Friday, October 26, 2007

Cruel And Unusual Punishment

The Georgia Supreme Court has issued its opinion in the Genarlow Wilson case. It’s interesting. Wilson’s conviction is voided in its entirety on “cruel and unusual punishment” grounds in that it was “grossly out of proportion” to the severity of the crime. The Court relied on the change in Georgia's law for “evolving standards of decency” but refused to resentence him under the new law because the legislature did not make the new law retroactive, thus setting him altogether free. (Don’t you just love legal reasoning?)

The Court also relied on death penalty cases and the 1910 case of U.S. v. Weems for the “grossly disproportionate = cruel and unusual” reasoning. Interesting.

No offense, but it resounds like Bush v. Gore. A decision tailored very narrowly to this specific case. The precedents are questionable — death penalty cases which are a special category in the scrutiny they are given, and U.S. v. Weems, a case from the days of the abandoned substantive due process. It’s telling to me that the Court distinguished State v. Widner, a case where the Supreme Court affirmed the same sentence for an eighteen-year old who had sex with a fourteen-year old placing emphasis on how recently the fourteen-year old had turned fourteen and counting the months in their age differences.

I would not have much confidence in this case if I were challenging an attempted murder conviction where all the defendant did was fire a shot at the direction of the victim and got a mandatory minimum of fifteen years by contrasting it to a manslaughter conviction where the victim died and the defendant got five years probation.

As a rule, outside death penalty cases, the courts have deferred to the legislature for the appropriate remedy for the perceived harm as well as the legislature’s judgment of the seriousness of the perceived harm.

On the federal question of “cruel and unusual punishment” you have noticed that the Georgia Court cited a dissent and not a U.S. Supreme Court opinion. I don’t know Harmelin but in 1986 Bowers v. Hardwick, the decision partially overruled in Lawrence v. Texas, was important to me but not on the issue of sodomy. (Illinois had decriminalized sexual conduct between consenting adults except when performed “on the steps of the Art Institute at high noon”.) Bowers v. Hardwick did not even address the issue of fifteen years in prison for consensual adult homosexual sex. It has always been a given that sentences for a crime are subject only to the rationality (just barely sane) test in non-capital cases.

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