aTypical Joe: a gay New Yorker living in the rural South
Tuesday, June 12, 2007
Genarlow’s cruel and all too usual punishment
The Eighth Amendment to the US Constitution:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
When the Georgia Supreme Court denied the appeal of Genarlow Wilson last December - acknowledging, in the judges own words, sympathy “to Wilson’s argument regarding the injustice of sentencing this promising young man with good grades and no criminal history to ten years in prison without parole and a lifetime registration as a sexual offender because he engaged in consensual oral sex with a 15-year-old victim only two years his junior” - there was discussion that his 10 year sentence was not cruel and unusual punishment.
I disagreed. Sadly, I no longer do.
Today, in our ostensibly “free” country, we lock up more people than any nation in the world (Putin’s Russia is #3, Castro’s Cuba #7). Here in George Bush’s America we have redefined cruelty so that the once feared “Soviet-Style ‘Torture’” has become a legally permissible and American administered “Interrogation technique.”
While our culture, aided and abetted by our market-driven media, increasingly sexualizes and fetishizes our kids, we apparently find it easier and more acceptable to criminalize them than to help them through the very real struggles of their extended adolescence:
[Teens] often lack fine tuning in their sense of judgment. [Temple University professor of psychology Dr. Laurence] Steinberg’s research shows that adolescents facing tough decisions in experimental settings don’t give much weight to the long-term consequences of their actions. He finds a troubling discrepancy between some of the rules that society imposes on teens, especially as they relate to juvenile justice. In some states, a 13-year-old can be tried as an adult for a capital offense, but can’t vote. If we don’t think he’s responsible enough to vote, asks Dr. Steinberg, is it reasonable to hold him to adult standards of legal responsibility? He and [University of Pittsburgh School of Medicine professor of psychiatry and pediatrics Dr. Ronald] Dahl agree that parents and other adults have an important role to play in helping teens through the years to adulthood.
I want to live in and foster an empathetic and rationally just culture. The sad fact is that’s not America. Here it is no longer considered cruel and it is far from unusual to abdicate our responsibility to our progeny. Instead, I live in a culture that’s happy to turn its back, lock them up, and throw away the key.
LATER - A legal reader of Andrew Sullivan:
[T]he comment by your correspondent that the court lacked the authority to release Wilson and that General Baker is the only person standing up for the rule of law is deeply flawed. This was a habeas petition, and Georgia law gives the county containing the prison exclusive jurisdiction to determine habeas petitions. Additionally, section 9-14-48 of the Georgia Code requires that habeas relief be granted “to prevent a miscarriage of justice.” Section 9-14-42 makes clear that the judge has the right to decide the case on grounds of both the Georgia Constitution and, more importantly, the US Constitution. In this case, the judge found Wilson’s sentence to be not only a miscarriage of justice, but also “cruel and unusual punishment” in violation of the 8th Amendment of the US Constitition. That conclusion, by the way, is one that is supported by a number of US Supreme Court cases, most notably Salem v. Helm (1983), which defined even a prison sentence as cruel and unusual if it was overly harsh compared to the underlying offense, the sentences imposed on other criminals in the state, and the sentences for the same act in other states. Wilson’s sentence would seem to be excessive under each of these tests.
