One of the interesting wrinkles of the case is that Wilson is Black, while the DA and prosecutor were White. And so sentencing law guru Douglas Berman asks: If Wilson was White, would this case ever had gone to trial?
Eugene Volokh tries to deflect the question:
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.
Before I proceed to rip into Professor Volokh, it's important to note that he, along with every other sane-minded individual, thinks that the decision is far too harsh to be justifiable.
However, in terms of dismissing the racial angle as idle speculation, he is far too quick. As Publius notes, this problem is one of prosecutorial discretion. Prosecutorial discretion is a good thing: It would be bad if prosecutors were mandated to try cases like this. But it doesn't do anyone any good when it isn't used--and certainly when it isn't used evenhandedly. Race becomes a factor when there seems to be a split between how Black and White defendants who have committed similar crimes are treated. I agree entirely that since most crime is intraracial, refusing to prosecute Black defendants can be seen as being insufficiently committed to Black victims. This is Volokh's argument, as well as the DA's, since the 15-year old girl in this situation was Black as well. However, I think the argument is inapplicable in two cases: Victimless crimes (such as drug possession), and crimes where the purported victim does not wish to prosecute. The former case strikes me as a situation where this abuse of discretion occurs endemically--Black users getting sentenced to draconian prison terms for simple possession (even as first offenders), while White (especially upper-class White) defendants get treatment after treatment option. In the latter scenario (of which this case is closer), it is difficult to see how the DA is protecting Black victims when they themselves don't want to see the case go to trial. I won't say that is true in every case (one can imagine a victim intimidated into pressing for a case to be dropped), but in the proximate situation it has been made abundantly clear that the "victim" in this case did not want this case prosecuted for entirely legitimate reasons.
The point is, to my ears the DAs claim that he's simply protecting Black victims rings quite hollow. Racial angle aside, cases like this arise, in my opinion, when prosecutors cease seeing their job as being the pursuit of justice and begin seeing it as the pursuit of convictions. Citing "Office Policy", the DA refused to ask that Wilson receive "first offender" status, despite the fact that he had no prior criminal record. The judge agreed, reportedly, because the other five defendants did have criminal records(!?!?). In a system where prosecutors have discretion, we have an obligation to be vigilant in ascertaining that this discretion is not abused to benefit certain classes of person at the expense of others. It appears that this is a problem in the jurisdiction in question:
But there are also other cases of adults--white adults--prosecuted by the Douglas County District Attorney's office for sex crimes involving minors and received far lighter sentences than any of the teens in the Douglasville Six case.
Case in point: Jack Stewart, a 24-year-old volunteer coach at Heirway Christian Academy in Douglas County, who received 30 days in jail and 10 years probation for fondling the 15-year-old daughter of a couple whose house he was living at temporarily. McDade notes that he objected in court to the "inappropriately light" sentence.
In the case of 26-year-old George Tsimpides, First Offender status was extended in a sex crime. Tsimpides received 20 days in jail after he pleaded guilty to luring a 15-year-old girl he'd met on the Internet to Arbor Place Mall with the intention of engaging in sex with her. McDade says he publicly objected to that sentence.
The D.A. himself has not been immune to sexual misconduct charges. In 1995, two female employees who worked in his office claimed McDade sexually harassed them, creating a "hostile work environment." The charges were later dismissed. McDade insists they are irrelevant. "According to the summary judgment, I won completely and they lost completely," he says.
These cases, according to the Douglas County chapter of the NAACP, point to a pattern of discrimination. The civil rights organization, which has led rallies in support of the Douglasville Six, contends that if the young men involved were white the charges would have been dismissed. "The D.A.'s office is caught up in that good ol' boy syndrome, misapplying a law that was never meant for teenagers," says chapter president Kimberly Alexander.
(Unless I'm deeply mistaken, just because McDade won on summary judgment does not mean he didn't harass female employees, it just means that the manner in which he did it does not have a legal remedy. Any lawyer out there want to confirm?).
At the very least, what we have here is a breakdown in the justice system, where it ceases to be "just" and becomes a mere conviction machine. Georgia has a problem if it cannot tell the difference between two teenagers, two years apart, engaging in oral sex, and child molestation (the law has since been changed, but the state explicitly (and inexplicably) refused to make it retroactive). This is a case that begs for executive clemency. This man should not be in prison.
By the way, here are the stats on teen oral sex rates.