Patterico's Pontifications


Genarlow Wilson is Free

Filed under: Law — DRJ @ 4:39 pm

[Guest post by DRJ]

Genarlow Wilson, the Georgia 17-year-old who was imprisoned for sentenced to 10 years for oral sex with a 15-year-old girl, has been released pursuant to the Georgia Supreme Court’s ruling that his sentence was cruel and unusual:

“The warden next contends that the habeas court erred in ruling that Wilson’s sentence constituted cruel and unusual punishment. We disagree.

Under the Eighth Amendment to the United States Constitution and under Art. I, Sec. I, Par. XVII to the Georgia Constitution, a sentence is cruel and unusual if it “is grossly out of proportion to the severity of the crime.” Moreover, whether “a particular punishment is cruel and unusual is not a static concept, but instead changes in recognition of the ‘evolving standards of decency’ that mark the progress of a maturing society.”

Legislative enactments are the clearest and best evidence of a society’s evolving standard of decency and of how contemporary society views a particular punishment. In determining whether a sentence set by the legislature is cruel and unusual, this Court has cited with approval Justice Kennedy’s concurrence in Harmelin v. Michigan. Under Justice Kennedy’s concurrence in Harmelin, as further developed in Ewing v. California, in order to determine if a sentence is grossly disproportionate, a court must first examine the “gravity of the offense compared to the harshness of the penalty” and determine whether a threshold inference of gross disproportionality is raised.

In 2006, the Georgia legislature changed the offense for which Wilson was convicted from a felony with a 10-year minimum sentence to a misdemeanor. “Evolving standards of decency” required more lenient treatment of minors who have sex in specific situations. As the Supreme Court stated:

“It is beyond dispute that these changes represent a seismic shift in the legislature’s view of the gravity of oral sex between two willing teenage participants. Acknowledging, as we must under Fleming, that no one has a better sense of the evolving standards of decency in this State than our elected
, we conclude that the amendments to § 16-6-4 and § 42-1-12 reflect a decision by the people of this State that the severe felony punishment and sex offender registration imposed on Wilson make no measurable contribution to acceptable goals of punishment.”

Translation: Those legislators are really in tune with what Georgians want. We Supreme Court Justices better listen to them.

However, the legislature specifically refused to make the change in the law retroactive. I guess the Supreme Court thought the legislature wasn’t so tuned in to the community’s evolving standards when it came to retroactivity, explaining its position in footnote 41:

“Stated somewhat differently, the dissent equates retroactivity analysis with cruel and unusual punishment analysis; the two, however, must be, and are, analytically distinct. Thus, although this Court cannot apply the 2006 Amendment to § 16-6-4 retroactively, we can rely on that amendment as a factor representative of the evolving standard regarding the appropriate punishment for oral sex between teenagers.”

Evolving standards is an area with which the law routinely struggles, in part because the law is like the Colorado river as it slowly erodes the Grand Canyon while community standards are as changeable as the winds.

As a result of this decision, Wilson is not only free but his sex offender status has been expunged. Having served almost 3 years of his sentence, this may be justice and that’s a good thing but it sends a bad message. In the short run, everyone convicted in Georgia of teenage sex crimes will want to revisit their sentences. I suspect inmates convicted of drug offenses under prior felony statutes may also want to revisit their convictions, too.

H/T: NK.


30 Responses to “Genarlow Wilson is Free”

  1. In the short run, everyone convicted in Georgia of teenage sex crimes will want to revisit their sentences. I suspect inmates convicted of drug offenses under prior felony statutes may also want to revisit their convictions, too.

    That’s exactly why I thought this 10-year sentence was overkill when it was handed down. Not only did it not fit the crime, but the eventual overturning of it would fill the dockets.

    Thanks for posting this, DRJ.

    Paul (f4626d)

  2. The decision is a radical departure from prevailing law but it’s hard to gauge its precedential value. Future courts could easily limit it to this case.

    nk (da3e6b)

  3. Ugh. Who would have known that teenage drug and alcohol orgies would become the norm. Bet he screws up in less than two years.

    dave (e548e6)

  4. Dave, I doubt it.

    This was a consentual sex act for both he and the girl. He was headed to a good college (hopefully he can stll attend it).

    I think this young man, if he can somehow NOT hate the authorities for what happened, might just end up being a heck of a good person.

    Scott Jacobs (a1de9d)

  5. NK,

    You got me started on this so please weigh in on what you think about this decision, from a legal standpoint or otherwise.

    DRJ (207a4b)

  6. Future courts could easily limit it to this case.

    It could, NK, but I expect plenty of sentencing challenges in the meantime.

    Paul (66339f)

  7. The GA Legislature has obviously taken a different view on this situation from what previously existed; therefore, the change in the law.
    Now it is time for local DA’s to use a little more discretion in the prosecution of teen-age, consensual acts. Perhaps they could find large amounts of community service needs that could be fulfilled.
    This was an outrage, and an embarrassment to Justice.

    Another Drew (8018ee)

  8. You need to revise your first sentence: “the Georgia 17-year-old who was imprisoned for 10 years” is easily misread as saying that he’s been in jail since 1990, when he was 7 years old. It would be better to say “who was sentenced to 10 years”. Also, is he still 17, as the sentence implies?

    [Dr. Weevil – Thanks for raising a good point on the “imprisoned for/sentenced to” language, and I’ve corrected that. I’ll leave the remainder as is and trust the reader to figure out that, like the rest of us, Wilson has aged as each year passes. — DRJ]

    Dr. Weevil (1c6a71)

  9. Since he has served almost 3-years of his sentence, wouldn’t he be approx. 20 at this time?

    Another Drew (8018ee)

  10. No offense, but it resounds like Bush v. Gore. A decision tailored very narrowly to this specific case. The precedents are questionable — death penalty cases which are a special category in the scrutiny they are given, and U.S. v. Weems, a case from the days of the abandoned substantive due process. It’s telling to me that the Court distinguished State v. Widner, a case where the Supreme Court affirmed the same sentence for an eighteen-year old who had sex with a fourteen-year old placing emphasis on how recently the fourteen-year old had turned fourteen and counting the months in their age differences.

    I would not have much confidence in this case if I were challenging an attempted murder conviction where all the defendant did was fire a shot at the direction of the victim and got a mandatory minimum of fifteen years by contrasting it to a manslaughter conviction where the victim died and the defendant got five years probation.

    As a rule, outside death penalty cases, the courts have deferred to the legislature for the appropriate remedy for the perceived harm as well as the legislature’s judgment of the seriousness of the perceived harm.

    On the federal question of “cruel and unusual punishment” you have noticed that the Georgia Court cited a dissent and not a U.S. Supreme Court opinion. I don’t know Harmelin but in 1986 Bowers v. Hardwick, the decision partially overruled in Lawrence v. Texas, was important to me but not on the issue of sodomy. (Illinois had decriminalized sexual conduct between consenting adults except when performed “on the steps of the Art Institute at high noon”.) Bowers v. Hardwick did not even address the issue of fifteen years in prison for consensual adult homosexual sex. It has always been a given that sentences for a crime are subject only to the rationality (just barely sane) test in non-capital cases.

    nk (da3e6b)

  11. NK,

    I agree. The main thing I got from this case is that the Georgia Supreme Court didn’t want Wilson to serve any more time in prison for this crime.

    DRJ (207a4b)

  12. Dave, I doubt it. This was a consentual sex act for both he and the girl.

    Oh, please. Everyone was drunk and drugged up including the 15 year old. I don’t call that consensual. I believe I read that he’s been drinking and using drugs since age 12. The reason the police were called was because the 17 year old girl went to the police the next day and claimed she was drugged and raped. The video tape appeared to confirm it with young Master Genarlow riding her hard from behind. I don’t remember how many girls he had sex with that night. We have very different ideas of what is a “good person.”

    As to heading to a “good college” he was offered an athletic scholarship. However, he can barely string a sentence together. Like many high school and college athletes, it would surprise me if he didn’t cheat or have someone cheating for him or he was given a passing grade just because.

    Sorry to burst your fantasy.

    dave (e548e6)

  13. DRJ #11,

    The ruling is that he is innocent of any crime.

    nk (da3e6b)

  14. I’m sorry, I take that back. The Court did not invilidate the conviction, only the sentence.

    nk (da3e6b)

  15. Actually, that is nonsensical. My respect for this Court’s opinion diminishes by the minute. A conviction for a crime without a punishment.

    nk (da3e6b)

  16. This should have been handled by the governor — that’s WHY they have the pardon power. For him to punt this to the court is beyond belief.

    The issue isn’t whether he should serve time for this (non) offense. It’s whether the GA Supreme Court thinks it has the pardon power now.

    Kevin Murphy (0b2493)

  17. everybody who is bemoaning this ruling just wants to keep that guy locked up for the rest of the ten years for a blow job. shame on you.

    assistant devil's advocate (c67164)

  18. ADA,

    Letting Wilson go may be the right thing to do but I think the law works much better when a court does the right thing for a valid legal reason.

    DRJ (207a4b)

  19. I think this young man, if he can somehow NOT hate the authorities for what happened, might just end up being a heck of a good person.

    Then you’d have no trouble letting him date your daughter?

    Gerald A (1761a5)

  20. People seem to forget the Genarlow Wilson case involved six males and two girls. One of the two girls, a 17-year-old, claimed she was raped. The evidence included a video tape showing Wilson engaging in sex with the 17-year-old and then being offered and receiving consensual oral sex from the 15-year-old girl. According to press reports,the 17-year-old looks sleepy or intoxicated in the video, but never asks Wilson to stop. Waking up naked and disoriented the next morning, the 17-year-old claimed to have been raped.

    Five of the six males involved accepted plea bargains and pled guilty to the rape of the 17-year-old and to consensual oral sex with the 15-year-old. Wilson was the only one who decided to take his chances in court.

    A jury acquitted Wilson of raping the older girl, but convicted him of aggravated child molestation against the 15-year-old. They had no other choice, since the 15-year-old girl was under the age of consent. Had the two teenagers had intercourse without oral sex, Wilson would have been charged with a misdemeanor, punishable up to 12-months, with no sex offender status, instead of the mandatory 10-year minimum term that the judge gave him. (The gay community alleges the tougher penalty for oral sex is an example of prejudice against homosexuals.)

    Wilson is scheduled to go on CNN to tell about his quest for justice. Wonder if they will show the video?

    Blair (56a0a8)

  21. Great news. Too bad it took so long for a judiciary to decide that what the prosecutors delivered to Wilson was cruel and unusual punishment.

    Make that the legislature and their so called “mandatory sentencing”!

    This is a direct result of such laws.

    But then of course such comes from judges NOT doing their job, so the people think they have to do it for them. What happens in all too many cases is that judges probably do not have all the REAL information about a person to hand down a proper sentence for the crime.

    Oh well, Congrats to Wilson!


    The courts may indeed get flooded with past cases, such is not wrong, can be chalked up to waking up and wishing you had made different decisions earlier to prevent the situation you are in today.

    Sorta like that 17yr old girl might have felt the next morning, but instead of dealing with her own responsibilities, she, probably in some vain effort to justify how she allowed 6 guys bang her, choose to holler “rape” and opened up a can of worms on all with some, I’m sure, undesired results.

    TC (1cf350)

  22. Congratulations for what? He is in no better position, in fact he served more time, than his codefendants who took the plea bargain.

    dave (e548e6)

  23. probably in some vain effort to justify how she allowed 6 guys bang her

    Well, that totally sucks. How about some responsibility for one of the six guys who “banged” her? “Yo bitch, doan be standin’ in the way of my dick when I wanna fuck”?

    nk (da3e6b)

  24. dave #22:

    I thought he would have had sex offender status under either scenario?

    Itsme (f6f474)

  25. I thought he would have had sex offender status under either scenario?

    I don’t believe the GA Supreme Court decision affects his requirement to register as a sex offender. However, his codefendants were sentenced to less time and were paroled. I think they might have only served a year to his three.

    dave (e548e6)

  26. After re-reading the Court’s opinion, I’m not certain if Wilson has to register as a sex offender but I don’t think he does. Specifically, the Court held that Wilson’s conviction will stand but his sentence was set aside as cruel and unusual. As noted on page 18 of the decision, both the term of incarceration (10 years) and the obligation to register as a sex offender (under Section 42-1-12) were found offensive. Thus, I think the Court’s decision reducing his sentence not only released Wilson from custody but also eliminated his obligation to register as a sex offender.

    DRJ (5c60fb)

  27. DRJ: That makes the decision even more bizarre and nonsensical.

    dave (04dde8)

  28. Dave,

    I’m sure the Georgia Supreme Court spent more time thinking about this case than I have but on its face it seems like a results-oriented decision. Sometimes courts do that when they think justice requires it. Sometimes juries do that, too. But it’s hard to swallow from a purely legal standpoint which is probably why the Georgia Supreme Court repeatedly said (as NK mentioned above) that this is a case with limited value as precedent.

    On the other hand, the Atlanta Journal-Constitution reports there are 58 cases in Georgia that appear to have the same or similar facts and the defendants should be considered for the same relief Wilson got. That’s not very limited, in my opinion, especially since you know more defendants will try to raise the issue in other contexts. It should keep the courts busy for a while.

    DRJ (5c60fb)

  29. “Congratulations for what?”

    Well for getting the national attention that such a case deserves for one. To HOPEFULLY enlighten lawmakers and mostly Judges, that we do live in a world of Grey and for sure the national level of this case will do just that!


    “Well, that totally sucks. How about some responsibility for one of the six guys who “banged” her? “Yo bitch, doan be standin’ in the way of my dick when I wanna fuck”?”

    No NK, not at all. But this is one area I could go on for much longer than I will. Little girls, and they have parents, (or need to find them selves some), need to learn to keep their legs closed to the intrusion of dicks! But such has and will continue to happen, seems that young men like to fuck and apparently so do young women today. Age just seems to continue to lower for permission to do so. I grew up in a world of desiring the “forbidden fruits” and it was only those girls that “did it” you sorta felt that you could approach for “it”. The rest …. well the trip could be long or we figured they would make a good wife, or some such thing. I learned that reality was something in between, then the 70’s hit!


    Not your fault, not my fault either, but lets face it, kids explore, examine, are inquisitive and oh so very excited, and yes they even fuck! It seems that today they fuck at an ever younger age than most of us would desire to happen, And today they participate in activities that were almost unheard of to so called modern America, but such is actually closer to historical ages of fucking. But most of such was done under the guise of marriage or such.

    If a young woman makes a decision to attend a party with a young friend with six guys, she probably knows some fucking is gonna happen long before she crosses the threshold of the place. Seems the 17yr old was very aware and more than willing to attend such party. Also seems the 15yr old was not exactly in abject fear of the activities either. Seems in fact that SHE NEVER filed any charges against the six!

    Actually our legislators have let us down for the last 20-30 years. They have allowed a single view to control their thoughts and made laws out of feelings and false studies! urged upon them by the so called femanisits! Such is slowly changing as they are feeling the reality that many of thier laws are gender biased and flat out WRONG!

    I’ll end with this, lets make Judges responsible for their decisions, lets also make them much more accessible and accountable to the public that expects them to actually rule with the law and some common sense applied as well. Screw “case law”, that is not law, it is but one decision that one judge applied to it, reality means NOTHING! Shouldn’t either! If they can’t do the job, they can EASILY be thrown out, BY THE PEOPLE! As well they need the PEOPLE to put them into this position of power over them!

    Yes that means possibly making them some sort of a politico. Well they can NEVER be registered to any political party! EVER. Hopefully such would help prevent such, but of course it won’t,If they do or have, well then they can’t be a judge! EVER! They are subject to removal annually! Bi annually would be ok. But never what goes on in their courtroom would be held from the public. ANY case filed for decision in a public court would be public! 100% of it!


    BTW who dares actually dares to discipline their own child today?

    Spare the rod, spoil the child, and don’t really think such is of religious source either. But you best spare the rod today, else find yerself behind bars, right?

    TC (1cf350)

  30. do any of you “law-abiding” citizens see what’s wrong with this case. The fact that one of two high school students was even charged is ridiculous. If I remember my highschool days correctly the girls were much “faster” than the boys. Aside from that let’s not forget that girls mature into women much quicker than boys mature into men. Was any of this accounted for.

    DK (b7b416)

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