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Teen oral sex case should be over by now

Genarlow Wilson has been punished enough; prosecutor should drop appeal

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A second chance for Genarlow Wilson?
June 15: He spoke exclusively with TODAY's Meredith Vieira from jail about his mistake, what he's learned and the judge's ruling.
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Susan Filan
Senior legal analyst

A judge in Georgia has voided the ten year mandatory sentence of Genarlow Wilson, a high school student who received consensual oral sex from a fifteen year old girl.  

Ironically, if the two had intercourse, it would have been a misdemeanor, punishable by not more than a year in prison.   After Wilson's conviction, there was outrage over his sentence, and the legislature changed the statute so that oral sex is a misdemeanor too.  But the statute did not affect Wilson, because the change did not apply retroactively.  Even though no other teen could ever receive Wilson's sentence because the law changed, Wilson 's punishment could not be changed.  The courts said that the only remedy for Wilson was through the legislature, but the legislature refused to act.  The new bill drafted to help Wilson was stalled.

Thus, Wilson went back to court yet again, this time on a writ of habeas corpus, which means "release the body."  The defense argued he was being unfairly held because his incarceration was unconstitutional.   This time, a judge agreed.  The court ruled Monday that Wilson's confinement violated the Eighth Amendment's prohibition against cruel and unusual punishment.

The judge courageously wrote:

If this court or any court cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish ... justice being served in a fair and equal manner.

Wilson was ordered released.  He was re-sentenced to 12 months in prison, a total victory for Wilson, who has served nearly double that already.   Furthermore, he does not have to register as a sex offender when he gets out.  But the prison doors have not sprung open for Wilson.   The attorney general has filed an appeal, seeking a higher court's ruling as to whether the court has the power to commute Wilson's sentence to a sentence that did not statutorily exist at the time of his conviction.  

Wilson's lawyer, B.J. Bernstein, is asking the court to set an appellate bond which would permit Wilson's release pending appeal.  Hopefully, it will be a bond that Wilson can afford to post. 

Bernstein is extremely disturbed that the attorney general would continue to fight to keep Wilson behind bars.  

I agree with Bernstein.  This case is a travesty of justice.   I am not endorsing Wilson's conduct.  What he did was illegal, and he deserved to be punished for it.  But the punishment has to fit the crime, and the punishment has to be proportionate to what any other person, similarly situated, would receive.   The fact that no other teen in the state of Georgia could serve a mandatory 10 years in prison for consensual oral sex means it is a gross miscarriage of justice for Wilson to be imprisoned for 10 years.

For the attorney general to pursue this appeal is to seek injustice.  Yes, the prosecutor may have a valid argument on appeal in that an argument could be made that the court may not be able to commute a sentence to a penalty that was statutorily prohibited at the time of sentencing.   But so could the argument be made that the court's inherent powers to right a wrong, to correct an injustice, are broad and lie within the sound discretion of the trier of fact.
NBC News video
Should this honor student be set free?
June 13: Genarlow Wilson was sentenced to 10 years for having sex with a 15-year-old when he was 17. NBC's Martin Savidge reports.

If the court finds Wilson's sentence unconstitutional, which it did, how could the court then not have the power to fix it?  And even if the prosecutor's appellate argument has merit, it is a hyper-technical point which loses sight of the bigger picture, that of fundamental fairness.   It crosses the line from using the law as a beacon of justice to a sword of Damocles. 

The prosecution should drop its appeal, and this case should be over.  Wilson should be free, and should use his freedom to help teens across America navigate their teen years through the thicket of peer pressure regarding sex, underage drinking and illegal substance abuse. 

Why not let two years in prison, which is double the time anyone else would have to serve for the same misconduct, be enough?  

The court's courageous ruling should be the last word in this long legal and political battle to see that justice is served.   The punishment has to fit the crime, and cannot be ten years harsher for one teen than it would for any other.  Ten years for consensual oral sex is ridiculous, especially when he could not have been sentenced to more than one year if they had intercourse.

Wilson, time served, go home.

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