OT: Genarlow Wilson is Free!

[Johnnybravo4]

We also can't forget that the Supreme Court justices in Ga are popularly elected so wouldn't that be the will of the people as well?

[AHF]

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If they don't believe it to be cruel and unusual, AHF, then why change it at all? I guess we could split hairs and say that the legislature no longer considers this a felony-worthy crime, but how is that really different from saying that giving somebody 10 years for this crime is cruel and unusual?

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Cruel and unusual is a very high standard. It means that the penalty at issue is not only not the preferred remedy but it is so egregious that no one could choose it under the constitution. There are a lot of laws that are changed without being crual and unusual.

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I mean, it seems to me that if the legislature doesn't think that anybody should get 10 years for this crime anymore, and in fact shouldn't get more than 1 year, that a reasonable person could then deduce that 10 years is in fact cruel and unusual.

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The fact that the law was changed isn't the same as concluding it is cruel and unusual. For example, if every state in the country had 10 years as the penalty and every country in the world had 10 years or more as the penaly, and Georgia was the only one to change and make it a one year maximum that would probably not raise eyebrows (unless it was the fact that Georgia was so leniet with their law).

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The fact that they didn't make it retroactive, from what I can tell, speaks more to some of the personal motives of some of the legislature who thought that Genarlow Wilson's behavior WAS worthy of 10 years even if they didn't want others doing that amount of time for the same crime. This smacks very badly of racism to me, but who knows for sure, right?

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Honestly, I can't imagine why they didn't make this retroactive. However, it is a pretty good argument that they didn't believe it was cruel and unusual.

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In any event, isn't it fair for the court to make the interpretation that the changing of the law means the legislature and thus the people of Georgia believe the punishment is cruel and unusual, and that therefore it is unconstitutional to not apply the change retroactively, whether the legislature/people want to or not?

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No. If that was the case then any time a law was changed it would have to be changed retroactivey.

I also don't entirely understand this last argument. You are saying:

(a) If a law is changed, it is reasonable to assume that the legislature and the people believe the old law is unconstitutionally cruel and unusual punishment.

(b) Given (a), therefore the law is crual and unusual regardless of whether people really think it is crual and unusual.

Right?

I don't get this if I am reading that part of your post correctly.

[drzachary]

Regardless of the technical minutiae, the real point here is that we (in GA) are still hilariously back-assward. There's no other way of putting it. I would guess that many of us are felons too, under that law and the pre-1998 sodomy law.

[scottt]

This thread has contained a good and interesting discussion. I think this is a bad decision that ended with a good result. I also think there will be many unintended consequences when we let the judiciary perform what is a legislative task.

Again, good analysis and good discussion on the board.

[TheNorthCydeRises]

The next question is . . . does this kid have to register as a sex offender?

If he does, all is definitely not well in this case.

[bfwolf]

Fair points, AHF. Cruel and unusual is a judgment call. The Court has to use their personal opinion of whether they and society consider the punishment cruel and unusual. What I'm suggesting is that in this case, the tremendous public outcry and DRAMATIC change to the punishments associated with the law suggests that both the legislature and the people of Georgia believe the old punishment is cruel and unusual. And it passes the sniff test of whether this sort of thing should be punishable by 10 years in jail and registered sex offender status--the answer from most reasonable people is clearly no.

I don't see how the Court determining that this was a cruel and unusual punishment is strange or out of place. I'm not suggesting that every change in a punishment means that the old punishment was cruel and unusual, but in THIS case, I think the argument is very reasonable.