Genarlow Wilson and Retroactivity

As widely reported, last week the Georgia Supreme Court freed Genarlow Wilson, the young man who had been serving a mandatory 10-year prison sentence for the crime of having had consensual oral sex with a 15-year-old when he was 17. The Court said (in an opinion here) that Wilson's sentence was cruel and unusual punishment in violation of both the U.S. and Georgia Constitutions. The express reliance on the Georgia Constitution was important because if the Georgia S Ct had only relied on the federal Constitution or had been unclear as to whether it thought its result compelled by federal law alone or federal law and state law, the U.S. Supreme Court could have reviewed the decision, per the presumption of reviewability established by Michigan v. Long. Thus, the Georgia AG was accepting the inevitable when he said he would not pursue any further appeals.

In part, the Court relied on comparisons of the sentences available for other crimes. Wilson got 10 years for consensual oral sex but people who commit much more heinous crimes can (and sometimes do) receive much lighter sentences. Here are the grisly examples the court provided:

a defendant who gets in a heated argument and shoving match with someone, walks away to retrieve a weapon, returns minutes later with a gun, and intentionally shoots and kills the person may be convicted of voluntary manslaughter and sentenced to as little as one year in prison. A person who plays Russian Roulette with a loaded handgun and causes the death of another person by shooting him or her with the loaded weapon may be convicted of involuntary manslaughter and receive a sentence of as little as one year in prison and no more than ten years. A person who intentionally shoots someone with the intent to kill, but fails in his aim such that the victim survives, may be convicted of aggravated assault and receive as little as one year in prison. A person who maliciously burns a neighbor’s child in hot water, causing the child to lose use of a member of his or her body, may be convicted of aggravated battery and receive a sentence of as little as one year in prison. Finally, at the time Wilson committed his offense, a fifty-year-old man who fondled a five year-old girl for his sexual gratification could receive as little as five years in prison, and a person who beat, choked, and forcibly raped a woman against her will could be sentenced to ten years in prison.
So far so good. The Georgia S Ct also noted that no other state metes out the sort of punishment that Wilson received for consensual oral sex between comparably-aged teenagers. Nonetheless, the key piece of the analysis by the Georgia S Ct relied on the fact that the Georgia legislature recently reclassified the conduct in which Wilson engaged as a misdemeanor. Although the statutory revision was not made retroactive, the Georgia S Ct said that it nonetheless constituted clear evidence of an evolving norm that treats oral sex between comparably-aged teenagers as not warranting severe penalties. The dissent argued, with some force, that this analysis eviscerated the legislative intent to make the change non-retroactive.

So, is it impermissible bootstrapping to say that a non-retroactive change in the law nonetheless gets retroactive effect because it demonstrates societal consensus rejecting a particular penalty as cruel and unusual? Perhaps, but it's not clear that there are any good alternatives. The reason the US Supreme Court and the Georgia S Ct under the state constitution look to enacted law to determine what punishments social norms forbid and what they permit, is to constrain judges from simply answering the constitutional question by deciding what they themselves consider cruel.

To be sure, courts could try to be strongly originalist, treating as cruel and unusual only those punishments that the framers (of the US and Georgia constitutions) thought cruel and unusual, but even ur-originalist Justice Scalia has (to his credit) said that he grows faint-hearted at the prospect of upholding penalties such as ear-cropping, the stocks or execution for burglary. Moreover, unlike the 7th Amendment, which requires that the civil jury trial right be "preserved," and thus has been interpreted in (mostly) historical terms, the 8th Amendment appears to invite constitutional interpreters to decide for themselves what is cruel and unusual. And the term "unusual" seems to call for a canvass of what punishments are actually meted out.

Nonetheless, one might reasonably worry that an approach like that of the Georgia Supreme Court could actually hamper legislative reform. Suppose that the price of enactment of some sentencing reform is a compromise in which the changes take effect only prospectively. Marginal legislators who might otherwise sign onto the reform on the condition that it is prospective only, now may balk, knowing that the state high court will take the prospective change as a reason to find a sentence meted out under the old law to be invalid. Thus, the compromise could be undone and no change enacted, not even a prospective-only change.

I should be clear that the question whether the Georgia S Ct's approach will actually have this effect is unknown, and even if it does, the size of the effect may be tolerably small. The gross injustice that was done to Genarlow Wilson cried out for some form of relief, and this may well have been the best option. But that hardly means it was a perfect solution.

Posted by Mike Dorf