Genarlow Wilson and the 8th Amendment
posted by Laura Appleman
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?