< Teens, Sex and the Law: Genarlow Wilson -

MICHEL MARTIN, host:

I'm Michel Martin, and this is TELL ME MORE from NPR News.

Later in the broadcast, 40 years ago, interracial marriage was illegal in some states. Now a high profile couple goes public with their unlikely love story.

But first, we've been closely following the story of Genarlow Wilson. He was sentenced to 10 years in prison for having consensual oral sex with a 15-year-old girl at a New Year's Eve party. He was 17 at the time.

Now, after serving two years in jail, a Georgia judge ordered his release. Georgia's Attorney General Thurbert Baker immediately appealed the ruling, saying the judge's order exceeds his authority.

Joining us now from her office in Atlanta is Genarlow Wilson's lawyer, B.J. Bernstein. Thanks for joining us.

Ms. B.J. BERNSTEIN (Legal Counsel for Genarlow Wilson): Thank you. It's been a rollercoaster ride.

MARTIN: How did you hear that the judge had ordered Genarlow's release?

Ms. BERNSTEIN: The judge actually faxed it to us. He granted the habeas release, and he ordered for the immediate release of Genarlow.

MARTIN: Has he been released?

Ms. BERNSTEIN: No. No. The attorney general's office then turned around and immediately filed a notice of appeal to the Georgia Supreme Court, therefore blocks his release. We're asking for bond, but the district attorney comes back into play for that, and at this point has not agreed to bond. So I've had to talk to Genarlow and tell him that he is staying there.

MARTIN: Do you have any sense of why? I mean, what did the attorney general say in his notice?

Ms. BERNSTEIN: Well, there's not much in the notice. They issued a press release, which is a little bizarre, you know, objecting to what the judge did, saying it was wrong. Which is just - it's more game playing and using the power of a prosecutor to appeal to get what they want.

MARTIN: I think what we maybe need to revisit here is that the law changed over the course of the time that Genarlow was in prison - the facts haven't change. He was 17 at the time. The young lady in question was 15. He was one of a group of youths at this New Year's Eve party, and I think the jury determined that this - all of the sex that took place was consensual.

Ms. BERNSTEIN: Correct. It was oral sex, and that that was consensual. And, actually, how we won in the habeas is because at the change in the law. Because of Genarlow's case, we went down to the legislature and lobbied and said, listen. This should just be a misdemeanor with no sex offender registry. And the legislature agreed and passed what's called a Romeo and Juliet provision, which means that when teens engage in any sort of sexual act, it's only a misdemeanor with no sex offender registry. And that's part of what the habeas court took into account.

We had told that court it's cruel and unusual punishment that one person gets 10 years in prison and aggravated felony and sex offender treatment in one day, then the legislature issues its decision that it should only be a misdemeanor, and therefore if that same conduct happened right now, it would be a misdemeanor. And when there's such a difference between no more than 12 months in jail and no felony status versus a 10-year mandatory minimum, the court said that is drastic enough to be cruel and unusual punishment, and that it's just clearly unjust. And that's how we had the case reversed.

MARTIN: Why do you think this ruling came at this time?

Ms. BERNSTEIN: We're in court last week and argued that, you know, I had tried to go through the legislature. We had been through the courts initially, but we had not gotten the law changed. Then we got the law changed. And Senator Emmanuel Jones stepped forward and tried to get another law in that would help Genarlow, and it got mixed up in a power struggle in the legislature. And so finally I said, okay, let's go back to court. And we did.

MARTIN: It's my understanding that the attorney general's argument in the press release is that Georgia law doesn't give a judge the authority to reduce or modify a sentence that's already been imposed by the trial court.

Ms. BERNSTEIN: Well, we respectfully disagree. And the truth is, you know, it is the law in Georgia that this is a misdemeanor with no sex offender registry. So why is it that the prosecutors of this state think they should have more punishment? You know, before they had something to rest on when they could say, well, it's the law, our hands are tied - you know, 10 years in prison. It's not the law anymore. It's not what any of us think is fair, and that's part of why there's been such a huge outcry here in Georgia and around the country and even interest around the world in this case.

MARTIN: As I understand it, former President Jimmy Carter is among those who had supported Genarlow Wilson's efforts to seek release from this sentence.

Ms. BERNSTEIN: He has. President Carter has spoken for his release. We've had a diversity of people - people in business, you know, thousands of emails and well over 100,000 people on an online petition. The response has been extraordinary, I think, because people realize we don't want our politicians to use our kids as a mechanism to be punished for teenage consensual sex.

MARTIN: But what about the argument that this girl, whether she agreed or not, is by definition -she wasn't old enough to give consent, and as a consequence there has to be some sanction for that, that if you're older…

Ms. BERNSTEIN: Right, and that's why it's a misdemeanor with no sex offender registry. You know, we're not saying it was right. We're just saying it's not a felony, and it should not ruin the rest of your life.

MARTIN: Have you talk to Genarlow Wilson since this ruling came down? Have you able to speak to him, and how he has reacted?

Ms. BERNSTEIN: I spoke to him on the phone, and he was happy about the original order, but you could hear it in his voice. I mean, people at that prison were literally go walking up to him saying, it was nice to know you, thinking he was getting out.

MARTIN: And once - you had to speak to him again, I assume, to tell him that he was not getting out. How did he respond to that news?

Ms. BERNSTEIN: He's very disappointed. Very disappointed.

MARTIN: What are the next legal steps? Is there another level of appeal for the Georgia Supreme Court?

Ms. BERNSTEIN: Well, they've appealed it. We didn't want to have an appeal and the attorney general has appealed it, so we'll be going to the Georgia Supreme Court again.

MARTIN: And when do you think that will occur?

Ms. BERNSTEIN: I don't know. You know, at a minimum, we're looking at still several months, which is just disgusting.

MARTIN: Did you ever think that it would get to this point?

Ms. BERNSTEIN: No. No. No. Trying to figure out, you know, and really get to the bottom of what kind of a personal motivation there is on the behalf of the district attorney, I don't know what it is. I wish I knew.

MARTIN: Do you think…

Ms. BERNSTEIN: I wish I knew why people want this kid in prison for such a long time.

MARTIN: Do you think that this - the events here have any connection to this weekend's controversy about Paris Hilton and all the uproar the ensued over the way she was treated? I mean, I know that these completely different offenses, but probation and violation…

Ms. BERNSTEIN: No. But, you know what the interesting thing about it is we are just watching play out over these few days, everything that's wrong with our justice system. You know, in Paris Hilton's case, whether you like her or not, there was a power struggle going on between the sheriff and the judge. And how cruel it was that, whether you like her or not, she gets out and gets put back in. And then, we saw how she was released because she has, you know, she comes from the right family.

She comes from wealth and notoriety, and yet, you know, Genarlow Wilson struggled for 28 months to get out for something that by - happens ever Friday and Saturday night in this country on a regular basis among teens. So it is - both of them have similarities and they are both tales of what's wrong with our justice system and why we need to look at it. I mean…

MARTIN: Some would argue, B.J., just in fairness, some would argue that she was excessively sentenced because she's a celebrity and that the authorities there didn't want to be perceived as being soft.

Ms. BERNSTEIN: Yeah. No. Exactly. I mean, and that's wrong, too. That's what I'm saying, is there's so many different little - they're not that they're precisely the same, but that there are things that are coming into play that have nothing to do with justice. And that's what both cases have in common is that we are finding out that the words fair and equal manner mean very little in our justice system.

MARTIN: All right. Well, thank you for speaking with us.

Ms. BERNSTEIN: Thank you.

MARTIN: B.J. Bernstein is Genarlow Wilson's lawyer. Georgia Attorney General Thurbert Baker declined our invitation for an interview. He did send a statement explaining why his office opposes Wilson's release. You can find that statement on our Web site at npr.org/tellmemore.

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