Last month, the Supreme Court of Georgia denied a motion to reconsider the criminal conviction of Genarlow Wilson, a young African-American man who is serving a mandatory ten-year prison sentence for aggravated child molestation.
Such a development would not ordinarily signal a gross injustice. When people are convicted of crime, and no procedural errors precede the convictions, appeals (along with motions to reconsider) routinely fail. The crime of conviction, moreover, appears - by its name - to be a serious one for which a ten-year prison sentence could well be appropriate.
Appearances, however, can be deceptive.
Based on the evidence - which included a videotape of the crime while in progress - the conduct for which Wilson now spends his days behind bars was consensual oral sex with a 15-year-old girl when he, Wilson, was himself only 17 years old.
Readers may recall the case of Marcus Dixon, an 18-year-old African-American man who was originally sentenced to ten years' imprisonment for aggravated child molestation in connection with having intercourse (which the jury did not conclude was rape) with a 15-year-old girl. In Dixon's case, the conviction and sentence were overturned on appeal, because the Georgia Supreme Court concluded that the intent of Georgia law was to classify conduct such as Dixon's as misdemeanor statutory rape, for which the maximum sentence is one year. In the case of oral sex, however, there was arguably no room for this construction of Georgia law, so Wilson was unable to benefit from the Dixon precedent.
Because Wilson and a 15-year-old girl engaged in nonprocreative sex, his conduct fell squarely within the terms of the aggravated child molestation statute. And though the Georgia legislature subsequently passed a "Romeo and Juliet Law" limiting sentences in cases like Wilson's to one year of incarceration, this law was not written to apply retroactively.
Crime and Harm
If we did not know that Wilson's disturbing predicament had arisen in the United States, we might assume that we were hearing about a case in a theocracy. His case, however, sheds light on a disturbing fact regarding our criminal justice system, a reality about which we have grown complacent: people in the U.S. are routinely condemned to spend years in brutal prisons as punishment for behavior that harms no one. As Sam Harris persuasively argues in his book, The End of Faith, and as others have also argued, this treatment of victimless crime is symptomatic of a criminal law that is strongly influenced by religious views about sexual morality.
When I begin my course in constitutional criminal procedure, I ask students for a definition of "crime." Though responses vary, the typical answer is that crime is a harm that criminals in our society inflict on their victims. Everyone acknowledges, of course, that criminal legislation ultimately defines what is or is not a crime, but the aspiration of the criminal law - by my students' lights - is to identify harmful behavior and try to put a stop to it, through prohibitions and penalties. Column continues below ↓
In keeping with this perspective, which I share, I teach most of the course on the assumption that "crime is bad" and that therefore, police and prosecutors should be commended for apprehending and prosecuting criminals, provided they use constitutionally permissible procedures in doing so.
The assumption that "crime is bad," however, is hard to defend when search-and-seizure cases so often involve such offenses as growing marijuana plants on one's land or inside one's home or carrying marijuana in one's luggage.
Long Sentences For Marijuana; Modest Ones for Violent Crime
Marijuana is a relatively benign drug, particularly when compared to alcohol (a substance the prohibition of which created societal ills that have apparently taught us nothing about the costs of regulating "vice"). Yet we take away - for years - people's fundamental freedom to live outside prison walls as punishment for growing and possessing marijuana, even as violent offenders sometimes receive relatively light sentences.
Interestingly, many prominent public officials have "confessed" to using marijuana themselves (though this does not always preclude their participation as soldiers in the "War on Drugs"). As in the early phases of the Albigensian (Cathar) Crusade, such officials expiate their guilt and avoid the consequences for their sins by confession and subsequent conversion. They say, "I made mistakes when I was younger," and all is forgiven.
As happened later in both the Cathar Crusade and in the Spanish Inquisition, though, modern drug offenders are not so lucky - if they effectively confess (by pleading guilty), their time in prison may be shorter than it would have been had they gone to trial, but Draconian nonetheless. Intriguingly, Harris argues that harsh criminal punishments for the use of substances like marijuana are best explained by reference to Biblical injunctions against idolatry - it is "wrong" to use chemicals to alter one's consciousness; only faith in God is a proper avenue to transcendence.
If Harris is right, we have an explanation for why otherwise rational, even gentle, people favor terrible retribution for harmless (or exclusively self-harming) conduct.
Sex, Drugs, and Rock and Roll
What is the connection between Genarlow Wilson's case and those of the people who grow drugs in their backyards? In both situations, people are engaging in consensual conduct that harms no one and later find themselves sent to a place where dreams die and where violence, including rape - real harms of the sort that should be the concern of the criminal law - is rampant, largely unregulated, and self-replicating.
The obsession with the sin of marijuana is so extreme that people have been criminally prosecuted for growing the plant solely to help alleviate the nausea (induced by AIDS or chemotherapy) or the glaucoma of their loved ones. Meanwhile, until a few years ago, when the Supreme Court struck down anti-sodomy laws as unconstitutional, consenting adults could in theory go to prison for engaging in consensual homosexual relations, another "crime" that is, in truth, a harmless "sin."
A Gross Failure of Prosecutorial Discretion
During the trial, in response to Wilson's pointed questions about the propriety of prosecuting people for such conduct, Douglas County District Attorney David McDade said that he did not write the law, implying that he had no choice but to prosecute Wilson for aggravated child molestation. McDade said separately that Wilson should have taken a plea deal but that he failed to do so because he "has decided to become a martyr."
These statements are remarkable in three respects. First, we should be quite disturbed to learn that a prosecutor, who has more discretion in carrying out his job than almost anyone else in the criminal justice system, is prepared to rely on the Nuremberg defense. Yes, a criminal statute literally applied to Wilson's conduct, but the District Attorney has no obligation to enforce the law slavishly, when even he himself concedes that "[w]e don't believe that a 10-year sentence is an appropriate punishment [in this case]."
Second, the notion that the decision to exercise one's Sixth Amendment right to a trial - rather than waive that right by pleading guilty - is a deliberate choice of "martyrdom," is positively offensive.
Third, McDade's suggestion that it was Wilson's responsibility to have taken a pleading option - literally, a confession in exchange for a more lenient punishment - is precisely the sort of "confess and convert" thinking that characterizes a theocratic justice system. It is perhaps no coincidence that the District Attorney chose the word "martyrdom" to describe Wilson's ultimate punishment for refusing to say what he does not believe: that he did something terrible and deserves to be branded a "child molester" for life and punished for his sins.
The Role of Race
Whatever role religion or other commitments of the Georgia electorate may have played in the criminalization of victimless sexual conduct and/or drug offenses, we cannot overlook the role of race. The fact that Genarlow Wilson, a promising young man who had no prior criminal record, is African-American, should be neither ignored nor considered irrelevant to the definition of "sin" as crime. Historically, the ideology of white supremacy has included a firm belief that black people are morally inferior to white people. Racist legislators and their constituents justified laws against miscegenation (interracial coupling) on the basis of God's desire to keep whites separate from the other, "inferior," races and viewed "mixing" as contaminating the purity of whites. It may accordingly be no accident that so many of the people spending time in prison for drug crimes, the most commonly prosecuted "sin" in the U.S., are African-Americans.
In addition, racist ideology may also help explain why the possession of rock cocaine or "crack" - a form of cocaine in which African-Americans are significantly more likely to be convicted of trafficking than whites are, is punished much more severely than the possession of powder cocaine, the drug-of-choice in Caucasian communities.
And of course, as some have already observed, not everyone in Georgia suffers the treatment that Wilson did, even though white teenagers are presumably as sexually active as their African-American counterparts. David McDade much too blithely dismissed the racism accusation, saying that, "I'm standing up for African-American victims in this case." Since the "victim" in question did not want to press charges and did not even testify for the prosecution, McDade's assertion is not especially compelling.
When an African-American suffers a disproportionately severe punishment for a real crime, such as murder or rape, compared to his white counterparts, this disproportion rightly inspires our criticism and concern, even if we do not believe that the defendant is himself a worthy candidate for our compassion. It is a whole other matter, however, when the person involved did nothing wrong, as is evidently the case for Genarlow Wilson.
The injustice to Wilson is thus complete: A person innocent of any wrongdoing is spending ten years of his life in prison, and there is reason to think that he would not be doing so if he were white. (The alternative hypothesis is that white teenagers always ask for identification when they receive oral sex, to make sure that their companions are not themselves teenagers a year or two younger than they). Such conduct should not be criminal at all, and it is shameful that a prosecutor has the audacity to act as though he had no choice but to pursue the case.
Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book WWhen Sex Counts: Making Babies and Making Law, will be published by Rowman & Littlefield in February 2007.