Why isn’t the severe Georgia sentence constitutionally problematic?
Eugene Volokh’s extended riff here on the extreme consensual oral sex sentence for a teenager in Georgia (discussed here and with comments ablaze) includes Eugene’s assertion that he doesn’t “think there’s any Cruel and Unusual Punishment Clause problem here.” I have been reflecting on this issue after this post, and I have come to wonder what arguments could be made, given the facts we know, that the Georgia teen’s fate is not “cruel and unusual.”
Again, the key facts are that Georgia Legislature has now said that the defendant’s type of behavior should be treated as a misdemeanor, and many studies suggest that the defendant’s sexual behavior is quite common among teenagers. Yet prosecutions for consensual oral sex between teenagers is extremely rare, and I doubt anyone in recent decades has every received more than a year in prison for such an offense, let alone ten years. Why don’t these facts alone make out at least a plausible case of the infliction of a “cruel and unusual punishment”?
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