Genarlow, Justice and the Law

Genarlow Wilson is a 21 year old man who was sentenced to 10 years in prison because he had oral sex with a 15 year old girl when he was 17. He was an honor student and former standout high school athlete. Judge Thomas Wilson vacated Genarlow's sentence yesterday. The judge revised Genarlow's sentence to a misdemeanor and a 12 month sentence with credit for time served, which is to date over 2 years. Genarlow's mom, Juannessa Bennett, expected her son to be released within 48 hours.

But the Georgia Attorney General Thurbert Baker (who is Black, like Genarlow, btw) has already filed an appeal protesting Genarlow's anticipated release. Genarlow won't be released until the correctional system receives guidance from the attorney general or his attorney secures bond. Genarlow's mom should be concerned.

To be clear, justice and the law are two different things. Judge Wilson tried. Justice is certainly a noble goal. I am happy that Genarlow's sentence was vacated, but I'm not sure it will be upheld. There really is not much legal basis.

As arcane as they may be, the Georgia laws about oral sex are clear. Crystal clear. At the time of Genarlow's conviction, it was absolutely illegal to receive oral sex from a person under the age of 16. Genarlow confessed to breaking said law and there was video evidence of the same. If there was any doubt about whether "justice" could prevail at trial, it should have been clear when jury instructions were given. At that time, both the defense and the prosecution are made aware of how the law is delivered to the jury, who is absolutely bound to make a decision under guidance of that instruction. To this day, I am befuddled as to why Genarlow did not accept a plea (which has been available to him throughout the case) because, simply, the law was against him. And, predictably, he was sentenced.

Since then, Genarlow's defense as engaged on a media campaign to secure his release. They have been telling the world that Genarlow's sentence was not just. And prominent media organizations and people have agreed. That's fine, but that's not the law.

Still, the media attention on Genarlow's case forced the Georgia legislature to revise the law that Genarlow was convicted under. Genarlow's crime would now be a misdemeanor. However, the legislature specifically excluded past offenders like Genarlow in the revision. Certainly, this was partly political. Genarlow's case is complicated because he was performing "bad acts" like smoking marijuana, having sex as a minor and videotaping said acts. I don't think the community sees him as completely innocent. Thus, the revision of the law was likely a political compromise - an acknowledgment of the unintended consequence of the law, but not a relief for an offender who violated the standards of the community. Furthermore, if the legislature granted retroactive relief, dozens of offenders - not just Genarlow - could have appealed their sentences. This is a serious legal and administrative consequence that the legislature could have deliberately sought to avoid.

Still, Genarlow's defense team convinced Judge Wilson that Genarlow's sentence was "disproportionate". And Judge Wilson has ordered Genarlow's release based on "justice", but not the law.

"If this court or any court cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish ... justice being served in a fair and equal manner," the judge wrote.

Ironically, the Judge Wilson's reliance on "justice" in his legal opinion may be what ensures that Genarlow won't be getting out of jail. Just resolutions can be based on the law, for sure. However, this judge has not laid out a sound legal basis that Genarlow or his mother, Juannessa, should be celebrating about. Perhaps the judge wants his 15 minutes of fame. Perhaps he is just a romantic.

As beautiful, heartwarming and "just" as it may be, Genarlow Wilson's release may not be legal. Don't be surprised if Genarlow is not quite finished with the Burruss Correctional Training Center.

(I am not an expert on GA criminal law, but I would be happy to do my best to address legal questions in the comments.)