JUSTICE GETS NEW LEASE ON LIFE
Published in The Atlanta Journal-Constitution, p. A13 (October 30, 2007).
Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.
Like Genarlow Wilson, I rejoice that he has been set free. I hope Georgians join in the rejoicing.
The Georgia Supreme Court’s Oct. 26 decision not only corrected a grave
miscarriage of justice and liberated an American citizen imprisoned in
violation of his constitutional rights, but also advanced the rights of
all Georgians. The decision gives teeth to the important
constitutional ban on imposing cruel sentences. Wonderfully, it
indirectly delivers stern rebukes to an overzealous district attorney
and a clueless attorney general. Finally, it demonstrates
that Georgia courts are taking very seriously their obligation to be
the ultimate guardians of our liberties, no matter what the station of
the citizen whose rights are denied.
Almost all Georgians agree with the key holding of the decision:
Wilson’s mandatory minimum sentence of 10 years in prison for having
consensual oral sex with a 15-year old girl when he was only 17 is
grossly disproportionate for the crime and constitutes cruel and
unusual punishment, in violation of both the federal and Georgia Bills
In holding that Genarlow’s draconian sentence was so draconian that he
was entitled to immediate release from prison, the decision delivers a
sharp rebuke to a district attorney who recoiled at nothing to put and
keep Genarlow in prison. A district attorney entangled in the
letter of the law and blind to its spirit. A district attorney
who, to obtain a tactical advantage at Genarlow’s trial, piled on a
count of aggravated child molestation even though the legislature never
imagined that prosecutors would stretch the offense to include
consensual sex acts teenagers commit with other teenagers.
A district attorney’s office which intimated to the mother of
Genarlow’s alleged molestation victim, who opposed prosecuting
Genarlow, that she herself might face criminal charges if she did not
cooperate in the prosecution. A district attorney who, among
other unpleasant things, said of Genarlow’s dedicated, able attorney,
“She has lost sight of what is best for her client.” A district
attorney’s office which, undoubtedly as part of a strategy to embarrass
Genarlow, distributed a videotape depicting child pornography.
The decision also firmly rebukes the hardline approach of the state
attorney general, who unsuccessfully appealed the order of the lower
court granting Genarlow habeas relief. To this day, the attorney
general has never given a satisfactory explanation of his peculiar
decision to take that appeal, although he has given several implausible
ones. He has never acknowledged that whether to appeal was
entirely a matter of his discretion; much less has he offered a
credible explanation for the way he exercised that discretion. He
must deeply regret that appeal, which totally backfired.
Strangely, the attorney general more than once relied on gossamer
technicalities when requesting the Georgia Supreme Court to
summarily dismiss Generalow’s habeas petition without regard for its
obvious merits. He claimed, for example, that because the issue
of whether Genarlow’s sentence was cruel and unusual had not been
raised in the motion for reconsideration Genarlow filed in the Georgia
Court of Appeals on the direct appeal, Genarlow was barred from raising
the claim in habeas corpus and would have to be penalized by remaining
in prison for 10 years. On the merits, the attorney general filed
briefs shrilly insisting that Genarlow’s sentence was not shocking but
During the oral arguments, when asked about the justice of Genarlow’s
sentence, the deputy attorney general told the Georgia Supreme Court,
“That is not for the habeas court to determine.” All these
arguments were thumpingly rejected by the Georgia Supreme Court.
Embarrassingly, both the district attorney and the attorney general
pressured Genarlow to withdraw his habeas petition, telling him they
would reduce the charges if he did so. Those efforts now ring
hollow and cynical.
In addition to reproving prosecutorial excesses, the decision enhances
the Georgia Supreme Court’s illustrious reputation as one of the
American courts most protective of liberty and rights.
In 1989, the Georgia Supreme Court held that under the state bill of
rights it is unconstitutional to execute the retarded. In 1998,
that Court held that, to the extent it criminalizes private consensual
acts of adults, the sodomy statute violates the right to privacy
secured by the state bill of rights.
In 2001, the Court became the first state supreme court to find
electrocution an unconstitutional method of execution, holding that the
electric chair violates the cruel and unusual punishments clause of the
state bill of rights.
Now, based on both the U. S. and the Georgia Bills of Rights, the Court
has breathed additional life into the ban on disproportionately
This pro-rights activism is notable and commendable because the federal
courts are clogged with statist/majoritarian judges who narrowly
construe constitutional rights, and these days judicial protection of
basic rights is increasingly dependent upon state courts.
Genarlow Wilson rejoices; so should Georgians. Amid our
rejoicing, however, we should remain on guard against any efforts to
weaken the writ of habeas corpus, which gloriously made possible
Genarlow Wilson’s return to the free world.
The writ of habeas corpus: the Great Writ, they call it. The Writ
of Liberty. The Freedom Writ. The palladium and bulwark of
liberty. The most celebrated writ in the law. The most
valuable human right in the Constitution. The great key of
liberty to unlock the prison doors of tyranny. The precious
heritage of Anglo-American civilization.