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Race and the Wilson Case:

Lawprof Doug Berman (Sentencing Law & Policy) asks: "Had Wilson been white, would he even had been charged with this offense, let alone sentenced to 10 years imprisonment?" "Had Wilson been white, would the Georgia legislature have made its subsequent change in the law retroactive to give Wilson the more sensible justice all others will now receive?"

One can always speculate this way; but it's not clear to me why this is a sensible speculation. The girls with whom Wilson had sex — the alleged rape victim, and the 15-year-old whom the oral sodomy age-of-consent is supposed to be protecting — are black, too. (See this story.) As the article paraphrases the prosecutor's view, "Had he not pursued charges against the boys, his critics could have just as easily chastised him for failing to protect the rights of the two black females. 'I'm standing up for African-American victims in this case, as I would for any white victim,' says [the prosecutor] .... 'Calling me a racist denigrates the people who are victims in this case.'"

Harvard lawprof Randy Kennedy had made this point in other contexts as well — since most crime is intraracial, seeing prosecutors or police being tough on black criminals (and the defendant in this case did indeed commit a crime) may simply mean that they're trying to protect black victims. Conversely, an environment in which prosecutors are afraid to take a hard line against black criminals because of the fear of being assumed to be racist is an environment that's not good for law-abiding blacks.

So I see little reason to assume that there's much of a racial dimension here. I continue to think the law is too harsh, and unreasonably so in its different treatment of post-2006 behavior vs. pre-2006 behavior and of oral sex vs. genital sex. But while one can always speculate about alleged prosecutor racial bias, I don't see much grounds for anything but speculation here.

Porkchop (mail):

since most crime is interracial, seeing prosecutors or police being tough on black criminals (and the defendant in this case did indeed commit a crime) may simply mean that they're trying to protect black victims.

I think you mean "intraracial," don't you?
12.19.2006 12:34pm
Eugene Volokh (www):
Ow! Mistyped two letters, and got it 100% backwards. Correcting, thanks.
12.19.2006 1:12pm
Justin (mail):
Randy Kennedy's point is less appropriate here, where the damage done to the "victim," and any possible future deterrence, are both minimal, and the penalty to the black defendant is severe.

I think in any event, you are too quick to dismiss the racism angle. I think the defense here, the desire to leverage the Defendant with a morally unmerited charge (in the view of the prosecutor) to secure a conviction of a morally merited charge is, in my view, prosecutorial misconduct, and that leads to the question of whether the prosecutor would have taken a more severe stance. And, though the prosecutor defends the disparity as beyond his control, others have shown that defendants of sexual crimes under this prosecutor who are black have ultimately fared far worse than defendants who are white, even when the white defendants' conduct appears far more morally reprehensible.
12.19.2006 1:42pm
publius (mail) (www):
The Atlanta magazine article, though, makes the point that several white defendants subject to this law did not get treated similarly.

And, of course, the related Marcus Dixon case is clearly about race.
12.19.2006 1:44pm
Eugene Volokh (www):
Justin: Did the prosecutor really say that the statutory rape charge was "morally unmerited"? Perhaps I missed it -- if you could point me to that, I'd love to see it.

Publius: The Dixon case, as I understand it, involved an 18-year-old black defendant and a 15-year-old white victim -- he got the same sentence initially that Wilson (black-black) did, but had it reduced by the Georgia Supreme Court to a misdemeanor (he served 15 months). If we're comparing race, this suggests that sex crimes against black girls are taken more seriously than sex crimes against white girls. Of course, the more plausible explanation isn't to focus on race, but rather (as the story points out) to the fact that the Dixon case involved genital sex and the Wilson case oral sex, and Georgia law treats those two practices differently. But that just further shows that the Dixon comparison doesn't really support the "if Wilson were white, he wouldn't have been charged as severely" theory.

Finally, the Atlanta magazine article does point to several white defendants who were treated differently. But it also points out that there were substantial differences with some of the cases. One, for instance, involved sex between a 27-year-old teacher and a 17-year-old student; 17 is above the age of consent, so I take it this involved some special statute related to teacher-student sex. Another involved fondling, a less serious crime under Georgia law. And the article also points out that McDade asserts (apparently without any contradiction from anyone else) that he had pushed for tougher sentences in all the cases.
12.19.2006 2:37pm
publius (mail) (www):
Respectfully, I think you're stretching to push race out of the picture. Of course, as you imply, no one knows these things for sure so it's a matter of aggregating data points.

First, the issue in Dixon isn't what the GA supreme court did after a public outcry, but the initial exercise of prosecutorial discretion (not to mention the 'victim's' initial accusations, which were motivated by a fear of her racist father). So the whole "violence against black girls is taken more seriously in GA" point doesn't really hold water here.

Second, the most damning thing in the Atlanta article is the application of First Offender status to the 26-year white guy luring the 15-year old, but not to Wilson. Later in the article, McDade says he doesn't believe in First Offender protections for sex crimes.

Third, it's not clear that McDade "pushed" for anything. He said something on the record post-sentence, but that doesn't prove all that much.

Finally, it's Georgia. I'm from the South and race is different there. "Racism" is a poor linguistic label for the current state of race relations, but it's incredibly relevant. If you doubt it, just check the relevant white/black party vote in 2004 in the Deep South states.
12.19.2006 3:37pm
just lurking:


Finally, it's Georgia. I'm from the South and race is different there. "Racism" is a poor linguistic label for the current state of race relations, but it's incredibly relevant. If you doubt it, just check the relevant white/black party vote in 2004 in the Deep South states.



That makes little sense, logically. First, the white/black vote disparity is somewhat uniform across the country, meaning that if vote disparity is indicative of racism, then racism is no worse in the south than anywhere else. Second, if vote disparity implies "racism," then we might expect both significant discrimination along other groups divided by politics. While this occurs, it certainly is not the strongest variable in vote choice.
12.19.2006 3:54pm
just lurking:


Finally, it's Georgia. I'm from the South and race is different there. "Racism" is a poor linguistic label for the current state of race relations, but it's incredibly relevant. If you doubt it, just check the relevant white/black party vote in 2004 in the Deep South states.



That makes little sense, logically. First, the white/black vote disparity is somewhat uniform across the country, meaning that if vote disparity is indicative of racism, then racism is no worse in the south than anywhere else. Second, if vote disparity implies "racism," then we might expect both significant discrimination along other groups divided by politics. While this occurs, it certainly is not the strongest variable in vote choice.
12.19.2006 3:54pm
just lurking:


Finally, it's Georgia. I'm from the South and race is different there. "Racism" is a poor linguistic label for the current state of race relations, but it's incredibly relevant. If you doubt it, just check the relevant white/black party vote in 2004 in the Deep South states.



That makes little sense, logically. First, the white/black vote disparity is somewhat uniform across the country, meaning that if vote disparity is indicative of racism, then racism is no worse in the south than anywhere else. Second, if vote disparity implies "racism," then we might expect both significant discrimination along other groups divided by politics. While this occurs, it certainly is not the strongest variable in vote choice.
12.19.2006 3:55pm
Eugene Volokh (www):
Publius: As I noted, "If we're comparing race, [the comparison of the Dixon case and the Wilson case] suggests that sex crimes against black girls are taken more seriously than sex crimes against white girls. Of course, the more plausible explanation isn't to focus on race, but rather (as the story points out) to the fact that the Dixon case involved genital sex and the Wilson case oral sex, and Georgia law treats those two practices differently. But that just further shows that the Dixon comparison doesn't really support the 'if Wilson were white, he wouldn't have been charged as severely' theory." You brought up the Dixon case, but it is no evidence at all for the proposition that if Wilson were white, he wouldn't have been charged as severely.

As to the 26-year-old getting First Offender status in a case involving the attempt to lure a 15-year-old girl into sex, my understanding is that in Georgia this decision is in the hands of the judge; the prosecutor can argue about this, but can't make the decision himself. Is there some evidence that, though "McDade says he doesn't believe in First Offender protections for sex crimes" now (indeed, that's what he says), he did back First Offender protections for the sex criminal in that case?
12.19.2006 4:48pm
Justin (mail):
EV, I don't think I inteded to quote him. His actual quote was this:

"Do I believe that [in] Genarlow Wilson's case justice would have been served if he accepted a lesser plea? Sure I do. I wish he had of. Sure I do."

I interpret that to read that the prosecutor didn't believe that justice merited the conviction, but that the threat was neccesary to secure a plea. My conclusion then logically follows.
12.19.2006 5:43pm
LAS (mail):
"But while one can always speculate about alleged prosecutor racial bias, I don't see much grounds for anything but speculation here."

Yes. You are very correct Professor.

But here's another way of looking at it. When your experience is as some, it's emotionally very difficult to separate the race dimension and stand alone with the law is too harsh and unreasonable dimension. You have the legal perspective; acceptable/respectable.

I live with all types of decisions that often leave me scratching my head, where some folks would not think twice about subtle racial bias. It's not their history, their experience.

I will always speculate about a decision that on its face appears racially biased, when it involves a black person and especially when the bias is oh so subtle, so un-discoverable. What prosecutor in this day and age is gonna admit that race played a part in their decision to prosecute. What judge will admit that race played a part in sentencing, especially if the sentence could have been reduced? Ya see, one person's speculation is another person's reality. It just depends and it's sad.

Thanks for bringing this discussion. At least there could be fulfillment in the end, should the too harsh and unreasonable sentence perspective prevail.
12.19.2006 5:59pm
Eugene Volokh (www):
Justin: That doesn't seem to be an assertion that the statutory rape charge was "morally unmerited."

The charge, it seems to me, is morally merited if you think the defendant committed the charged crime, and the charged crime morally should be a crime.

I take it that you're arguing that the sentence was morally unmerited (despite your reference to the "charge" and to the "conviction"). But the prosecutor hardly conceded that. He simply said that the plea-bargain term would have been morally appropriate, and that he preferred it -- not that the 10-year term was morally unmerited. One could certainly think that both the longer term and the shorter term are not morally unmerited, but that the shorter one is the better one (for instance, if one prefers the shorter term out of mercy but thinks the longer term isn't incompatible with justice).

Finally, even if the prosecutor thought the 10-year-term was unjust -- which I stress he never expressed as his view -- a prosecutor is often in a bind: He can charge a more serious crime that he thinks carries slightly too heavy a sentence, or a less serious crime that he thinks much too light a sentence (or perhaps no crime at all, which would therefore mean no sentence). If that's so, I don't think one can condemn the prosecutor for choosing even an option that he thinks is too harsh.

As I noted earlier, it may well be that the prosecutor should have behaved much more leniently here. But I think it's a mistake to argue that in this case, there was a "desire to leverage the Defendant with a morally unmerited charge (in the view of the prosecutor) to secure a conviction of a morally merited charge," that there was "prosecutorial misconduct," or that there was a racist decision on the prosecutor's part.
12.19.2006 6:07pm
elChato (mail):
If you were a rational DA, and you had a rape case against a guy, AND a second sex crime from the same night that was consensual but clearly provable (i.e. a confession), why wouldn't you charge the guy with both of them?

It simply makes sense to charge someone you believe to be a rapist with an additional, undisputed crime you know will get him at least 10 years, even if he beats the rape charge (acquaintance rape cases are notoriously difficult to win).

We all know he was acquitted of the rape. Unless you know the evidence, you can only speculate how strong the case against him was for that. What indication was there the alleged victim was lying? Was there really nothing to support a charge against him?

People pulling out the race trump-card here are short-circuiting the facts, lest they become inconvenient.
12.19.2006 7:16pm
Mark Field (mail):

People pulling out the race trump-card here are short-circuiting the facts, lest they become inconvenient.


They may be wrong, but the historical record in Georgia DOES create a reasonable basis for questions and even suspicion.
12.19.2006 9:55pm
Justin (mail):
Professor Volokh,

I respectfully disagree.

Without rehashing all the other arguments, which I've already made and think stand against your response, you should also remember this is a prosecutor who thinks the crime this person is guilty of is rape, not oral sex. Also, my point here (and before) was clearly not that the prosecutor didn't think that the person committed the factual underpinnings of the statutory crime (which everyone admits), but that it wasn't of some sufficiently high level of culpability.
12.19.2006 10:10pm
Justin (mail):
elChato, a prosecutor isn't supposed to use the threat of higher sanction to forego his right to trial. For instance, it would be in my view completely immoral to convince someone to plead guilty to a crime he maintains his innocence, by threatening to file charges against a loved one (whether those charges are merited or not). Once one admits that there is room for "prosecutorial discretion," one cannot excuse MORALLY all choices to not apply that discretion on the simple fact that he had the LEGAL right to.
12.19.2006 10:15pm
Eugene Volokh (www):
Justin: I'm puzzled -- you start out by saying that the prosecutor thought the defendant was guilty of rape and "not oral sex" (emphasis is mine). Then you say that the prosecutor did think that the defendant was guilty of statutory oral sodomy, but it "wasn't of some sufficiently high level of culpability." Which is it?

And even if it's the latter, why is it "prosecutorial misconduct" for a prosecutor to charge the crime that he knows for sure occurred as well as the one he thinks occurred, even if he believes that the statutory penalty for the crime that occurred is too severe? (It's far from clear to me, incidentally, that he thinks the statutory penalty for that crime is unjustly severe, though he does seem to think it's more severe than what he'd impose had he had a free hand.)
12.19.2006 11:03pm
elChato (mail):
EV answers for me better than I could have for myself.

I can only add, that when you suggest it's immoral to tack on clearly meritorious charges in cases where one believes the defendant is also guilty of a charge where guilt is contested, what reference-frame of "morality" are you applying here, and do you have reason to think it is universally shared? Since so many have suggested this is "unethical," is there some rule of ethics that requires prosecutors to file only the weakest possible charges?
12.19.2006 11:18pm
Justin (mail):
You're using the word "guilty" in a couple of different ways. I'll make the assumption that you're confused as to my point rather than misrepresenting it. So I'll start over. Without using the word guilty.

The prosecutor believed that the facts were so that he had committed the facts that, if proved, would make one legally culpable for the crime of rape. He also believes that of the crime of oral sex.

The prosecutor believed that, if the facts for the first was proved, he deserved to go to jail for some period of time, though not ten years. The prosecutor did not seem to believe the person deserved any significant period of jail time if the facts for the first was *not* proved.

The prosecutor added the seccond charge to avoid having to prove the first charge. He did not add the second charge because he believed the person deserved to be charged with the second charge as an independant theory. If the prosecutor somehow could have been convinced HIMSELF what the JURORS seemed to believe, that he was not guilty of the rape, then I think the prosecutor would have dropped the second charge entirely.

This is how I interpret his statements, and other charactarizations in ABC News, the New York Times, and the Atlanta Journal Constitution. This is also prosecutorial misconduct, in my view, at least in a moral sense.
12.19.2006 11:33pm
RV:
I am still confused by your argument, Justin. The defendant here did have sex with a 15-year-old and that is statutory rape. I think the prosecutor and everyone else agrees with that. Now we may argue about whether the sentence is fair (i.e. whether there should be different sentences for different types of sex, whether there should be lesser punishment if the older partner is a also a minor, or whether consensual sex with a minor close in age to you is as severe as sex forced by physical force or drugs), and the prosecuotr may share some of those misgivings, but that doesn't mean that the prosecutor doesn't think he did the crime. There is a video of it, they can look at the girl's birth certificate to determine her age, where is there a question about this?
12.20.2006 10:24am
Justin (mail):
I've pretty much explained it as simply as possible. I won't respond to any more requests for clarification, particularly those that specifically seem grounded in legal positivism, when my argument is obviously normative.
12.20.2006 10:45am
Eugene Volokh (www):
Justin: You say, "The prosecutor did not seem to believe the person deserved any significant period of jail time [for the oral sex with the 15-year-old] if the facts for the first [the alleged rape of the 17-year-old] was *not* proved. The prosecutor added the second charge to avoid having to prove the first charge. He did not add the second charge because he believed the person deserved to be charged with the second charge as an independent theory."

I don't understand where you're getting the evidence for what you say about the prosecutor's belief. You've pointed to one quote, "Do I believe that [in] Genarlow Wilson's case justice would have been served if he accepted a lesser plea? Sure I do. I wish he had of. Sure I do." But this most certainly doesn't mean that the prosecutor thought Wilson didn't "deserve[] any significant period of jail time [for the oral sex with the 15-year-old]," or that Wilson didn't "deserve[] to be charged with the second charge as an independant theory." So what evidence of the prosecutor's supposed beliefs am I missing here?
12.20.2006 12:22pm
Justin (mail):
McDade says that he agrees that consensual teenage sex, including oral sex, does not necessarily warrant a decade-long prison sentence, but he insists there were no other options to consider in this case as long as that law remains on the books. He shrugs off his critics' assertions that he could have dropped the aggravated child molestation charges, insisting that there was no way for him to turn a blind eye to a crime that was clearly documented on videotape.

"We don't believe that a 10-year sentence is an appropriate punishment [in this case], but he made that decision to put himself in that predicament," explains McDade, of Genarlow's refusal to cop a plea. "He has decided to become a martyr because people have been whispering in his ear, 'We'll make you famous like Marcus Dixon.'"

Now, I can't seem to find a discussion(though I thought I had read earlier), that McDade has not prosecuted under the act before despite opportunities to do so. But let's be honest and take two things into consideration: If McDade, working under the assumption that the sex was nonconsensual, did not believe Wilson deserved 10 years, do you think he really believed the difference was immaterial? Next, if McDade really believed that Wilson should be morally culpable of a crime that he (1) probably didn't know was on the books at the time of the crime, and (2) that the Georgia Legislature decriminalized into a misdemeanor, then his actions are independantly abhorrant - perhaps more so.
12.20.2006 2:21pm
John M. Perkins (mail):

"Had Wilson been white, would the Georgia legislature have made its subsequent change in the law retroactive to give Wilson the more sensible justice all others will now receive?"


Article I, Section I, Paragraph X of the Georgia Constitution prohibits retroactive laws.
12.20.2006 4:32pm
Eugene Volokh (www):
Justin: How does that quote support the notion that "The prosecutor did not seem to believe the person deserved any significant period of jail time [for the oral sex with the 15-year-old]"? He didn't think 10 years was appropriate, but what makes you think that he thought Wilson didn't "deserve[] any significant period of jail time"?

You also write that "if McDade really believed that Wilson should be morally culpable of a crime that he (1) probably didn't know was on the books at the time of the crime, and (2) that the Georgia Legislature decriminalized into a misdemeanor, then his actions are independantly abhorrant - perhaps more so."

(1) My sense is that prosecutors aren't terribly moved by the "I didn't know this was a crime" argument, just as the law is rarely moved by it; and this is especially so when the conduct, having sex with a 15-year-old, is the sort of thing that many people would assume is pretty dicey.

(2) Remember that the Georgia Legislature downgraded the conduct to a misdemeanor (not "decriminalized" it) after the Wilson trial. It's hard to see how the prosecutor's actions can be "abhorrent" for failing to anticipate the legislature's decriminalization.
12.20.2006 7:25pm