Home > Thinking Right > Archives > 2007 > November > 02
Friday, November 2, 2007
Judges’ activism already coming home to roost
The Atlanta Journal-Constitution
On both the Georgia and the U.S. Supreme Court, the need is the same — to make certain that those chosen are not tempted to write opinions that do “violence to the fundamental constitutional principle of separation of powers,” as Justice George H. Carley characterized the majority’s Genarlow Wilson decision. And just as Carley warned, the fallout has begun.
Superior Court Judge Bryant Culpepper of the Macon Judicial Circuit retired Thursday. But on Wednesday, citing the Supreme Court’s decision in the Wilson case, he granted a new trial to a convicted kidnapper. The required 25-year minimum sentence for kidnapping children is “way out and above more than what you ought to have to serve,” The Macon Telegraph quoted Culpepper as saying at the time of sentencing in July.
Noting the Wilson decision, he this week found the minimum sentence to constitute “cruel and unusual” punishment. “We can’t prosecute a kidnapping case here in this circuit [covering three counties] until something is done about it,” District Attorney Howard Simms told The Telegraph.
“Now,” said state Senate President Pro Tem Eric Johnson (R-Savannah) Friday, “judges can determine anything is ‘cruel and unusual’ and throw out a case or pull somebody out of jail.”
In the dissent Carley wrote for himself and justices Harold Melton and Harris Hines, he warned:
“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 powers to legislate. … At present, any and all defendants who were ever convicted of aggravated child molestation and sentenced for a felony under circumstances similar to Wilson are, as a matter of law, entitled to be completely discharged from lawful custody. … Moreover, nothing … limits its application to cases involving minors who engage in voluntary sexual acts …”
Furthermore, he wrote, anybody convicted for a crime for which the sentence was later reduced is now entitled to argue that his longer sentence is now “cruel and unusual” and that he should be released. Superior courts, wrote Carley, should be prepared for “a flood” of petitioners asking to be set free.
It’s not just the unintended consequences of the majority’s activism that’s troubling, either. It is that, having committed this offense, it’s certain to be a repeat offender.
U.S. Supreme Court Justice Clarence Thomas spoke to this temptation while in Atlanta recently to sign copies of his memoir, “My Grandfather’s Son.” Said Thomas:
“I think that I have taken an oath to decide cases impartially and that does not include my personal opinion. My personal opinions are mine and not something I can inflict on your Constitution or on your laws. What I try to do in a very practical way and in an over-arching way is to put a firewall between my personal opinion and your Constitution and your statutory law. In my 16 years, I have never imposed my personal opinion on any of those.”
He was asked, too, about the toughest cases to come before him. “The cases that are hard are when your heart wants you to do one thing and the law requires you to do something else,” Justice Thomas said. “That is a hard case — and that is where the discipline of being a judge comes in.”
Discipline, in this case, would have required the majority to respect expressed legislative intent. “This has never been about Genarlow Wilson,” said state Sen. Johnson, an authority on the legislature’s intent in this particular case. “It has been about adherence to the rule of law.”
The General Assembly “expressly declined to make this law retroactive,” he noted earlier, and “by ignoring this part of the legislature’s wishes, this court has deliberately chosen to disregard” the legislature’s legitimate constitutional authority. That is activism.
“If you don’t like the law,” said Johnson, “you change the lawmakers.” If you don’t like the activism, you change the judges.
Permalink | Comments (159) | Post your comment | Categories: Column
