This bit of smackdown, as a footnote in the Genarlow Wilson ruling (with clumsy formatting added):
41 Although the dissent correctly notes that the General Assembly stated that the 2006 Amendment to section 16-6-4 should not be applied retroactively, the dissent erroneously concludes that the cruel and unusual punishment analysis ends there. The universal and well-settled rule of statutory construction is that legislative enactments are not intended to operate retroactively unless there is a clear directive that they do so, Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988), and that persons who commit crimes are to be convicted and sentenced under the laws that existed at the time the crimes were committed, Fleming v. State, 271 Ga. 587, 590 (523 SE2d 315) (1999).
Section 30 (c) of Ga. L. 2006, pp. 379, 413, on which the dissent relies, is nothing more than a legislative statement regarding standard principles of retroactivity. Under the dissent's analysis, a legislature's statement of intent that a law not be applied retroactively would always preclude a cruel and unusual punishment analysis. The dissent, therefore, would permit the General Assembly to dictate to the court when a punishment may be considered cruel and unusual, thus violating the separation of powers. See Weems v. United States, 217 U.S. 349, 378-379 (30 SC 544, 54 LE 793) (1910) (power of the legislature to define crimes and punishment limited by judiciary's power to determine what is cruel and unusual punishment). The dissent's position ignores the holdings of the United States Supreme Court and this Court that the concept of cruel and unusual punishment is an evolving constitutional standard and that the most objective evidence of that evolving standard are legislative enactments. See notes 19 and 20, supra.
Stated somewhat differently, the dissent equates retroactivity analysis with cruel and unusual punishment analysis; the two, however, must be, and are, analytically distinct. Thus, although this Court cannot apply the 2006 Amendment to section 16-6-4 retroactively, we can rely on that amendment as a factor representative of the evolving standard regarding the appropriate punishment for oral sex between teenagers.
Finally, the dissent's reliance on Presiding Justice Hunstein's concurrence in Wilson v. State, 281 Ga. 447 (642 SE2d 1) (2006), is misplaced, as the issue of cruel and unusual punishment was not before the Court at that time.
...I believe the majority has called 'bullshit' on the dissenting three judges, who may well have used their position to proxy for the more common arguments against granting the appeal. The opponents are left with falsely insinuating rape, and crying "activist court" as their justification for being evil bastards.
Also of note, the court did not directly mention the "plantation system" question. However, the appeal of a Douglas Co. conviction, as issued by the Monroe Co. court, was allowed to stand; only the replacement sentence was struck down. That might end up being the larger story here. |
