Justice in Georgia, finally

Free at last, free at last, thank God Almighty, he is free at last:

The Georgia Supreme Court on Friday ordered the release of Genarlow Wilson, the Douglas County teenager who has been serving a controversial 10-year sentence for consensual oral sex.

The court's 4-3 decision upholds a Monroe County judge's ruling that the sentence constituted cruel and unusual punishment under both the Georgia and U.S. constitutions.

The majority opinion said the sentence appeared to be "grossly disproportionate" to the teenager's crime and noted that it was out of step with current law.

Wilson was convicted in 2005 of aggravated child molestation for having oral sex with a 15-year-old girl at a New Year's Eve party in a hotel room. He was 17 at the time.

At the time the law the crime carried a mandatory 10-year sentence with no parole. However, the law was changed in 2006 to make Wilson's crime a misdemeanor with a maximum 1-year sentence.

"Although society has a significant interest in protecting children from premature sexual activity, we must acknowledge that Wilson's crime does not rise to the level of culpability of adults who prey on children ..." wrote Supreme Court Justice Leah Ward Sears in the majority opinion.

She said that "for the law to punish Wilson as it would an adult, with the extraordinarily harsh punishment of 10 years in prison without the possibility of probation or parole, appears to be grossly disproportionate to his crime."

Justice George Carley, in the dissent, said the 2006 change in the law was specifically written so it would not be retroactive. The sentence is not cruel and unusual because "the General Assembly made the express decision that he cannot benefit from the subsequent legislative determination to reduce the sentence for commission of that crime from felony to misdemeanor status."

Carley said the majority opinion showed "unprecedented disregard" for the legislative intent of the law change and creates the potential for similar releases of "any and all defendants who were ever convicted of aggravated child molestation and sentenced" under circumstances similar to Wilson's.

I think the dissent has a point. I also don't care. Sometimes an injustice is so grave that it must be reversed even at the risk of setting problematic precedents. Yes, I know: "hard cases make for bad law." But this wasn't a hard case. It was an easy case, on its own merits, in terms of fundamental principles of justice. Only when considering its potential implications for other cases does it become remotely "hard." I say, let the courts and the legislature work out those implications in future cases. In this case, there was only one possible just result, and it was achieved, at long last, today. Finally, someone in the Georgia justice system should be able to sleep at night, and it's the four Supreme Court justices who reversed this abhorrent abuse of prosecutoral discretion. Good for them.

(Hat tip: JT. Previous posts here, here, here and, somewhat related, here.)

CAVEAT: I haven't actually read the opinion yet. Here it is.

Comments

[Patrick]

It's about frickin' time.

[Derek]

"In this case, there was only one possible just result, and it was achieved, at long last, today."

Brendan, I must say that you take the rule of law far too lightly. You think this is an easy case. The Georgia legislature prior to this case and the Georgia prosecutors during this case didn't think so.

If you think the penalties for statutory rape are "unjust," you have absolutely nothing to say except that, uh, you have a sense that something's wrong, with no line drawing. You're an individual legislator who's conceived of what "justice" ought to be. Great. But unfortunately for you, we live in a Western society governed by the principle of the rule of law, in which a legislature promulgates a law, the executive signs it and enforces it, and the judiciary acts according to it. The moment you break free of that rule of law in any circumstance, you need to draw principled lines and, frankly, you haven't done so. You've just parroted the line that it's "unjust."

In a natural law sense? In a personal morality sense? In some abstract system of fundamental rights? Tell me, please, why it's "unjust" for an individual to be punished according to the law, a law the legislature has considered, the executive signed and enforced, and the judiciary upheld. That law was on the books for decades. Legislators had opportunities to look at it. Citizens had opportunities to lobby regarding it. But once it's actually enfoced, and upheld, then we think that we can turn around and rip down those laws because, in our own minds, they don't comport with what a legislature ought to do.

Well, sorry. We live in a society governed by words of law written on a page. And if you want, we can return to 12th century England, where judges conceived of law out of whole cloth, and which, surprisingly, yielded far greater inequities than laws today.

So congrats. We've managed to achieve an individual, isolated case of "justice," in which some people's views of morality and punishment trumped what a duly-enacted law actually says.

[Brendan]

Derek, it is certainly not true that I "take the rule of law far too lightly." I take the rule of law very seriously. I simply reach a different conclusion in this instance than you do.

I have neither the time nor the inclination to get into a lengthy, detailed discussion of my personal definition of "justice" and the various other issues wrapped up in this case, especially as I'd just be covering ground that's been covered repeatedly, by myself and others, in the previous threads that I linked. Suffice to say, however, that: 1) I think your concerns about the importance of maintaining the rule of law and drawing principled lines are very important and well-articulated, and in 99% of cases, I would be on your side of the argument; 2) there are, however, a very small percentage of cases where I believe the application of the sort of strict constructionist principles you are articulating creates an injustice so grave that it is more important to correct the individual injustice that to uphold the abstract principle; 3) I think many liberal judges are far too quick to declare that such a circumstance exists, but that doesn't mean they never exist; 4) I believe it is highly problematic for a society to stray too far in EITHER direction: toward always always always enforcing the letter of the law, no matter how manifestly unjust when applied to the given situation, OR toward routinely disregarding what the law says to correct even trifling perceived injustices; 5) as much as I believe principled distinctions are important, I have come to believe from my study of ConLaw and other subjects that nobody, not even the strictest of strict constructionists, can avoid unprincipled judgment calls in all instances, and indeed it is a fool's errand to try and do so (in most instances, yes, but not all); 6) the decision in this case is fundamentally and unalterably correct as a matter of basic humanity and core justice, and I will maintain that basic fact to the ends of earth, no matter how much articulate argumentation to the contrary you throw at me.

[lovin]

Derek-
your belief in "duly-enacted laws" is also a personal view of morality. slavery was part of duly enacted laws.

[Becky]

Don't appeals judges occasionally write opinions that generally say that they aren't supposed to be used as a precedent but really only apply to one case?

[Derek]

lovin, first, slavery was part of duly-enacted laws, but legislatures (okay, partially aided by a war) repealed that law and amended the Constitution. The judiciary did not strike down those laws as contrary to "fundamental justice."

Second, even if it did so, there's a substantial body of natural law that makes the claim that man cannot own another man. Now, I'm not (yet) going to deny that some principles of justice, say, enacted from the natural law. That said, it's a far cry to go from a theory of natural law that dictates the inherent imago Dei of man in which no one can ever possess another as property, and a theory of "justice" (yet undefined) that finds a 10-year (not life) imprisonment (not lashings, not death) for statutory rape with a 15-year-old (not "consensual sex with a teenager") is so gravely unjust that the universe cannot sustain it.

[dcl]

Derek, you seem to have a somewhat warped perception of reality so I shall point this out again http://www.slate.com/id/2175730/entry/2175733/.

Brendan is attempting to deal with a pragmatic reality--in which case even though, on the strict facts, the prosecutor could bring and win on a specific set of charges (obviously, he did) it does not, ipso facto, mean that bring those charges actually serves to further the cause of justice and the rule of law. On a case by case basis things get a heck of a lot less black and white--as the legislature understood when they decided to change the law. It is also why police and prosecutors have a good deal of room to maneuver in deciding which charges to bring.

The basic reality is that two young people made decisions that the vast majority of adults feel is irresponsible AND at least a significant minority of young people make. It is a reality of our biology. That we get married much later than we use to as a species does not change the biological realities of what we are programed to want to do. If we were to prosecute all of these instances under the rules established by South Carolina prior to changing the law you would need to lock up quite a large percentage of high school students.

It is sort of the speed limit problem. A law needs to have some basis in reality or else it will be completely ignored. Once everyone is ignoring it it makes the laws enforcement arbitrary and capricious. That is a much much more serious threat to the rule of law than this case. At least in my opinion.

[Derek]

Hi dcl, my perception of reality doesn't track with Wu's, but I appreciate the attempt to inform me of my own ignorance.

Additionally, the reason we have a generally-applicable law rather than a case-by-case basis is so that folks can be aware of what's going on well in advance of their behavior and be put on notice rather than be subject to the whims of case-by-case analysis.

Finally, I don't think "two young people made decisions." I think there's ample evidence that the exploitation of younger girls at the expense of older boys, particularly in the coercive atmosphere of a high school where even a two-grade difference plays a radical role in pressure, wholly authenticates this law.

[dcl]

The purpose of the courts is to serve the cause of Justice in the individual case before them. They can do nothing but act on the side of justice in an individual case. They cannot pass laws, they cannot go out and enforce laws, they can take no positive action whatsoever. On the other hand they may take full advantage of decisions other courts have made in understanding what is just. Clearly they must also use the laws that demonstrate what the people of the country use to determine what the sovereign (in this case the people) feel to be in the cause of justice. And some times the individual law offends the sensibilities of a higher law be those Constitutional provisions or weather they violate the inherent rights of man (a concept also present within our Constitution as written into the ninth amendment and the privileges and immunities clause of the 14th amendment. Two provisions our most ardent strict constructionist like to ignore, and yet if they were truly strict in their adherence to what the framers of the Constitution wrote they would understand that the ninth amendment represents a bedrock principal of the manner in which our government is supposed to function so intrinsic to it's design that a large contingent of the framers thought stating it and the rest of the bill of rights to be superfluous because Congress would be to weak to abridge the Rights of Man. Clearly that contingent was wrong. All the framers didn't worry about abuses of the President because they had designed the office to be all but impotent--clearly they didn't anticipate the megalomaniacal tendency of 20th and 21st Century presidents. This entire parenthetical represents a totally different debate, but also a pet peeve of mine that Brendan broached when he brought up the frauds that call themselves strict constructionists.)

[Derek]

"So, you are about to do justice."

"No, I am going to administer the law."

[Angrier and Angrier]

I haven't been following this case, but the original charge and sentence were ridiculous. It's been a while since I was in high school, but it seems like 17-year-olds hit it with 15-year-olds all the time and nobody sees it as child molestation. Am I missing something here?

[dcl]

Derek, too bad given that Wu is describing reality and saying very little on the way things should be.

Yes promulgated laws are important, that does not negate the case by case necessity of the criminal or civil justice system. Saying what is and is not allowed is vital to a functional free society. However, the ultimate cause of the courts is justice, equal justice under the law, but justice none the less.

As to sex and power dynamics. There is no doubt there is an uneven power dynamic present in the relationship described. Does that mean we should also call it statutory rape when a administrative assistant goes down on their boss? There is an unfair power dynamic there also. In fact several of the attendant issue you describe exist in that relationship also. There are a lot more facts in reality then we can dream up when actually writing the law. Hence we have courts, whose job it is to serve the cause of justice.

[dcl]

and "administer the law" does you about as much good as a pile of horse shit in civil court. Your conception is wanting.

I commend you all to the unassailable wisdom espoused here:

http://www.brendanloy.com/wp/2007/06/free-genarlow-wilson-now.html#comment-487284

And here:

http://www.brendanloy.com/wp/2007/06/free-genarlow-wilson-now.html#comment-488252

"Does that mean we should also call it statutory rape when a administrative assistant goes down on their boss? "

If the administrative assistant is under the age of consent, Yes.

If not, then (assuming there's an adverse employment act associated with it), it's simply sexual harrassment under Title VII.

[dcl]

even if completely consensual?

[David K.]

Derek, if not slavery, then how about segregation which WAS legal until it was overturned by the court.

I could respect your argument more if you were saying "in this case the law was not too harsh and they should have upheld it", but instead clinging to "the law is the law and it must be upheld no matter what or else we are all doomed to live in a lawless anarchic society!!" (which may be admittedly an exageration of your point) strikes me as untenable.

The law is important, but the very reason that the courts were set up is the realization that the law is created by man, leading to the problem that it is for all intents and purposes impossible to create a law that is not potentially flawed and/or not capable of covering all possible permutations.

If we hold the law as paramount above all else we don't even need judges anymore because we can simply read the law and apply it word for word to each situation, throwing out things such as extenuating circumstances. We become nothing more than robots.

While I understand that criticism of decisiosn is important to act as a safegaurd against the courts going too far, I think there is also a common sense test that should be applied, and that fortunately the judges DID apply, as to whether the punishment fits the crime. I'm all for punishing people who break the rules, but it needs to be in proportion to their crime, and while i don't condone the young mans actions, I think they merit a slap on the wrist and a lesson in the dangers of sexual promiscuity not ten years in the slammer.

Yes, in both scenarios. The underage AA cannot consent by definition. The adult AA who consents due to the threat of adverse employment action has consented under duress.

If by "completely consensual" you mean to exclude the possibility of adverse employment action, well, I excluded that too, so I'm not sure what your point is, other than to once again fail miserably at trying to suggest that a) there is no difference between oral sex engaged in by two consenting adults and oral sex engaged in by an adult and a minor or by two minors, and/or b) that it is somehow illegitimate for the state to criminalize sexual activity marked by an "unfair power dynamic" in one circumstance, but not the other.

The state is under no obligation to criminalize ALL instances of a given evil EVERYWHERE; it has the authority to prioritze. Here, Georgia prioritized adults and children over bosses and secretaries, and that's a perfectly valid decision.

[Eugene Volokh By Proxy]

My sense of the matter: I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment. But the Supreme Court has said that such evaluation should take place, though with a great deal of deference to the legislature. And if there is to be such an evaluation, this would look like an excellent case for setting the sentence aside, for the reasons the majority mentions.

The Georgia Legislature has decided that consensual oral sex between 17- and 15-year-olds is not a very serious transgression. (It had decided the same about genital sex years before.) That has to be the implicit judgment behind making it a misdemeanor, and the nonretroactivity provision doesn’t undermine this implicit judgment. This judgment, coupled with the comparisons with other crimes and with the behavior of other jurisdictions — and the absence of statutory aggravating factors, such as the past convictions at issue in the California Three Strikes law, which the Court has upheld — provides strong and objective evidence in favor of the Georgia Supreme Court’s conclusion.

http://volokh.com/posts/1193415573.shtml

[Derek]

how about segregation which WAS legal until it was overturned by the court.

Actually, the court established segregation as constitutional, and then had to backtrack on its own statement. I think the 14th Amendment made segregation unconstitutional to begin with.

If we hold the law as paramount above all else we don't even need judges anymore because we can simply read the law and apply it word for word to each situation, throwing out things such as extenuating circumstances. We become nothing more than robots.

That's pretty much what I'm calling for. Mind you, words are sometimes ambiguous, and that's where judges have to figure out what they mean and how they fit together and whether the government has done a good job showing that the law applies. So in that sense, we still need judges. But I think "robots" is good 21st-century-speak for my view of Federalist 78.

I think they merit a slap on the wrist and a lesson in the dangers of sexual promiscuity not ten years in the slammer.

Good. Except that the Georgia legislature didn't think so, the Georgia prosecutors didn't think so, and the Georgia governor didn't think so. There are plenty of ways of changing that law or affecting enforcement of that law, other than judges usurping the rule of law for their own perceptions of "justice."

(Mind you, this is largely a charicature, because I don't think the Ga. Supreme Court mades its decision on abstract notions of "justice," but upon a pretty reasonable, though I think slightly incorrect, interpretation of "cruel and unusual." I'm merely engaging in the discussion of the rule of law.)

[David K.]

And the Georgia legislators and Georgia prosecuters and Georgia governor were wrong.

[dcl]

In the case outlined we are talking about two kids with a granted unfair power dynamic. Does that mean we should charge one of the kids with an adult crime simply because we can. Again, the question is justice. The law is there to help arrive at justice, but the law is not, in and of it self, an ends.

[USC 2L]

Ah, the rule of law. Curious that some people claim today's decision goes against the rule of law. Here is another law from the Constitution of the State of Georgia:

Paragraph XVII. Bail; fines; punishment; arrest, abuse of prisoners. Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted; nor shall any person be abused in being arrested, while under arrest, or in prison.

Does this law not warrant observance?

[Andrew]

I disagree with Brendan's statement that "Sometimes an injustice is so grave that it must be reversed even at the risk of setting problematic precedents." Brown v. Board of Education (relying on faulty social science to buttress the majority opinion), Griswold v. Connecticut (inventing a non-existent right of privacy), and Lawrence v. Texas (expanding that right of privacy at the expense of the Tenth Amendment) are prime examples of how SCOTUS has injured case law by reaching the "just" conclusion via rulings that set dangerous precedents that run contrary to our Founders' intentions of the Constitution. Even assuming the court reached the right outcome in all three cases, the underlying rationale set bad precedent that will take decades to undo (if ever).

However, in response to Brendan's argument in the third comment above, I strongly agree with points #5 and #6. Becky is correct in alluding to the occasional necessity of judges making a ruling that does not directly rest on precedent and shouldn't be taken as precedent -- I'd call this the principle of limited stare decisis. The principle of stare decisis in case law and according to the common law tradition should not be taken to the extreme such that every decision must be observed as precedent. However, courts would help themselves by specifically exempting their ruling from serving as future precedent (not that future judges can't ignore that and go ahead and use the opinions as precedent, but at least it makes the intentions of the original ruling clear at the outset).

I don't have time to thoroughly read the rest of the opinion, but my skimming of it suggests the court properly determined the punishment did not fit the crime -- that it was completely outside the range of appropriateness given the offense -- and was thus "cruel and unusual". The court was correct to note that the updated law reflected the legislature's proper judgment that the previous sentencing guidelines were unduly harsh.

[Derek]

First, I'd wholly reject a "limited stare decisis" opinion. What, a judge reaches a conclusion, but that conclusion is just for a once-in-a-lifetime shot, that has no future repercussions? What a dangerous idea.

Second, if we really want to discuss whether this rises to the level of "cruel and unusual," we can. But the discussions have focused on "unjust," "harsh," etc. That's a far cry from "cruel and unusual." Of course, not in California, where lack of a mattress is "cruel and unusual"....

[David K.]

You do realize that "harsh" and "cruel" are synonyms right?

[Brian Foster]

So, this decision isn't even twelve hours old, and already we can see the pernicious effects of this fuzzy, no-precedent, we-know-it-when-we-see-it, procedures-be-damned, let's-use-our-unprincipled-personal-preferences-to-do-"justice" form of law apparently endorsed by a number of denizens of brendanloy.com .

Guess where?

http://www.ajc.com/metro/content/metro/stories/2007/10/13/genarlowwilson_1014.html?cxntlid=inform

So, where's the "Free Joshua Widner" post?

Or is it only "fundamentally and unalterably correct as a matter of basic humanity and core justice" when ESPN, Jesse Jackson, and/or Slate champion the cause?

Dammit -- screwed up the punch line.

Or is it only "fundamentally and unalterably correct as a matter of basic humanity and core justice" to void a perfectly legal and valid conviction and sentence when ESPN, Jesse Jackson, and/or Slate champion the cause?

[David K.]

You did read the part Brian where it was an 18 year old and a 14 year old, not a 17 year old and a 15 year old right?

[Brian Foster]

Yes, of course I read it. Why should that matter?

[David K.]

It means its not the exact same situation thats why. For one thing 18 is an established seperation between child and adult, for another a four year difference is more significant than a two year one.

[Brian Foster]

Oh, so it's only harsh, unjust, cruel and unusual punishment when a 17-year-old gets 10 years for oral sex with a 15-year-old, but not when an 18-year-old has oral sex with a 14-year-old? How about a 17.5-year-old and a 15-year-old, would *that* be harsh, unjust, cruel and unusual? Etc. etc.

Oh wait -- you said it was the age difference, not the absolute ages. So, two year spread is okay, but not four year? How about three year? How about three and a half? When does it become harsh, unjust, cruel and unusual?

Oh wait -- you also said "18 is an established seperation [sic] between child and adult." Really? Who says? It wouldn't happen to be the same legislature that said 16 was the age of consent and previously said that anyone over the age of consent who has oral sex with someone under the age of consent faces a 10-year mandatory minimum, would it? Well, why would you reject their determinations about age of consent or what punishment is appropriate for this offense, but happily cling to their determination that someone age 18 is so much more mature and adult and powerful and responsible that his culpability is sufficient to justify the 10 years?

Oh wait -- back on that four years thing. Have you read the amendment that the Georgia legislature added to the statute precisely because of Wilson's case? Care to revise your assertion that a four year difference is more significant than a two year one in light of that reading?

If you -- any of you -- don't demand justice for Joshua Widner as loudly, unreservedly and inflexibly as you demanded it for Genarlow Wilson, you prove the point of all who point to today's decision as bad law, and you prove your utter disregard, if not outright contempt, for any concept of the rule of law that doesn't mesh exactly with your own personal views about how the world should be.

[Brian Foster]

PS --

Oh wait -- maybe you see 18 as an "established seperation [sic]" not because the Georgia legislature says so, but because it's just a commonly-held demarcation point in our society, even if it doesn't have the force of positive law. So? You're going to sit there and tell me that because society at large as attached significance to the fact that a person is 18, that you're going to let poor Joshua Widner wither away in prison for 10 years just for having sex with this 14-year-old girlfriend who he allegedly thought was 16? Obviously a guy who falls for the "I'm really 16" line can't be too smart or mature or responsible, so how do you explain the grave harsh cruel unusual injustice of punishing this young man so gravely harshly cruelly and unusually, simply because his birthday came a little earlier on the calendar? That's the very essence of rigid, strict constructionist, rules-based, robotic approach you and all these other people are complaining about!

It shocks the conscience.

[Brian Foster]

PPS --

And on top of all that, I reject your premise. It seems to me that it *is* the exact same thing. So he was a year older and she was a year younger, so what? They're still kids, they're still teenagers, they're still just having sex like they're biologically programmed to do, as dcl so eloquently noted. Why does Joshua Widner not "merit a slap on the wrist and a lesson in the dangers of sexual promiscuity"? Why does he merit "ten years in the slammer"? What makes Joshua Widner worthy of so many years behind bars and a lifetime on the sex registry, when all he did was stick his slightly older penis in a different and slightly younger orifice than Genarlow Wilson did? Where's the evil, where's the outrage, where's the moral turpitude in Widner's "crime"?

Free Joshua Widner! Because it's just common sense, and makes us feel good, and seems right in an inarticulable way that we won't bother to explain, defend or reexamine in the face of logical argument and reasoning!

Free Joshua Widner!

[David K.]

Brian I think its going to be impossible to have any sort of reasoned discussion with you given your ridiculous slippery slope arguments, but i'll give it the old college try.

First, lets go back to the original point I made which was the shocking and scary "there are differences between the two situations" *GASP*!!!

Did I SAY that Wildner should spend 10 years in prison? Let me check again, NOPE.

So take a couple deep breaths.

I also never said that because he was 18 we should absolutely positively treat it differently. But I do think the age difference, that he is granted additional rights does merit a different consideration. I also think the difference in age of four years rather than two makes an additional difference. I don't know about you but a 14 and 18 year old hooking up does yes in fact strike me as having a very measurable difference to a 15-17 year old. You claim that he thought she was 16, other than the fact that her parents told him she was 14 and to stay away and he still didn't? Sounds like Joshua Widner's actions were a lot more than just misbehaving at a party. Then you add to the fact that there was actual intercourse involved, yes you add all the seperate differences between the two cases, i'd say yes, an equal level of indignation is not exactly justified.

It might also make a difference that the legislature had not yet changed the law when Widner made his appeal, a change that the court took into consideration.

Do I think Widner deserves 10 years without parole for what he did? Probably not. Do i think he deserves the same level of leniency as Wilson? No I don't.

[Aaron]

If I understand correctly, the potentially troubling precedent set by this ruling is that, anytime an elected legislature reduces the prescribed punishment for a particular offense, continuing to incarcerate people who have committed that crime and who have been been in jail for longer than the maximum sentence allowed by the new guidelines is cruel and unusual. I'm neither a lawyer nor even a law student, but I think I have that about right. Someone can correct me if they think I don't.

But here's the thing: I don't view that precedent as troubling at all. On the contrary, I think it's exactly right. As Eugene Volokh says above, the change in sentencing guidelines implies that the elected legislature of Georgia no longer considers this particular law-violation to be a very serious crime, and refusing to make the change retroactive in no way undermines that implication.

It's worthwhile to consider an extreme hypothetical. Imagine a society in which abortion was treated just like premeditated murder, where women who had abortions were sent to prison for life. A minority of members of that society believe this to be an extraordinary injustice, but they are outnumbered. Over time, the society changes. Its religiosity wanes, its respect for women's autonomy grows, and eventually the minority becomes the majority. Abortion is decriminalized... but with a catch. The change isn't retroactive, and all women currently in jail for abortion must stay there, for life.

If this hypothetical society has a constitution, and that constitution includes a prohibition of cruel and unusual punishment, I don't see how my hypothetical scenario doesn't fit that description. I realize the hypothetical is unlikely, if only because people with such dramatically opposed moral views are unlikely to agree to submit to living under a single legal jurisdiction. (vanishingly few pro-lifers in America support sending women who have abortions to jail for life.) But I don't think there's anything logically implausible about my hypothetical. And the case in Georgia differs only in degree, not in kind, from my abortion case.

I realize I haven't addressed the maximalist law-and-order objection to my reasoning, that both the blowjob-getting teenager and the abortion-having hypothetical woman broke the law as it existed when they broke it. I didn't address it because I think the maximalist law-and-order objection fundamentally misunderstands the normative purpose of both law and order. Also, because I've gone on long enough.

[Brian Foster]

"I think its going to be impossible to have any sort of reasoned discussion with you given your ridiculous slippery slope arguments"

That's very interesting, considering that I am simply emulating the arguments, styles and reasoning that have been brought to bear in favor of Mr. Wilson.

"differences ... GASP . . . NOPE"

I'm sorry, let *me* check again. Is this, or is this not, a thread devoted to celebration of the Georgia Supreme Court's ruling that the former version of the Child Protection Act's 10-year mandatory minimum sentence is cruel and unusual punishment when applied to teenagers having sex with other teenagers? YEP. It is.

The Georgia Supreme Court *specifically* relied on the fact that the Georgia legislature amended the statute to greatly reduce the penalty provision, as a critical factor in its determination that modern standards were not reflected in the old statute.

Joshua Widner was sentenced under the old statute. You know, the cruel and unusual one. That alone is reason enough to free him, according to the logic of the Georgia Supreme Court and all the celebrants in this thread. So why resist?

But wait, there's more! Your objection regarding the fact that he's 18, and your objection regarding the fact that the age span is four years instead of two, are IRRELEVANT, because the amendment to the legislature that the Georgia Supreme Court relied on in reaching their decision today EXPRESSLY PROVIDES that someone in Joshua Widner's situation, i.e. an 18 year old having sex with someone four years younger than him, is punishable in the same manner as someone in Genarlow Wilson's situation.

So not only did the Georgia Supreme Court say the penal provision to which Joshua Widner is currently subjected is cruel and unusual, it also based that decision on a legislative change that would apply to Joshua Widner just as it would apply to Genarlow Wilson had it been in effect at the time of his offense.

"You claim that he thought she was 16, other than the fact that her parents told him she was 14 and to stay away and he still didn't? Sounds like Joshua Widner's actions were a lot more than just misbehaving at a party."

Getting high in a hotel room and having a series of younger girls run train on your c*ck is not as bad as being in love with a girl and defying her parents' wishes to stay away? Really?

Joshua Widner is an Everyboy. Who here doesn't know somebody who has been, or hasn't him or herself been, in the very position that Joshua Widner and his girlfriend were in? The kids were convinced they're in love, this is it, it's for real, but one set of parents or the other (or maybe both) thought the relationship is a bad idea and they tried to put an end to it. Well, we all know what those pre-programmed biological robots are going to do, don't we? That's right! Their parents' efforts to split them up simply deepens their love for one another and bolsters their resolve to let nothing tear them apart. And so they continue to see each other, and they consummate their eternal love.

I fail to see how Joshua Widner following his heart, against his girlfriend's parents' wishes, is "a lot more than" the conduct Genarlow Wilson engaged in. It's not called a "Romeo and Juliet" provision for nothing.

"It might also make a difference that the legislature had not yet changed the law when Widner made his appeal, a change that the court took into consideration."

It *might*, sure, but that's awfully procedurally rigid of you, isn't it? For both Wilson and Widner, the statute in effect at the time of their conduct was the old one, the cruel and unusual one. Even if the new law had not taken effect at the time of Widner's appeal, it was well along the legislative pipeline, and there was no doubt that it was going to take effect. Why should the mere technical detail that the amendment hadn't taken effect yet be dispositive of Widner's claim? Why shouldn't today's decision apply retroactively to *anybody* who was punished under the old statute but would have qualified for the new one if it had been the law at the time of their offense?

Alternatively, will you permit Joshua Widner to refile his appeal based on the Wilson decision? The normal rules would say he had his bite at the apple, the judgment against him is now final and unreviewable, the statute of limitations has run. Doesn't your call for "justice," despite what the procedural rules say, mandate that Widner have his day in court (again)?

"Do I think Widner deserves 10 years without parole for what he did? Probably not. Do i think he deserves the same level of leniency as Wilson? No I don't."

And do you have any principled basis for your distinction other than your own personal, individual, diffuse moral sense that "four years is worse than two," "18 and 14 is worse than 17 and 15," and "continuing to see one's girlfriend against her father's wishes is a lot worse than doing illegal drugs and participating in an orgy in a hotel room"?

No. You don't.

And *that's* why we need procedural integrity.

To guard against such well-meaning but poorly-reasoned instincts that try to do "rough justice" in any given case, at the expense of all sense of certainty, rationality, or consistency, and ultimately at the expense of the rule of law itself.

Because when cases are decided based not on what the law is, but on a judge's subjective and untethered sense of what he or she personally thinks is right, we cease to be self-governing.

[Aaron]

ps.

Regarding the Widmer case, the court opinion addresses that on pages 13-15. The Georgia Court's ruling crucially relies on the fact that the 2006 amendment changed the prescribed punishment for Wilson's offense. The same cannot be said for Widmer.

[Aaron]

it also based that decision on a legislative change that would apply to Joshua Widner just as it would apply to Genarlow Wilson had it been in effect at the time of his offense.

No.

[Aaron]

One last thing. I don't want to be accused of committing an argument-from-authority fallacy, but Eugene Volokh generally falls well toward the law-and-order end of the spectrum, at least for a libertarian. If he's persuaded by the Court's reasoning, that ought to at least give pause to people who aren't yet.

[Aaron]

Really the last time...

I... suppose one could argue that the court is playing semantic games with the phrase "no more than four years older than." Not being a lawyer, I don't know what the customary legal interpretation of a phrase like that is. But if I had to bet, I bet it's the way the court is applying it in Wilson, because otherwise their contention that Widmer is not controlling gets pretty weak.

[Brian Foster]

Not so fast, Aaron --

You're assuming that "no more than four years" means "no more than *exactly* four years." A credible argument could be made than "no more than four years" means "less than five years," and Widner was less than five years older than his girlfriend.

The Georgia Supreme Court's statement to the contrary in the Wilson opinion is non-binding dicta, so that doesn't help.

But all of that is beside the point.

All the hair-pulling angst over the Wilson case has not, at bottom, been because the legislature changed the law but refused to make it retroactive. That has added fuel to the fire, certainly, but if you follow all the links to the earlier posts and comment discussions, I think the only fair conclusion to be drawn is that the initial burn got started because of the apparently widely held belief that it's just plain wrong, gosh darn it to punish teenage kids who engage in innocent sexual conduct, or at least to punish it so harshly. There's no real "victim," the state doesn't have that big an interest, the "criminal" is in no way culpable to a degree that warrants such a sentence, etc.

And these very same people wanted a judge, or a justice, or the governor, or the legislature, or even the President to "do something" or else they should go to Hell, they should be disbarred, they shouldn't be able to sleep at night, because of the grave grave horrible unjust injustice that this penalty wrought.

None of those people calling for "justice" cared that the law said what it said. None of them cared that the law drew an arbitrary line based on the age of consent. All they knew was that it's just plain wrong, gosh darn it!

So now they got their wish. Genarlow Wilson is free at last. The ESPN and network cameras will break down their little camp at the prison in Forsyth and head on back to New York or Atlanta or Bristol or wherever. Mission Accomplished!

But poor Joshua Widner continues to rot behind bars, victim of the very same arbitrary line-drawing as Genarlow Wilson. And how ironically, tragicaly, multiply unjust for him! For the legislature, in changing the law to include a Romeo and Juliet clause, might have in their haste (and probably also because they were blinded by all the lights from the national media cameras) written it in such a way that it doesn't apply to him -- even though he truly *is* in a Romeo-and-Juliet situation, right down to the bloodthirsty Capulet father!

Oh the horror! Oh the injustice! Oh the cruelty and unusuality! Will we let this stand? Can we let this stand?

And now here you come, Aaron, with your one-word denial, your single syllable of robotic rigid procedural inflexibility, your callous cold cruel casting aside of Joshua Widner's hopes and dreams, all because he had the misfortune to be struck by Cupid's arrow and a cunning lie from someone not three years his junior, not three and a half, but four -- nay, not even four, but four and one half -- just one half year beyond the prescribed boundaries, just six short months away from the Promised Land of One Year Misdemeanor, just 180 days separating him from a press conference where he gets to make jokes about not having any parties for a while, but instead he remains incarcerated, imprisoned, treated like a less-than-human, an outcast, an animal, a criminal, and when he finally does get out he'll be branded with that scarlet letter, unable to live or work where he chooses, because he's a "sex offender," all because his own parents couldn't wait six months to get it on back in the 80s, and what is your answer to him, how do you do "justice" in his case, what words of comfort do you offer him in his time of distress and despair, as Genarlow Wilson walks free while he cowers in a cinder block cell, what do you, Aaron, have to say to him?

"No."

I submit to all of you, good people of brendanloy.com, that Commenter Aaron must join the list! He is a robot! He steals old people's medicine for fuel! He applies rigid procedural rules without caring! He reads the laws and applies them as written! He must be disbarred! He must not sleep at night! He must go to Hell! He must submit to the higher power known as our righteous unprincipled unguided moral indignation! He must be browbeaten and accused of living in a fantasy world and of not caring and of valuing rules over people and of being that ultimate horror of horrors, a "strict constructionist"! It is people like Commenter Aaron who would stand by and do nothing while grave cruel harsh unjust injustices are worked upon innocent sexually active teenagers like Genarlow Wilson and Joshua Widner!

Outrage! Injustice! Fie!

[Brian Foster]

Aaron,

I hope, of course, you realize the rhetoric was just for, well, rhetorical effect. I don't really think you're a robot, nor do I wish that you go to Hell.

[Aaron]

Brian,

That's fine, I didn't take offense. If anything, I was more annoyed by your use of legal jargon. Not that the general meaning of "nonbinding dicta" is any big mystery; the phrase is pretty self-explanatory. But I'm in no position to say whether or not you are correct when you apply the phrase to the Georgia Court's interpretation of "no more than four years older." So help me out, legal minds of Irish Trojan Land. Does Brian have the right take on this?

The Supreme Court of Georgia disagrees with the statement of your's I quoted. I meant no more nor less than this when I wrote "No", and I think it's pretty clear that's what I meant from the context of my other comments. So, if there's a point you'd like me to address buried in the rest of that rant, I'd appreciate it if you'd summarize.

[Andrew]

It's become quite apparent from this thread that there's such a thing as too much law school. You guys are overedumacated.

[Brian Foster]

Aaron --

Nope, nothing in particular I'd like you to respond to. I was just using your contribution to the discussion as a foil to make my point. I was hoping David K or dcl or somebody else would discover the fact that technically the new law doesn't apply to Joshua either, because it would have been so much easier (and lots more fun!) to lampoon them for denying "rough justice" to Joshua based on a technical arbitrary line drawn by the legislature and rigidly enforced by the courts. But the fact that it was you who discovered it instead still allowed me to say pretty much what I wanted to say on it.

Anyone who tells you that my use of the phrase "nonbinding dicta" with respect to the Ga. Court's explanation for why the new law doesn't apply to Joshua, has no idea what "nonbinding dicta" actually means.

Andrew --

Given the consensus in this thread that we need judges to tell us what "justice" is, regardless of what the laws say, I disagree completely. I think law schools are going to have to do a hell of a lot more teaching and educating than they currently do, because obviously we're about to turn governance of every detail of our lives over to a bunch of unelected jurists. They'd better be among the finest, most educated, most brilliant minds we have -- which, fortunately, leaves most of the writers and commenters on this blog safely off the list.

[Brian Foster]

Not enough sleep last night, apparently:

Anyone who tells you that my use of the phrase "nonbinding dicta" with respect to the Ga. Court's explanation for why the new law doesn't apply to Joshua WAS WRONG, has no idea what "nonbinding dicta" actually means.

[USC 2L]

Cry all you want, but 15-17 oral sex and 14-18 intercourse are different. It does not then follow, as you insist, that supporters of freeing the one must also support the freeing of another.

Which is not to say that most don't, but merely that there are too many variables for you to definitevely say that one thing (race, Jesse Jackson, etc) motivates the outcry over one and the silence over the other.

[Brian Foster]

As I noted on the current top post on the blog, Joshua Widner's nightmare is finally over!

http://www.ajc.com/services/content/metro/henry/stories/2007/11/27/widner_1128.html?cxtype=rss&cxsvc=7&cxcat=13

So suck on *that*, David K and dcl and Andrew and USC 2L and all you others who were so determined to do "rough justice" for Genarlow Wilson but refused, in your unprincipled "wisdom," to extend the same courtesty to Joshua Widner!

Thanks to ESPN and Slate, we now live in a lawless world where what our elected legislators say has no bearing on what is an appropriate punishment for crime. Remember that when, in the not-too-distant future, you're arrested and imprisoned for 20 years for tivoing the BCS title game. (Because you know there still won't be a playoff.)

[David K.]

Brian, you are an asshole, all I ever said is the two situations were not identical and shouldn't be equated as such, no more no less.

[Derek]

David K., I'm glad you know the difference between the two. And if you ran Georgia, it might mean something. Of course, it would be a lot more convenient if we consulted those who did run Georgia. And it would be even better if they were elected officials who could respond to and be held accountable by the people. But I guess those ideas are just pipe dreams to be inscribed on Greek tomes. Let each man divine "justice" as he sees fit, and let all law turn on the whims of those closest to the jailhouse door.

[Brian Foster]

No need for the name calling, David. I demonstrated time and again in this thread and the other Wilson threads that you and the people like you who were demanding redress for this "outrage" against Wilson had no principled leg to stand on, other than to weasel around with things like "two situations were not identical and shouldn't be equated as such" or "Cry all you want, but 15-17 oral sex and 14-18 intercourse are different. " None of that even comes close to engaging my point that, if y'all are correct in your premise that the old statute subjecting a person to 10 years imprisonment for oral sex with a teenager is cruel and unusual punishment, then nothing about that premise is changed when you apply that supposedly cruel and unusual punishment to Widner's case. If the punishment is cruel and unusual for the crime charged, it's cruel and unusual for the crime charged, and the minor factual differences between the two cases have absolutely nothing to do with the cruelty or unusualness of the punishment.

But neither you nor anyone else who shared your views could ever articulate why without shrugging your shoulders, saying "they're just different," and then calling me names.

In your very first post on this thread, for example:

" I'm all for punishing people who break the rules, but it needs to be in proportion to their crime, and while i don't condone the young mans actions, I think they merit a slap on the wrist and a lesson in the dangers of sexual promiscuity not ten years in the slammer."

You're talking about Wilson here, but there's nothing about Widner that is any more "proportionate" to a 10-year sentence than there was for Wilson. He did the exact same thing, under less morally objectionable circumstances, and happened to be a little bit older than his girlfriend than Wilson was compared to the random chick he hooked up with. Nothing about these distinctions makes 10 years any less cruel or unusual. That you refuse to admit this is utterly astounding, and entirely earns you the rebuke I posted today, because even those horribly incompetent evil racist prosecutors in Georgia can see that Widner's sentence is at least as unjust as Wilson's but you can't.

And instead of openly admitting either that Widner deserves the same justice as Wilson, or that he definitively does not, you lay bare your lack of principle and your undisguised nature for rudderless, procedureless "justice" according to your own unique, flawed, human sense of what is "right," when you say:

"Do I think Widner deserves 10 years without parole for what he did? Probably not. Do i think he deserves the same level of leniency as Wilson? No I don't."

There is absolutely nothing here that any rational applier of law to fact can use to discern an intelligible basis for doing anything other than picking whatever number "sounds right."

I thank whatever god, force of nature, or law of physics that may be out there controlling developments in our society, for the fact that you are not, and hopefully never will be, in anything resembling a position of authority, influence or leadership.

[Brian Foster]

"undisguised nature" should be "undisguised preference" or "undisguised desire"

[Joe Mama]

Heh.

[David K.]

Oh absolutely there is a need for insults Brian, since rather than merely misunderstanding my position, you misinterpret it intentionally!

You are complaing about Widner being treated unfairly. Fine. You are trying to equate the two cases. NOT FINE. There is signifcant factual difference between the two cases, significant enough that the results in one do not AUTOMATICALLY mean the results in the other should be treated the same.

You must live in a very black and white world if you can't acknowledge factual differences between the two. You must live in a very black and whtie world if you believe the judiciary should never step in to correct a wrong. Of course based on your views as expressed here we should still be segregating our schools.

[Derek]

You think there are significant factual differences; the legislature didn't. But for some reason, I guess, you think that your personal views of "significant" trump the duly-enacted representatives of the State of Georgia. I imagine such a treatise wouldn't have captured the Roman Senate.

Second, "You must live in a very black and whtie world if you believe the judiciary should never step in to correct a wrong. Of course based on your views as expressed here we should still be segregating our schools." This is false on various levels. Of course the judiciary should step in to correct a wrong. It should do so when that wrong exists under the law. "we should still be segregating our schools." Huh? We do have a law that prohibits this: it's called the Fourteenth Amendment. We can treat kids equal, or we can segregate them. The judiciary "stepped in" to tell States it was okay back in the 1890s. So it "stepped in" again and told them it wasn't okay in the 1950s. The latter interpretation actually has support in the law. The former didn't.

[Brian Foster]

David,

I am not misinterpreting your position. I keep quoting your own words at you to show you what your position is, as you said it, and then you repeat other versions of those same words back to me and pretend that they say something different from what they actually do.

"There is signifcant factual difference between the two cases, significant enough that the results in one do not AUTOMATICALLY mean the results in the other should be treated the same."

How do the minor factual differences in this case make the 10-year sentence not cruel and unusual for Widner, but cruel and unusual for Wilson? Neither you nor anyone else has offered a single explanation for this other than "it's just different." I comprehensively rebutted every variation of "it's just different" that you offered me, up above where every new paragraph of mine starts out with "oh wait." You haven't explained it, and you can't, because the factual differences don't support your position.

More to the point, and as I also comprehensively explained above, if you *do* try to distinguish these two cases, you inevitably *have* to do so by drawing an arbitrary line based on absolute age or age difference or whatever. Which is *exactly* what the Georgia legislature had originally done with its original statute that was subsequently declared cruel and unusual to a chorus of cheers from the comment section here. You have *absolutely no principled basis* for explaining why *your* arbitrary line drawing is reasonable, non-cruel, and usual, but the Georgia legislature's old line drawing was not. And *especially* in light of the Georgia legislature's redrawing the lines in a way that covers Wilson but just barely misses covering Widner, for you to sit there and celebrate "justice" for Wilson while denying the same for Widner based on nothing more than *the new arbitrary line drawn by the Georgia legislature*, completely unsupported by anything resembling the "logic" or "reason" that explained why Wilson should be freed, is nothing short of a travesty.

"You must live in a very black and white world if you can't acknowledge factual differences between the two. "

Now who's misinterpreting whom? I have *always* acknowledged the factual differences. I have simply maintained that the factual differences are *irrelevant* to the determination that the old statute imposed a cruel and unusual punishment. Either the punishment is cruel and unusual, or it isn't. The court decided that it was. Fine. Then it's cruel and unusual *across the board*, and Widner deserved relief. Why is it so hard for you to realize that? What do you ahve against Widner? Again, the very prosecutor who sought just one year ago under the old law to keep Widner in jail now recognizes that under the new law as interpreted by the Georgia court (notwithstanding its flimsy attempt to rationalize otherwise), Widner deserves relief, and he made sure Widner got it.

The "factual differences" are insignificant and irrelevant to the broader topic of whether and how we're going to deliver "justice" in the manner championed by all those who wanted Wilson freed. Your intransigence in insisting that Widner does not deserve the same efforts at justice as Wilson demonstrates the extreme danger of this approach, as I and others have argued from the very beginning. You throw procedure and precedent and legislative authority out the window and do whatever "feels" right to you in the case before you. Wilson's punishment was cruel, so let him go; Widner's punishment was not, so keep him caged. Your only basis for this is "the facts are different." They're not -- not in any way that's material to the question of whether the punishment was cruel. But for some unexplained unfathomable reason, you disagree, so you'd keep Widner locked up. Despicable.

Derek ably addressed the balance of your post so shall not repeat his arguments. I'll simply say that I've never argued that the judiciary should "never step in to correct a wrong." I've simply argued that a) they should only step in to correct wrongs that are within their jurisdiction and authority to correct, and b)they should only do so in situations where there actually is a "wrong," and not simply an undefined, unprincipled distaste or disagreeement with a particular policy judgment duly enacted by a validly elected legislature.

[David K.]

Ok Brian, either you are being willfully difficult or you are just a brain dead moron who can't read. You decide.

How do the minor factual differences in this case make the 10-year sentence not cruel and unusual for Widner, but cruel and unusual for Wilson?

NEWSFLASH. I never said it wasn't cruel and unusual for Widner to be held to a 10 year sentence. What I did say is that the deciion in the Wilson case involves different facts and therefore can't AUTOMATICALLY be applied to the Widner case. It can be used to make an argument certainly, but you also have to take into account the different facts in the case. If you are unwilling to acknowledge that beliving the cases were different is NOT THE SAME as beliving Widner deserved to be in jail for 10 years then you aren't worth discussing this with.

But for some unexplained unfathomable reason, you disagree, so you'd keep Widner locked up. Despicable.

So you woudl put words in my mouth and draw conclusions based on things I never wrote and never said? You are the one who is despicable.

[Brian Foster]

David,

The argument that you and others have made has never been that *Genarlow Wilson* shouldn't have been sentenced to 10 years for the *particular facts* of his case. It was that teenagers, in general, should *never* be sentenced to 10 years for engaging in oral sex because that's just what kids do. dcl said they were biologically programmed to have sex, and you said all they should get is a slap on the wrist and a lecture about the dangers of promiscuity.

And the Georgia Supreme Court agreed! They looked at the old law in effect when Wilson was charged and convicted, and the new law as it was changed later, and decided that the legislature's subsequent decision to change the law was proof that the old law constitutes cruel and unusual punishment, and therefore Wilson should be freed.

I'll say it slowly so you understand this time.

That decision had *nothing* to do with the "particular facts" of Wilson's case. It had *everything* to do with the court's interpretation of the significance of the legislature's amendment, and with the court's own views on whether this punishment was an appropriate one for the sort of behavior *contemplated by the statute* -- NOT the behavior *specifically engaged in by Wilson.*

In other words, the GA Sup Ct's decision did not turn on the fact that Wilson was only two years older than the girl, or any other "particular fact" about his case. It was based on the fact that the legislature's decision to change the law was evidence the court could rely on to show that *the old law was cruel and unusual.*

Again, so your higher-level synapses have a chance to make the connection: it was all about the law, and NOT about the facts.

The whole argument has always been that the legislature was wrong, the prosecutor was wrong, the jury was wrong, the earlier judges were wrong, because it's just wrong gosh darn it to punish teenagers with 10 years in prison for having oral sex. None of that depends on 18/14 v. 17/15, and even if that *was* a factor, surely the committed relationship between Widner and his "victim" compensates, especially given that Wilson and his "victim" were not in anything resembling a romantic relationship.

So, again, the factual distinctions you are trying to rely on are real, but irrelevant to the argument made and the decision issued by the Georgia Supreme Court that the former law is cruel and unusual.

Warning: the next paragraph shifts to a different aspect of the debate; make sure you fully comprehend the preceding before you move on.

And moreover, you keep missing the broader point, which is that the *procedure* you and others espouse (some more explicitly than others, admittedly) for deciding these cases is fundamentally flawed, and the Wilson/Widner dichotomy so indisputably proves it that you can't escape the conundrum without calling me an asshole and declaring me not "worth discussing this with." I am perfectly willing to acknowledge that believing these cases are different is not the same as believing Widner deserved to be in jail for 10 years. What I am *not* perfectly willing to acknowledge is that believing these cases are different is a *justification* for not extending Widner the same justice Wilson received. And regardless of what you actually believe about Widner, you've demonstrated time and again that you are unwilling to extend the same "logic" to Widner that you did to Wilson, to wit, that teenagers shouldn't spend 10 years in jail for having consensual oral sex. That's what you and others said repeatedly about Wilson, and nothing about Widner's case invalidates that analysis or precludes its application to Widner.

UNLESS you think that his being 18, or their being 4.5 years apart in age, somehow makes it so much more criminal that 10 years is deserved. But no one has ever claimed to think that, and no one has ever explained why it should be so. (They've emphasized the differences, but like you yourself right here, they've never gone so far as to say they think those differences mean 10 years is appropriate.) And if they tried, they would be just as guilty of arbitrary line-drawing and rigid adherence to rules that produce unjust results, as they accused the various actors of the Georgia criminal justice system of being when Wilson got convicted and sentenced in the first place.

In other words, you simply cannot escape the dilemma you've created for yourself without acknowledging that at some point we just have to adhere to the rules. And once you acknowledge that inescapable reality, your objection to Wilson melts away because there's no basis for saying the rules should be ignored there, but not for Widner.

Is any of this penetrating? I do have work to get back to so I probably won't be able to keep trying.

[David K.]

Brian, that may have been the case for some people but I didn't argue that "teenagers have oral sex so its ok and he shouldnt' be punished". Why don't you take some time, grab hooked on phonics or something, take some reading comprehension courses and when you have actually understood what I said (and i was quite clear with it) come back and quit acting so high and mighty about your position.

[Brian Foster]

David,

Your attempts at insults are as wearisome as they are ineffective. I never attributed such a position to you, I clearly attributed to dcl as he was the one who originated it. If you're going to try and say that you and dcl were not making substantially the same argument, however, you're even dumber than I thought.

As for what you actually said and how clear you were, I am fully aware of both, and I have simply demonstrated the glaring holes and inadequacies in your "thinking" on this issue. From the very beginning you've been unwilling to adhere to previously existing legal rules in cases like Wilson's where it seems wrong to you, but in cases like Widner's where it doesn't seem so wrong you're demonstratively less willing to ignore the rules. As I and others have repeatedly and painstakingly demonstrated, your position essentially reduces to "the law should be whatever I think it should be," whether you admit it or not, whether you realize it or not. You can claim that you didn't say that. But those of us who not only read, but think, see right through your feeble attempts to distance yourself from yourself.

[David K.]

Brian, i am going to try and explain this one last time.

I did not ever say that Widner's case did not deserve to be reconsidered. I did not ever say that Widner deserved the punishment he got. I did not ever say it was fair. I said one thing, and one thing only regarding Widner's case, that there were factual differences between his and Wilson's case that mean you can't blindly apply the results of one to the other.

Your attempts at manipulating my quite clear and quite sensible position into something its not merit the insults of stupidity and/or willful ignorance as you are clearly demonstarting one or the other. And yes you have INDEED repeatedly in this thread tried to attribute to me a position I never took. In nearly every single one of your responses TO ME and in your initial insulting post you continually try and paint me as supporting the 10 year sentence of Widner as somehow acceptable. Something I have actually said is NOT true. I am not adhering to anything in Widners case because I never came to a conclusion of what his punishment should be, merely, and I can't believe that I have to point this out again, that it is different enough from the Wilson case that you can't equate the two out of hand. THATS IT.

So, let me put it to you in a simpler fashion and hope you will finally get it.

I HAVE NEVER SAID, CLAIMED, OR ARGUED THAT WIDNER DESERVES TO BE IN JAIL FOR 10 YEARS FOR WHAT HE DID.

Repeat that to yourself about 10 times, then go back and look at how stupid you have made yourself look by continously claiming that I said that.

I can only hope I am never represented by you in either a leadership or legal rule if you are so willing to ignore evidence that is parked right in front of your nose and instead attempt to foist on others opinions that they have nothing to do with.

From this thread you have demonstrated that you behave in a smug and arrogant manner willing to complete ignore anything and keep harping on the same point, even if its one that I'm not actually challenging you on. Seriously its like walking to your run repeatedly into a brick wall.

[Brian Foster]

"From this thread you have demonstrated that you behave in a smug and arrogant manner willing to complete ignore anything and keep harping on the same point, even if its one that I'm not actually challenging you on. Seriously its like walking to your run repeatedly into a brick wall."

http://en.wikipedia.org/wiki/Psychological_projection

"I HAVE NEVER SAID, CLAIMED, OR ARGUED THAT WIDNER DESERVES TO BE IN JAIL FOR 10 YEARS FOR WHAT HE DID."

If you go back and re-read my comments from a month ago carefully, you will see that all this time, I have been applying the logic espoused by you and others re Wilson, to Widner's case, in an effort to demonstrate the shortcomings of that logic. I have never seriously suggested that you said, claimed, or argued that Widner deserves to be in jail for 10 years. Rather, I have (very) seriously suggested that your failure to say that Widner does not deserve to be in jail for 10 years proves the intellectual bankruptcy of your (i.e., not just you David K but all of you arguing for Wilson but not for Widner) procedural approach to Wilson's case.

I dropped the charade long ago, and my last several posts have explained this painstakingly clearly.

"I said one thing, and one thing only regarding Widner's case, that there were factual differences between his and Wilson's case that mean you can't blindly apply the results of one to the other."

And in the midst of my rhetorical approach last month, and again today much more directly, I have said one thing only: that you are wrong, because the factual differences you have highlighted do not affect the validity of applying either the arguments made in favor of Wilson on this blog, or the argument employed by the Ga Sup Ct to release Wilson, to Widner. The factual differences on which you rely now to distinguish Wilson from Widner have no bearing on the earlier arguments made, by you and others, that this punishment was cruel and unusual for teenagers having consensual oral sex, and that procedural rules prohibiting retroactive application of the legislative amendment should be ignored to grant Wilson relief.

And just for the record, you still haven't bothered to explain why you think those factual differences "mean you can't blindly apply the results of one to the other." You assert it as if it's obviously true, but it's not. Even if you are correct (which you're not), you need to explain why, and you don't even bother.

I have repeatedly, both rhetorically and directly, explained why those factual differences do not preclude applying the one result to the other case.

Do you have any answer, at all, even a really bad one, for why you think they do? If so, why don't you provide it? If not, why are you still here?

[David K.]

teenagers having consensual oral sex

Widner had sex with a minor according to the story you earlier linked, not just oral sex, but full sexual intercourse. On top of whcih he was 18 and she was 14. Those are both singificant differences. Widner was also warned by the parents not to approach the daughter and willingly continued a relationship with her including premeditated intercourse with her. Wilson had oral sex at a party with a girl who was 2 years younger and he was 17 not 18. Those are significant differences.

[David K.]

Further demonstrating your idiocy btw:

Rather, I have (very) seriously suggested that your failure to say that Widner does not deserve to be in jail for 10 years proves the intellectual bankruptcy of your (i.e., not just you David K but all of you arguing for Wilson but not for Widner) procedural approach to Wilson's case.

Here is a comment by me from the original thread:
"Do I think Widner deserves 10 years without parole for what he did? Probably not."

[Brian Foster]

Those two comments juxtaposed prove my point, David! You didn't say that Widner does not deserve to be in jail for 10 years. You said that you think he probably doesn't deserve to be in jail for 10 years. And, you immediately followed it up with "Do i think he deserves the same level of leniency as Wilson? No I don't." No equivocation, no "probably" about it -- you "don't" "think he deserves the same level of leniency as Wilson." And that's exactly what I've been faulting you for -- thinking that Wilson deserves leniency because the statute under which he was convicted punished him cruelly and unusually, even though Widner was punished under the exact same statute. The fact that you only "think" that Widner "probably" doesn't deserve 10 years, but definitely does not deserve the justice Wilson got it, demonstrates the vapidity of your approach to this issue.

As for your immediately preceding post, we're all clear on what the allegedly significant differences are, and I didn't ask you to repeat them. I asked you to explain why those differences means that Widner's punishment does not deserve the same leniency that Wilson got -- explain why you weren't just as outraged over Widner being punished under a law that you yourself argued was cruel and unusual, in a way that relates the factual differences to the argument about the punishment! Why won't or can't you do that?

Are you telling me that because Widner was 18 rather than 17, that you don't think the old statute was cruel and unusual in his case? Why? What about that extra year makes the punishment not cruel and unusual? And so on for the rest of the reasons.

If you can't articulate why those differences matter, then you're just making an unprincipled judgment call based on your own particular idiosyncracies, which is exactly what you did with respect to Wilson too.

Oh, and the fact that Widner and his girlfriend had intercourse is irrelevant, because he was charged, convicted and sentenced under the same statute as Wilson, which deals with oral sodomy, not intercourse.

And again, I categorically disagree with you that Wilson having casual oral sex with a younger girl at a hotel room orgy is less culpable than Widner having oral and vaginal sex with his girlfriend. Also, I fail to see the relevance of his defying his girlfriend's father's wishes, especially when the girlfriend clearly consented, just like Wilson's partner. It's relevant neither to the comparative culpability of the two, nor -- which, again, has been my point all along -- to the question whether 10 years is cruel and unusual, which you most certainly argued last summer, and which the Ga Sup Ct held.

Tell me why I'm wrong.

[David K.]

Your wrong because I said they don't deserve the same leniency not that they don't both deserve leniency. Widner was again FOUR YEARS older than the girl, and yes I think a difference of two years is significantly different than that of four years when you are talking about teenagers. I have said then and said all along that I did not think based on the evidence presented to me that Wilson deserved the punishment he got. Based on limited details that showed that Widner engaged in more willful disregard for the law and did so as an adult with a minor, with whom he had TWICE the age difference that Wilson and his paramour did. You may want to throw out the age distinctions but I and the law do not. Age difference especially in younger people is a major factor.

Again I want to reiterate that I do not believe 10 years is a fair punishment for what either of these men did, but I don't think Widner deserves the SAME leniency as Wilson because I believe that Wilson commited a lesser offense. And yes people can be convicted under the same statute and recieve different punishment, its why judges have sentencing hearings and such.

Its entirely possible that based on his crime Widner has served enough or more than enough time and should be let go, but again your question and stance from the very begining has been that they commited the same offense (they did not) and therefore if the punishment is wrong for one its wrong for both. While it may be true that it is wrong for both, I also don't think they deserve the same amount of leniency. If you can't figure out which is which then I state again you live in a world of complete black and white and I assert that you would have us living by the strictest rules some of which are by common sense heinous and unfair regardless of whether they were enacted by legislatures and overturned by judges. Heck in your world we wouldn't NEED judges we would just blindly apply the laws without considering any of the surrounding circumstances. I remain hopeful that we will never live in such a draconian world as you seem to prefer.

[Joe Mama]

Brian, you have my sympathy.

[Wobbly H]

I don't know why you even bother. Say what you will about the legal profession, but the vast majority of its members have the basic skills of reasoning and comprehension that Davie clearly lacks in engaging in argument.

[David K.]

So can I take it that both of you (Joe Mama and Wobbly H) think that an 18 year old having sex with a 14 year old is the same as a 17 year old having oral sex with a 15 year old? Can I take it that you both also don't see a difference in believing that a 10 year punishment is harsh for both crimes but that they are still also not equal?

[Brian Foster]

As I said:

"If you can't articulate why those differences matter, then you're just making an unprincipled judgment call based on your own particular idiosyncracies, which is exactly what you did with respect to Wilson too."

Your latest post once again summarizes the factual differences between the two claims and asserts why you think those differences warrant different levels of punishment. Once again, that's not what I am asking you. I am asking you to explain why you apparently think that for Wilson, it was appropriate to declare his 10-year mandatory minimum sentence to be cruel and unusual punishment, but you don't think that for Widner, as evidenced by your repeated statements that he doesn't deserve "the same leniency."

Moreover, your attempt to differentiate between types of leniency completely misses the point that the leniency Wilson actually got, once again, had nothing to do with the facts surrounding Wilson's conviction, and everything to do with the court's determination that the 10-year mandatory minimum sentence was cruel and unusual punishment, period, end of story. Once again (gosh, I keep having to say that), you offer no explanation for why that blanket across-the-board remedy was absolutely necessary in order to serve justice in Wilson's case, but in Widner's, you are content to introduce factual distinctions that are irrelevant to whether the mandatory minimum in the statute is unconstitutional.

I understand you to be saying that while you do think a 10-year mandatory for Widner was "harsh," you do not think it amounted to "cruel and unusual punishment" for Widner, even though the same sentence was cruel and unusual for Wilson. Have I misstated your position here?

If I have, then either you think that Widner's sentence was also cruel and unusual, in which case you (presumably) do actually think they deserve the same leniency (i.e., vacating the sentence as cruel and unusual), despite your repeated insistence to the contary, because if both sentences are cruel and unusual and the Georgia Court vacated one for that reason, you have offered no basis to oppose vacating the other.

Or, you think that Wilson's sentence was not "cruel and unusual," but was simply too "harsh" based on the evidence presented to you. If that's the case, then your position is even more groundless and baseless than I realized, because a) you aren't even pretending anymore to think that the Georgia Supreme Court got it right as a matter of constitutional law, but instead are basing everything on how it "looks" or "feels" to you based on the evidence you've seen, notwithstanding the fact that you're neither a lawyer nor a judge nor an interested party nor a disinterested party nor even a citizen of Georgia, and b) somewhere up above you suggested that "harsh" and "cruel" were synonyms, which in this context is incorrect, but at the time you made clear that you believed it to be true, yet now you are suggesting that you can consider both sentences to be "harsh" but neither one (or only one but not both) to be "cruel and unusual," which is hopelessly confused.

And of course, if I haven't misstated your position, then we're back to the same impasse: other than telling why the two cases are factually different, you haven't offered a single reason why the one sentence is cruel and unusual in the constitutional sense but the other is not.

Once again, your focus on the factual distinctions means nothing at all on this point, unless you use those distinctions to explain why the mandatory minimum 10-year sentence is not cruel and unusual for Widner. You haven't even bothered to pretend to try doing that. Instead you keep telling me how they're different, as if it's supposed to be obvious to me that the Constitution means one thing for Wilson but something else for Widner. That's just not how it works. You need to tell me how the factual differences turn the cruel and unusual punishment into a constitutionally acceptable one.

And again -- it's not just a matter of "Wilson's lesser offense deserves a lot less than 10 years" vs. "Widner's greater offense deserves only a little less than 10 years" (or "deserves 10 years"). Your squishy, undefinable, unexplainable, I-know-it-when-I-see-it innate sense of what is "just" is not the standard here -- or at least, it's not supposed to be, and that has been my fundamental point all along. The question, Once Again, is what makes the sentence for Wilson not just "harsh," not just "more than he deserves based on the evidence you've seen," but cruel and unusual. And Given that WIlson's sentence was determined to be cruel and unusual, what is it about Widner's case that makes his sentence not cruel and unusual?

To help you out, David, you've already begun dimly to grasp the answer, although you're going to swear up and down that this isn't it once I point it out to you, just like you have every other time I've shown you the actual meaning and implications of what you've said:

"You may want to throw out the age distinctions but I and the law do not."

The answer to the question I keep posing to you, David, is that Widner's sentence is not cruel and unusual because he falls, by six months, outside the new statute as amended by the Georgia legislature. As Aaron pointed out last month, the Court based its ruling that the old law was cruel and unusual in large part on the fact that the legislature changed the law, thus giving the court justification to say that anyone sentenced under the old law who would have gotten a much lighter sentence under the new law received a cruel and unusual punishment.

Widner technically doesn't fit that category, because he's six months too old.

Of course, what this means is that you, David, are applying a rigid rule of law blindly and without regard to the circumstances, when you join with the Georgia Supreme Court to deny Widner "the same leniency" Wilson received.

Now, at this point you may cite all the factual distinctions between the two cases in support of your (and Georgia's) argument that Wilson's case deserved relief while Widner's did not, because now all those distinctions matter -- they reflect the legislative judgment, extended by the court, that the four-year difference is the outer bounds of the range within which the 10-year mandatory minimum is cruel and unusual.

But what makes the four-year difference so special? Nothing -- not a thing -- other than the fact that the Georgia legislature enacted it. They could have chosen three years, or five years, or four years and six months. And it was the completely arbitrary and random decision to go with one number instead of another that leads to the conclusion that Widner's mandatory 10 year sentence, even if "harsh" under your touchy-feely world view, is not cruel and unusual in the same way that Wilson's was.

But guess what? The decision not to make the amendment retroactive to Wilson's case was legitimate for exactly the same reasons, yet you and several others refused to accept it and demanded "justice." So you have effectively demonstrated that you only care about respecting the will of the people, as expressed in enactments of a duly elected legislature, when you agree with it.

So when you object to blind adherence to rigid laws, what you really mean is that you object to blind adherence to rigid laws that you disagree with. As long as you agree with them, you're just fine with applying them rigidly, as your views on Widner confirm.

Of course, this just proves my point -- Once Again -- that you have no real basis at all for your policy preferences, beyond your own whim about what you think or feel is right.

And that is the unprincipled method of lawmaking that leads to the heinous and draconian existence that you fear.

Oh, but of course, I'm sure there are "significant differences" between between my blind adherence to rigid rules and yours. And I'm sure I "intentionally misinterpreted" your "clear and sensible" words.

Right?

No, the truth is, I don't want to throw out the age distinctions at all. But you have yet to acknowledge the fact that "you and the law," by clinging to age distinctions, are endorsing the very "blindly apply[ing] the laws without considering any of the surrounding circumstances" that you erroneously accuse ME of championing.

You want to look at the age span with Widner and say that the four-year difference there justifies imposition of a harsher sentence than Wilson received. That's perfectly fine, and I have no problem with it. What I have a problem with is that you apparently still refuse to

[Brian Foster]

Whoops, my bad -- I had intended to delete those last two paragraphs (everything after "Right?") because I rewrote that section. Please disregard.

Thanks :)

David is owned yet again. What a surprise.

[David K.]

Ok, one last time for all of you out there, just so we can be clear. I am going to quote you here Brian just to make sure you don't miss a THING.

I am asking you to explain why you apparently think that for Wilson, it was appropriate to declare his 10-year mandatory minimum sentence to be cruel and unusual punishment, but you don't think that for Widner, as evidenced by your repeated statements that he doesn't deserve "the same leniency."

Simple. I don't. I don't think Widner deserves 10 years of mandatory confinement based on the evidence presented. I've stated it MULTIPLE times, but you were too wrapped up in your own self importance to read those few short lines. You have been arguing not with me, but with some imagined person saying things that no one was saying. So again either you are an idiot, or willfully ignorant and I don't know whether it matters.

Let me say it one more time JUUUUUUUUUUUUUST so you HOPEFULLY and finally get it.

Wilson does not deserve 10 years in prison for what he did.
Widner does not deserve 10 years in prison for what he did.

Clear enough for you dumbass? I mean honestly I've said it multiple times, are you really having THAT much difficulty reading?

My two points have been distinct the WHOLE TIME. NEITHER one deserves 10 years. However, and once again I want to emphasize this, Wilsons case is DIFFERENT from Widners. There are differences that mean that one does NOT equate to the other. Widner deserves more punishment than Widner and I have stated why.

Now lets see if you and your little sycophants can get it through your thick skulls that I never EVER argued what you keep saying I did.

FYI, i did not read past the begging of your latest post, I don't see any point watching you argue over and over with yourself.

[Wobbly H]

Brian,

I understand your point fully, and the logic of your argument is unassailable. I myself don't mind a little judicial activism (or perhaps compassion) now and then. Thus, in the name of substantive justice, I am pleased with the court's release of Wilson. But to make a principled, constitutional distinction based on the reasoning employed by the Court between the two situations is not possible. And your critique about the court's action, based on your belief in the role of the judiciary with respect to the legislature (which is the overwhelmingly dominant view of jurisprudence and the role of courts) is spot on. Davie makes a valid argument from a logical and social science paradigm (if we limit it to merely that) about the difference between the two situations; unfortunately, he is attempting to make a legal argument as well against a very smart graduate of an excellent law school. He doesn't do well when attempting this, just as you or I wouldn't do well attempting to argue math or computers with him. To our credit, though, we don't try.

Your argument has been laid out, and I wouldn't waste any more time trying to engage Davie on its substance. Just know that people are watching and agree.

[David K.]

Except, you know Wobbly, if you took the time to read what I wrote, you'd not i was NOT trying to make a legal argument. Brian has been going on and on about something I was never arguing with him about. But yeah, other than that...

[Derek]

David K., I'll give it one shot.

Let's say the two are factually different. The world under the "old law," what does that give you? Well, with a nickel, it'll getcha a cup of coffee. That's it. Because if the law doesn't change, then you're stuck with just two different factual situations that have no alteration in reality.

So we're left with World A (the old law, where all sex offenders are punished) and World B (the new law, where some sex offenders have received "unjust" punishments by some definition). In order to argue that the "facts" matter, the "law" must be changed first.

It's completely obvious that you're arguing the "facts" side. But it's impossible to ignore the fact that, as a condition precedent, you've moved to World B. And now you're trying to distinguish between World B^1 (where Wilson and Widner are treated differently) and World B^2 (where Wilson and Widner are treated the same).

Brian's unassailable point is, if you're in World B, you're making arbitrary distinctions between 1 and 2 that lead to a total mess. Your point is, you want to be able to have World B^1 without the possibility of World B^2, which is just silly. In order for the "facts" to matter at all, you have to have already changed the law.

Why is it always David who gets into arguments with people who "don't know how to read" or "never read what he actually says?"

[Brian Foster]

David,

What utter rubbish for you to claim that you have been making a completely different argument all this time, as compared to what you actually wrote above.

Derek said:

if we really want to discuss whether this rises to the level of "cruel and unusual," we can. But the discussions have focused on "unjust," "harsh," etc. That's a far cry from "cruel and unusual."

You responded:

You do realize that "harsh" and "cruel" are synonyms right?

Right there, you indicated unequivocally that in your view, "harsh" means "cruel." So whenever you said that Wilson's punishment was too harsh, you meant that it was cruel. And in applauding the GA Sup Ct's decision, you apparently believe that its ruling, that Wilson's punishment was cruel, also means that it was "harsh."

You have now also said, repeatedly, that you think Widner's punishment is "harsh," which in your world is equivalent to "cruel." You have admitted, by your very own words, that you believe Widner's sentence is equivalent to Wilson's in the sense that they are both cruel and unusual. Yet you are willing to set Wilson free, but not to set Widner free.

That's a legal argument. That's also a bad legal argument. That's also a wrong legal argument, as I have been at pains to explain.

Moreover, when I linked to the original story describing Widner's plight, you jumped right in with the factual differences. I asked you then, way back in October, why those factual differences, in your view, merited declaring one sentence cruel and unusual but not the other. Instead of just giving me the simple, honest and direct answer like Aaron did, you obfuscated with more factual differences, never even attempting to engage the consequences of the legal argument you yourself made, as I just described. And you then made the statement, which I have never ignored or denied, "Did I SAY that Wildner should spend 10 years in prison? Let me check again, NOPE."

To which I responded:

Is this, or is this not, a thread devoted to celebration of the Georgia Supreme Court's ruling that the former version of the Child Protection Act's 10-year mandatory minimum sentence is cruel and unusual punishment when applied to teenagers having sex with other teenagers? YEP. It is.

The Georgia Supreme Court *specifically* relied on the fact that the Georgia legislature amended the statute to greatly reduce the penalty provision, as a critical factor in its determination that modern standards were not reflected in the old statute.

Joshua Widner was sentenced under the old statute. You know, the cruel and unusual one. That alone is reason enough to free him, according to the logic of the Georgia Supreme Court and all the celebrants in this thread. So why resist?

Right there, David, I could not have made it any plainer that the argument I was making had everything to do with the question whether the punishment embodied in the statute constituted cruel and unusual punishment, without regard to facts. That was your opportunity to tell me that you're not trying to make a legal argument, you're just sticking your fingers in your ears and blathering about the factual differences that matter to you. But you didn't. You didn't respond further. Not until yesterday, anyway, when I quite fairly lumped you in with those who would deny Widner the same leniency Wilson received. (You've expressly admitted that, yet you call me an asshole for pointing it out. Pathetic.)

And then, for the rest of the day yesterday, you continued to engage me, trying to argue that somehow your apparently purely fact-based argument does not mean that you would deny the same leniency to Widner, even though, again, you expressly admit that to be your point. And apparently now you're arguing that you never meant to say that you thought Widner's sentence was cruel and unusual. Heck, for all I know you're now trying to claim that Wilson's sentence isn't cruel and unusual, but merely "harsh," which for you apparently means "cruel" when you want it to, but not when you don't.

Most recently, you've said:

don't think Widner deserves 10 years of mandatory confinement based on the evidence presented. I've stated it MULTIPLE times, but you were too wrapped up in your own self importance to read those few short lines.

This factually wrong and utterly preposterous. I have never doubted that you believe Widner deserves less than 10 years. What I have charged, repeatedly, without any attempt an answer from you, is why you were content to leave Widner in jail for 10 years, notwithstanding the fact that you thought that punishment was too harsh. And I used Wilson's case as a counterpoint, because there, you were not content to leave Wilson in jail, notwithstanding your belief that his sentence was also too harsh.

Now. You have repeatedly responded with factual differences that apparently are meant to show why you think Wilson's sentence was more harsh than Widner's, thus entitling Wilson to more leniency than Widner.

That's perfectly fine and valid, I have no quarrel with that sort of reasoning, and that's exactly the sort of thing I expect judges to do when imposing sentence (your ridiculous hyperbolic and unsupportable caricature of my views notwithstanding).

But that still does not explain why, faced with the GA Sup Ct's decision to vacate Wilson's "harsh" sentence, you do not also think that Widner's "harsh" sentence should be similarly vacated. It's the same sentence, which was declared cruel and unusual. But because you distinguish between the harshness of the sentences based on factual differences, it follows -- it has to -- that you think those factual differences render Widner's sentence constitutionally acceptable. And all I want to know is why.

Your response here:

NEITHER one deserves 10 years. However, and once again I want to emphasize this, Wilsons case is DIFFERENT from Widners. There are differences that mean that one does NOT equate to the other. Widner deserves more punishment than Widner and I have stated why.

Is irrelevant. I full well know why you think Widner deserves more punishment than Wilson. I disagree on those points, but that's not really the issue here.

(Pay attention to this next part; it's extremely important.)

The issue here, as everyone but you seems to have gleaned, is that you were willing to sit by and do nothing for Widner, whose sentence you admit is "too harsh," even though you demanded action for Wilson. While your factual differences explain why you think Widner deserves more punishment than Wilson, and potentially explain why you think Widner deserves less leniency than Wilson, they do not explain why you think Widner deserved no leniency, which is what you were apparently willing to give him, based on your failure to champion his cause with the same zeal you championed Wilson's, and your repair instead to the factual differences, which might explain why Widner deserves more than Wilson, but again, does not explain why Widner should be left to serve his full 10 years even though his sentence was also harsh.

So really, it doesn't matter whether your argument is "legal" or not. The fact remains that it's hopelessly confused and unprincipled, turning on arbitrary distinctions that you draw in your own mind based on factual differences. Eventually you fell back on the amended law as support for your distinctions, which of course is the proper thing to do, but even so you refuse to admit the full import of this step -- exactly as I predicted.

My whole effort in this thread has been to demonstrate that, your protestations to the contrary, your approach to this issue is completelyfact-based, with no consideration whatsoever for what the law actually says. , you didn't invoke it until late yesterday, when (presumably) you slowly began to figure out how badly you had backed yourself into a corner with your "judges are here to do rough justice because the rule of law can't take into account individual circumstances" worldview.

(That, by the way, is a direct paraphrase from one of your comments on the original Wilson post last summer -- http://www.brendanloy.com/wp/2007/06/free-genarlow-wilson-now.html#comment-488064 )

And yet you foolishly maintain that your world, in which judges employ the same approach that you do, looking at the facts of every case individually and striking whatever balance they think feels right, is preferable to mine, in which judges respect the judgments of the governed as expressed in their laws and faithfully apply those judgments to the individual circumstances that come before them.

With luck, the exchange between us has demonstrated to the handful of those who have been reading the extreme folly of your view.

Which is not to say, as you continually erroneously assert in straw man fashion, that in my world we don't even need judges because we'd just be blindly and mechanically applying the law. See Derek's discussion of robots and Federalist 78, above, for refutation. And reasonable people can and do disagree over the extent to which a judiciary has authority to dispense "substantive justice" of the sort rendered here, as Wobbly points out.

But the bottom line of this exchange is that even when doing "substantive justice," it has to be based on more than the judge's whims regarding the facts as they strike him. If that's all there is, we end up with judicial tyranny of exactly the sort that you have been advocating here, wherein Wilson is freed from his "harsh" sentence, and Widner is not released from his "harsh" sentence -- not because the legislature said so, but because there are "factual differences" in your mind.

Madness.

[Brian Foster]

Sorry, corrected paragraph here:

My whole effort in this thread has been to demonstrate that, your protestations to the contrary, your approach to this issue is completelyfact-based, with no consideration whatsoever for what the law actually says -- at least not until you figure out that the law actually helps your fact-based argument. Even so, however, you didn't invoke it until late yesterday, when (presumably) you slowly began to figure out how badly you had backed yourself into a corner with your "judges are here to do rough justice because the rule of law can't take into account individual circumstances" worldview.

[Joe Mama]

Hehe . . . this "sycophant" says David should be paying tuition in here.

[Brian Foster]

Wobbly,

Thanks for the kind words. Of course I recognize that there are reasonable differences of opinion on whether the GA court's decision was right or wrong, and why. My motivation here has been that David apparently prefers his own unprincipled, unreasonable, indefensible version of events rather than any one of those other reasonable alternatives. If he were making a principled, reasonable argument for why Widner and Wilson should receive different treatment, that would be one thing -- and I might even agree. But he's so painfully obviously not doing that.

In fact, I have been so unimpressed with David's arguments as a general matter, both here and in countless other threads, that I am afraid I must disagree with you when you say:

"you or I wouldn't do well attempting to argue math or computers with him. To our credit, though, we don't try."

I agree that I may lack the factual knowledge to engage him intelligently on a math or computer topic, but I have seen nothing at all in his arguments on this blog over the past three years to suggest that his arguments on math or computer topics would be any more rational, logical, defensible, or intelligible than his arguments on any other topic.

[David K.]

Yet you are willing to set Wilson free, but not to set Widner free.

Actually no, no i never said that, but if you want to keep believing it, fine. You can keep posting lies and misinformation as long as you want, but what you are claiming is simply FACTUALY untrue.

[Brian Foster]

Actually no, no i never said that

Yes. You did:

Do i think he deserves the same level of leniency as Wilson? No I don't.

The "level of leniency" Wilson got was a declaration that his sentence constituted cruel and unusual punishment and a vacating of his sentence, which set him free.

You said you do not think Widner deserves the same "level of leniency" as Wilson.

Therefore, you do not think Widner deserves a declaration that his sentence constituted cruel and unusual punishment and a vacating of his sentence, which would set him free.

I acknowledge, of course, that at some point in the hazy future of possibilities, you might be disposed to show mercy upon Widner if the fancy strikes you:

Its entirely possible that based on his crime Widner has served enough or more than enough time and should be let go

But if that's the case, then you would give Widner the "same level of leniency" as Wilson.

Thus, a) your claim that I am "posting lies and misinformation" is ridiculously inaccurate, and b) you don't even have a clear idea of what you really mean when you say that Widner doesn't deserve "the same level of leniency" as Wilson.

All of which continues to demonstrate the folly of your system whereby the law doesn't matter, all we look to are supposedly "common sense." "feel-good" judgments based on whatever the decisionmaker thinks is right in any given case based on the facts before it. And no adherence to procedural rules either, because we wouldn't want to deny "justice" to anybody (never mind the injustice served upon all those poor saps who actually thought the rules were there to be followed).

[David K.]

You can twist my words all you want Brian, but as I have pointed out, I believe that neither deserved 10 years in prison, while at the same time believing Widner commited a worse crime than Wilson and did not deserve to have his case treated equally. If that was initially unclear to you it was more than explained repeatedly in my other posts. You can keep beating this dead horse all you want, but you are arguing against points i never made and views I never held. You are inferring and implying left and right and I have come straight out and said, multiple times EXACTLY what I meant. If you want to insist on continuing to misinterpret, I have to imagine intentionally at this point, what I have more than explained, then i can only assume you are not interested in discussion but in someone saying "Brian is right".

Again I'll be honest i'm not even reading most of what you are typing because its completely and utterly irrelevant to what I have said. You are writing diatribes and essays when a few simple lines would do.

Now hopefully you will get it this time.

Willson: Does not deserve 10 years
Widner: Does not deserve 10 years

Widner deserves more punishment than Wilson.

It may be, and I have stipulated this above atleast once, that Widner has in fact allready served enough to cover that difference. But the two cases are DIFFERENT, substantially so, and the punishement ultimately deserved by each is going to BE different, not 10 years in EITHER case as I have repeatedly told you, but yes, Wilson deserves more leniency in his ultimate punishment than Widner. I don't know how I can be any more clear about what I'm actually saying, but it isn't now nor has ever been what you BELIEVE or CLAIM I am saying.

Your arguments about the case may be thoughtful and correct, but they do not apply to what *I* am arguing because its NOT what you are arguing about! Its really THAT simple.

[Brian Foster]

Sigh.

You can twist my words all you want Brian, but as I have pointed out, I believe that neither deserved 10 years in prison, while at the same time believing Widner commited a worse crime than Wilson and did not deserve to have his case treated equally.

I have never disagreed that this is your view. Rather, I have continually argued that it is unprincipled, untenable, and wrong. In response, you keep telling me that it's your view. Nonresponsive.

you are arguing against points i never made and views I never held

No. I am arguing against the lack of any principled basis for the points you did make and the views you do hold. That you still fail to grasp this is further evidence of your inability to reason generally.

i can only assume you are not interested in discussion but in someone saying "Brian is right"

I'm not nearly as interested in others saying I'm right as I am in making sure they realize how wrong you are. Your position is not just flabby and soft, it's dangerous in its laziness and lack of integrity. The fewer citizens we have thinking the way you do, the better off we as a nation and a people will be. If I have saved even one mind here -- and clearly if I have, it wasn't yours -- then it will have been worth it.

i'm not even reading most of what you are typing because its completely and utterly irrelevant to what I have said

Again, that you do not even perceive the relevance to your statements of my full frontal assault on the utter lack of foundation for your views speaks volumes. Moreover, how hypocritical of you to accuse me of being illiterate while simultaneously refusing to read my arguments. Y'know, maybe if you actually read what I've written and consider it with an open mind, you might be able to begin to think your way out of this self-created conceptual of yours.

Maybe.

Everything from "Now hopefully you will get it this time" to "what you BELIEVE or CLAIM I am saying"

That entire diatribe of yours, David, establishes yet again the very point I have been trying to make and which you are apparently still too poorly equipped to grasp. Everything in there is an entirely reasonable (albeit incorrect in my opinion, but that's beside the point) view of the factual differences in these cases. But it is utterly devoid of any articulable legal principle to support what is, in the absence of same, nothing more than your own particularized individual views about what punishment is "deserved." I have pressed you, repeatedly, to provide something, anything, to fill that gaping void in your logic, that vast hole in your argument, that glaring deficiency in your position, and you have repeatedly failed to do so.

All I want to know is, if we were to live under David K's rules, what would we use to decide the appropriateness of punishment? And all you have given me, all you seem capable of giving me, is your personal views on the subject for any given set of facts.

So either you are rejecting the need for law (which seems far crazier than my alleged rejection of the need for judges), or you are equating the law with your personal views. Either way -- that's not law.

And for you to claim, as you did above, that you aren't making a "legal" argument, is utterly ridiculous in light of every single other comment in this thread, the topic of Brendan's original post, and your own contributions to the discussion. Unless, as I just speculated, you are honestly arguing that law has no role to play in deciding punishment. In which case your infirmities extend beyond the intellectual and begin to cross over into the sociopathic.

"Your arguments about the case may be thoughtful and correct"

Then why do you oppose them?

"they do not apply to what *I* am arguing because its NOT what you are arguing about!"

And so I end where I began:

Sigh.

[Brian Foster]

Dammit:

"self-created conceptual ABYSS"

[David K.]

I have never disagreed that this is your view. Rather, I have continually argued that it is unprincipled, untenable, and wrong. In response, you keep telling me that it's your view. Nonresponsive.

You believe that it is wrong and unsupported by law to have the view that a 17 year old having oral sex with a 15 year old is different and deserves a different level of punishment than an 18 year old adult having actual sex with a 14 year old? I'm sorry but its blatantly obvious to me and in fact true in the eyes of the law throughout the country that these two things are different. If you want to say you believe the two acts are the same and deserving of the same punishment thats fine for you to argue, but it is in fact supported by EXISTING law.

No. I am arguing against the lack of any principled basis for the points you did make and the views you do hold. That you still fail to grasp this is further evidence of your inability to reason generally.

Again, you believe that the much greater difference in age, and the difference in acts commited are not grounds for a principled difference? That by your reasoning "sex" between two people occured (no matter the type of "sex") it shoudl be the same punishment or lack there of regardless?? Do you then believe that a 17 year old having oral sex with a 15 year old is equivalent to a 32 year old having actual sex with a 13 year old? Because thats what you seem to be saying.

Address those points Brian, because thats the only thing I have been saying ALL ALONG. That the two "crimes" are of a different degree, and deserve different levels of punishment. THATS IT. If you think that means I advocate lawlessness than its amazing you passed law school. It happens ALL THE TIME that similar crimes result in different levels of punishment given different circumstances surrounding them. Its why you have judges and juries and sentencing hearings. What about that is unsupported?

I am not opposing your arguments, i'm IGNORING them because they have nothing to do with what *I* am saying. You are harping continously on the fact that I supposedly want Widner to rot in jail while letting Willson free, something I NEVER EVER SAID. You have attributed to me an argument that you want to argue against but one I never made. So again, I want you to answer me one thing and one thing only:

Do you believe that it is unprincipled to believe that two crimes while they may be somewhat similar deserve different types of punishment because of the circumstances that surround them, because that is ALL I have ever claimed.

[Derek]

David K., re-read my post. Once you get to World B, Brian's pointing out that any distinctions between World B^1 and World B^2 are essentially meaningless; your willingness to move to World B in the first place is at issue. So while you're adamantly trying to explain why World B^1 and World B^2 are different, Brian's attack the condition precedent; namely, living in World B.

[David K.]

Derek, I've said it before and I'll say it again, whether we are in World A or World B or World Q, its not relevenat to what I said. All I said was that Widner and Wilson commited similar but different crimes and therefore it is reasonable to have the punishment issued to both to not be identical. I am in NO WAY saying throw out all the laws. And I am in NO WAY saying that 10 years was fair for one and not the other. How much clearer do I need to be???

[Derek]

Alright, I give up, it's impossible to continue any attempt at "reason."

[Brian Foster]

No time to respond in detail, but briefly:

David, the questions you are asking me are not relevant to the discussion. That said, I will answer them.

I fully agree with you the factual differences between the two crimes warrant different levels of punishment. I believe judges have a role in deciding such punishments. But I also believe judges have an obligation to respect legislative judgments regarding punishment. The legislature in this case said that Wilson should get 10 years, and so should Widner. The GA Court said, Wilson should be freed, but Widner should not. The reasons the GA Court relied on to say Wilson should be freed apply with precisely equal force to Widner's case, because those reasons do not depend on the factual differences that justify different levels of punishment. That is to say, the GA Court held the 10 year mandatory minimum to be cruel and unusual when applied to teenagers having consensual sex. Nothing about the Court's holding focuses on 18/14 v. 17/15. And as I've said, the fact that Widner and his girlfriend had intercourse as well is irrelevant because he wasn't charged and convicted under that statute, he was charged under the oral sodomy one. And even if you want to take into account, it's offset by the fact that Widner and his girlfriend were in an intimate, committed relationship whereas Wilson and his partner were a random hook-up in a hotel room orgy involving, IIRC, alcohol and perhaps drugs. So I see those as pretty much canceling out.

But back to my main point -- the substance of "David K's Views on Punishment" is not, and has never been, in question. It's the source of those views. You don't have any. You just make it up. "Well, this guy's 18 not 17 so he deserves more, and that girl's 15 not 14, so he deserves less," etc. You're just looking at facts and making an arbitrary decision that feels good to you, without any grounding in law.

How do I know this? Because if you grounded your views in the law, you wouldn't have so cavalierly ignored the GA legislature's determination that Wilson should not benefit from the new law. You placed the facts above that law. And for Widner, you place the facts above the law too. And only when I press you on it do you fall back to the legislated amendment that exempted people like Wilson (but not Wilson himself) from the 10 years, while cutting off the age range so that Widner, by six months, still gets 10 years.

Now, last summer you were all upset at those horrible GA judges following the law blindly instead of ignoring it do "justice" as you see it. But now that the GA legislature has redrawn the line in a way that fits with "justice" as you see it, you are perfectly happy with relying on that law to say that Widner doesn't deserve "the same leniency" as Wilson. So you only oppose judges "blindly following the law" when it leads to results you don't like. If you're comfortable with the result, you say, "apply the law as written."

But when I point that out, you back away again -- falling back on your earlier equivocations and probablies, to say that you've never claimed Widner deserves 10 years, and now in the past couple days you've definitively said he does NOT deserve 10 years, even if he deserves more than Wilson. Again, for the record, I find it completely reasonable that he should get more than Wilson, even if I disagree over how much or what particular facts you rely on to get there. But again, that's not the point.

The point is that you are once again ignoring the law. As I just explained, the GA legislature amended this law to say that when perp and victim are both teenagers and the age difference is four years or less, they do not get the 10 years. That covers the facts of Wilson (but again, the GA legislature specifically refused to make this change retroactive to cover Wilson, a judgment you completely disagreed with and applauded the court for ignoring). But it does not cover the facts of Widner, as Aaron pointed out.

So for you to keep repeating "Wilson does not deserve 10 years, Widner does not deserve 10 years, Widner deserves more than Wilson," proves conclusively that you have no respect for democracy.

Because the democratic process declared that Wilson should be punished under the old law, and get 10 years.

And the democratic process said that Widner should be punished under the old law, and get 10 years.

But then the Court came along and said, because the legislature used the democratic process to change the law so that people like Wilson should get much less time, we're going to use that as a basis for declaring Wilson's sentence cruel and unusual, because obviously the legislature thinks the 10 years is too harsh.

The Court said this despite the GA legisalture also obviously thinking that Wilson and others convicted previously should not get the benefit of the new rule.

And based on all your comments from July to October, you were perfectly okay with all of that.

But the Georgia Court said that Widner does not get the benefit of this ruling because, according to the GA legislature's amendment, he would still get the 10 years even if convicted under the new law. Thus, his punishment is NOT cruel and unusual.

Yet you say that Widner's 10 year punishment IS too harsh, i.e. cruel and unusual in your view.

So now you disagree not only with the legislative judgment that Wilson should have gotten 10 years, and the legislative judgment that Widner should have gotten 10 years, but also the judicial ruling that Widner should have gotten 10 years!

It's thus quite clear that you have decided for yourself that 10 years is too harsh a sentence, i.e. cruel and unusual, for someone in either Wilson's or Widner's situation. And you agreed with the court's decision to free Wilson. And you seem to agree that Widner shouldn't ahve to serve all 10 years of his sentence.

But for reasons that continue to go unexplained, you apparently do not think the GA court should have disturbed Widner's sentence.

It just boggles the mind.

I'm just trying to get a sense of how this fact-finding and punishment-deciding and relief-granting mechanism is supposed to work as you see it, David, and every time you comment it gets murkier and murkier.

Bottom line: I do not question your sense that the cases are different and deserve punishment. I greatly question the arbitrary and rudderless manner with which you navigate those distinctions in deciding what each man "deserves," at no time giving the slightest dispositive weight to legislative, or for that matter judicial, determinations directly on point.

Yeah, not so brief. Sorry.

[David K.]

David, the questions you are asking me are not relevant to the discussion. That said, I will answer them.

As I have pointed out, this proves you are having a discussion WITH YOURSELF. The questions I ask are the point I've been trying to make ALL ALONG. Thats it! I'm not trying to argue Widner/Wilson in regards to the law other than in the abstract. I've never CARED what the nitty gritty details of the law are! You've been railing at me for a position I never claimed!!! It boils down to this:

But for reasons that continue to go unexplained, you apparently do not think the GA court should have disturbed Widner's sentence.

I NEVER SAID THAT! EVER! Thats it! There's nothign deeper, nothing to understand, nothing to analyze. I never said they SHOULDN'T do anything about Widner's sentence, I apparently just failed to say they SHOULD in a way you understood and you immediately jumped to conclusions about what I was arguing, rather than paying attention to what I was aying. Its been painfully frustrating to try and get you to understand this. Like I said you may be making brilliant legal factual based arguments on why Widner deserves to be free, and I'm in no way disagreeing with you on those, i'm not even LOOKING at those, i don't CARE about those. All I wanted you to admit, I'll I have EVER been trying to point out is that Widner's case and Wilson's case are NOT equivalent and a decision in Wilson's case should not AUTOMATICALLY be applied to Widner's without factoring in whether the differences between the two apply.

Keep digging and you may hit China.

[Brian Foster]

this proves you are having a discussion WITH YOURSELF

Well, considering I made the initial comment yesterday that revived this thread, and then you responded to it, I think your claim that I am having a discussion with myself is self-evidently false.

More to the point -- I realized as I drove home tonight that in my rush to crank out one more attempt to lead you to reason, I may have inadvertently said some things carelessly that would lead you to this point. If you will, allow me to clarify.

The reason your questions are not relevant to the discussion we are having is because my critique of your position does not depend on the substantive reasonableness of your claim that "Widner's case and Wilson's case are NOT equivalent." I have understood all along that you think this. I do not fault you simply for thinking it. As I said to Wobbly, I fully understand that reasonable people can and do have different views on that question.

But the substance of my view on whether or not the cases are equivalent, or if the factual differences matter in some cosmic way, are irrelevant to my actual argument -- which, again, you have chosen to engage me with, so your idea that I am talking to myself is utter nonsense, as the history of the past two days on this thread as shown.

In Derek's terminology, you've repeatedly stated your view of the world with respect to the appropriate punishment for these similar but not identical crimes, labeled B^1. Your questions are seeking my view of the world on this question, which to the extent it differs from your view, is labeled B^2.

But the substance of your view is not basis for my objection to your claim. Accordingly, my view on that question is, as stated, irrelevant.

And finally, the very fact that you think it would be relevant to ask me whether I think the factual differences mean they should be punished differently, proves the very point I have been making, because it reveals the actual problem with your claim: that you think the proper method to determine the appropriate punishment is to look inward as an individual and divine the answer based on the facts as you see them.

That tendency of yours is the unprincipled dangerous lazy thinking that I have repeatedly warned against, and even as you think you have "won" by eliciting from me an "admission" that your questions are irrelevant to my argument, the reality is that this turn of events conclusively proves my argument even more indisputably than anything else I have written.

Returning to my actual thesis -- My argument with you is, and always has been, with regard to the second prong of your claim: "a decision in Wilson's case should not AUTOMATICALLY be applied to Widner's without factoring in whether the differences between the two apply." Because you a) base your entire viewpoint on your own assessment of the significance of the distinctive facts of each case, b) ignore the duly enacted legislative judgments of the people of Georgia whenever they fail to comport with that assessment, and c) ignore the judicial determinations of the Georgia Supreme Court whenever they fail to comport with that assessment, you are left without any basis on which consistently to defend or support your assertion that Wilson's case should not automatically be applied to Widner's.

You can't rely on the elected law, because you already rejected it for Wilson. You can't rely on the court's decision, because it says Wilson doesn't deserve any leniency, and you've already admitted that you think he deserves some (just not as much as Wilson). And you can't rely on the factual distinctions, because "Wilson's case" was not decided on the facts, it was decided on the law.

Thus, it is patently absurd for you to try to claim that you have never been making a legal argument -- not only given the context of this thread and all the other comments, but also because your very claim, regarding whether Wilson's case should or should not be applied to Widner's, necessarily invokes the law. And, because you have, at varying times, blatantly ignored the only two possible legitimate sources of law as you have thrashed about in this discussion, you have left yourself bereft of any other source for determining what's appropriate for each man's case, besides your own personal feelings on the matter.

And that's why you think it's relevant to ask me what my personal feelings are on the matter.

Again -- my point all along has been that . Neither you nor I have any right or authority to tell the people of Georgia how they should punish oral sodomy between teenagers. We can certainly express our views and opinions, of course, if we choose to -- but merely having an opinion entitles no one to much of anything. In the end, what matters is the policy judgments enacted into law by the Georgia legislature.

Even conceding for the sake of argument that the factual differences are significant, and even conceding that the Ga Sup Ct had the authority to declare Wilson's sentence cruel and unusual, that still doesn't explain how or why, all of a sudden over the past two days, you've been willing to reduce Widner's sentence, even though when I brought it up last month you were among the first to jump in with all the reasons why they weren't the same case so the one shouldn't apply to the other. As I said, the legislature doesn't say Widner should get leniency, and neither does the GA court. Even now, you're still saying that WIlson's case should not AUTOMATICALLY apply to Widner, yet you apparently are taking the core holding of Wilson's case -- that the 10 year minimum is cruel and unusual -- and applying it to Widner in some yet-to-be-described fashion, even though a month ago you said that should not be done because it wasn't the same thing.

Do you get it yet? YOU'RE JUST MAKING IT UP AS YOU GO ALONG. You're not arguing or reasoning. You're vomiting. Throwing forth whatever you happen to "think" of next, without regard for whether it's consistent with what you've said before or makes any sense in context of your previous, shall we say, offerings.

You can tell me once again, as I'm sure you will, that I'm just not talking about what you're talking about, but you'll be wrong once again just like you have been every other time you've said it. True, I'm not engaging you at the surface level of your personal views v. my personal views. I'm attacking (actually I've pretty much completely obliterated at this point) the logical, conceptual, intellectual, and, yes, legal foundations of your claim that your personal views, or mine, have any significance.

So once again we find you continuing to cling to a position that has been completely, demonstrably, and repeatedly shredded to bits, as if you've stuck your fingers in your ears and started shouting LA LA LA I CAN'T HEAR YOU. (And that's less of a joke than it sounds like, given your admission that you aren't even bothering to read anymore.)

Finally:

I NEVER SAID THAT! EVER! Thats it!

Please don't lie. From the moment I introduced Widner to the discussion, as I have said, you were at pains to show me how the factual differences meant that the Georgia Court was right not to extend its decision to Widner. That was my whole argument back then - because the GA Court ignored the valid legislative judgment of the people of Georgia by freeing Wilson, it had to either come up with a reason to deny the same to Widner, or else give him the same relief. The Court chose to deny him, and based it on the arbitrary line drawn by the very same legislature whose judgments it ignored when it freed Wilson. You, David K, chose instead to try and factually distinguish Widner's case in order to defend the Court's refusal to extend relief to Widner. You had no other purpose for making those arguments other than to say that the Georgia court was correct to leave Widner's sentence alone.

If you really meant then what you say you mean now, you would have agreed with me right away that the Court should have vacated Widner's 10-year sentence, and then remanded his case for a more appropriate sentence. That's the simple, elegant answer that both models your view as you've stated it and demonstrates a healthy respect for the law.

But you didn't say that then, and you're still not saying it now. First you simply denied Widner relief because the facts were different (whether you said it explicitly or not, your meaning was incontrovertibly clear). Now, you're saying he should get less than 10 years, but without dealing with either the GA legislature or the GA Court that says he should.

And that's really the bottom line. A month ago, you said the cases were different, so Wilson's case should not automatically apply, strongly implying that you even if you thought Widner's sentence was "too harsh" and he "probably" didn't deserve 10 years, you nonetheless were content to leave things be, because after all, "an equal level of indignation is not exactly justified." You certianly never said that you thought Widner's sentence should be reduced to 8 years, or 6 years, or whatever it is you think he "deserves." You just said it was different, so Wilson's case doesn't apply, and left it at that.

But now, all of a sudden, you're willing to unequivocally say that Widner shouldn't have to serve 10 years. Although you still haven't identified who you think should grant him relief, nor have you said whether you actually think he served enough time before getting his deal from the local prosecutor. And you still insist that Wilson's case should not automatically apply to him, even though it was precisely Wilson's case that led the local prosecutor to grant him the deal.

You're just making it up, you're inconsistent, you have no respect for either the law or courts because you refuse to accept their judgments when they differ from yours, and you don't even bother to think through the implications of any of this long enough to figure out how wrong you are before you stick your fingers in your ear and start singing LA LA LA I CAN'T HEAR YOU, content to live in a fantasy world of your own construction where the only thing that matters is your own sense of what is "just" and "deserved," regardless of your utter inability either to articulate a principled basis for your moral compass or to anchor that compass to any external source of authority deserving of recognition by civilized society.

And that's why it is your worldview, and not mine, that leads to draconian injustice and lawless chaos. Because your worldview depends entirely on the personal views of the judge, and treats the law as just a silly bunch of words that some people scribbled down long ago. After all, as you said in July (paraphrase), "the rule of law can't take into account the circumstances," so we need judges to ignore the law whenever they feel like it, because there's a "circumstance" that needs taking into account.

The senselessness of this view should be readily apparent. All law, all fact, all everything is "circumstance." Ignore one in favor of the other, and the entire enterprise is doomed to fail.

Welcome to failure, David.

[Brian Foster]

Oh, and:

That the two "crimes" are of a different degree, and deserve different levels of punishment. THATS IT. If you think that means I advocate lawlessness than its amazing you passed law school. It happens ALL THE TIME that similar crimes result in different levels of punishment given different circumstances surrounding them.

I don't think you advocate lawlessness because you want to focus on differences of fact and degree in determining the appropriate sentence. I think you advocate lawlessness because you ignore the law, both legislative and judicial, when it makes determinations of those differences that you don't like. If you were willing to respect the law, or the courts, when they have already told you what the outer bounds of permissibility are, you wouldn't be nearly so dangerous. But you're not, as your positions with respect to both Wilson and Widner conclusively demonstrate.

[David K.]

Brian,

The reason I have kept arguing with you frankly is its been a slow week. You have demonstrated repeatedly that you want to be "right" regardless of what I am actually arguing, you even admit it. You say that I am talkign about my opinion but you have eviscerated my legal argument. I haven't made a legal argument, i've expressed an opinion. This is a BLOG. It's not the supreme court, its not the superior court, its not a municipal court. Its an internet blog for crying out loud!

You can right longwinded posts filled with legal jargon. Congrats I guess.

What is ridiculous is that you have somehow decided that my comments on this thread somehow equate to my entire worldview on the entire legal justice system. I mean I guess if you want to you can do that, but its stupid and illogical.

Luckily I have plans this weekend so I can put this whole thing behind me because other than Joe Mama and Wobbly H, two people who have allready demonstrated irrational blog stalkerish behavior thats a completely different can of worms, no one else cares about this anymore.

But hey, if you want to think you "eviscerated" my legal arguments, more power to ya, especially since i never claimed to be making any.

Andrew called you "overedumucated" and I agree (if you've been around the blog you should know that he and I NEVER agree, that should tell you something). But seriously, save your long winded legalese for your job. Your not impressing anyone and your not convincing anyone by arguing somethign that I was never arguing to begin with (something you oddly admit...) So congratulations on winning an arguments against....no one....wow....what a victory...you must be proud?

Well, luckily i have a fun filled weekend of football and friends ahead of me, so i can put this fun little time waster of a discussion in the past. Have fun arguing some more with yourself and the opinions and arguments you are ascribing to me, its nice of you to keep them company since they have no one else (since after all they aren't MY opinions or arguments to begin with).

[Brian Foster]

David,

Finally you fall on the last refuge of the mentally incompetent: "it's just my opinion." Faced with the utter contradiction and senselessness of your views, you say it doesn't matter, becasue it's "just your opinion." Shown that your opinion re Wilson and your opinion re Widner and your opinion re the rule of law and the need for judges are all mutually incompatible and diametrically opposed to one another, you say it doesn't matter because it's just your opinion on a blog.

Except it's not just that. Your opinion is not just your opinion, because in our system, you and I have equal rights. Therefore it's incumbent on you not to just hold an opinion, but to hold a principled and reasonable one. Because if you are to have the power to cancel out my vote, to speak your mind freely, and to potentially persuade others, then you damn well better exercise it responsibly.

But your "opinion" in this discussion betrays otherwise. It's evidence of the way you view the world, make decisions, order your priorites, and evaluate your legal and political leadership.

And that's what scares me. Hence, why I have exercised my equivalent power to speak freely and potentially persuade others, to expose you for the intellectual nullity that you are, so that others won't fall prey to your superficially appealing but fundamentally nonsensical views.

You are a citizen, David, endowed with the right to vote and the responsibility to exercise your civic duties wisely. Your inability even to comprehend that your "opinion" rests on assumptions and arguments about how the law should work -- let alone your inability to see the flaws in those assumptions and arguments -- demonstrates a failure of the American experiment, as you have abdicated your responsibility to think critically and clearly, content instead to spout random opinions without any regard for whether they make sense in the rational order of civil society.

And like most other soft-headed, functionally illiterate Americans, you don't even care. You're off to have "fun filled weekend of football and friends," because hey, that's what matters -- having fun and watching sports. Not critical thinking or a coherent worldview about how we should govern ourselves and punish the transgressors among us.

When the last vestiges of freedom and self-governance in this country fall away, I hope you'll remember this exchange we've shared this week. I won't hold my breath though.

Shame on you, David, for squandering both your human gift of intellect, and your civic gift of citizenship. Your only consolation -- and it is a sad one indeed - is that you are not alone.