The State vs. Common Sense

I’ve said for years that the courtroom is no place for common sense. At least thats the way it appears sitting from my defense table. Defendants are often misinformed that the State is going to see them as a person instead of as a case number and that mitigating factors that make each case different are going to be considered. Not true. Look at Genarlow Wilson from Georgia.

Genarlow Wilson was convicted by a Georgia jury of aggravated child molestation for receiving oral sex from a consenting 15-year-old at a New Year’s Eve party. For this action, he was convicted and sentenced to a mandatory state prison term of ten years. Genarlow Wilson spent two years of that ten year sentence in Georgia State Prison housed with adult murderers, rapists and the like. Prior to being sentenced, Genarlow Wilson was a good, normal, goal-oriented kid. He was the homecoming King, on the honor roll, popular. However, according to the State of Georgia, he was a menace to underage children everywhere. According to the applicable laws in Georgia at the time, if Genarlow had had sexual intercourse with the consenting 15 year old, he would have been charged with a misdemeanor. Because of public outcry and thanks to Court T.V.’s The Vinnie Show, the state intervened and changed the law, defining underaged, consensual oral sex as a misdemeanor, but refused to grandfather in Genarlow Wilson. Even as the public outcried, the prosecutor in the case fought as hard as he could to make that ridiculous sentence stick. As a result, instead of going to college, playing football, choosing a major, going Greek and going to college homecoming, Genarlow Wilson sat in prison. He wasn’t even 20 years old.

Finally, on October 26, 2007, thanks to a very dedicated criminal defense attorney who vowed to hold the State in check for their actions, the Georgia State Supreme Court ruled that Genarlow’s 10-year term amounted to “cruel and unusual punishment,” and he was released after serving two of his 10 years in prison.

This is a very straightforward illustration of the dangers in trusting the government in an unchecked fashion as well as the courts not utilizing any common sense in terms of mitigating circumstances and sentencing. A prosecutor’s role is to seek justice. Oftentimes that translates into seeking a conviction no matter what when in reality, seeking justice really means “to protect”…all citizens.

I have been practicing criminal defense for six years, and the assumption is always that the state is right, and my client is guiltfully wrong no matter what the circumstances. Whether this is true or not is irrelevant; the important part to remember is that thorough, consistent checks on the state are the only way to ever come close to having a fair and sensical criminal justice system.

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