Blinded by the Law

Teen sex case shows that focusing on the letter of the law doesn't always spell justice

Radley Balko | June 28, 2007

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But as the Wilson case shows, even when there is no corruption, no lying and no shortcuts taken-even when everything is done by the book-you can still get a result that's far from just.

Traditionally, that is why we grant executives the power to issue pardons and clemency. It's why the Founders gave those powers to the president. As Alexander Hamilton explained in Federalist No. 74, "The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Unfortunately, we've drifted from that notion. Today, governors (and the president), loath to appear soft on crime, tend to be stingy with their pardon power, using it more for political patronage or to bestow mercy and forgiveness on repentant lawbreakers than to seek out and correct real injustices. (Georgia's pardons are granted by an appointed pardons board, not the governor.)

That makes it essential that prosecutors choose cases in which there is a clear demonstration of guilt, where the crime caused real harm to another person and where the potential punishment is proportional to the crime. The ability to secure a conviction isn't enough.

In the Genarlow Wilson case, there was no question of the teen's guilt. Yet the jury's forewoman shed tears as she read the verdict. Other jurors expressed regret after the trial, outraged that they weren't told their verdict would result in a 10-year sentence. The point here is that the prosecutors should have shown the good judgment never to have brought the molestation charge in the first place.

Prosecutors need to be more than inveterate slaves to the (often poorly written) law. And more broadly, we need to stop gauging our criminal justice system's effectiveness by how many people it puts in jail. We need to measure it by how well it metes out justice.

Radley Balko is a senior editor for reason. This article orginially appeared in the June 24 Chicago Tribune.

Copyright © 2007, Chicago Tribune

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