Earlier this month, a Georgia judge threw out the 10-year prison sentence of 21-year-old Genarlow Wilson. Wilson had been convicted of molestation for engaging in consensual oral sex with a 15-year-old girl at a New Year's Eve party. He was 17 at the time. Wilson was convicted under a Georgia statute (since revised) that, strangely, would have resulted in only a misdemeanor charge had Wilson and the girl engaged in vaginal sex. The sentence generated outrage across the country, including from such unconventional sources as ESPN magazine (Wilson was a high school athlete) and former President Jimmy Carter.
But one person was more outraged by the revocation of Wilson's sentence than by the sentence itself. He is Georgia Atty. Gen. Thurbert Baker. And his opinion, unfortunately, is one of the few that really matter.
Writing in the Atlanta Journal-Constitution, Baker explained that he would appeal the judge's decision, not because he thought Wilson's sentence was just but because the girl was under the age of consent of 16, and, "It is my responsibility to follow the laws of Georgia as they are written, not how some may wish they were written."
In other words, as the Charles Dickens character Mr. Bumble famously proclaimed in "Oliver Twist," "the law is a ass." And it's Thurbert Baker's job to slavishly follow that ass wherever it may lead.
That, unfortunately, is an increasingly common sentiment among many prosecutors-"I don't make the laws, I just enforce them." It's also not entirely honest.
Prosecutors have enormous discretion in when and how and against whom they bring charges. They can overcharge and pressure the defendant to plea bargain. They can undercharge if they feel there are mitigating circumstances associated with the crime. Or they can determine that despite the fact that a crime has been committed, in the interest of justice, charges ought not be brought at all.
What's more, every prosecutor's office battles with limited resources. A prosecutor can't possibly enforce each law against each person who breaks it. So prosecutors set priorities. And in choosing which laws they will enforce vigorously and which laws they will let slide, they make public policy.
It's entirely appropriate, then, for citizens to question those policies.
So why were the charges against Wilson brought in the first place? Why would Wilson's prosecutors choose to pursue a charge of "aggravated child molestation"-a law clearly aimed at pedophiles-against a teenage boy who had consensual oral sex with a teenage girl? And why would Georgia's attorney general continue to expend taxpayer resources to ensure that Wilson stays in prison?
Part of the answer may lie in the crime's sexual nature. Whether because of latent Puritanism, moral panic or the media's infatuation with them, prosecutors seem particularly aggressive in prosecuting sex crimes. This, of course, is what we want when talking about actual sexual predators. But that clearly is not the case here. And there has been a rash of stories of late about similar overreaches.
In one of the more egregious examples, in February, the tech news site CNET reported a case in Florida in which a 16-year-old girl and 17-year-old boy were prosecuted for producing and distributing photographs depicting the sexual exploitation of a child. The two had photographed themselves having sex. The distribution charge came when the two e-mailed the photos from the girl's computer to the boy's. Inexplicably, a state appeals court upheld the conviction.
From silly anti-sodomy laws, to prostitution stings, to prosecutions of consenting minors, sex seems particularly adept at clouding a prosecutor's judgment.
More generally, after 40 years of "get tough on crime" rhetoric, many prosecutors and politicians have unfortunately come to measure success in our criminal justice system by the number of people they put in jail. Criminal laws-particularly those pertaining to drug and sex crimes-are increasingly written with extraordinary breadth and reach. Police officers typically are rewarded for arrests, not for preventing crimes. Prosecutors tend to be promoted or re-elected based on their ability to win convictions, not their fairness or sense of justice. Appeals courts, meanwhile, generally focus on constitutional and procedural issues. Only in extreme cases will an appellate court review the appropriateness of a verdict.
From the writing of laws to their enforcement and prosecution, our system has evolved to the point where justice, mercy and fairness often go overlooked. It's no surprise that the U.S. leads the world in its rate of incarceration, and by a wide margin.
Polls show that most Americans think our criminal justice system usually gets things right. Yet we're finding through the use of DNA evidence just how alarmingly often it doesn't. Sometimes the culprit is incompetence. Sometimes it's malfeasance or corruption among forensics experts, police officers, DNA lab technicians and other criminal justice gatekeepers.
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.
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