HUMPHREY v. WILSON; WILSON v. THE STATE
S07A1481, S07A1606
Supreme Court of Georgia
OCTOBER 26, 2007
282 Ga. 520 | 652 SE2d 501
DECIDED OCTOBER 9, 2007.
Disbarred. All the Justices concur.
DECIDED OCTOBER 9, 2007.
William P. Smith III, General Counsel State Bar, Paula J. Frederick, Assistant General Counsel State Bar, for State Bar of Georgia.
Tucker, Everitt, Long, Brewton & Lanier, John B.
S07A1481. HUMPHREY v. WILSON.
S07A1606. WILSON v. THE STATE.
(652 SE2d 501)
SEARS, Chief Justice.
In Case No. S07A1481, the appellant, Warden Carl Humphrey, appeals from the grant of habeas corpus relief to the appellee, Genarlow Wilson, by the Superior Court of Monroe County (hereinafter referred to as the “habeas court“). For the reasons that follow, we conclude that the habeas court properly ruled that Wilson‘s sentence of ten years in prison for having consensual oral sex with a fifteen-year-old girl when he was only seventeen years old constitutes cruel and unusual punishment, but erred in convicting and sentencing Wilson for a misdemeanor crime that did not exist when the conduct in question occurred. Because the minimum punishment for the crime for which Wilson was convicted constitutes cruel and unusual punishment, this case must be remanded to the habeas court for it to enter an order reversing Wilson‘s conviction and sentence and discharging him from custody. Accordingly, in Case No. S07A1481, we affirm the habeas court‘s judgment in part and reverse it in part.
In Case No. S07A1606, Wilson appeals the denial, by the Superior Court of Douglas County (hereinafter referred to as the “trial court“), of his motion for release on bail during the pendency of the warden‘s appeal in Case No. S07A1481. Because the trial court properly denied Wilson‘s motion for bail, we affirm the trial court‘s judgment.
Facts:
In February 2005, Wilson was found guilty in Douglas County for the aggravated child molestation of T. C. Wilson was 17 years old at the time of the crime, and the victim was 15 years old. The sexual act involved the victim willingly performing oral sex on Wilson.1 At the time of Wilson‘s trial, the minimum sentence for a conviction of aggravated child molestation was ten years in prison with no possibility of probation or parole; the maximum sentence was thirty years in prison.2 The trial court sentenced
After the trial court denied Wilson‘s motion for new trial, Wilson filed a notice of appeal to this Court. This Court transferred the appeal to the Court of Appeals, and that Court affirmed Wilson‘s conviction on April 28, 2006.9 On appeal, Wilson claimed that his trial counsel was ineffective for failing to contend that
male who engages in intercourse with the same female is guilty of only misdemeanor statutory rape under
On April 16, 2007, Wilson filed the present application for writ of habeas corpus, contending that his sentence constituted cruel and unusual punishment due in large part to the fact that the 2006 Amendment to
On June 11, 2007, the habeas court ruled that Wilson‘s claim of cruel and unusual punishment was not procedurally barred, reasoning that since “the aggravated child molestation statute was not amended until after [Wilson‘s] direct appeal was filed, [Wilson] could not have reasonably argued that the amended statute resulted in a constitutional violation of his right to be free from cruel and unusual punishment.” Concluding that the extraordinary changes in the law reflected in the 2006 Amendments to
That same day, pursuant to
1. We first address Wilson‘s appeal from the denial of his motion for bond in Case No. S07A1606.
The State has moved to dismiss Wilson‘s appeal based on Bailey v. State,14 contending that Wilson‘s appeal is interlocutory and thus subject to dismissal since Wilson did not follow the interlocutory appeal provisions of
deny the State‘s motion to dismiss. To the extent that Bailey is contrary to our holding, it is overruled.
2. We turn now to the warden‘s appeal of the grant of habeas relief to Wilson. The warden first contends that Wilson is procedurally barred from raising his cruel and unusual punishment claim because, according to the warden, Wilson could have raised the claim in his motion for reconsideration in the Court of Appeals but did not do so. We conclude that Wilson is not procedurally barred from raising his claim.
Under
3. The warden next contends that the habeas court erred in ruling that Wilson‘s sentence constituted cruel and unusual punishment. We disagree.
(a) Under the
the severity of the crime.“”18 Moreover, whether “a particular punishment is cruel and unusual is not a static concept, but instead changes in recognition of the ““evolving standards of decency that mark the progress of a maturing society.““’19 Legislative enactments are the clearest and best evidence of a society‘s evolving standard of decency and of how contemporary society views a particular punishment.20
In determining whether a sentence set by the legislature is cruel and unusual, this Court has cited with approval21 Justice Kennedy‘s concurrence in Harmelin v. Michigan.22 Under Justice Kennedy‘s concurrence in Harmelin, as further developed in Ewing v. California,23 in order to determine if a sentence is grossly disproportionate, a court must first examine the “gravity of the offense compared to the harshness of the penalty” and determine whether a threshold inference of gross disproportionality is raised.24 In making this determination, courts must bear in mind the primacy of the legislature in setting punishment and seek to determine whether the sentence furthers a “legitimate penological goal” considering the offense and
(b) Before undertaking the foregoing analysis, we address the warden‘s contention that this Court‘s recent decision in Widner v. State28 controls the cruel and unusual punishment issue adversely to Wilson. We conclude that Widner is not controlling. Widner was eighteen years old when he had oral sex with a willing fourteen-year-old girl, and he received a ten-year sentence under
There is, however, a more significant reason Widner is not controlling in the present case. The 2006 Amendment to
(c) We turn now to the threshold inquiry of disproportionality as developed in Harmelin and Ewing. In this regard, we conclude that the rationale of our decisions in Fleming32 and Dawson33 leads to the conclusion that, considering the nature of Wilson‘s offense, his ten-year sentence does not further a legitimate penological goal and thus the threshold inquiry of gross disproportionality falls in Wilson‘s favor.
In Fleming, this Court addressed whether the execution of mentally retarded offenders constituted cruel and unusual punishment. At the time of Fleming‘s trial, Georgia did not have any
prohibition against executing the mentally retarded, but in 1988, the Georgia legislature added such a prohibition to
In Dawson, we relied on the principles of Fleming to hold that death by electrocution was cruel and unusual. In 2000, our General Assembly amended
Here, the legislature has recently amended
parole. Moreover, the legislature has relieved such teenage offenders from registering as a sex offender. It is beyond dispute that these changes represent a seismic shift in the legislature‘s view of the gravity of oral sex between two willing teenage participants. Acknowledging, as we must under Fleming, that no one has a better sense of the evolving standards of decency in this State than our elected representatives, we conclude that the amendments to
that teenagers should not be classified among the worst offenders because they do not have the maturity to appreciate the consequences of irresponsible sexual conduct and are readily subject to peer pressure;43 and that teenage sexual conduct does not usually involve violence and represents a significantly more benign situation than that of adults preying on children for sex.44 Similarly, the Model Penal Code adopted a provision de-criminalizing oral or vaginal sex with a person under sixteen years old where that person willingly engaged in the acts with another person who is not more than four years older.45 The commentary to the Model Penal Code explains that the criminal law should not target “[s]exual experimentation among social contemporaries“; that “[i]t will be rare that the comparably aged actor who obtains the consent of an underage person to sexual conduct... will be an experienced exploiter of immaturity“; and that the “more likely case is that both parties will be willing participants and that the assignment of culpability only to one will be perceived as unfair.”46
In addition to the extraordinary reduction in punishment for teenage oral sex reflected in the 2006 Amendment to
engaging in oral sex with a willing teenage partner is far from the worst offender and is, in fact, not deserving of similar punishment to an adult offender.
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 and that, for the law to punish Wilson as it would an adult, with the extraordinarily harsh punishment of ten years in prison without the possibility of probation or parole, appears to be grossly disproportionate to his crime.
Based on the foregoing factors and, in particular, based on the significance of the sea change in the General Assembly‘s view of the appropriate punishment for teenage oral sex, we could comfortably conclude that Wilson‘s punishment, as a matter of law, is grossly disproportionate to his crime without undertaking the further comparisons outlined in Harmelin and Ewing. However, we nevertheless will undertake those comparisons to complete our analysis.
(d) A comparison of Wilson‘s sentence with sentences for other crimes in this State buttresses the threshold inference of gross disproportionality. For example, a defendant who gets in a heated argument and shoving match with someone, walks away to retrieve a weapon, returns minutes later with a gun, and intentionally shoots and kills the person may be convicted of voluntary manslaughter and sentenced to as little as one year in prison.50 A person who plays Russian Roulette with a loaded handgun and causes the death of another person by shooting him or her with the loaded weapon may be convicted of involuntary manslaughter and receive a sentence of as little as one year in prison and no more than ten years.51 A person who intentionally shoots someone with the intent to kill, but fails in his aim such that the victim survives, may be convicted of aggravated assault and receive as little as one year in prison.52 A person who maliciously burns a neighbor‘s child in hot water, causing the child to lose use of a member of his or her body, may be convicted of aggravated battery and receive a sentence of as little as one year in prison.53 Finally, at the time Wilson committed his offense, a fifty-year-old man who fondled a five-year-old girl for his sexual gratification could receive as little as five years in prison,54 and a person who beat,
choked, and forcibly raped a woman against her will could be sentenced to ten years in prison.55 There can be no legitimate dispute that the foregoing crimes are far more serious and disruptive of the social order than a teenager receiving oral sex from another willing teenager. The fact that these more culpable offenders may receive a significantly smaller or similar sentence buttresses our initial judgment that Wilson‘s sentence is grossly disproportionate to his crime.
(e) Finally, we compare Wilson‘s sentence to sentences imposed in other states for the same conduct. A review of other jurisdictions reveals that most states either would not punish Wilson‘s conduct at all56 or
(f) At this point, the Supreme Court‘s decision in Weems v. United States59 merits discussion. In that case, Weems forged signatures on several public documents. The Supreme Court found that a minimum sentence of 12 years in chains at hard labor for falsifying public documents, combined with lifetime surveillance by appropriate authorities after Weems‘s release from prison,60 constituted cruel and unusual punishment. The Court stated that, because the minimum
punishment imposed on Weems was more severe than or similar to punishments for some “degrees of homicide” and other more serious crimes, Weems‘s punishment was cruel and unusual.61 According to the Court,
this contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.62
(g) All of the foregoing considerations compel the conclusion that Wilson‘s sentence is grossly disproportionate to his crime and constitutes cruel and unusual punishment under both the Georgia and United States Constitutions. We emphasize that it is the “rare case[]” in which the threshold inference of gross disproportionality will be met and a rarer case still in which that threshold inference stands after further scrutiny.63 The present case, however, is one of those rare cases. We also emphasize that nothing in this opinion should be read as endorsing attempts by the judiciary to apply statutes retroactively. As in Fleming and Dawson, in which this Court did not apply the legislative amendments retroactively, we are not applying the 2006 Amendment retroactively in this case. Instead, as in Fleming and Dawson, we merely factor the 2006 Amendment into the evaluation of whether Wilson‘s punishment is cruel and unusual.
As a final matter, the dissent‘s concerns about the impact of today‘s opinion are unfounded. In point of fact, today‘s opinion will affect only a small number of individuals whose crimes and circumstances are similar to Wilson‘s, i.e., those teenagers convicted only of aggravated child molestation, based solely on an act of sodomy, with no injury to the victim, involving a willing teenage partner no more than four years younger than the defendant. For example, in this regard, Widner was convicted not only of aggravated child molestation but also of statutory rape.64
4. The State contends that, even if the habeas court properly concluded that Wilson‘s punishment was cruel and unusual, it
In Weems,65 after concluding that the minimum sentence of twelve years in chains at hard labor constituted cruel and unusual punishment, the Court ruled that, because the minimum punishment was unconstitutional and because there was no other law under which Weems could be sentenced, Weems‘s “judgment [had to] be reversed, with directions to dismiss the proceedings.”66 Similarly, in the present case, Wilson stands convicted of aggravated child molestation, and, as in Weems, we have determined that, under the statute then in effect, the minimum punishment authorized by the legislature for that crime is unconstitutional. Because Weems was decided on direct appeal, and the present case stems from Wilson‘s habeas petition, we cannot direct the trial court to set aside the judgment and to dismiss the proceedings against Wilson. Instead, the corresponding and appropriate habeas relief would be for the habeas court to set aside Wilson‘s sentence and to discharge Wilson from custody.
Judgment affirmed in part and reversed in part and case remanded with direction in Case No. S07A1481. All the Justices concur, except Carley, Hines, and Melton, JJ., who dissent. Judgment affirmed in Case No. S07A1606. All the Justices concur.
CARLEY, Justice, concurring in part and dissenting in part.
I concur fully in affirmance of the judgment in Case Number S07A1606, since the clear and unambiguous terms of
It is important to note at the outset that the factual basis for Wilson‘s prosecution is not an act which is in any sense protected by the constitutional right of privacy. The evidence shows that
[a] group of teenagers rented adjacent rooms at a motel and held a raucous, unsupervised New Year‘s Eve party. Among the participants were 17-year-old Genarlow Wilson, 17-year-old L. M., and 15-year-old T. C. The next morning, L. M. reported to her mother that she had been raped. Police were notified, and the motel rooms were searched. During the search, a videocamera and videocassette tape were found. The tape showed Wilson having sexual intercourse with an apparently semiconscious L. M. and T. C. performing oral sex on Wilson. As a result, Wilson was charged with the rape of L. M. and with the aggravated child molestation of T. C. Acquitted of the former offense and convicted of the latter, he was given a mandatory sentence of ten years imprisonment without possibility of parole.
Wilson v. State, 279 Ga. App. 459 (631 SE2d 391) (2006).
When Wilson engaged in the very public act of oral sodomy with a 15-year-old child, he committed the crime of aggravated child
[t]he provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment. (Emphasis supplied.)
Ga. L. 2006, pp. 379, 413, § 30 (c). Obviously, the effect of this clear and unambiguous provision is to preclude giving retroactive effect to the 2006 amendment so as to “affect or abate” the status of Wilson‘s crime as felony aggravated child molestation punishable in accordance with the sentence authorized at the time he committed that offense. The majority fails to acknowledge this provision of the statute, presumably because to do so would completely destroy the foundation upon which it bases its ultimate conclusion that Wilson‘s felony sentence constitutes cruel and unusual punishment.
In connection with a claim of cruel and unusual punishment, the enactments of the General Assembly are the clearest and best evidence of a society‘s evolving standards of decency and of how contemporary society views a particular punishment. Johnson v. State, 276 Ga. 57, 62 (5) (573 SE2d 362) (2002). The majority acknowledges this tenet and purports to invoke it. However, a faithful adherence to that principle would seem to require a consideration of the totality of the law in question, which in this case certainly includes § 30 (c) of the 2006 statute. This Court has not always chosen to ignore that relevant and controlling language of the applicable statute. When Wilson applied unsuccessfully for a writ of certiorari to review the Court of Appeals’ affirmance of his conviction, Presiding Justice Hunstein concurred and took that occasion to note for the benefit of the bench and bar that,
[a]lthough the situation in this case would fall within the ambit of the current statute, which became effective July 1, 2006, while Wilson‘s appeal from the affirmance of his conviction by the Court of Appeals was pending before this Court, see Ga. L. 2006, p. 379, § 11/HB 1059, the Legislature expressly chose not to allow the provisions of the new amendments to affect persons convicted under the previous version of the statute. See id. at § 30 (c). Accordingly, while I am very sympathetic to Wilson‘s argument regarding the injustice of sentencing this promising young man with good grades and no criminal history to ten years in prison without parole and a lifetime registration as a sexual offender because he engaged in consensual oral sex with a 15-year-old victim only two years his junior, this Court is bound by the Legislature‘s determination that young persons in Wilson‘s situation are not entitled to the misdemeanor treatment now accorded to identical behavior under
OCGA § 16-6-4 (d) (2) . (Emphasis supplied.)
Wilson v. State, 281 Ga. 447 (642 SE2d 1) (2006). Despite this succinct and cogent observation, however, it now appears that this Court is willing to consider itself to be “bound by the Legislature‘s determination” only so long as a majority of its members determines that it is expedient to give effect to the General Assembly‘s express intent that the 2006 amendment to the statute “not affect or abate the status as a crime of any such act or omission which occurred prior to” July 1, 2006.
The majority relies on Fleming v. Zant, 259 Ga. 687 (386 SE2d 339) (1989) as support
this state‘s elected representatives, voicing the will of the electorate, have spoken on the subject and have declared that if a defendant is found to be mentally retarded, “the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life.” [Cit.] The legislative enactment reflects a decision by the people of Georgia that the execution of mentally retarded offenders makes no measurable contribution to acceptable goals of punishment.
Fleming v. Zant, supra at 690 (3). Applying that rationale of Fleming here, § 30 (c) of the 2006 statute plainly shows that the elected members of the General Assembly, expressing the will of the voters, have spoken and declared that, notwithstanding the appropriateness of misdemeanor punishment for defendants convicted of aggravated child molestation committed after July 1, 2006, for those, like Wilson, who committed the crime before that date, a felony sentence in accordance with former
The majority also cites Dawson v. State, 274 Ga. 327 (554 SE2d 137) (2001) as support. However, unlike the 2006 law at issue here, the statutory amendment in question in Dawson did not relate to a legislative change in the magnitude of the sentence to be imposed for a given offense. Instead, the statute merely related to the manner in which a death sentence would be carried out in this state, substituting lethal injection for electrocution. More importantly, however, as was true in Fleming, there was no statutory counterpart to § 30 (c) at issue in Dawson. To the contrary, it was noted that the General Assembly had
recognized the possibility that this Court would find unconstitutional its retention of electrocution as the method of executing persons sentenced to death for capital offenses committed before [the] statute‘s effective date. In anticipation of such a ruling and with full awareness of the disfavor into which death by electrocution has fallen, [cits.] the Legislature made express provisions in the uncodified section of
OCGA § 17-10-38 . It specifically stated that “(i)t is the further intention of the General Assembly that persons sentenced to death for crimes committed prior to the effective date of this Act be executed by lethal injection if the Supreme Court of the United States declares that electrocution violates the Constitution of the United States or if the Supreme Court of Georgia declares that electrocution violates the Constitution of the United States or the Constitution of Georgia.” [Cits.] (Emphasis supplied.)
Dawson v. State, supra at 329-330 (2). Applying the rationale of Dawson here, when the General Assembly enacted the 2006 amendment, it did not anticipate today‘s holding that this Court would declare a felony sentence imposed under former
“The General Assembly is presumed to enact laws with full knowledge of the condition of the law and with reference to it, (cit.) and the courts will not presume that the legislature intended to enact an unconstitutional law. (Cits.)” [Cit.]
Hamilton v. Renewed Hope, 277 Ga. 465, 467 (589 SE2d 81) (2003). In accordance with this principle, this Court should presume that the General Assembly enacted the 2006 amendment with full knowledge of the decisions in Fleming and Dawson, and that the language of § 30 (c) was included for the express purpose of distinguishing those cases and thereby eliminating the possibility of reliance on them by the judiciary as the basis for holding that the newly enacted provision authorizing misdemeanor sentencing was evidence that the felony sentencing being replaced was cruel and unusual punishment. Today, however, a majority of this Court simply ignores that express legislative intent, and actually cites Fleming and Dawson for the very purpose which the General Assembly presumptively foreclosed judicial reliance. However, § 30 (c) cannot be ignored and it clearly distinguishes Fleming and Dawson. Without those cases, the majority is left with absolutely nothing to support its conclusion that the felony sentence which was authorized when Wilson committed the offense of aggravated child molestation became cruel and unusual punishment when, more than a year later, the General Assembly lessened the penalty for that offense and mandated only a prospective application for that change.
Once the fallacy of the majority‘s reliance on Fleming and Dawson is demonstrated, the error in the conclusion built upon that misplaced reliance becomes readily apparent. The General Assembly formerly provided for felony sentencing for aggravated child molestation involving sodomy with a child.
The State‘s “interest in safeguarding the physical and psychological well-being of a minor is compelling and beyond the need for elaboration.” [Cit.] As this Court noted in Powell, “many believe that acts of sodomy... are morally reprehensible.” Powell [v. State, 270 Ga. 327,] 335 [(3) (510 SE2d 18) (1998)].... [T]he General Assembly could reasonably conclude that the psychological well-being of minors is more damaged by acts of sodomy than by acts of intercourse, and that such acts warrant a greater punishment for child molestation by sodomy....
Odett v. State, 273 Ga. 353, 355 (2) (541 SE2d 29) (2001). When, in 2006, the General Assembly determined that misdemeanor sentencing was the more appropriate sentence in certain circumstances, it expressly stated that that lesser sentence would only apply after the effective date of July 1 and that the status of previous convictions for aggravated child molestation would not be affected by that change. Compare Dawson v. State, supra; Fleming v. Zant, supra. Accordingly, the proper question in this case is certainly not whether former
did not become effective until after [the defendant] was sentenced,... it cannot be applied to his case. “(I)t has long been the law in this State that, in general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission.” [Cit.] “(M)aking (a) lesser penalty applicable to offenses committed prior to the enactment of the legislation (creating the lesser penalty) is
contrary to the judicial interpretation of the (laws) of this State under which the penalty for a criminal offense relates only to those offenses committed when and after such legislation becomes effective.” [Cit.]
The majority attempts to distinguish Widner by asserting that the 2006 amendment did not apply there in any event because the defendant, at the age of eighteen-and-a-half, was more than four years older than the victim and, thus, he was ineligible for misdemeanor punishment. However, this disparity in age does not appear in Widner. To the contrary, the opinion plainly states that “Widner contends that his crime should be given special treatment and excepted from the mandated punishment because he was eighteen at the time of the act and the victim was only four years younger.” (Emphasis supplied.) Widner v. State, supra at 676 (1). More importantly, however, even assuming that there may have been a disqualifying disparity between the ages of the defendant and victim in Widner, the incontestable fact remains that this Court did not cite that as a factor in its holding that the statute was inapplicable. Instead, we predicated our holding on the power of the General Assembly to limit the applicability of the 2006 amendment to offenses of aggravated child molestation occurring after July 1, 2006. The majority does not cite any authority for holding that the constitutional guarantee against cruel and unusual punishment is a curb on the exercise of the legislative power of the General Assembly, clearly recognized in Widner, to enact an express proscription against retroactive application of its statutes which lessen the punishment for crimes committed in this state.
The majority does not demonstrate that an unqualified felony sentence for aggravated child molestation constituted cruel and unusual punishment at the time that Wilson committed that crime. Compare Weems v. United States, 217 U. S. 349 (30 SC 544, 54 LE 793) (1910) (which the majority cites, but which actually involved appellate review of a holding on direct appeal that the sentence then authorized by statute was not cruel and unusual). Indeed, it cannot so demonstrate, since the law which was then in effect “provide[d] no such exception [to mandatory felony sentencing based upon the age of the defendant and victim], and, because the required punishment does not unconstitutionally shock the conscience, [such a] sentence must stand.” Widner v. State, supra. Wilson‘s sentence does not become cruel and unusual simply 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. To the contrary, it is because the General Assembly made that express determination that his felony sentence cannot be deemed cruel and unusual. “It is for the legislature to ‘determine to what extent certain criminal conduct has demonstrated more serious criminal interest and damaged society and to what extent it should be punished.’ [Cits.]” State v. Marlowe, 277 Ga. 383-384 (1) (589 SE2d 69) (2003).
The majority characterizes its opinion a “rare case,” claiming on p. 532 that,
[a]s in Fleming and Dawson, in which this Court did not apply the legislative amendments retroactively, we are not applying the 2006 Amendment retroactively in this case. Instead, as in Fleming and Dawson, we merely factor the 2006 Amendment into the evaluation of whether Wilson‘s punishment is cruel and unusual.
In actuality, however, today‘s decision is rare because of its unprecedented disregard for the General Assembly‘s constitutional authority to make express provision against the giving of any retroactive effect to its legislative lessening of the punishment for criminal offenses. If, notwithstanding a provision such as § 30 (c), the judiciary is permitted to determine that a formerly authorized harsher sentence nevertheless constitutes cruel and unusual punishment, then it necessarily follows that there are no circumstances in which the General Assembly can insulate its subsequent reduction of a criminal sentence from possible retroactive application by courts. Wilson is certainly not the only defendant convicted of aggravated child molestation who benefits at the expense of today‘s judicial reduction of the General Assembly‘s power to legislate. At present, any and all
The courts of this state must give due regard to the authority of the legislative branch of government.
The constitutional principle of separation of powers is intended to protect the citizens of this state from the tyranny of the judiciary, insuring that the authority to enact the laws will be exercised only by those representatives duly elected to serve as legislators. The General Assembly “being the sovereign power in the State, while acting with the pale of its constitutional competency, it is the province of the Courts to interpret its mandates, and their duty to obey them, however absurd and unreasonable they may appear.” [Cit.]
Fullwood v. Sivley, 271 Ga. 248, 254 (517 SE2d 511) (1999). The General Assembly‘s express determination that the 2006 amendment not affect or abate the status of Wilson‘s crime as felony aggravated child molestation may appear to some of the citizens of this State as absurd or unreasonable. However, this Court has the obligation to effectuate that legislative determination unless there is a constitutional impediment to the General Assembly‘s power to limit its statutes lessening the sentences for criminal offenses to prospective application only. In Widner, we unanimously held that the General Assembly was authorized to limit application of the 2006 amendment to acts of aggravated child molestation committed after July 1, 2006. Because today‘s opinion violates the principle of separation of powers and is contrary to the doctrine of stare decisis, I dissent to affirmance of the grant of Wilson‘s application for a writ of habeas corpus.
I am authorized to state that Justice Hines and Justice Melton join in this opinion.
DECIDED OCTOBER 26, 2007.
Case No. S07A1481
Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant.
Brenda J. Bernstein, Rodney S. Zell, Franklin J. Hogue, for appellee.
McKenna, Long & Aldridge, David Balser, Cleve L. Molette, amici curiae.
Case No. S07A1606
Brenda J. Bernstein, Rodney S. Zell, for appellant.
J. David McDade, District Attorney, Thurbert E. Baker, Attorney General, for appellee.