The Volokh Conspiracy - Genarlow Wilson Case:

Last week, a Georgia trial court ordered wilson freed from his 10-year prison sentence (without parole, and with lifetime sex offender registration) for having a 15-year-old girl perform oral sex when he was 17. The fabulous UCLA Law Library just got it for me (thanks especially to Tammy Pettinato), and posted it in PDF and in HTML. (Thanks also to Edward Tran for scanning it for me.)

As you may recall, the general age of consent in Georgia, the state involved, is 16. At the time Wilson was prosecuted, genitaal sex between an under-18-year-old and a 13-to-15-year-old would only have been a misdemeanor, punishable by a year or less in prison, for the 17-year-old. At the time he was convicted, the Georgia Legislature had also made the very sort of act of which he was convicted into a misdemeanor -- but only prospectively, without applying retroactively to conduct that happened before the enactment of the new law.

What's interesting is the court's reasoning:

Soon after Petitioner's conviction, this same Legislature that passed the original statute changed the statute, making Petitioner's conduct a misdemeanor with a maximum 12 months in jail and no sex offender registration.... This significant change shows this State's clear views as to how persons convicted of Petitioner's conduct should be punished. Under both federal and state standards, the imposition of a felony conviction and sex offender registration is cruel and unusual punishment under the circumstances of this case [relying chiefly on Georgia death penalty cases in which courts looked to the legislature's most recently stated views about which punishments are proper -EV] ....

The court also seemed to suggest that the sentence could be set aside under a general "miscarriage of justice" standard:

In Valenzuela v. Newsome, 253 Ga.793, 796, 325 S.E.2d 370 (1985), the Georgia Supreme Court decided not to define "miscarriage of justice." Instead, the Supreme Court stated that a miscarriage of justice should be determined on a case-by-case basis, "and will depend largely upon the sound discretion of the trial judge." Id. "Hence, on rare occasion, the writ must pass over procedural bars and the requirements of cause and prejudice, when that shall be necessary to avoid a miscarriage of justice." Id. The fact that Genarlow Wilson has spent two years in prison for what is now classified as a misdemeanor, and without assistance from this Court, will spend eight more years in prison, is a grave miscarriage of justice. If any case fits into the definitive limits of a miscarriage of justice, surely this case does.

Yet Valenzuela seemed to treat miscarriage of justice as conviction of the innocent rather than excessive conviction of the guilty: To quote the Valenzuela court, "[the term 'miscarriage of justice' demands a much greater substance [than just a focus on procedural irregularity or reversible error], approaching perhaps the imprisonment of one who, not only is not guilty of the specific offense for which he is convicted, but, further, is not even culpable in the circumstances under inquiry."

The Cruel and Unusual Punishment Clause reasoning seems somewhat stronger, especially since (1) the sentence seems "unusual" in the literal sense of the word, both extremely uncommon within Georgia and throughout the country, and currently legally entirely unavailable in Georgia for, and (2) the court's reasoning on that is quite narrow, focused only on the rare and appealing case where the Legislature has prospectively decreased the sentence (as it did here by an order of magnitude). I'm certainly pleased by the result as a matter of substantive justice, and it seems to me that it has a decent chance of surviving on appeal -- we'll see what happens.

Note that Wilson is apparently not yet free, even temporarily, because the Georgia Attorney General is appealing, but a June 15 Atlanta Journal-Constitution article reports that the AG "does not oppose setting Wilson free on bond pending his appeal. A bond hearing has been set for Wilson for July 5 in Douglas County Superior Court."

	[Eugene Volokh, June 20, 2007 at 3:00pm] Trackbacks Genarlow Wilson Case: Last week, a Georgia trial court ordered wilson freed from his 10-year prison sentence (without parole, and with lifetime sex offender registration) for having a 15-year-old girl perform oral sex when he was 17. The fabulous UCLA Law Library just got it for me (thanks especially to Tammy Pettinato), and posted it in PDF and in HTML. (Thanks also to Edward Tran for scanning it for me.) As you may recall, the general age of consent in Georgia, the state involved, is 16. At the time Wilson was prosecuted, genitaal sex between an under-18-year-old and a 13-to-15-year-old would only have been a misdemeanor, punishable by a year or less in prison, for the 17-year-old. At the time he was convicted, the Georgia Legislature had also made the very sort of act of which he was convicted into a misdemeanor -- but only prospectively, without applying retroactively to conduct that happened before the enactment of the new law. What's interesting is the court's reasoning: Soon after Petitioner's conviction, this same Legislature that passed the original statute changed the statute, making Petitioner's conduct a misdemeanor with a maximum 12 months in jail and no sex offender registration.... This significant change shows this State's clear views as to how persons convicted of Petitioner's conduct should be punished. Under both federal and state standards, the imposition of a felony conviction and sex offender registration is cruel and unusual punishment under the circumstances of this case [relying chiefly on Georgia death penalty cases in which courts looked to the legislature's most recently stated views about which punishments are proper -EV] .... The court also seemed to suggest that the sentence could be set aside under a general "miscarriage of justice" standard: In Valenzuela v. Newsome, 253 Ga.793, 796, 325 S.E.2d 370 (1985), the Georgia Supreme Court decided not to define "miscarriage of justice." Instead, the Supreme Court stated that a miscarriage of justice should be determined on a case-by-case basis, "and will depend largely upon the sound discretion of the trial judge." Id. "Hence, on rare occasion, the writ must pass over procedural bars and the requirements of cause and prejudice, when that shall be necessary to avoid a miscarriage of justice." Id. The fact that Genarlow Wilson has spent two years in prison for what is now classified as a misdemeanor, and without assistance from this Court, will spend eight more years in prison, is a grave miscarriage of justice. If any case fits into the definitive limits of a miscarriage of justice, surely this case does. Yet Valenzuela seemed to treat miscarriage of justice as conviction of the innocent rather than excessive conviction of the guilty: To quote the Valenzuela court, "[the term 'miscarriage of justice' demands a much greater substance [than just a focus on procedural irregularity or reversible error], approaching perhaps the imprisonment of one who, not only is not guilty of the specific offense for which he is convicted, but, further, is not even culpable in the circumstances under inquiry." The Cruel and Unusual Punishment Clause reasoning seems somewhat stronger, especially since (1) the sentence seems "unusual" in the literal sense of the word, both extremely uncommon within Georgia and throughout the country, and currently legally entirely unavailable in Georgia for, and (2) the court's reasoning on that is quite narrow, focused only on the rare and appealing case where the Legislature has prospectively decreased the sentence (as it did here by an order of magnitude). I'm certainly pleased by the result as a matter of substantive justice, and it seems to me that it has a decent chance of surviving on appeal -- we'll see what happens. Note that Wilson is apparently not yet free, even temporarily, because the Georgia Attorney General is appealing, but a June 15 Atlanta Journal-Constitution article reports that the AG "does not oppose setting Wilson free on bond pending his appeal. A bond hearing has been set for Wilson for July 5 in Douglas County Superior Court."