Before this week, I had never heard of the All Writs Act of 1789. As I understand from the news accounts I have read this week, a Federal Magistrate cites it as authority to order Apple to develop software that law enforcement can then use to break into an iPhone. For anyone who’s ever dealt with this on their phone, here’s what happens. If you try repeatedly to enter the password to unlock an iPhone, successive unsuccessful attempts result in a delay. So, you can’t try to log in for a set period of time, which increases with each attempt. Eventually, try enough times, and the iPhone wipes out all of the contents. This protects iPhone owners from a brute force attack or a program that tries random characters until it reaches the right combination.

In an open letter, Apple CEO Tim Cook has explained that it complies with court orders and subpoenas to provide materials in its possession.

However, the password to the evidentiary phone at issue is not in Apple’s possession. The phone is not in Apple’s possession. It cannot provide material it lacks. Until this week, I would have thought that this would be the end of the story. But alas no. A Federal Magistrate Judge has ordered Apple to create software that would unlock the encryption on this phone and provide that software to the government.

I’m new to the All Writs Act of 1789, but this seems, at first blush, like complete lunacy:

  • It seems odd to me that the government could conscript software engineers to code up anything and give that code to the government. This feels like indentured servitude.
  • It’s a bit unsettling that the argument from the government is, “make this software for us and give it to us. We’ll just use it for this one special case. Trust us. We’re the government.”
  • It’s only a matter of time before this software, once created, gets into the hands of bad guys or bad governments.

Maybe I’m missing something here. And I’m open to having my mind changed. But this sounds dangerous.

Flickr cc: Joe Robertson
Flickr cc: Joe Robertson

Picture it. It’s 7:30 in the morning. I’m downtown in Atlanta. It’s about to rain again. It’s the week between Christmas and New Years. I pull into a parking deck that I have to myself. And I walk over to court for what is now my third appearance on a misdemeanor case. And about an hour later I come out of the court with a healthy amount of respect for what it does. After thinking about it some, I sort of like Atlanta Municipal Court.

The Way Atlanta Municipal Court is Different from Other Municipal Courts

  • They Don’t Do Trials or Contested Motions. If you file a motion to suppress or want a bench trial, the Court will immediately bind your case over to the State Court of Fulton County. That’s right, Atlanta Municipal Court exists for one purpose only: to put you in a position to take a plea or to choose to go elsewhere for a better offer or to litigate your case. They won’t hear any contested form of anything.
  • Things Run on a Timetable. When the case is initiated there, there is an organized process that moves you through the court, where a plea offer must be conveyed in writing, and where a decision point eventually arrives.
  • It Doesn’t Pretend to be Something’s it’s Not. Municipal courts are the Rodney Dangerfields of the Georgia criminal justice system. They exist to generate revenue for the municipality they serve. That’s why the procedure to appeal a municipal court conviction is so byzantine. That’s why you will see cash registers in the courtroom. However, nearly all of these courts operate under a delusion that they are an actual court of record. That’s why cases often take so long to process there. The ones that do bench trials place either clueless pro se defendants or the occasional client with a lawyer before a judge who is an employee of the same outfit that employs the cop who wrote the ticket. What follows is a short and swift bench trial or contested motion. When the judge convicts, he generates revenue for the city. When the judge acquits, he turns money away and tells a fellow employee that he is wrong. Guess where the incentives are. Generally, a lawyer in Municipal court understands the game and tries to cut a deal that appeals to the profit motive of the system to the mitigation advantage of the client. Most municipal courts pretend that they are a real court of law with fair trials before a neutral and detached arbiter of facts and law. Atlanta Municipal appears not to harbor that illusion. So, the case moves fast. The municipal courts that have trials aren’t really in the trial business either. They just don’t acknowledge this fact.

When I say that I like this Court, I mean I like it to the extent that I like any Georgia municipal court. It’s a great place unless you’re innocent or poor. Within the context of a city/county justice system, it’s pretty difficult to get a trial at all there. When you bind the case over, you have a two-year wait ahead of you to get a case into court and an even longer period of time if you want a trial. It’s also probably not fun to be a poor person in any municipal court. In a system that values a defendant’s money so much, it is bad to have nothing you can offer. But as municipal courts go, Atlanta has the whole thing down to an art.

Lyndon_Johnson_and_Richard_Russell1I have read two editorials in the Fulton Daily Report in the last week or so. The first was written by a Federal Defender who believes that the building should not be named after former Georgia Senator Richard B. Russell because of his legacy in support of segregation. The second was a response by former Georgia Senator Max Cleland. He defended Senator Russell’s legacy and argued that we should not judge Senator Russell’s views by our more evolved views on segregation.

The Federal courthouse in Atlanta is one of many public works bearing the name of Richard B. Russell. A US Senate Office Building bears his name. Several dorms and other buildings at colleges in Georgia are named after him, as are several schools, roads, lakes, dams, and an airport. Senator Russell’s legacy is more than one of racism. His was a life of achievement and public service in several areas. I knew little about him until I read and became fascinated with Robert Caro’s volumes of biography about Lyndon Johnson. After finishing a book on Robert Moses, Caro has devoted his life and career to telling the story of LBJ. He’s still not finished. That story contains many biographies with the biography, Senator Russell’s being one of them. Caro tells the story of Senator Russell so well that I came away feeling a sense of connection to him. Many of my friends and colleagues who are fans of Caro came away with a similar feeling. Senator Russell created the school lunch program and was a saving figure in his leadership over the committee that investigated the firing of General Douglas MacArthur (the importance of what he did in that episode is beyond the scope of this post). He had a distinguished career in the Senate.  He was instrumental as a new dealer as a young governor of Georgia. To read Caro is to get a sense of the man. The Senate he dominated was a vibrant and strong institution. Personally, he was a life-long bachelor who never amassed great wealth in his years of public service. He also was a man of Georgia and carried proudly a family name with a  father who was also an accomplished public servant.

So, to the issue at hand, I actually disagree with the Federal Defender who advocates removing Senator Russell’s name from the Federal Building AND Senator Cleland. It is perfectly appropriate to judge Senator Russell for his stance on race and segregation. By any contemporary standard, Senator Russell’s views are shocking and disturbing. And even by the standards of his times, his views were out of touch with the majority. He was a master of the minutiae of Senate Rules — particularly the filibuster. And he used those rules, along with the Southern bloc of Senators, to defeat integration when the will of the majority of senators was to end it. He deserves to be judged for those actions. It is not enough to excuse such views as those of a “man of his times.” He was out of touch even with the time in which he lived on the issue of race. So, I disagree with Senator Cleland on his main argument.

However, I also disagree with the idea that his name should be removed from the Federal Building or any of the places that bear his name. He achieved much. His legacy as a Senator and a Georgian are worthy of remembrance into the future. Generations to come should know who he is and what he did. Those who might be prompted to learn who he is from seeing his name on buildings, schools, roads, lakes, and other public works should also come to learn of his racism and how he bent the rules of the Senate to block integration. To erase his name from the historical record is to deny even the chance of a discussion of who he was, for good or for bad. Georgia’s history, maybe even its present, is not the best on issues of race. But it is important to keep our historical figures in sight and in mind and even on the names of buildings, if for no other reason to learn about them and to engage in dialogue about them. There is a danger in the loss of dialogue about who we were — we lose sight of who we are and can be in the process.

Jonathan McIntosh Flickr CC
Jonathan McIntosh Flickr CC

In a per curium opinion (pdf), the United States Supreme Court has held that the placement of a tracking device on a person is a search within the meaning of the Fourth Amendment, even if the person is compelled for life to wear the device as part of a sentence. As summarized by Robinson Meyer in The Atlantic Monthly, “[i]f the government puts a GPS tracker on you, your car, or any of your personal effects, it counts as a search—and is therefore protected by the Fourth Amendment.” This opinion could spell changes for Georgia’s regime of tracking persons in Georgia who have been designated as Sexually Dangerous Predators.

In Grady v. North Carolina, the Petitioner challenged a court order requiring him to wear a GPS tracking device for life as a violations of his right to be free from unreasonable search and seizure. The North Carolina courts rejected his claim, reasoning that the placement t of a tracking device was not a search. The United States Supreme Court’s per curium opinion held that the placement of a tracking device on the person of Mr. Grady was a search as defined by the Fourth Amendment. But the Court remanded the case for a determination of whether the search was an unreasonable one. This case could make its way back to the Supreme Court eventually.

What is the possible consequence for Georgia? Consider first the comparison between the way GPS tracking for sex offenders works in in North Carolina versus Georgia.

  • Under North Carolina law, a person convicted as a recidivist sex offender goes before a judge where, after a hearing, the decision may be made to place a lifetime tracking device on the person. In Georgia, all sex offenders with convictions, a move to Georgia, or a release from prison after 2006, will be reviewed by Georgia’s Sexual Offender Registration Review Board. The offender never has the right to a hearing.
  • The SORRB can choose to classify even a first-time offender as a Sexually Dangerous Predator and force the offender to wear a GPS monitor for life. And the SORRB can, and often does, rely upon police reports and other hearsay materials in reaching its conclusion. In North Carolina, GPS tracking for sex offenders does not become an issue until there is recidivist treatment.
  • In Georgia, there is an opportunity for judicial review in a Superior Court. However, the judge who considers the case may deny the petitioner the right to a hearing. In that case, the judge who decides whether to make a person wear an ankle monitor for life relies upon the hearsay that the SORRB used as well as the hearsay analysis that the SORRB prepared and sent over to the court. It will be interesting to see how those orders stand up in the wake of Grady.

For Georgia lawyers going forward,  a claim under Grady can be made on SDP appeals. And for folks who have already passed that point, there is room for a HABEAS challenge raising Fourth amendment grounds. As the process is set up in Georgia, with little meaningful judicial scrutiny, it would be hard for the government to demonstrate that the decision to violate a person’s Fourth Amendment rights was reasonable. After all, even for something as routine as a search warrant, a magistrate hears or considers sworn testimony. Not so in many SORRB SDP cases. For more on that process, consider my previous post.

Flickr Creative Commons  Dags's Bricks
Flickr Creative Commons
Dags’s Bricks

Jarvis Taylor was on trial for committing an armed robbery with an air gun. Because his prior criminal history included theft by receiving stolen property, possession of a tool for the commission of a crime, and aggravated assault for his actions during a jail riot, a conviction for the armed robbery would have meant a mandatory sentence of life without the possibility of parole.

Atlanta Judge Wendy Shoob instructed the jury (pdf) that a conviction for the offense would bring a mandatory life sentence without the possibility of parole. The jury ultimately convicted of the lesser included offense of robbery by intimidation. But not before the Fulton County District Attorney moved to recuse the judge from the case and not before the judge refused to grant the State a certificate of immediate review.

When I first read this story in the Fulton Daily Report, my reaction was that the judge made a gutsy and principled move but one with little basis in the law. I held this view until I read the Order.  I walked away from the order with the belief that the order is on a firm legal footing. Allow me to provide a brief overview:

  • Under the Georgia Constitution, “in criminal cases, the defendant shall have a public and speedy trial by jury; and the jury shall be the judges of the law and the facts.” Here, the State objected to an instruction to the jury about sentencing, arguing that the jury is responsible for guilt and innocence and the judge is responsible for sentencing. But, not so fast, said Judge Shoob. With mandatory minimum sentencing, the judge has no real power over the sentence. The sentence and the verdict are inextricably linked to one another. Hence, the jury ought to know the consequence of the verdict.
  • There is a historical basis for the power of the jury as a check against an overreaching government. Here, Judge Shoob actually cites The Federalist Papers to support a position that the jury has a tradition function to maintain free government. That function includes the right to nullify.
  • Recent United States Supreme Court decisions have stressed the importance of returning the jury “to appropriate constitutional powers and essential role within the Constitution’s system of checks and balances. Here she goes into recent Sentencing Guidelines Cases that have returned to the jury certain powers with respect to sentencing.
  • Finally, she reasons that the jury has the right to know about mandatory sentencing. First, “where the Court is bound by the statutory term of imprisonment, the jury essentially determines both the verdict and the sentence.” This last point sound a good bit like her first point. But, here, she references cases from around the country and she weaves two previous point together. “When the prosecution does not use its power carefully and equitably, and the judge is removed form sentencing decisions, the only thing that stands between the individual and the awesome power of the State is the jury system.”

A couple of points. I do not think I’ve ever received an order from a Georgia State or Superior Court judge that quotes The Federalist Papers. Also, the point that under a mandatory minimum regime, the verdict determines the sentence is a powerful and innovative one.

I will leave for another post the idea of prosecutors who use recusal motions when a judge does something that they do not like. It is trend I have noticed around the State lately.

Pro tip: weave Judge Shoob’s Order into motion or request to charge in your next case with a mandatory minimum.

In Georgia, juries generally don’t get to decide the sentence. Only where the State is seeking death does the jury get a hand in sentencing. Not only do Georgia juries not get a say in sentencing decisions, our law is designed not to let them know a great deal about what might happen at sentencing. The idea is that jurors might be swayed by sympathy in the guilt-innocence phase of the trial if they knew what was in store for the defendant after a guilty verdict. For instance, an armed robbery conviction in Georgia carries with it a minimum mandatory ten years to serve without the possibility of parole. For certain repeat offenders, a guilty verdict means life without the possibility of parole. Jurors are not told about minimum mandatory sentences unless they stay to watch the sentencing hearing.

Scott Greenfield posted at Simple Justice about a Federal Judge who consulted with the jury on what a fair sentence ought to be in a case. Turns out that most jurors would sentence well below the sentencing guidelines. And I imagine, on the State side, that jurors would often sentence below the minimum mandatory.

A few months ago, I tried a case in Federal Court where the jury reached a guilty verdict. I noticed that many of the jurors were crying as they walked into the courtroom (never a good sign). After it was all over, they asked me to come back to the jury room to talk to me about their decision. They then asked the prosecutor to be lenient.

In between the verdict day and the ultimate sentencing date, I consulted with many colleagues who regularly practice in Federal Court about whether it would be a good idea (or even ethical) to invite jurors back to testify in mitigation. Opinions varied, but the consensus was that I should not do it. There was no way to know how a judge might respond to this kind of testimony or whether such a move might appear to be a stunt. I ultimately decided against doing it, thinking that the potential downside outweighed the potential good. After all, the judge saw the same trial they did. And he hopefully saw things the way they did.

When it was all over, my client received a sentence significantly below the guidelines.

Scott Greenfield’s blog post raises an interesting question. Should jurors have a role in the sentencing process in more cases? And could jurors be consistently be counted on to recommend or impose a sentence below guidelines or below a mandatory minimum?

Philosophically, I don’t think I’m into the idea of jurors imposing sentence. There’s a reason that we give jurors their job and judges theirs. However, it’s appealing to me to wonder if legislatures would be as prone to enact mandatory minimums if they were taking the sentencing power away from jurors rather than judges? I’m not sure what the answer is. I suppose they would do in the sentencing world what they’ve done to damage caps in the civil world. However, the minimum mandatory universe makes me a little less certain about whether juries should have a hand in the sentencing process. Perhaps outraged jurors would put pressure on their legislature to eliminate some mandatory minimums.

According to the American Bar Association Journal, public schools nationwide are backing down from entrenched zero-tolerance policies. While public school administrators may sincerely like to move toward a system where they can exercise discretion in the handling of serious disciplinary cases, I don’t foresee real change on the horizon because funding systems rewards expulsion of the students who get in serious trouble at public schools.

For all of the children I have represented before school tribunals, in appeals to local school boards and to the Georgia Board of Education, I recall receiving one inquiry in my career involving a serious disciplinary matter at a private school. Why is it that public schools have embraced zero tolerance and private schools seem to handle business in a more creative if not retention-oriented manner? My untested hypothesis is that it comes down to incentives.

I have long been a fan of Charlie Munger. In a lecture back in 1995, he spoke about the power of incentives in human misjudgment.  He cites as an example a time when Federal Express employees were paid by the hour. Nothing that the company worked to get packages through night facilities in a timely manner. Then FedEx changed its policy to one where employees were paid per shift. Immediately, the packages were processed in a more efficient manner.

So, here is likely why public schools are very much in the zero tolerance camp. Private schools have an incentive to do everything they can to keep students enrolled. After all, the student, or rather the student’s parents, are the customer. Student retention is customer retention. There is a high cost involved in converting a potential student into an enrolled student, and this cost is much greater in the middle of an academic year when new pupil enrollment is less likely. If a student were expelled from a private school halfway through the year, with expulsion comes the possibility that a tuition payment will no longer be coming to the school. Also, if it is a private school that serves kindergarten through 12th grade, the lost tuition from that student is whatever that student is being charged for tuition multiplied by the number of years he has remaining in primary or secondary education (with an assumption that tuition rates will rise over that time). The school has financial reasons to retain the student and find a creative solution to a disciplinary situation.

By contrast, a public school students is not a customer. A public school student is an expense — a metaphorical line item on the expense side of a budget. Public schools are allotted a set number of dollars at the beginning of the budgetary year. And that budget is set. The reduction in the number of pupils by the number of people who get in serious disciplinary situations is a cost savings. There are many places in the disciplinary process for incentives to play out. The principal takes on the role of prosecutor in the tribunal hearing. The role of judge is played by a disciplinary hearing officer or tribunal panel. However all of these individuals receive salaries from the same school board. They all work for the same agency. Presumably, each player in the tribunal process has a shared financial incentive to drop the student from the roll. 

I have been in tribunals, however, where the incentives worked differently, and I’ve come out ahead.  For instance, if the student has a good academic track record and tests well, she is likely to test well on future standardized tests. If the student will be tested again, and the test result comprises part of a performance metric for the school, then there is an incentive to keep the student in the data pool.

If the student is a star athlete or does something else that brings the school positive attention, then there may also be an incentive to keep the student around. If the student helps an athletic team perform well, the student’s continued enrollment may have in impact on ticket sales, concession sales, the ability to attract better coaches, etc.

A student who tests poorly, who is average in terms of extracurriculars, or who has an aptitude in something that makes little difference to the school’s image (say, a moderately above average member of the chess team), is fairly low on the asset side of the equation and fairly high in the liability column. This student likely has a losing tribunal ahead of him. Bring in all the pastors, karate teachers, aunts and uncles you want, the mitigation may not be the kind of mitigation that matters.

Students who are likely to drive the school’s overall standardized test results down may be better off, from the school’s perspective, out of the data pool. And a student who requires extra resources, such as special education services, is even more of a liability. Such a student would be well advised to mind her p’s and q’s

When looking at zero tolerance policies and why they exist in the public school setting, the reason may not be that administrators are myopic. It may well be that they are operating under a set of incentives either at the conscious and subconscious level.

If school boards or legislators are interested in putting an end to zero tolerance policies, then perhaps a reform might be for the State to fund a centralized school tribunal office or administer tribunal hearings through the Office of Administrative hearings. Or perhaps the neighboring school district could supply tribunal hearing officers. Of course, in that situation there could be an incentive to keep marginal students enrolled to the extent that the neighboring school district is competing in the athletic arena or for scarce resources that are rewarded through the result of test scores.

The American Bar Association has released a formal ethics opinion regarding how far attorneys may go in monitoring social media postings of jurors.

Attorneys or their representatives may monitor any activity that is publicly available, but they may not “friend” a juror in an effort to monitor their private social media postings. Nor may attorneys use a third person to friend jurors.

Further, when lawyers find evidence of juror misconduct, there are certain times when the lawyer must report it to the Court and other times when he is not:

The final question the new ABA ethics opinion addresses is what a lawyer should do if he discovers misconduct by a juror during his Internet review. “Jurors have discussed trial issues on ESM [electronic social media], solicited access to witnesses and litigants on ESM, not revealed relevant ESM connections during jury selection, and conducted personal research on the trial issues using the Internet,” the opinion notes.
Under Rule 3.3(b), a lawyer has an obligation to inform the court when the juror’s conduct is fraudulent or criminal. But if the lawyer learns of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, it is not clear if he is obligated to inform the court, the opinion says. For example, “innocuous postings” about jury service, such as the food served at lunch, may violate the jury instructions but fall short of criminal contempt.

If, by virtue of monitoring the juror’s social media postings, the juror is alerted, the lawyer has not contacted the juror. Rather, the social media service provider has initiated the contact.
Continue Reading New ABA Guidelines on Monitoring Jurors Via Social Media

The Volokh Conspiracy has post up about Strine v. Delaware Coalition for Open Government, Inc., a case the tests whether a Delaware statute that provides that judges may act as arbitrators in civil cases is constitutional under the First Amendment where the arbitration sessions are closed to the public.

Professor Volokh give a little background about the first amendment and the courtroom setting:

Nonetheless, the Court has created a First Amendment right of access to certain judicial proceedings, especially criminal trials (Richmond Newspapers, Inc. v. Virginia (1980)), jury selection in criminal trials (Press-Enterprise Co. v. Superior Court (I) (1984)), certain preliminary hearings but not grand jury hearings (Press-Enterprise Co. v. Superior Court (II) (1986)), and possibly also civil trials (Richmond Newspapers). To determine which proceedings qualify, the Court generally looks to whether “the place and process have historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question” (Press-Enterprise (II)).

His background goes on to discuss Presley v. Georgia, a per curium opinion that held that a restriction on access to a DeKalb County, Georgia, courtroom during voir dire was unconstitutional.

A more interesting Supreme Court case might be made of the typical rural Georgia habeas corpus proceeding. It’s rare that I attend a habeas proceeding inside a courthouse anymore. There has been a move to conduct habeas proceedings inside of day rooms, cafeterias, and faux courtrooms inside the prison.

A recent habeas hearing I attended may illustrate the experience. The courtroom was inside a secured building with rows of fencing and razor wire. To get in, I had to push a button and announce over an intercom that I was a lawyer with a case. The gate opened, and I made my way into the area where I surrendered my car keys and identification for a visitor’s badge. A door made of bars slid open as I entered. Then I went through two sets of locking doors to find the courtroom, where a folding cafeteria table served as the judge’s bench and attorneys and witnesses were provided with plastic chairs. To be fair, I suppose that members of the public may have been let in had they just shown up and requested access. But the setting didn’t seem like an open courtroom. For one, we were not in the county seat. For another matter, we were in a privately-owned prison. The deputies and bailiffs were corporate corrections officials. Our courtroom did not bear the seal of the State of Georgia. Rather, a birthday banner celebrating the facility’s fifteenth birthday (who knew that prisons were born) was hung behind the judge.

Counsel for habeas petitioner must choose our battles. The battle is uphill as it is. I’ve never brought a first amendment challenge to the setting of habeas proceedings inside of prisons. If, for no other reason, I’ve anticipated the response might be, “Very well, Mr. Key. We will move Mr. Smith’s case over to the courthouse. Let’s see how your hearing goes now.” The last sentence in might not be spoken aloud. The judge’s response might be that any member of the public brave enough to walk the gauntlet into the courtroom would be welcome to attend the proceedings. Therefore they are open.

I’ve never had the right set if facts or the desire to sacrifice my client’s possible chances of success in a habeas year to the First Amendment principle. But there may be such a principle at stake in some of these proceedings.

Legislators in Virginia are contemplating changes to the law in response to MacDonald v. Moose (4th Cir. 2013), a case that struck down Virginia’s law that prohibited non-genital sex generally. Specifically, legislation has been introduced that would make it a felony for an adult to engage in non-genital sex with a minor between age 15 and 17, while vaginal intercourse is a misdemeanor. Vaginal sex among 15-17 years olds is perfectly legal, while non-genital sex would be a crime. Prostitution would be a misdemeanor as long as the prostitute and the john engage in vaginal intercourse; any other type of sex would be a felony.

In Georgia, we draw equally if not more draconian distinctions between genital and non-genital sex. For instance, public indecency covers “an act of sexual intercourse” in a public place. That crime is a misdemeanor under O.C.G.A. § 16-6-8. However, the offense of sodomy in a public place is a felony punishable by not less than one and no more than 20 years to serve in prison. Bowers v. Hardwick struck down Georgia’s sodomy law, but only to the extent that it applies to that sexual act in a private place. Public acts of sodomy are still illegal. See Mauk v. Ga. A few years ago, I was unsuccessful in an 8th Amendment challenge to a 10 year (without parole) sentence for a young man who was convicted for a voluntary act of non-genital sex with another teen.

Professor Volokh writes this about proposed changes to the law in Virginia:

I realize that some people … view nongenital sex as immoral — but even those people, I assume, are uninclined to outlaw things (unkindness, dishonesty, not honoring your father and mother, coveting your neighbor’s wife or property, and the like) just because they are immoral. Indeed, even people who view premarital sex generally as immoral tend not to be inclined to pass new laws banning all fornication. What is there about nongenital sex that makes it more properly subject to outlawing, especially given the perverse incentives that such a prohibition would create?

If the legislation passes, then Virginia, like Georgia will treat non-genital sex with a harsh sentencing scheme versus acts of vaginal sex. It is unclear why the legislature would incentivize teenage intercourse at the risk of unwanted pregnancy and the spread of disease, other than that such a scheme is an expression of the fundamentalist religious beliefs of individuals in power (welcome to our little red state). Of course, it’s difficult to justify the lengthy incarceration of teens based upon the decision to violate the religious sensibilities of state representatives and senators. Nevertheless, in a moment of passion between teens or between adults in certain situations, the message from our wise legislators is that the actors had better “go all the way.”