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Subrosa

Subrosa

San Francisco, CA
July 2004

NOV 01, 2007 11:45 AM



Those of you following the Genarlow Wilson case in Georgia over the past two years know the general gist of this shocking story. For those that havenÂ’t, hereÂ’s a quick refresher:

Dec. 31, 2003: Genarlow Wilson attends a raunchy New Year's Eve party with five other male youths at a Douglasville hotel and receives oral sex from a 15-year-old at the party. Wilson is 17 at the time. The incident is videotaped by one of Wilson's friends.

April 18, 2005: Wilson is convicted of aggravated child molestation for the sex act with the 15-year-old, a felony at the time that carried a minimum 10 year prison sentence. The age of consent in Georgia is 16. He was also accused of raping a 17-year-old girl at the party but was acquitted of that charge.


After his conviction, WilsonÂ’s attorneys spent the next two and a half years trying to secure his release. They used legal channels (which were thwarted each time by Georgia Attorney General Thurbert Baker, whose single-minded determination to keep Wilson in prison has made him seem like a tremendous asshole), but also made appeals to the legislature and the press on behalf of their client. The press picked it up and ran with it. Because Wilson was a promising prep athlete and the story seemed so sensational, ESPN.com even did an lengthy piece on it. Presidential candidates and political pundits made statements in support of WilsonÂ’s cause.

The good news for Wilson is that all of that attention has finally paid off.

The Georgia Supreme Court on Friday ordered the release of Genarlow Wilson, the Douglas County teenager who has been serving a controversial 10-year sentence for consensual oral sex. The court's 4-3 decision upholds a Monroe County judge's ruling that the sentence constituted cruel and unusual punishment under both the Georgia and U.S. constitutions.

The majority opinion said the sentence appeared to be "grossly disproportionate" to the teenager's crime and noted that it was out of step with current law.


WilsonÂ’s release has been hailed as a long overdue triumph of justice and humanity.

U.S. Rep. John Lewis (D-Atlanta) said Friday that the state high court "righted a great wrong, an unbelievable wrong. This young man, each day he stayed in prison, was a day too long."
[Â…]
The Rev. Jesse Jackson and four state legislators held a press conference at the state Capitol on Friday, at which Jackson called for an end to "over-prosecution" of young black men. "Genarlow is a symbol of a a system that's out of control," he said. "We need oversight for prosecutors who abuse their position."

Also attending were state Sens. Emanuel Jones (D-Decatur), Vincent Fort (D-Atlanta), Nan Orrock (D-Atlanta) and Alisha Thomas Morgan (D-Austell).

"It looks like we may be near the end for Genarlow, but let me emphasize there are a thousandÂ… ten thousandÂ… Genarlows," said state Sen. Vincent Fort (D-Atlanta).

Said state Sen. Thomas Morgan (D-Austell): "I'm proud to say that the stain that was on the state of Georgia has been somewhat removed."


EveryoneÂ’s happy now, right? Even Tightassed A.G. Baker said he would respect the decision of the court and hoped it would put the issue to rest. We can move on, and Wilson can pursue his dream of a college education. Huzzah!

In the immortal words of Lee Corso: Not so fast, my friend. Judicial “Conservatives” and “strict constructionists” (which is a fancy name for people who think the Constitution is not a living document and should be interpreted only by its meaning in 1789) are pretty pissed off. Not because they necessarily want Wilson to rot in jail for his youthful transgression, but because they’d rather the court system not do their jobs.

Let me explain: In April of 2006, largely in response to the negative press that the state had generated for their draconian laws and how they affected Wilson, the Georgia state legislature amended their child molestation law to insert a “Romeo and Juliet” provision. The provision made an exception where if the “assailant” was less than four years older than the “victim” and the sex was consensual, the crime would be treated as a misdemeanor rather than a felony. But when they enacted the law, they specifically declined to make the law apply retroactively. In other words, all future 17-year-olds who get hummers from 15-year-olds aren’t going to see jail time, but Wilson is shit out of luck because he blew his wad before the legislature blew theirs.

So, how did the Georgia Supreme Court manage to free Wilson last Friday? According to some commentators, they engaged in *gasp* judicial activism! The horror!

Judicial activism?

No need to quibble about definitions. All of Georgia has before it the definitive example of judicial activism in last week's decision by four members of the Georgia Supreme Court to legislate from the bench in the Genarlow Wilson case. Mark it down: Chief Justice Leah Ward Sears, justices Carol Hunstein, Robert Benham and Hugh Thompson are guilty of judicial activism.
[Â…]
The four judges in the majority "simply ignores that express legislative intent" and has no sound basis for concluding that "a felony sentence which was authorized when Wilson committed the offense of aggravated child molestation became cruel and unusual punishment when, more than a year later, the General Assembly lessened the penalty for that offense and mandated only a prospective application for that change."

The General Assembly knew what it was doing and acted with full awareness of the facts in the Wilson case —- and chose not to apply the new law retroactively, as was its right.

Make a note, here and now. This is a results-oriented Supreme Court that reacts to the 6 o'clock news.


Oooh, heady stuff from the Editorial Board at the Atlanta Journal Constitution. The law says this and therefore that. Simple, right?

As with most everything else that judicial conservatives and “strict constructionists” rant about, they’re wrong here as well. Let’s actually read the opinion of the Georgia Supreme Court, shall we? Did they overturn Wilson’s appeal on the basis of the Georgia legislature’s new law? No, they didn’t. Rather, they overturned it because it was cruel and unusual and a violation of the U.S. Constitution’s 8th Amendment. In making that determination, they looked to the reasons why the Legislature made the change, not the text of the change itself.

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 other words, whether a sentence violates the 8th Amendment is an entirely separate question than whether the sentence should be applied retroactively. That question can be informed by the actions of the legislature, but it is (by its very nature) a question for the Courts and the Courts alone to decide.

The guys at the AJC are none too pleased at that, either.

[The Georgia Supreme Court] concluded that Wilson had served sufficient time for the offense, as they weighed it, and overriding the Legislature, they wrote the law they wanted. Part of its reasoning, as expressed in Sears' opinion, is that "a review of other jurisdictions reveals that most states either would not punish Wilson's conduct at all or would, like Georgia now, punish it as a misdemeanor." The relevance?


Well, there’s a ton of relevance to the question of what other jurisdictions do in this situation, of course. The words “cruel” and “unusual” are intentionally vague. When they were inserted into the Constitution it was intended that judges would consider them through the lens of current societal standards. It’s impossible to truly determine what those societal standards are without looking at the rest of the fucking society. It’s not rocket science here, people.

In short, this case and the reaction to it by judicial conservatives demonstrate how blindingly wrong the strict constructionist movement is. The law is supposed to have a human element to it. There is supposed to be some room to maneuver within constitutional boundaries. The Georgia Supreme Court understands this. ItÂ’s a shame not everyone does.

herbancowboy

herbancowboy

Houston, TX
June 2004

NOV 01, 2007 12:16 PM

Didn't the DA, at some point, release the video and create the possibility that he could be prosecuted for child-porn?

JekyllAndHyde

JekyllAndHyde

Baltimore, MD
April 2005

NOV 01, 2007 12:16 PM

Joe Pesci of course is mostly remembered as Tommy from Goodfellas, but he had one really good line as a bum in a pretty bland movie called With Honors where he takes on a "strict constructionist" professor at Harvard (played by Gore Vidal, if I'm not mistaken): "The founding fathes were great because they knew what all great men know: that they didn't know everything."

Yes, let's keep the law exactly as it was in the late 18th Century; after all, the world's still pretty much the same place now, isn't it?

_kungfoo_

_kungfoo_

Los Angeles, CA
April 2005

NOV 01, 2007 12:21 PM

Their prevailing opinion is that this is strictly about interpreting law? That's the law and that's that? Funny, I have a hard time seeing a child of the upper class going through that predicament.

Formus

Formus

Milwaukee, WI
May 2007

NOV 01, 2007 12:21 PM

JekyllAndHyde said:
Yes, let's keep the law exactly as it was in the late 18th Century; after all, the world's still pretty much the same place now, isn't it?


Ron Paul 2008!

Uncognitive

Uncognitive

Brooklyn, NY
May 2003

NOV 01, 2007 12:24 PM

Formus said:

JekyllAndHyde said:
Yes, let's keep the law exactly as it was in the late 18th Century; after all, the world's still pretty much the same place now, isn't it?


Ron Paul 2008!



Ladies and gentlemen, this thread will now hit 10+ pages.

SPOILERS! (Click to view)
Remind me to add some gratuitous Ron Paul bashing to my next article, since it brings all the 'loompas to the yard, scientifically speaking


grrowler

grrowler

Sarasota, FL
October 2007

NOV 01, 2007 12:24 PM

thats fucked.
So she was 15. (imo she's not a child anymore but according to the government, you're a child until you're 18)
He's 17, which made him a child because he was not yet 18.
Two "children" have consensual oral sex and he gets the charge?
(not to mention that the punishment is fucking ridiculous)
Why didn't she get charged if in fact she was the one blowing him?
So the age of consent is 16 in Georgia. What if two 15 year olds have consensual sex? What would the crime be then?
So what happened..the camera man showed his friends at school his footage? The girl caught wind of it and decided to press charges and say that he forced her to suck his dick publicly at a party? Riiiight. Who doesn't notice someone filming them blowing someone?!

Why the hell wasn't this new law retroactive? What happens to the young people stuck with a bullshit conviction and will be sitting in jail for the next 5 years or so because of it? Oh? The court didn't want to clear up all the red tape? Imo this is going to be another classic example where the court gets sued for injustice by young people sitting in jail based on the Wilson vs. dumbgirl case.

Formus

Formus

Milwaukee, WI
May 2007

NOV 01, 2007 12:27 PM

This case is, for me, having grown up in an integrated city, glaringly saturated with good old-fashioned Southern racial hospitality. It means absolutely everything that the only reason this kid was prosecuted was because he's black.

Formus

Formus

Milwaukee, WI
May 2007

NOV 01, 2007 12:29 PM

Uncognitive said:

Formus said:

JekyllAndHyde said:
Yes, let's keep the law exactly as it was in the late 18th Century; after all, the world's still pretty much the same place now, isn't it?


Ron Paul 2008!



Ladies and gentlemen, this thread will now hit 10+ pages.

SPOILERS! (Click to view)
Remind me to add some gratuitous Ron Paul bashing to my next article, since it brings all the 'loompas to the yard, scientifically speaking



I'm sorry, but seeing as he's only going to be in the race for what, two more months, I've gotta get it all in now while he lasts.

grrowler

grrowler

Sarasota, FL
October 2007

NOV 01, 2007 12:30 PM

Formus said:
This case is, for me, having grown up in an integrated city, glaringly saturated with good old-fashioned Southern racial hospitality. It means absolutely everything that the only reason this kid was prosecuted was because he's black.


imho the only Southerners that ARE racist are backwards old people, those victimized by racism themselves, or young people raised by backwards racist parents, but there's always exceptions.

Chainlink

Chainlink

Key West, FL
August 2005

NOV 01, 2007 12:41 PM

grrowler said:
thats fucked.
So she was 15. (imo she's not a child anymore but according to the government, you're a child until you're 18)
He's 17, which made him a child because he was not yet 18.
Two "children" have consensual oral sex and he gets the charge?
(not to mention that the punishment is fucking ridiculous)
Why didn't she get charged if in fact she was the one blowing him?
So the age of consent is 16 in Georgia. What if two 15 year olds have consensual sex? What would the crime be then?
So what happened..the camera man showed his friends at school his footage? The girl caught wind of it and decided to press charges and say that he forced her to suck his dick publicly at a party? Riiiight. Who doesn't notice someone filming them blowing someone?!

Why the hell wasn't this new law retroactive? What happens to the young people stuck with a bullshit conviction and will be sitting in jail for the next 5 years or so because of it? Oh? The court didn't want to clear up all the red tape? Imo this is going to be another classic example where the court gets sued for injustice by young people sitting in jail based on the Wilson vs. dumbgirl case.



This is a very strange response because on the surface it seems like you might know how to read, but then your fingers betray you.

grrowler

grrowler

Sarasota, FL
October 2007

NOV 01, 2007 12:54 PM

what did i miss, exactly?

p.s. don't hate simply because we don't agree on all subjects broached on this website. As I've read up on the TOS, personal attacks aren't very well tolerated.

Chriztian

Chriztian

Tallahassee, FL
September 2004

NOV 01, 2007 01:29 PM

in a case like this, she doesn't have to press charges. Instead if someone views the tape and wants to put him in jail the State goes after him. It probably came out as part of the rape case from the other 17 year old.
What is funny is that not too many years before this there was that huge syphilis outbreak in Rockdale county, GA involving many under 16 year old girls and over 16 year old boys. Yet because the majority of the people involved were affluent white kids, no one went to jail for that.

Donzell

Donzell

Dacula, GA
May 2003

NOV 01, 2007 01:49 PM

herbancowboy said:
Didn't the DA, at some point, release the video and create the possibility that he could be prosecuted for child-porn?



yes, he did release the videotape. in fact, he showed the videotape as a tactic to persuade certain members of the legislature to vote against the retro activity of the "romeo and juliet" provisions of the new law.

Zarth

zarth

Seattle, WA
December 2004

NOV 01, 2007 01:59 PM

Chriztian said:
in a case like this, she doesn't have to press charges. Instead if someone views the tape and wants to put him in jail the State goes after him. It probably came out as part of the rape case from the other 17 year old.
What is funny is that not too many years before this there was that huge syphilis outbreak in Rockdale county, GA involving many under 16 year old girls and over 16 year old boys. Yet because the majority of the people involved were affluent white kids, no one went to jail for that.


I thought it was the girl's parents who pressed charges, but I might be misremembering.

And yeah, one of the reasons this was such a big deal was because she was a white girl. Again, if I'm remembering correctly.

grrowler said:
imho the only Southerners that ARE racist are backwards old people, those victimized by racism themselves, or young people raised by backwards racist parents, but there's always exceptions.


surreal (<--- link)

And what the hell does that bolded phrase mean? You believe that people who are victimized by racism are racist? What?

notquitesomebody

notquitesomebody

Atlanta, GA
December 2003

NOV 01, 2007 02:24 PM

grrowler said:
thats fucked.
So she was 15. (imo she's not a child anymore but according to the government, you're a child until you're 18)
He's 17, which made him a child because he was not yet 18.
Two "children" have consensual oral sex and he gets the charge?
(not to mention that the punishment is fucking ridiculous)



As you mention, the age of consent in Georgia is 16. Therefore under Georgia's definition she was a child but he was not. Agreed, though, totally fucking ridiculous.

FistFuck

FistFuck

HOPEFUL

USA

NOV 01, 2007 02:30 PM

Eek... i guess i should go to jail. My Ex-husband (the father of my two daughters) was 14 years old when i started dating him... i was 19. We got married when i was 20 and he was 16... had our first daughter when i was 21 and he was 16. Ofcourse its not quite as frowned upon when the girl is older now is it?

But maybe i just like em young... my current love is 22 and i am 27....
love

bean

bean

STAFF

Los Angeles, CA

NOV 01, 2007 02:35 PM

grrowler said:
what did i miss, exactly?


Let's look at your comment for a moment:

grrowler said:
So what happened..the camera man showed his friends at school his footage? The girl caught wind of it and decided to press charges and say that he forced her to suck his dick publicly at a party? Riiiight. Who doesn't notice someone filming them blowing someone?!


This isn't even remotely close to what happened, and I can't imagine what possibly could have given you that impression.

Why the hell wasn't this new law retroactive?


That was covered in the story. The legislature didn't want it to be.

What happens to the young people stuck with a bullshit conviction and will be sitting in jail for the next 5 years or so because of it? Oh? The court didn't want to clear up all the red tape? Imo this is going to be another classic example where the court gets sued for injustice by young people sitting in jail based on the Wilson vs. dumbgirl case.


I don't even know where to begin with this. The article is about exactly the situation you describe, and the courts ordered his release. I don't know what you were thinking with the comment that "the court didn't want to clear up all the red tape," because not only was that not in the article, but the court's actions contradict that statement completely. If there are any other youths in jail with similar cases, the odds are very good that they'll use this to attempt to secure their own release, but since the details of the case are so particular, I'm not sure there are scores of youths sitting in jail cheering about this case because it directly impacts their own, and if there are, then it's up to them and their lawyers to bring those cases under appeal. In addition, the supposition that this is going to be "another classic example where the court gets sued for injustice," is utterly perplexing, because the court can't be sued for any such thing, which means not only that that can't happen in this case, but also that previous examples would be hard to come by.

Also, you seemed really outraged, which is odd, because the entire article is about justice prevailing, despite the protests of certain pundits and politicians. It's still ridiculous that this happened, but you seem angry at the courts, which throws people for a loop because the courts did the right thing here.

Basically, it's not so much that anyone disagreed with your sentiment, but that the delivery was confounding.

FearTheReaper

FearTheReaper

NEWSWIRE

I'm lost

NOV 01, 2007 02:50 PM

FistFuck said:
Eek... i guess i should go to jail. My Ex-husband (the father of my two daughters) was 14 years old when i started dating him... i was 19. We got married when i was 20 and he was 16... had our first daughter when i was 21 and he was 16.



I can't believe that didn't work out.

Zarth

zarth

Seattle, WA
December 2004

NOV 01, 2007 02:51 PM

FearTheReaper said:

FistFuck said:
Eek... i guess i should go to jail. My Ex-husband (the father of my two daughters) was 14 years old when i started dating him... i was 19. We got married when i was 20 and he was 16... had our first daughter when i was 21 and he was 16.


I can't believe that didn't work out.


When comedians attack.

Coyotemike

Coyotemike

USA
May 2006

NOV 01, 2007 03:00 PM

I knew I should have gone to parties when I was in high school. Damned social phobias!!!

Clidna

Clidna

Canada
January 2005

NOV 01, 2007 03:29 PM

FearTheReaper said:

FistFuck said:
Eek... i guess i should go to jail. My Ex-husband (the father of my two daughters) was 14 years old when i started dating him... i was 19. We got married when i was 20 and he was 16... had our first daughter when i was 21 and he was 16.



I can't believe that didn't work out.



If I had a 14 year old child (which I will in a year and a bit) who was sexually active with a 19 year old, regardless of gender, that 19-year-old would be getting charged.
But that's the parent in me coming out.

Formus

Formus

Milwaukee, WI
May 2007

NOV 01, 2007 03:39 PM

Clidna said:

FearTheReaper said:

FistFuck said:
Eek... i guess i should go to jail. My Ex-husband (the father of my two daughters) was 14 years old when i started dating him... i was 19. We got married when i was 20 and he was 16... had our first daughter when i was 21 and he was 16.



I can't believe that didn't work out.



If I had a 14 year old child (which I will in a year and a bit) who was sexually active with a 19 year old, regardless of gender, that 19-year-old would be getting charged.
But that's the parent in me coming out.


But mooommm, I love her!

emotedcreations

emotedcreations

Germany
July 2006

NOV 01, 2007 03:43 PM

Zarth said:

grrowler said:
imho the only Southerners that ARE racist are backwards old people, those victimized by racism themselves, or young people raised by backwards racist parents, but there's always exceptions.


surreal (<--- link)

And what the hell does that bolded phrase mean? You believe that people who are victimized by racism are racist? What?

You know the Dave Chappelle (sp?) show skit where he talks about old black men being the most racist people he's ever met? I think that's the type of thing she's talking about. However, I'm not sure how she'd be aware of it, since one of the points he makes is how well they hide it. I dunno.

seanvegas

seanvegas

Lincoln, NE
December 2004

NOV 01, 2007 03:50 PM

The people who recorded it should have been prosecuted for child pornography! eeek

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