Thoughts on the Genarlow Wilson decision
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In the end, the Georgia Supreme Court achieved the correct result. In a 4-3 opinion [pdf - make sure you read both the majority and the dissent] issued today, it found Genarlow Wilson’s 10 year sentence to be “cruel and unusual punishment” for the crime of which he was convicted. However, I’m not sure this majority opinion is that sound or has any precedential value whatsoever.
Specifically, I’m not sure that its distinguishment of Widner [pdf] is appropriate. The Court says that the main reason Widner is distinguishable (in Widner, the defendant was 18 and the “victim” was a few days shy of 14) is because the legislative change that altered the punishment for Genarlow did not do so for Widner.
What troubles me about this is that the Court seems to take its cues on the “evolving standard of decency” from legislative acts. While it expressly disavows that contention, nothing else in the opinion seems to support that notion. The court is essentially saying that a 10 year sentence for consensual oral sex between a 17 year old and a 15 year old is “cruel and unusual”, but it is okay if the actors are 18 and 14, because the legislature didn’t want to change that.
The Court doesn’t provide much by way of support for the evolving standard argument. It cites statutes from sister states that don’t punish the same conduct to this extent, but as far as I could see, there was no discussion of when those statutes were enacted or how long they were in effect. It then discusses Georgia statutes for seemingly far worse crimes but with far less punishment, but I don’t think it’s very instructive to compare manslaughter to consensual oral sex. Could that argument then be applied to larcenies as well?
The Court also dismisses that dissent’s contention that this opinion would have implications for several other defendants. It emphasizes that this is a very limited factual scenario they are dealing with.
It seems to me to be a very result oriented decision (and they got the result right), but whether it would stand up to SCOTUS scrutiny is beyond me. Thankfully, the AG seems willing to accept the Court’s decision and doesn’t seem like he will appeal.
Other blog coverage: from SL & P (here and here) and MUCH more here (and in the comments), Volokh, ConcurringOpinions and OfCounsel. My prior coverage :
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