Genarlow Wilson and the 8th Amendment

As has been widely reported today, Genarlow Wilson, the 17-year old black male who was sentenced to 10 years for aggravated child molestation after having consensual oral sex with a 15-year old, was freed on an 8th Amendment claim: cruel and unusual punishment.

To those of us immersed in the sentencing world, this is another interesting example of how the understanding of “cruel and unusual punishment” has expanded in the past several years. As every defense attorney knows, 8th Amendment claims are usually a last-ditch effort, since they are so unlikely to be successful. And yet the last five years have illustrated quite the opposite.

First, the Supreme Court decided in Atkins that the death penalty was cruel and unusual punishment for the mentally retarded, under an “evolving standard of decency.” More recently, the Supreme Court granted cert. in Baze to determine whether lethal injection is “cruel and unusual punishment” in implementing the death penalty. As a result, a variety of states have placed a moratorium on lethal injection and the death penalty, at least until Baze is decided.

All of this, plus an intriguing new article on the original meaning of the 8th Amendment, seems to have breathed new life into this rather moribund area.

But is there a danger here? If the claim of cruel and unusual punishment is used more frequently, and in less dire cases than it has traditionally been used (i.e., death penalty cases), are we weakening the doctrine? I’m not arguing that Genarlow Wilson deserved to remain in jail–his 10 year sentence was ridiculous on its face. But I’m a little nervous about using the 8th Amendment as a tool to free him. Wilson’s case was arguably a problem of proportionality–isn’t using the 8th Amendment to free him like using a battering ram when a kick or two would do?

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11 Responses

  1. disgusted says:

    The jury acquitted Wilson of the rape charge. All that means is that there wasn’t enough evidence to convince them beyond a reasonable doubt that he was guilty, not that there was consent. The Georgia Supreme Court’s opinion was a lawless concession to public opinion.

    I share your concern that judges who use actual legal reasoning to decide cases might feel bound by the logical consequences of the decision.

  2. Doug B. says:

    As I explain here, I don’t get the concerns? Why does Ted Bundy and other murderers sentenced to die by a jury (which has discretion to select another sentence) merit the Eighth Amendment’s protection while Genarlow doesn’t?

    More here:

  3. Marc Shepherd says:

    So, disgusted, let me see if I have this straight. Although the jury acquitted him, you’d like to see him sentenced as if he committed the crime anyway?

    By the way, the jurors later reported that they concluded extremely quickly that Wilson wasn’t guilty of rape. It was not, in their view, a close call.

  4. Laura says:

    Doug, I agree with you that locking up Wilson in a box for 7 more years–or locking him up at all for his action–is unfair, cruel and inhumane. But you could argue the same for most of the people we lock up, not only for statutory rape crimes, but also the long terms for drug crimes. Are you really contending that all of these defendants should be able to use an 8th Amendment claim? Or is it just those teenagers who have been convicted of sex crimes?

    As a former public defender, I am highly sympathetic to the inhumanity of our prisons. Our methods of incarcerating and controlling young men is deeply problematic. But I’m nervous about using 8th Amendment claims to remedy these societal issues. Not so much because “death is different,” but because I sense that 8th Amendment jurisprudence can only go so far before we make it a meaningless standard.

    As a broader issue, must we always fall back to the Bill of Rights to remedy unfair sentencing? How about some legislative action? What I find unbelievable here is that the Georgia Legislature refused to make the new, milder law retroactive. If states are supposed to be the laboratories of invention, then it’s high time the state legislatures stepped up to the plate.

  5. You raise good questions, but you also might beg one question by characterizing the Eighth Amendment as a “battering ram.” It’s a battering ram only because courts have refused to apply it except in narrow circumstances (usually, capital punishment). Other constitutional provisions that actually get enforced somewhat more regularly — like the Fourth and Fifth Amendments — seem less like battering rams.

    As for constitutional vs. extra-constitutional efforts at reform, must it be one or the other? I agree that extra-constitutional reform is critically important. But when state legislatures do fail to “step to the plate,” it seems appropriate to seek judicial enforcement of the Eighth Amendment.

  6. Laura says:


    You’re right, the Eighth Amendment is a battering ram precisely because courts have been so reluctant to use it outside of capital punishment. But I see the Wilson case as an exception to that, not a sign of a new judicial willingness to accept 8th A. doctrine in the prison context. Courts just do not seem terribly concerned about what goes on in prisons, whether it’s the length of sentences or conditions inside.

    Re: constitutional v. extra-constitutional reform, in theory I agree: sure, I’d love to see both working in tandem. But my sense is that we too often neglect the need for legislatures to do the work, and invariably rely on the courts. Considering how reluctant most courts are to apply 8th A. doctrine to anything but death, it’s a lose-lose situation–neither the courts or the legislature takes the initiative, and prisoners suffer.

  7. Gideon says:


    I think I agree with you (having very little knowledge of 8th amendment jurisprudence) that while the correct result was achieved, it was done so in the least efficient manner.

    Were I an inmate (or a criminal defense attorney) in Georgia, my eyes would light up at this decision. After all, one could start arguing that several other crimes are not worthy of the punishments meted out – the three strikes laws, perhaps.

  8. disgusted says:

    I’m glad to see that the discussion has moved on, but I should apologize for the comment anyway.

  9. Truth Hurts says:

    Laura writes: “in theory I agree: sure, I’d love to see both working in tandem. But my sense is that we too often neglect the need for legislatures to do the work, and invariably rely on the courts.”

    It is odd for Laura to be using the Wilson point to make this complaint. In Wilson, the Court relied heavily on the legislative changes to determine that there was a proportionality problem. This was a case in which the legislature did some work, and the Court and the legislature worked “in tandem,” not just “in theory,” but “in practice.”

    This brings up the question: what is this complaint about? You say “we” “too often neglect the need for legislatures to do the work” and “invariably rely on the courts.” Who is this we – a vaguely defined group – that “invariably” rely on the courts and neglect the legislature? This group does not exist, and the complaint has no basis.

    This comment was deleted once before.

  10. Delete Happy says:

    So were the comments bemoaning the irelevant mention of the defendant’s race and the risible suggestion that “controlling young males” is a legitimate governmental interest.

  11. No one is exempt from the law and the law does not discriminate based on age. Yet, young people are often misguided into believing that they can get by without getting caught. In fact, recent studies, concerning the ethical attitudes of youth, indicates that the majority of young people would make unethical choices if they felt they could “get ahead” as a result. Success at all costs seems to be a common theme.

    As former inmate from Federal prison, today I share with business executives and young people that simple message: Every choice has a consequence.

    I am pleased beyond belief that Genarlow is now getting the taste of freedom again. Genarlow’s plight, has helped other young people evaluate the power of their seemingly simple choices. As the founder of the Choices Foundation, perhaps Genarlow would consider stepping up and helping others understand the power of choice.

    After all…Every Choice has a Consequence.