Race and the Wilson Case:

Lawprof Doug Berman (Sentencing Law & Policy) asks: "Had Wilson been white, would he even had been charged with this offense, let alone sentenced to 10 years imprisonment?" "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?"

One can always speculate this way; but it's not clear to me why this is a sensible speculation. The girls with whom Wilson had sex — the alleged rape victim, and the 15-year-old whom the oral sodomy age-of-consent is supposed to be protecting — are black, too. (See this story.) As the article paraphrases the prosecutor's view, "Had he not pursued charges against the boys, his critics could have just as easily chastised him for failing to protect the rights of the two black females. 'I'm standing up for African-American victims in this case, as I would for any white victim,' says [the prosecutor] .... 'Calling me a racist denigrates the people who are victims in this case.'"

Harvard lawprof Randy Kennedy had made this point in other contexts as well — since most crime is intraracial, seeing prosecutors or police being tough on black criminals (and the defendant in this case did indeed commit a crime) may simply mean that they're trying to protect black victims. Conversely, an environment in which prosecutors are afraid to take a hard line against black criminals because of the fear of being assumed to be racist is an environment that's not good for law-abiding blacks.

So I see little reason to assume that there's much of a racial dimension here. I continue to think the law is too harsh, and unreasonably so in its different treatment of post-2006 behavior vs. pre-2006 behavior and of oral sex vs. genital sex. But while one can always speculate about alleged prosecutor racial bias, I don't see much grounds for anything but speculation here.