I hardly know where to begin, so I will begin at the end. The end of Genarlow Wilson’s imprisonment came Friday, October 26, 2007, 32 months after it began. It came at the hands of the Supreme Court of Georgia and its decision that his sentence constituted cruel and unusual punishment which is prohibited by the Eighth Amendment to the U. S. Constitution.

As a lawyer, the first thing I noted was the fact that the Supreme Court’s decision was not unanimous. It was one of those 4 to 3 results that always make me wonder why the law is apparently so hard to understand. I don’t generally like to comment on a decision by an appellate court. This is for several reasons. Primarily because, it does no good. A decision by the highest appellate court in the state or the nation is the law for that case, for those parties, like it or not, and there is nothing you can do about it. Your client either won or lost. You may think you did not receive justice, but that does not change the fact that your case is over. It will be up to someone else with another case to come along with the opportunity to change the law.

The puzzling thing is that if you read (in a fair and impartial way, mind you) the majority’s opinion, you can easily agree with its reasoning and rationale. But then, if you read the dissent (again, fairly and impartially), you can easily agree with its rationale. Why is this? First, you need to understand that this same phenomenon occurs quite frequently in court decisions–if you make an effort to look at both sides fairly. Second, court cases always involve real people in real situations, and they are rarely, rarely, black and white, cut and dried–if you are looking at them fairly and impartially. It is the unique obligation of judges and juries to look at both sides, fairly and impartially, BEFORE making a decision. But ultimately, decisions by judges and juries are not the result of giving both sides the benefit of the doubt. At some point, a particular fact, a particular line of reasoning makes sense to the judge or juror. Other facts and other rationalizatons get put into a differenct category from the facts that seem important. The outcome: a decision that in many cases people can argue about.

That is the process. It is unavoidable in my opinion. But it does not mean that justice was not done. It does not mean that one party was screwed and one party won. It simply means that it is very hard to be a judge or a juror and make these decisions. And that is why, when lawyers lose a decision, we don’t or shouldn’t take it personally. It’s just life and life ain’t always fair. But the courts should be, or maybe I should say, the courts and the law should appear to be fair.

Enter Genarlow Wilson and Larry Craig, not necessarily in that order. Wilson’s case got all the attention because most people thought the outcome of his conviction was not fair. I was one of them. As for Craig, anyone that knows anything about the law, scratched their head and said how in the hell can tapping your feet and never uttering a word be a crime. I am no fan of Craig, but if what he did (assuming he did it) is a crime, there are some street corners in Atlanta you better not stop near or you may be soliciting prostitution.

Wilson and Craig, both have a new found appreciation for the power of sex crime laws to reach out and touch you in ways you never imagined (no pun intended). Both have an understanding of how important judges and their discretion are in dispensing justice. Both wanted a second chance. One won. One lost–or at least so far.

At the risk of oversimplifying the Supreme Court’s opinion, I will tell you why I think both the majority and the minority are right.

The majority of the justices that voted to free Generlow Wilson did a brave thing. Whether you agree or disagree with their view of the law, it can be said that they were striving to accomplish justice, and many people will surely think they did. Nevertheless, they may very well be criticized for their decision. They may even find themselves with opposition in the next election and their opponent may try to make them eat their words in setting Genarlow free.

The minority of the justices that voted to keep Genarlow Wilson in jail, also did a brave thing. Their vote was a statement that, in their view, the legislature of Georgia had the power and the right to decide what constituted a crime and how it should be punished and that, while that law may appear unfair in any particular circumstance, the Court, in this case, should not undo what the legislature had done.

My goal here is not to convince you to agree with the majority or the minority. My hope is to say something fundamentally true about our court system and about our legislative process.

We all make decisions, but that, in and of itself, does not make us wise. We make decisions for a variety of reasons and I think most everyone can appreciate the fact that in many instances, it is hard to make a decision because there are competing interests, issues and goals. Which job to take? Which house to buy? How to discipline a child? How to repair a misunderstanding with a friend? We can make a good decision or a bad one even if we thought it was a good decision at the time.

But, when it comes to our courts and our civil and criminal justice systems, the making of decisions has always had a special requirement: Decision should be made fair and impartially, whether made by a judge or jury. And this is especially true when it comes to dispensing punishment, particularly in a day and age where we know dozens of people have been convicted and sentenced to death or jail for crimes they did not commit.

As parents, we have probably recognized situations where we felt punishment in some form or another was the only just result, although in similar situations on different occasions, we may have been more prone to forgiveness or a “second chance.” If we, as parents or as employers or in any role in which we exercise power over the life of another, have competing thought processes, we should not think a judge is any different. The difference is that a judge has taken an oath to be fair and impartial in making his/her decisions. It seems to me that if a judge is expected to be fair, then by definition a judge must be able to access a punishment that fits the crime.

When cases like Genarlow’s come before our judges, our trial judges, the ones that sit alone, by themselves, on the bench and render judgment over others, the same considerations which the majority and minority on the Supreme Court considered must be considered by one judge. The one judge sitting on the Superior Court bench doesn’t get the right to say he/she decided the case 2 to 3.

Where judges make decisions, the lawyers and their clients have no clue which way the judge will rule. They have but one hope: that no matter what the judge decides he will do justice. It is precisely for this reason that victims have finally been guaranteed the right to speak to the judge in the punishment phase of a criminal proceeding. Because the circumstances from case to case may vary significantly, “doing justice” is not necessarily an easy thing. However, I can tell you from personal experience that there is no greater feeling than the feeling that justice has been done.

And now to my point. We can argue about whether the Justices of the Supreme Court of Georgia made the right decision or the wrong decision, but it will do no good. They have decided. The skies willl not fall because Genarlow is now free. But, I suggest, the lesson to be learned from this experience is this: When Legislatures remove the discretion of judges in determining a just punishment, they are undermining our system of justice and its inherent sense of fairness.

If you do not realize it by now, you need to understand that the ultimate responsibility for the Genarlow Wilson controversy (regardless of which side you are on) lies with the Georgia Legislature. Had the legislature, in all of its moral self-righteousness, not passed a law that required a minimum 10-year sentence for oral sex between teenagers, we would never have heard of Genarlow Wilson. What he did may still have been a crime. He may still have been convicted. He might even have still received a 10-year sentence. But, whatever punishment he received, if the judge had had the discretion, the simple ability to consider all the surrounding facts, in determining Wilson’s punishment, Genarlow would probably have never received a 10-year sentence. It was that inability to make the punishment fit the crime that inflamed sensibilities and eventually catapulted Wilson’s case to national attention.

The Georgia Legislature is to blame. It alone is to blame. It is one thing to severely punish child molesters. It is another thing to brand teenagers engaging in oral sex as child molesters and punish them by imprisonment for a minimum of 10-years, no probation, no parole. This is one of those laws that a lawyer would realize in a minute that it is going to cause problems because it treats sodomy with a minor (oral sex under 16 years old) as a felony, while statutory rape is a misdemeanor. Most crimes get the benefit of a judge’s discretion, good or bad. However, the 10-year minimum required sentence effectively removed any ability of the judge in Wilson’s case to impose a lesser sentence.

While the Georgia Legislature may be excused for passing a bad law without realizing it at the time, in this case, they did something totally reprehensible. In 2006 the legislature decided that the law under which Wilson was convicted needed to be changed such that the crime for which he was convicted was now a misdemeanor, rather than a felony. While I am glad they changed the law, they did it in a manner that only highlighted the unfairness of the previous law. The 2006 law specifically provided that it was not the legislature’s intent to change the status of anyone convicted under the prior law. There was a big push be certain legislators to pass a bill that would allow judges to at least go back and reconsider the 10-year minimum sentences and exercise their discretion. The legislature would have none of that. It sure wasn’t going to do anything that could be construed as favoring sex offender, even if that sex offender was a 17 year old teenager.

Essentially, the legislature said to the people that were convicted under the bad law: Too bad we didn’t come to our senses before you were convicted and jailed for 10 years. This is another way of saying: You can spend 10 years in jail to pay for our mistake.

If the Georgia legislature is going to claim the moral high ground, then it ought to have the guts to do what it takes to be moral. Playing with peoples’ lives like the ancient gods and goddesses of Greece is not close to the moral high ground. Recognizing an injustice and doing nothing to correct the injustice on the lives of people affected by it, is not the moral high ground. It is hypocrisy. It is despicable.

When the Georgia Legislature changed the law under which Wilson was convicted to make the crime a misdemeanor, not a felony, and intentionally refused to correct the wrong done individuals convicted under the harsher law, it demostrated a lack of understanding of a basic principal of democratic government: fairness. For that, they should truly be ashamed. If it were my child who received 10 years without regard to the circumstances, if it were my child who was in jail for 10 years and the guy next to him for 1 year for exactly the same crime, if it were my child, I would be mad as hell.

And that is what this Republican controlled legislature does not get. It has no sense of fairness. In 2005 it had no sense of fairness when it changed hundreds of years of Georgia common law and made it impossble to sue emergency room doctors when they are negligent and hurt you. Today, it has no sense of fairness when its leaders constantly acknowledge that ER physicians should not be treated differently from the rest of us, and yet, a majority of them cannot oppose the insurance companies sufficiently to correct their error. They had no sense of fairness when they took away the discretion of judges to give due consideration to the circumstances when a sex offender lives a half mile from a school bus stop and is still, under the law, 10 feet too close, so the entire family has to move. They have no sense of fairness when they fail to give any serious consideration to meritorious bills dealing with credit freeze and title pawn lending.

If you wonder why I am so agitated about this, it is because I do not want Genarlow Wilson’s freedom to become a debate about the courts or “liberal” versus “conservative” judges. I want everyone to recognize that courts make difficult decisions about messes that others create. In this case the mess was created by the Georgia Legislature and it should have been fixed by the Georgia Legislature. It wasn’t and that is no one’s fault but the Georgia Legislature.

The last thing Larry Craig and Genarlow Wilson have in common: ultimately, they got what they deserved. I sincerely hope the Georgia Legislature is equally as fortunate.