21-year-old Genarlow Wilson was released from a Georgia prison last Friday, after spending two years behind bars. He had originally been sentenced as a sex offender to 10 years in prison. What was his felony? During a party, at the age of 17, he had practised oral sex with a 15-year-old girl. Since the girl was below the age for consensual sex, his act came under a law that required a mandatory 10 year sentence without the possibility of parole; a law that is designed for sexual predators who abuse small children. Wilson was convicted of “aggravated child molestation”.
So far, this is simply a story about a bizarre piece of legislation. What makes it interesting, however, is the fact that the law under which Wilson was sentenced is not even in force. Because the case had attracted widespread attention, the Georgia legislature had come to realize that it was grotesque to equate consensual sex between teenagers with child molestation. And so the laws were changed. An action such as Wilson’s now came under the heading of a misdemeanour, punishable by a lighter sentence. However, the legislature decided that the new law was not to be applied retroactively. So after all Wilson’s sentence was upheld.
It was, however, finally lifted because it was considered to constitute “cruel and unusual punishment”, and thus prohibited by the U.S. constitution.
I had always believed that the principle excluding retroactive punishment applied asymmetrically. You cannot be punished for an action that was not prohibited by law when it was committed. The idea, I thought, was that if even the legislators had not thought to penalize an action, one could not expect citizens to understand that the action was not permissible. On the other hand, I thought, if an action was punishable under a certain heading at the time it was committed, but the law was later abolished, one could no longer be sentenced under the earlier law, and the sentences of those currently in prison would be lifted. The idea, it seemed, was that once it is decided that it is cruel or pointless to impose a punishment for a certain type of action, then that should apply equally to actions performed while the law was still on the books.
I had assumed that the authority of the penal code ultimately derives from its making sense as an expression of the shared concerns of the members of a community. However, if it is held that actions can be punished in accordance with a law that is no longer in force, that means that one has abandoned this view of the law. The legal system is then regarded as a power game, in which the basis of obedience is nothing but the citizens’ fear of the naked force of the state.
(Quiz: try to guess Mr. Wilson’s skin colour.)