson is no longer "on the books," but the Georgia Supreme Court has not given Wilson any relief (details here).

As I suggested here, Wilson's case cries out for executive clemency and now I think David McDade should be the one leading the call for clemency for Genarlow Wilson.  Without clemency, Wilson will surely be challenging his sentence in a federal habeas action.  Wouldn't the people of Georgia be better served by helping Wilson get justice through a release than by having the state defend a sentence in federal court that no one thinks is just?