Tuesday, December 19, 2006

Where Race Comes In

The Genarlow Wilson case has been making the rounds in the blogosphere as an example of a breakdown of justice. For those of you who don't know, Wilson, a 17-year old boy with good grades and no prior police record, was convicted of aggravated child molestation for receiving consensual oral sex from a 15-year old girl. He received a mandatory 10-year prison sentence, plus lifetime registration as a sexual predator. A frustrated Georgia Supreme Court upheld the ruling, finding no legal reason why the sentence could be overturned.

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.


David said...

IANAL, but summary judgement is generally issued when there is no disagreement about facts, and those facts clearly require a decision toward one party.

An example would be if I said "I like the colour of your shirt" to a female coworker, and she described that behavior as sexual harassment. It does not meet the legal definition, and therefore summary judgement would be issued.

Also, child molestation is by definition not one where a victim can decline to prosecute: a person who is under the age of consent cannot consent, and therefore, the state must make a determination about what is in his/her best interest.

Whether or not the outcome is just is another matter, and I don't know the facts of the case to evaluate that. I do know that race should never be an issue in determining whether a crime was committed.

David Schraub said...

Well, someone under the age of consent can't consent, but they still can request that the case not be tried. Which the prosecutor can listen or not listen to--in this case, though, it seems that the "victim's" request that the case not be tried is one that should have been honored and makes it difficult for him to claim the mantle of a defender of the victim.

As to the summary judgment issue, I think that is exactly what happened: whatever the women said he did, did not rise to the level of legally punishable sexual harassment. That doesn't mean it wasn't crass, crude, or otherwise something we'd label him "bad person" for. There is a significant amount of space between what might popularly be considered to be sexually harassing, and what meets the legal bar. My guess is whatever he did was not pervasive enough to have created a "hostile work environment."

PatHMV said...

David, the flaw in your argument here is that the 17 year old black woman DID want Wilson and the other boys prosecuted. The allegation she made was that she was raped, that the boys got her drunk and took advantage of her when she was too intoxicated to consent. NOT a "victimless" crime.

As I've said elsewhere in the Volokh threads, I disagree with the prosecutor's handling of this case, but I do not see evidence of racial animus. For this to be racial, you'd have to assert that, faced with a white defendant and a white 17 year old claiming rape, and a clear technical violation of the law with the 15 year old on tape, the prosecutor would not have behaved as he did. I've seen plenty of white prosecutors prosecute white young men for having sex with underage white girls.

PatHMV said...

Also, sentencing is done by judges, not DAs. If the judge wants to give someone a light sentence, there's little the DA can do to stop them. In the Wilson case, there was a mandatory sentence based on the crime charged. To establish racial bias, you'd have to show that the prosecutor had other cases involving identical conduct but with white defendants, where the DA chose not to file charges under the specific "oral sex with a minor" law.

One of your examples deals with fondling. If that's all that happened, then the DA could not have charged the harsh mandatory minimum statute. It's not an instance of the DA failing to take a tough stance on the crime. The other case you cite as an example didn't even have sex occur. There's no way that crime is going to be punished as severely as a crime which actually did occur. And again, under the facts of that case, there was no way for the DA to charge the person with breaking the law which carries the mandatory minimum sentence used in the Wilson case.

You've shown no evidence at all of any actions under the control of the District Attorney which would support your charge that he had a racial motivation in this case.

David Schraub said...

On the issue of "who wanted prosecution," I think I've found the source of confusion. There are two women who are "victims", in this case. "Michelle" was the one that they had intercourse with--but under the relevant statute they were charged under that's only a misdeamanor--it's not what got them 10 years. Since there hasn't been much reporting on that aspect of the case, I venture no opinion to it.

The 10 year sentence was on the sodomy charge--the victim there, "Tracy," did not want them to be charged.

As to the role of the DA, the DA knows that certain crimes carry certain punishment, and he can indict or drop charges accordingly. Knowing that charging Mr. Wilson with this particular crime would carry a 10-year mandatory minimum, the DA should not have charged him with that crime. With the rates of teen oral sex going on in this country compared to the amount of times it is actually prosecuted (almost never, I'd say), any prosecution is going to be capricious virtually on face.

PatHMV said...

I agree that the D.A. should not have filed charges. I made that point in the first Volokh thread on the subject. But that has nothing to do with whether his actions were motivated by race. I see absolutely no evidence that they were. None of the examples you cite are on point at all.

Anonymous said...

David Schraub,

You're ignoring that there's a reason we have mandatory arrest and prosecution crimes -- because these tend to be ones where the victim will back out otherwise. If the norm in a community becomes that someone whose victim doesn't press charges won't be prosecuted, that only increases the pressure on the victim not to be the girl who screws up this guy's life. Mandatory arrests and prosecutions have a host of problems, and they may be paternalistic and disempowering of victims, but they exist for a reason. I agree about pure drug crimes (i.e. offenses that don't involve any other crime like robbery or assault), but I'm *very* leery of saying that the state should be any more careful of prosecuting minority men for their crimes against women in their community than they are of prosecuting white men for crimes against white women.

Anonymous said...

"Also, child molestation is by definition not one where a victim can decline to prosecute: a person who is under the age of consent cannot consent, and therefore, the state must make a determination about what is in his/her best interest."

As a matter of fact, the "victim" can consent; as a matter of law she cannot legally consent. The only victim is Genarlow and he is a victim of the prosecutor's racism and the legislature's poor judgement in crafting the law. To say two children, approximately equal in age, having consentual sex should be a crime is just stupid (note: the poster above was wrong when he said that the victim was drunk - it was the other victim whose complaint was tossed out of court who was drunk). Yes, we don't want children having sex with each other - because it harms them - to make it illegal just harms them further.

I'm glad I live in Canada; virtually all of our truly violent criminals stay in jail for less time than Genarlow and our country is safer (seems counter-intuitive but minimum sentences for non-violent offences lead to more violence by sending non-violent people into the violent environment of jail).

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