Atlanta's John Marshall Law Journal Volume I

JOHN MARSHALL LAW JOURNAL

Volume 1

2008

ARTICLES Suspending Reason: An Analysis of Georgia's Off-Campus Suspension Statute Randee J. Waldman and Stephen M. Reba ..................

1

The Georgia Death Penalty: A Need for Racial Justice M ichael M ears ...........................................

71

The Religious Rights of Incarcerated Persons: The Georgia Clergy Privilege, RLUIPA, and the Free Exercise Clause Robert J. D 'Agostino .....................................

91

Requiring Notice: Georgia Probationers' Fourth Amendment Rights After Jones v. State Stewart D. Bratcher ......................................

153

COMMENTS Eyewitness Identification Procedures in Georgia: Years, Dollars, and What Can Be Done Michael A. Albino ........................................

179

Reasonableness Found: Supermajority Sentencing in Georgia Death Penalty Cases Amanda K. Kee and Diona M. Potter ......................

209

Putting Parole Back on the Table: An Efficiency Approach to Georgia's Aging Prison Population Amelia M. Inman and Millard W. Ramsey, Jr ..............

239

Student Searches and Seizures: Georgia's Current Approach and Recommended Change Dustin W. Hightower .....................................

253

SELECTED LEGISLATIVE INITIATIVES WITH SPONSOR RATIONALE Georgia General Assembly 2007-2008 Session ..................

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SUSPENDING REASON: AN ANALYSIS OF GEORGIA'S OFF-CAMPUS SUSPENSION STATUTE RANDEE J. WALDMAN* AND STEPHEN M. REBA**

I. Introduction .........................................................................

3 II. The Origins of O.C.G.A. ยง 20-2-751.5(c) ...........................

5 A. School Discipline in a Historical Context ................ 5 B. The Passage of O.C.G.A. ยง 20-2-751.5(c) ................ 9 III. Removal Should Be Disfavored as Policy ....................... 10 A. Removal from School is Developmentally Inappropriate ..........................................................

11 B. Removal from School is Ineffective in Improving School D iscipline .................................................

15 C. The Negative Consequences of Suspension and Expulsion ..............................................................

18 D. The Impact of Removal on At-Risk Populations ........ 20 1. Minorities: Focus on the Black Male ................ 21 a. Black Males are Removed from School at Higher Rates than their Peers ................... 21 b. Black Youth are Arrested at Higher Rates than their Peers ..........................................

23 c. Implications of O.C.G.A. ยง 20-2-751.5(c) on Black Male Students in Georgia ............ 24 2. Special Education .............................................

25 a. Students Requiring Special Education are Removed at Higher Rates than NonDisabled Students .....................................

25

Clinical Instructor of Law and Director, Barton Juvenile Defender Clinic, Emory University School of Law; J.D., with honors, University of Chicago School of Law; B.A., Haverford College. ** J.D. Candidate, May 2008, John Marshall Law School; B.A., Clemson University.

We would like to thank Kirsten Widener and Erika Palmer for their feedback.

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b. Youth with Educational Disabilities are Arrested at Higher Rates than their NonDisabled Peers ......................................... c. Implications of O.C.G.A. § 20-20-751.5(c) on Students with Disabilities in Georgia .........

E. Georgia Should Recognize the Flaws in the Policy of Rem oval ...........................................................

IV. Legal Challenges to O.C.G.A. § 20-2-751.5(c) ..............

A. Individual District Codes of Conduct Exceed Statutory Authority .................................................

1. The Legislative Intent of O.C.G.A. § 20-2751.5(c) ............................................................

2. District Codes of Conduct Exceed Statutory B ounds ............................................................

3. Off-Campus Behavior Being Punished ............

B. Application of the Void-for-Vagueness Doctrine to O.C.G.A. § 20-2-751.5(c) .................................

1. Void-for-Vagueness Challenges to OffCampus Conduct Provisions in Other States ........

2. Application of the Void-for-Vagueness Doctrine to the Georgia Statute ........................ a. Facial Challenge ......................................... b. As-Applied Challenge ................................

V. Implications of O.C.G.A. § 20-2-751.5(c) on Georgia Students ......................................................................

A. Suspensions under O.C.G.A. § 20-2-751.5(c) .....

1. Total Number of Students Suspended Under O.C.G.A. § 20-2-751.5(c) ...............................

2. School District Usage of O.C.G.A. § 20-2751.5(c)-Mandated Provision ..........................

3. Grade-Level Composition of O.C.G.A. § 20-2-751.5(c)-Suspensions .............................

4. Age Composition of O.C.G.A. § 20-2751.5(c)-Suspensions .......................................

5. Gender Composition of O.C.G.A. § 20-2751.5(c)-Suspensions .......................................

6. Racial Composition of O.C.G.A. § 20-2751.5(c)-Suspensions in Georgia ....................

7. Racial Composition of O.C.G.A. § 20-2-

27 29 29 30 31 32 33 38 41 42 46 47 49 51 51 52 52 53 54 55 55

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751.5(c)-Suspensions in Districts ..................... a. Gwinnett County School District ................. b. DeKalb County School District .................. c. Hall County School District ........................ d. Cobb County School District ...................... e. Muscogee County School District ............... f. Atlanta Public Schools ................................. g. Bibb County School District .......................

8. Student Disability Composition of O.C.G.A. § 20-2-751.5(c)-Suspensions ........................... a. G eorgia ........................................................ b. Reportable Districts .....................................

9. Economic Composition of O.C.G.A. § 20-2751.5(c)-Suspensions ...................................... a. G eorgia ........................................................ b. Reportable Districts .....................................

B. Expulsions under O.C.G.A. § 20-2-751.5(c) ......

VI. Recommendations for Legislative Reform ......................

A. O.C.G.A. § 20-2-751.5(c) Should be Repealed ..........

B. At a Minimum, O.C.G.A. § 20-2-751.5(c) Should be Limited in Scope and Application ......

1. The Statute Should be Amended to Provide Clear Parameters for Districts to Follow ....... a. District Codes of Conduct Should Not Exceed the Parameters Set forth in the Statute .........................................................

V II. Conclusion ....................................................................

56 57 58 59 60 60 61 62 62 63 63 65 65 65 67 67 67 68 68

69 69

I. INTRODUCTION Four years ago, the Georgia Legislature passed a law intended as an emergency mechanism to allow schools to remove a student who had committed a felony off school grounds if the student's presence at school was a danger or disruption.' The result of this enactment has been the removal from school of over 1,300 Georgia students who are predominantly black, male, middle-school-aged, and socioeconomically disadvantaged. Furthermore, the vast majority of 1. O.C.G.A. § 20-2-751.5(c) (2007); see infra Part 11.B.

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students removed under this law have not committed an act that could result in them being criminally charged with a felony.2 Prior to the enactment of O.C.G.A. § 20-2-751.5(c), the Georgia Code was silent with respect to a school's ability to discipline Georgia students for their off-campus behavior. The impetus for amending O.C.G.A. § 20-2-751.5(c) was a specific incident where a student shot and killed a classmate over the weekend.3 When he returned to school on Monday, his presence caused an "uproar" in the building.4 With the aim of addressing the same or similar incidents, the Legislature amended O.C.G.A. § 20-2-751.5(c) to enable schools to remove students for off-campus behavior "which could result in the student being criminally charged with a felony and which makes the student's continued presence at school a potential danger to persons or property at the school or which disrupts the educational process."'

While the Legislature intended this statute to be limited in scope and application, the data demonstrates a much broader use of the statute by several Georgia school districts. This Article examines how this broader application creates unintended consequences for students and their communities, and argues that O.C.G.A. § 20-2-751.5(c) should be repealed, or, in the alternative, amended to provide clearer parameters for school districts' codes of conduct.

Specifically, Part II of this Article places removal policies in context by providing a historical overview of education policies.

Part II also reviews the legislative history of O.C.G.A. § 20-2751.5(c).

Part III examines the implications of removal policies. It explains why removal should be disfavored and presents empirical research that demonstrates the effect of school removal on a student's life.

Finally, it discusses the disproportionate effect of removal on two at-risk populationsminority students and students with disabilities.

2. Email from Pat Mills, Education Policy Analyst, Legal Services, Ga.

Dept. of Educ., to Stephen M. Reba, Editor-in-Chief, John Marshall Law Journal (Oct. 11, 2007, 11:47:00 EST) (On file with the John Marshall Law Journal) [hereinafter 0. C.G.A. § 20-2- 751.5(c) Open Records Request].

3. See infra Part IV.B.2.a.

4. Id. 5. O.C.G.A. § 20-2-751.5(c).

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Part IV discusses two possible legal challenges that can be brought against individual school districts for their implementation of O.C.G.A. ยง 20-2-751.5(c). First, many school districts have drafted their codes of conduct more broadly than the mandate provided by the authorizing statute.

Accordingly, Part IV analyzes whether these districts have exceeded their statutory authority. Second, it considers whether O.C.G.A. ยง 20-2-751.5(c) is void for vagueness.

Part V looks closely at data obtained through an open records request to the Georgia Department of Education to see how Georgia's school districts are implementing O.C.G.A. ยง 20-2751.5(c). This examination shows that students suspended pursuant to this statute are predominantly economically disadvantaged black males in middle school, and that students with disabilities are overrepresented in students suspended pursuant to this statute.

Part VI recommends legislative and district-level reforms and, finally, Part VII concludes the Article.

II. THE ORIGINS OF O.C.G.A. ยง 20-2-751.5(c) A. School Discipline in a HistoricalContext In recent years, the educational system's overall approach to discipline has become progressively more severe, especially since the implementation of zero tolerance policies in the 1990s. 6 The public schools of early America handled school

6. RUSSELL SKIBA ET AL., AM. PSYCHOLOGICAL Ass'N ZERO TOLERANCE TASK FORCE, ARE ZERO TOLERANCE POLICIES EFFECTIVE IN OUR SCHOOLS? AN EVIDENTIARY REVIEW AND RECOMMENDATIONS 2 (2006), available at

http://www.apa.org/ed/cpse/zttfreport.pdf [hereinafter Zero Tolerance Task Force Report] (defining zero tolerance policies as a philosophy "that mandates the application of predetermined consequences, most often severe and punitive in nature, that are intended to be applied regardless of the seriousness of behavior"). Commonly used zero tolerance policies remove students for any connectedness with: firearms, alcohol, drugs, violence, tobacco possession, and threats to school officials and school property.

GALE M. MORRISON ET AL., School expulsion as a process and an event: Before and after effects on children at risk for school discipline, in NEW DIRECTIONS FOR YOUTH DEVELOPMENT 47 (Russell J. Skiba and Gil G.

Noam eds., 2001).

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discipline locally. 7 Dating back to the implementation of the first compulsory attendance laws and spanning all the way to the early twentieth century, schools punished students in the classroom. 8 As school populations grew, classroom punishment became less practical, and school administrators were forced to discipline students. 9 In the 1960s and the early 1970s, school administrators used out-of-school suspension and expulsion as quick-fix solutions in the face of rapidly increasing enrollment.' In the mid-1970s, however, there was a decrease in student-removal, and schools began to utilize in-school suspension as the primary disciplinary response to student behavior. I I In-school suspension served more rehabilitative purposes by keeping the student in school and focusing on the student's behavioral issues while not losing valuable 12 instructional time.

Today, removal from school in the form of a suspension or expulsion is often the initial response to unwanted student behavior.' 3 Zero tolerance policies, which require automatic suspension or expulsion for certain violations of school rules, have further contributed to rising suspension and expulsion rates. 14 Not only have the number of suspensions and 7. Marsha L. Levick, Zero Tolerance: Mandatory Sentencing Meets the One Room Schoolhouse, 8 KY. L.J. 2 (2000).

8. Irwin A. Hyman & Eileen McDowell, An Overview, in CORPORAL PUNISHMENT IN AMERICAN EDUCATION 4 (Irwin A. Hyman & James H. Wise eds., 1979); Alicia C. Insley, Comment, Suspending and Expelling Children from Educational Educational Opportunity: Time to Reevaluate Zero Tolerance Policies, 50 AM. U. L. REv. 1039, 1044 (2001).

9. Hyman, supra note 8, at 4.

10. Troy Adams, The Status of School Discipline and Violence, 567 ANNALS AM. ACAD. POL. & SOC. SCI. 140 (2000).

11. Id. This change came about in response to growing social pressure for more humane student disciplinary methods, and to court decisions affording students greater rights. Id. 12. Adams, supra note 10.

13. Liz Sullivan, Reframing School Discipline through Human Rights Standards, CHILD. RTS. LITIG. NEWSL. (Child. Rts. Litig. Committee, A.B.A), Winter 2007, at 13.

14. The stories of those students whose behavior should not be punished, but are caught by the strict adherence to zero tolerance, are well documented.

Ellen M. Boylan, Advocating For Reform Of Zero Tolerance Student Discipline Policies:Lessons From the Field (Educ. L. Center, N.Y.), 2002,

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expulsions dramatically increased from the mid-seventies to the turn of the twenty-first century,' 5 but many schools "have lowered their threshold for referring misbehaving students to '1 6 law enforcement and the justice system."

Consequently, the educational and juvenile justice systems are, at times, difficult to distinguish.' 7 Schools increasingly use at 17-18. A twelve-year-old who brought a butter knife to school for dissection of a vegetable in science class was suspended and recommended for expulsion. Id. Another student was expelled after a bread knife was found in the bed of his pick-up truck, which was left there after the student had helped move his grandmother's possessions. Id. An eight-year-old was suspended and recommended for expulsion when he mistakenly took his mother's keychain to school, which had a nail-clipper on it. Id. Another eight-year-old was suspended after pointing a breaded chicken finger at a teacher and saying, "pow, pow, pow." Id. These are just a small sampling of the many factually-similar cases which occur across the country each year.

For more examples of stories with similar facts to those mentioned above, see Zero Tolerance Task Force Report, supra note 6, at 27-32.

15. Schools and Suspensions: Self-Reported Crime and the Growing Use of Suspensions (Just. Pol'y Inst., Wash. D.C.), Sept. 1, 2001, at 3 ("Between 1974 and 1998, the rate at which America's students were suspended and expelled from schools has almost doubled from 3.7% of students in 1974 (1.7 million students suspended), to 6.8% of students in 1998 (3.2 million students suspended)); Suspensions and Expulsions at a Glance, IDEA, availableat http://idea.gseis.ucla.edu/publications/suspension/index.html (In 2000, U.S. public schools handed out over three million suspensions and close to 100,000 expulsions).

16. Zero Tolerance Task Force Report, supra note 6, at 76.

17. There are also parallels between the development of the education and juvenile justice systems. Much like the education system, the juvenile justice system has grown increasingly more punitive over the years. The juvenile justice system in the United States was founded in recognition of the inherent differences between children and adults, and was firmly rooted in the ideal of rehabilitation. Laurence Steinberg & Robert G. Shwartz, Developmental Psychology Goes to Court, in YOUTH ON TRIAL 11, 12 (Thomas Grisso & Robert G. Schwartz eds., 2000). Juvenile courts clearly and intentionally distinguished themselves from adult courts and adult penal systems. The punishments of adult courts were discarded, and the focus was instead placed almost entirely on treatment and rehabilitation. RICHARD LAWRENCE, SCHOOL CRIME AND JUVENILE JUSTICE 32 (2007).

The rehabilitative purpose of the system faced challenges in the 1960s as criticism of the juvenile justice system's perceived failure to actually rehabilitate youth rose. LAWRENCE, at 34-35; Richard E. Redding et al., Juvenile Delinquency Past and Present, in JUVENILE DELINQUENCY: PREVENTION, ASSESSMENT, AND INTERVENTION 9 (Kirk Heilbrun, Naomi E.

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police officers, metal detectors, and other aggressive safety8 policies to manage day-to-day disciplinary problems.'

Students are frequently arrested in school for infractions that had traditionally been considered matters of school discipline, leading certain commentators to criticize the "criminalization" 19 of school discipline policies.

As schools become more enmeshed with the juvenile and criminal justice systems, those systems likewise are becoming more intimately connected with the school system. Motivated largely by concerns for school safety, many states now permit or require courts and/or law enforcement agencies to provide information to schools upon arrest, conviction, or adjudication. ° For example, juvenile courts in Georgia are mandated to notify schools when a student is adjudicated delinquent for a second time, or when a student is adjudicated delinquent of a designated felony. 2 ' It is within this Sevin Goldstein, & Richard E. Redding eds., 2007). Additionally, the Supreme Court's 1967 decision in In re Gault to require many of the procedural protections of the adult criminal system in juvenile court signaled an "adultification" of the juvenile justice system. In re Gault, 387 U.S. 1 (1967); Steinberg & Shwartz, at 13; see also Elizabeth Scott, Criminal Responsibilitiesin Adolescence: Lessonsfrom DevelopmentalPsychology, in YOUTH ON TRIAL 291, 296 (Thomas Grisso & Robert G. Schwartz eds., 2000). However, Gault did not completely remove the system from its rehabilitative roots. The true uprooting occurred in the 1990s, when nearly every state drastically amended its juvenile code, in what some described as a response to a rise in violent youth crime. Steinberg & Shwartz, at 14; see Specific changes included: expanding also LAWRENCE, at 39-40. opportunities to transfer juveniles to adult court, sentencing youth to adult correctional facilities, and limiting confidentiality protections. LAWRENCE, at 39-40.

18. Sullivan, supra note 13, at 15.

19. Sarah Biehl, CRLC Subcommittee on Education Tackles School Discipline Reform, CHILD. RTS. LITIG. NEWSL. (Child. Rts. Litig.

Committee, A.B.A), Spring 2006, at 9.

20. See Kristin Henning, Eroding Confidentiality in Delinquency Proceedings: Should Schools and Public Housing Authorities be Notified?

79 N.Y.U. L. REv. 520 (2004).

21. O.C.G.A. § 15-11-80 (2007) ("Within 30 days of any proceeding in which a child is adjudicated delinquent for a second or subsequent time or any adjudicatory proceeding involving a designated felony, the court shall provide written notice to the school superintendent or his or her designee of the school in which such child is enrolled... Such notice shall include the specific delinquent act or designated felony act that such child committed.").

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environment that we examine the implications of O.C.G.A. ยง 20-2-751.5(c) on Georgia's students.

B. The Passageof O.C.G.A. ยง 20-2-751.5(c) Georgia, like other states, has adopted more aggressive school discipline policies over the last twenty years. 22 While some of this has occurred at the local school district level, the Georgia General Assembly has enacted a number of statutes requiring districts to adopt specific policies.23 One of these statutes was House Bill 1190, which passed in the 2003-2004 legislative session and was subsequently signed into law by the Governor. 24 Although the primary focus of the Bill was the regulation of student driver licenses, the section mandating the contents of local school district student codes of conduct was also amended. 25 This amendment created the current version of O.C.G.A. ยง 20-2-751.5(c), which reads: Each student code of conduct shall also contain provisions that address any off-campus behavior of a student which could result in the student being criminally charged with a felony and which makes the student's continued presence at school a potential danger to persons or property at the school or which disrupts the educational process.26 This language originated in Senate Bill 428, which was later added to House Bill 1190.27 Senator Joey Brush, a sponsor of

the original bill, expressed the reasoning behind the language in

22. Most Georgia school districts have adopted some form of zero tolerance policy. See Complete File of Accessible School District Codes of Conduct (on file with the John Marshall Law Journal).

23. For example, in 1995 the General Assembly enacted O.C.G.A. ยง 20-2751.1 which requires school districts to adopt policies requiring "the expulsion from school for a period of not less than one calendar year of any student who is determined.., to have brought a weapon to school."

24. Jennifer Evans, Legislative History, Education, 21 GA. ST. U. L. REV. GEORGIA STATE PEACH SHEETS,

HB 1190, Jennifer Evans (2004), available

at http://law.gsu.edu/lawreview/index/archives/show/?art=2 1- 1/21-1_Educ ationEvans.htm (last visited Mar. 31, 2008).

25. Id. 26. O.C.G.A. ยง 20-2-751.5(c).

27. Evans, supra note 24.

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floor debate.28 Senator Brush explained that the impetus of the legislation was an incident that occurred while he was working at the Georgia Department of Education, when a student had shot and killed another student over the weekend during a game of Russian roulette. 9 The Senator, while answering questions from his colleagues concerned with the breadth of the language, reiterated that O.C.G.A. ยง 20-2-751.5(c) was intended to be an emergency30 mechanism for schools to use in very limited situations.

Since O.C.G.A. ยง 20-2-751.5(c) was first implemented in 2004, 1,332 students have been removed from school. Later, in Part IV, we will examine the legality of these removals. In the following section, however, we look at the policy implications of removing students from school, and examine four problematic aspects of removal policies more generally, using current educational and neuropsychological research as our guide.

III. REMOVAL SHOULD BE DISFAVORED AS POLICY

Removal from school, for lengthening stretches of time, is becoming an increasingly common response to disruptive but usually normal student behavior.

Although this Article intentionally focuses on a specific provision of Georgia law that permits removal from school for certain off-campus behavior, a broader examination of removal policies is needed. The aim of this Part, however, is not to examine those policies intensively, but to provide perspective on the implications of O.C.G.A. ยง 202-751.5(c) by addressing four problematic aspects of school removal, namely that removal from school: (A) is developmentally inappropriate; (B) does not serve its intended purposes; (C) has negative consequences on suspended students' educational outcomes and future opportunities; and D) disproportionately affects already at-risk populations.

28. See supra Part II.B; see infra Part IV.A. 1.

29. Video Recording of Sen. Proceedings, Feb. 3, 2004 (remarks by Sen. Brush), available at http://www.georgia.gov/00/channel-title/0,2094,4802 _6107103,00.html [hereinafter Senate Proceedings].

30. Id.

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A. Removal from School is Developmentally Inappropriate Research on adolescent development sheds light on the behavioral tendencies of youth and can provide direction as to how our educational and juvenile justice systems should respond to those tendencies. Many studies show that by the age of sixteen, adolescents' cognitive abilities-their intelligence or ability to reason-closely mirror that of adults.3 ' However, adolescence is also a time when young people are still learning to modulate their impulses, regulate their emotions, delay shortterm gratification, and understand the long-term consequences of their behavior. Adolescents also tend to be more susceptible 32 to peer influence and dependent on peer approval than adults.

While adolescent behavior has long been the subject of study, recent breakthroughs in brain science have corroborated some earlier findings. Recent research demonstrates that the portion of the brain that controls decision-making abilities is the last portion to fully develop. 33 Developmental neuroscientists, using magnetic resonance imaging to study the brains of a large sample of children, discovered that two portions of the brainthe frontal lobe and the prefrontal cortex-continue to grow and develop through the early twenties.3 4 The frontal lobe is the

31. MACARTHUR FOUNDATION RESEARCH NETWORK ON ADOLESCENT DEVELOPMENT AND JUVENILE JUSTICE, Issue Brief 3: Less Guilty by Reason

of Adolescence, available at http://www.adjj.org/downloads/6093issuebrief _3.pdf; Scott, supra note 27, at 297-307 (discussing adolescent and adult

similarities and differences).

32. MACARTHUR FOUNDATION RESEARCH NETWORK ON ADOLESCENT AND JUVENILE JUSTICE, Development and Criminal Blameworthiness, available at http://www.adjj.org/downloads/303OPPT %20Adolescent%20Development%20and%20Criminal%20Blameworthiness .pdf; AMERICAN BAR ASSOCIATION, et al, Understanding Adolescents, A Juvenile Court Training Curriculum, "Kids are Different: How Knowledge of Adolescent Development Theory can Aid Decision-Making in Court, available at http://www.adjj.org/downloads/303OPPT%20Adolescent%20 Development%20and%20Criminal%20Blameworthiness.pdf [hereinafter Kids are Different]; Margo Gardner & Laurence Steinberg, Peer Influence on Risk-Taking, Risk Preference, and Risky Decision-Making in Adolescence and Adulthood: An ExperimentalStudy, 41 DEV. PSYCHOL. 625, 635 (2005).

33. E. Sowell et al., Development of cortical and subcortical brain structures in childhood and adolescence: A structuralMRJ study. 44 DEV. MED. & CHILD. NEUROL. 1, 4-16 (2002).

34. Id.; Teenage Brain: A work in progress, (Nat'l Inst. of Mental Health, DEVELOPMENT

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part of the brain that controls the decision-making process, including long-term planning, risk assessment, and impulse The prefrontal cortex is responsible for cognitive control. processing, problem solving and emotional control.36 Thus, adolescents may take more risks than adults and fail to reason about the consequences of their actions at least partly because key areas of their brains are still developing.37 This "may help to explain certain teenage behavior that adults can find mystifying, such as 3poor decision-making, recklessness, and emotional outbursts." 8 While not desirable, much of the behavior exhibited by delinquent adolescents is also not abnormal. 39 Experimenting with drugs, shoplifting, skipping school, and staying out late are common adolescent behaviors.40 Moreover, serious delinquent behavior is normal among a large portion of youth. One study found that "serious delinquent behavior is a part of growing u for one-quarter to one-third of all youth," regardless of race.'I Though such behavior should not be condoned as acceptable, responding with services that help adolescents identify errors, recognize options, and make better choices is more 2001) available at http://www.nimh.nih.gov/health/publications/teenagebrain-a-work-in-progress.shtml [hereinafter Teenage Brain]; Jeffrey Fagan, Adolescents, Maturity And The Law, AM. PROSPECT, Aug. 14, 2005, available at http://www.prospect.org/cs/articles?article=adolescentsmat urity andthe law.

35. Fagan, supra note 34.

36. Teenage Brain, supra note 34.

37. Research on brain development during adolescence highlights the instability of behavior that has a biological base and the relevance of that instability for judgments of blameworthiness. As developmental neuroscientist Jay Giedd stated: "it's sort of unfair to expect adolescents to have adult levels of organizational skills or decision making before their brain is finished being built." Zero Tolerance Task Force, supra note 6, at 69 (citing Dr. Jay Geidd on the Public Broadcasting Service's program, Frontline,in 2002).

38. Facts and Findings, (Assets Coming Together for Youth), May, 2002, available at http://www.actforyouth.net/documents/may02factsheetadol braindev.pdf.

39. Kids are Different, supra note 34, at 5.

40. Id. 41. Ellen Hinton Hoytt et al., Pathways to Juvenile Detention Reform: Reducing Racial Disparities in Juvenile Detention, in PATHWAYS TO JUVENILE JUSTICE REFORM 1, 21 (2001).

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developmentally appropriate than a purely punitive response. 42 The U.S. Supreme Court recognized the limitations on a purely punitive approach to adolescent offenses in 2005 when it abolished the death penalty for those between the ages of sixteen and eighteen.4 3 In declaring that juveniles could not be classified among the worst offenders, the Court identified three primary differences between juveniles and adults. First, a juvenile's lack of maturity and underdeveloped sense of responsibility often result in "impetuous and ill-considered actions and decisions." 4 Second, the Court noted that juveniles are more susceptible to negative influences and outside character of a pressures. 45 Finally, the Court recognized that the 46 juvenile is not as well formed as that of an adult.

Research regarding adolescent development should guide not only our juvenile justice policies, but also our policies in the educational setting. Schools should acknowledge that their students' judgment is still developing and treat misbehavior as part of the learning process. Instead of removing students, schools should implement programs designed to train adolescents' still-developing brains to make good decisions.

For example, recent attention has been paid to the concept of 47 school-wide positive behavioral interventions and support.

One study that focused on positive behavior support studied a group of schools from around the country, including Oakhurst

42. See Kids are Different, supra note 34, at 5.

43. Roper v. Simmons, 543 U.S. 551 (2005). In Roper, the Supreme Court reversed the 1989 decision of Stanford v. Kentucky, 492 U.S. 361 (1989), which rejected a Constitutional bar on capital punishment for juvenile offenders under the age of eighteen. Previously, in Thompson v.

Oklahoma, 487 U.S. 815, 818-38 (1988), the Court barred capital punishment for those juveniles fifteen years-old and younger.

44. Roper, 543 U.S. at 569 (internal citations omitted).

45. Id.

46. Id. at 570.

47. Schools implementing a system of School-Wide Positive Behavior Support seek to achieve the reduction in problem behavior and enhanced learning environments through an emphasis on school-wide systems of support that include proactive strategies for defining, teaching and supporting appropriate student behaviors. Positive Behavior Intervention Systems, OSEP Technical Assistance Center on Positive Behavioral Interventionsand Supports, http:www.pbis.org.

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Elementary in Decatur, Georgia.48 Oakhurst Elementary has implemented a three-level approach to positive behavior support. 49 The base level seeks to provide a school-wide foundation by involving students, staff, and families in school activities."0 Drawing largely upon this solid base, the second level focuses on early intervention, where at-risk factors are addressed with protective measures.5" When early intervention techniques are insufficient, the third level, which consists of intensive intervention, is utilized. 2 Under this approach, the staff of Oakhurst Elementary work hard to build relationships with families, so they can detect problems as soon as possible.53 The method has produced a school where "students and parents are made to feel welcome and special," and instead of suspending a student, the school administration will often drive the student home and discuss the problem with the parent.54 Another interesting approach to discipline that is taking hold in a small number of communities is the reformation of destructive discipline through international human rights standards. 55 The central theme of this approach is that the child's dignity must be protected, and discipline should be implemented as a form of growth. 6 Policies and practices that do not support a child's development or which undermine the child's dignity are seen as inconsistent with the child's human rights. Disciplinary action must be nondiscriminatory, and promote students' confidence and self-expression, while fostering a safe and supportive learning environment. 57 Rather than utilizing removal policies, schools should utilize a human rights framework, where students and parents help shape disciplinary policies, and the focus is on prevention, supporting 48. DAVID M. OSHER ET AL., The best approach to safety is to fix schools and support children and staff, in NEW DIRECTIONS FOR YOUTH DEVELOPMENT 127, 128, 135 (Russell J. Skiba and Gil G. Noam eds., 2001).

49. Id.

50. Id. at 131.

51. Id.

52. Id. 53. Id. at 137.

54. Id. at 133, 137.

55. Sullivan, supra note 13, at 13.

56. Id. 57. Id.

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58 positive behavior, counseling, and mediation.

B. Removalfrom School is Ineffective in Improving School Discipline Schools have limited resources with which to educate their students and maintain a safe environment. When a child is disruptive and occupies more of a teacher's scarce time and attention, or when the child may pose a risk to others, it is perhaps unsurprising that the preferred method of discipline is 5 exclusion from school through suspension or expulsion.

Accountability has become a guiding principle of educational 60 policy and its disciplinary counterpart is zero tolerance.

Proponents of zero tolerance argue that these rigid policies allow schools to focus fewer resources on disruptive students, leaving more resources for students who remain in the classroom and creating a better learning environment. 6 1 Supporters of zero tolerance policies also contend that strict rules show students that schools are serious about discipline, and that disciplined students will be dissuaded from engaging in prohibited behavior again. 62 Most importantly, proponents63 of zero tolerance claim that strict policies ensure safer schools.

The American Psychological Association created a Zero Tolerance Task Force to examine the effectiveness of these policies. 64 The Task Force holistically examined the use of zero 58. Id. at 16.

59. See GALE M. MORRISON ET AL., supra note 6, at 45. More cynical commentators take the position that "zero tolerance policies provide administrators with an easy way to remove low-scoring students." Ruth Zweifler & Julia De Beers, The Children Left Behind: How Zero Tolerance Impacts Our Most Vulnerable Youth, 8 MICH. J. RACE & L. 191, 209 (2002).

60. Zero Tolerance Task Force Report, supra note 6, at 2.

61. Id. at 22.

62. RuSSELL SKIBA, ZERO TOLERANCE, ZERO EVIDENCE: AN ANALYSIS OF SCHOOL DISCIPLINARY PRACTICE 8-9 (2000).

63. Id. As demonstrated below, and mentioned by Dr. Skiba, there are very few studies that have examined the outcomes of security measures. Id. at 17. However, the most extensive of those studies show a "negative relationship between school security measures and school safety," and none of them show a positive correlation. Id. 64. Zero Tolerance Task Force Report, supra note 6, at 2. The APA's Council of Commissioners commissioned the Zero Tolerance Task Force, comprised of the authors of the Report, to study the effects of zero tolerance

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tolerance policies over more than a decade, focusing on its effectiveness in achieving its goals of safety, deterrence, and more stable learning environments. 65 The Task Force released its comprehensive report in 2006, noting, "[i]t seems intuitive that removing disruptive students from school will make schools better places for those students who remain, or that severe punishment would improve the behavior of the punished student. . .but the available evidence consistently flies in the face of these beliefs."66 The Task Force concluded that schools are not any safer now than they were before the implementation of zero tolerance policies. Their report found that while violence in school is an issue of serious importance, contrary to popular belief, it is not "out-of-control. 68 It found that zero tolerance policies have not increased the consistency of application of discipline in school.6 9 More importantly, schools with higher rates of removal were not safer; they often focused an inordinate amount of time on disciplining students and had below average ratings for school climate and school governance.70 Furthermore, zero tolerance policies not only failed to deter students from misbehaving, those who were punished were more likely to offend again. 7' Essentially, the Report rejected policies on students. Id. 65. Id.

66. Id. at 113. In addressing the issue of increased school safety, the Task Force addressed each of the five key assumptions (or beliefs) of zero tolerance: school violence is at serious levels; zero tolerance increases the consistency of punishment; removal provides a more conducive environment of learning for the students who remain; zero tolerance has a deterrent effect; and parents overwhelmingly support zero tolerance policies. Id. at 3, 6, 7, 8,

10.

67. Id. at 112.

68. Id. at 37, 38.

69. Id. at 40.

70. Id. at 47. The Task Force also found that the implementation of zero tolerance policies has increased referrals to the juvenile justice system for behaviors that used to be handled at school. Id. at 76.

71. Id. at 50. Although removal from school has been shown to be a highly negative action with ample alternatives that can both aid and teach a child, suspension and expulsion rates soar. MORRISON ET AL., supra note 6, at 49. Many argue that this upward trend in the number of suspensions and expulsions is itself proof of the ineffectiveness of removal as a method of

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all rationale for the implementation of zero tolerance policies, and concluded by stating, "[i]t is time to make the shifts in policy, practice, and research to implement policies that can keep schools safe and preserve the opportunity to learn for all students. 72 Although these findings focused on zero tolerance policies, the authors' conclusions are applicable to the function of O.C.G.A. ยง 20-2-751.5(c), and removals in general. The authors of the report acknowledge the rather fluid definition of what constitutes a zero tolerance policy; 73 and while the Georgia statute would not fall into that definition, the purpose and effect of both zero tolerance policies and O.C.G.A. ยง 20-2751.5(c) are similar. Both policies have a core goal of increasing school safety, and both attempt to achieve that goal through sweeping measures that require little nexus to specific safety concerns. That is, zero tolerance policies do not look at factors other than the rule violation to determine whether a child is dangerous, and O.C.G.A. ยง 20-2-751.5(c) does not require any particular behavior at school.

Virtually every study that has closely examined removal dissuasion. Tara M. Brown, Lost and Turned Out: Academic, Social, and Emotional Experiences of Students Excluded From School, 42 URB. EDUC. 432, 435 (2007); see also, Douglas C. Breumlin et al., Conflict Resolution Training as an Alternative to Suspension for Violent Behavior, 95 J. EDUC. REs. 349 (2002) (discussing that evidence in support of this view is the fact that "40% of school suspensions are due to repeat offenders.").

72. Zero Tolerance Task Force Report, supra note 6, at 114. The APA, based on the findings of the report, recommended the following changes: "Allow more flexibility with discipline and rely more on teachers' and administrators' expertise within their own school buildings; have teachers and other professional staff be the first point of contact regarding discipline incidents; use zero tolerance disciplinary removals for only the most serious and severe disruptive behaviors; replace one-size-fits all discipline; gear the discipline to the seriousness of the infraction; require school police and related security officers to have training in adolescent development; attempt to reconnect alienated youth or students who are at-risk for behavior problems or violence, use threat assessment procedures to identify those at risk; develop effective alternatives for learning for those students whose behavior threatens the discipline or safety of the school that result in keeping offenders in the educational system, but also keep other students and teachers safe." APA Press Release, available at http://www.apa.org/releases/zero tolerance.html.

73. Zero Tolerance Task ForceReport, supranote 6, at 2-3.

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practices has found that suspension and expulsion are simply not serving their intended purpose. The authors of one such study concluded with this powerful language: Schools can be lifelines

. . .

opportunities which potentially

lead from pathways associated with deviant or destructive outcomes... The schools we studied explode the myth that it is necessary to chose between harsh discipline of students and safe, academically productive schools. Their staff demonstrates that it is possible to create schools for all students that are humane, caring places where discipline issues are minimal and when they do arise are viewed as opportunities that can contribute to growth and development.74 Removal not only fails to ensure school safety, to dissuade students from offending, and to promote a stable learning environment, it may also have devastating consequences on the removed student's life.

C. The Negative Consequences of Suspension and Expulsion Removal from school has numerous negative consequences for the student, including loss of classroom instruction time, reduced academic achievement, social stigma, and emotional impact. 75 The overarching problem is the loss of instructional

time.76 Not only is the student excluded for the actual allotted time of his or her sentence, but significant time is lost in awaiting a hearing or by delays in readmission to school. 7 The 74. DAVID M. OSHER ET AL., supra note 88, at 149 (citing ROBERT B. CAIRNS & BEVERLY D. CAIRNS, LIFELINES AND RISKS: PATHWAYS OF YOUTH INOUR TIME

(Cambridge University Press. 1994)).

75. Brown, supra note 71, at 443.

76. Id. As an example of lost instructional time, Ellen M. Boylan discussed a case she worked on in New Jersey where a youth was expelled, only to be placed back in school twenty-two months later, after appealing the decision. Boylan, supra note 14, at 17-18. Boylan reported that the majority of the time, he received no educational services whatsoever. Id. In another case, a student was expelled from school after altering a computer shut-down screen. Id. at 4. Before an appeal was successful and the student was reinstated, the student was out of school for a year and a half. Id. at 5. In both cases, the students suffered emotional distress including distrust, anger, depression, and difficulty in understanding why they were considered so menacing. Id. at 8, 17.

77. Brown, supra note 71, at 438.

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loss in instructional time is of particular concern in Georgia, alternative where school districts are not mandated to provide 8 instruction for suspended or expelled students.

Missed school time detrimentally impacts students' adjustment to school and their academic progress.7 9 Studentrespondents, in a study conducted by Tara Brown, reported that they felt far behind, and that they missed valuable information. 81 Overall, there was a sense of dejection over the time missed among the students. 8' Though Brown's study was conducted on a small scale,82 this finding seems to dispel the notion that all students who are suspended or expelled do not want to learn. 83 Brown also found that prolonged absence from school seemed to erase any hope84 these students had that education could be a path to success.

The student's loss in instructional time is only one of the A negative consequences of suspension or expulsion. suspension or expulsion significantly increases the likelihood that a student will suffer permanent educational loss, because removed students are more likely to drop out of school.85 When 78. See D.B. v. Clark County Bd. of Educ., 469 S.E.2d 438 (Ga. Ct. App.

1996).

79. Brown, supra note 71, at 443-45. Brown found that time missed "wreak[ed] havoc on students' academic progress." Id. at 445.

80. Id. at 445-46.

Id. 82. Brown studied thirty-seven students who had been suspended or expelled. Id. at 432.

83. Id. at 433. Many of Brown's students made comments about lost time in terms of missed opportunities or missed learning experience. Id. Furthermore, they seemed to demonstrate concern over lost time they could have spent in the class room. Id. at 445-46.

84. Id. at 450. Brown found in the students her study focused on that, "...school exclusion fostered distrust of both school adults and disciplinary procedures and contributed to perceptions of school as a place where they would be neither cared for nor treated fairly... Students with high numbers of suspensions were most likely to feel that they did not have good relationships with teachers and that staff did not care about their well being." Id. States have studied the 85. MORRISON ET AL., supra note 6, at 57. relationship between removal and drop-out, finding a strong correlation.

See, e.g., Wisconsin Department of Public Instruction, Indicator # 4, available at http://dpi.state.wi.us/sped/spp-susp-exp.html; see also North Carolina, Recommendation from the Drop-out, Suspension, and Expulsion Committee, available at http://dpi.state.wi.us/sped/spp-susp-exp.html. In an 81.

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youth are not in a school setting, dangerous behaviors such as fighting, smoking, drinking, drug use, and criminal activity increase dramatically. 86 Moreover, children who are not 87 in school are more likely to enter the juvenile justice system.

As removed students are more likely to drop out of school, they are less likely to earn a high school diploma, which has serious consequences in today's society. 8 Studies show that those "with no post-secondary schooling face a bleak economic future. 89 The average annual salary for high-school dropouts is $17,299, while those with a high school diploma average $26,933, those with an associate degree average $36,645, and those with a bachelor degree average $52,671. 90 Thus, removing a student from school has both an immediate consequence on the student's loss of education and can have a dramatic limiting effect on the remainder of the student's life.

D. The Impact of Removal on At-Risk Populations The consequences of suspension and expulsion can be devastating, and their effects are intensified when they fall on children who are already at risk. A uniform definition of "at risk" in the educational setting is difficult to find. However, a student is generally at risk because factors that are beyond the student's control, such as poverty, parental absence, or

attempt to lower drop-out rates, these states have proactively tried to reduce suspension and expulsion rates.

86. School Suspension: Effects and Alternatives, ISSUE BRIEF (Advocates for Children & Youth), Apr., 2006, at 2.

87. Abandoned in the Back Row: New Lessons in Education and Delinquency Prevention, ANNUAL REPORT (Coalition for Juvenile Justice), 2001, at 1. Also, once a youth identifies with a "deviant peer group, they have a 70% chance of felony arrest in two years." School Suspension: Effects and Alternatives, ISSUE BRIEF (Advocates for Children & Youth), Apr., 2006, at 2.

88. ANDREW SUM ET AL., The Educational Attainment of the Nation's Young Black Men and Their Recent Labor Market Experiences: What Can Be Done to Improve Their Future Labor Market and EducationalProspects 2 (2007).

89. Id. at 2, 4.

90. The High Cost of High School Dropouts, What the Nation Pays for

Inadequate High Schools, ISSUE BRIEF (Alliance for Excellent Educ., Wash.

D.C.), Oct. 2007, at 1.

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disability, have decreased the student's likelihood of success. 91 Essentially, the at-risk student has obstacles in his or her path that a student without one or more of those factors does not have to overcome.

This section focuses on two specific at-risk populations and their disproportionate representation among removals and arrests: (1) black male students and (2) students with disabilities.92 Because these student populations are more likely to be removed from school and more likely to be arrested than other students, we would also expect them to be far more likely to suffer the negative consequences of O.C.G.A. ยง 20-2751.5(c). Data collected over the last four years on the implementation of the statute bears this out.

1. Minorities:Focus on the Black Male a. Black Males are Removed from School at Higher Rates than their Peers

Over three million youth are suspended or expelled from this nation's public schools in an academic year, and they are disproportionately black or Latino, poor and male. 93 Although black students only made up 17% of the enrollment in public schools in 2000, they comprised 33% of the total suspensions; white students made up 63% of the student enrollment, but only 94 comprised 53% of the total suspension.

Furthermore, there is a difference in behaviors reported and

91. See, e.g., The National At-Risk Education Network, available at

http://www.atriskeducation.net/about/index.html#definition.

92. Statistically, black males and students with disabilities are among those least likely to experience educational success. See GAIL L. THOMPSON, PARENTS WANT EDUCATORS TO KNOW 14 (2003); see also Coalition for Juvenile Justice, Abandoned in the Backrow: New Lessons in Education and Delinquency Prevention, 2001 Annual Report, available at http://www.juvjustice.org/media/resources/resource 22.pdf [hereinafter CJJReport].

93. Brown, supra note 71, at 433; Zweifler & De Beers, supra note 59, at 204; UCLA-IDEA, Suspensions and Expulsions At-A-Glance, http://idea. gseis.ucla.edu/publications/suspension/index.html [hereinafter Suspensions and Expulsions At-A-Glance].

94. Suspensions and Expulsions At-A-Glance, supra note 93.

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the frequency of reports made. 95 Black students are referred to the school office twice as often as white students, and referred for less serious behavior. 96 The descriptions used for black students' rule-violations are vague terms such as loitering, disrespect, and conduct interference. 97 White students' violations are described more specifically, such as "smoking, endangering, obscene language, vandalism, and drugs/alcoholism." 98 Thus, standards of conduct leading to the suspension of black students are more subjective, and some suggest they are also culturally biased. 99 While there is no specific study that links the disparate removal of black students from school to cultural bias, studies of cultural stereotypes show that respondents still associate black males "with hostility, aggressiveness, violence, and danger," despite the fact that privately held beliefs have grown increasingly positive in recent times.' 00 Moreover, certain researchers believe that this racial disparity in students who are removed is not the result of obvious10breaches of school rules but breaches of "implicit racial codes."

Whatever the impetus, black students are suspended and expelled at a much higher rate than their white peers.

95. Zweifler & De Beers, supra note 59, at 204 (citing Dr. Russell Skiba, Zero Tolerance: Issues ofEquity and Effectiveness, (Feb. 18, 2000)).

96. Id. 97. Id. 98. Id. 99. Id. 100. Zero Tolerance Task Force Report, supra note 6, at 59-60 (citing Joshua Correll et al., The Police Officer's Dilemma: Using Ethnicity to DisambiguatePotentially ThreateningIndividuals, 83 J. OF PERSONALITY & SOC. PSYCH. 1314 (2002)).

101. Zero Tolerance Task Force Report, supra note 6, at 58-9 (citing Francis Vavrus & Kim Marie Cole, "I Didn 't Do Nothin "': The Discursive Construction of School Suspension, 34 URB. REV. 87, 109 (2002)). The authors stated the following, quoted by the Zero Tolerance Task Force, in

referring to the implicit racial codes: "suspensions are the result of a complex sequence of events that together form a disciplinary moment, a moment when one disruptive act among many is singled out for action by the teacher.

This singling-out process, we contend, disproportionately affects students

whose race and gender distance them from their teachers, and this subtle, often unconscious process may be one of the reasons why students of color often experience suspension in the absence of violent behavior." Id.

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Exacerbating their already at-risk status is the fact that suspension and expulsion both increase the rate of dropout0 2 and the likelihood that a student will commit a delinquent act or crime. 10 3 Accordingly, it is unsurprising that over half of all do not have a high school diploma have a black males who 04 prison record.'

b. Black Youth are Arrested at HigherRates than their Peers The disproportionate make-up of removals, which sees black youth critically overrepresented, is mirrored in the juvenile justice system. While there appears to have been a reduction of the disparity in arrests between minority and white youth over the last two decades, the numbers still point to an enormous arrest bias in the juvenile justice system. Black juveniles were arrested for violent crime in the late 1980s at six times the white rate; by 2003, the arrest rate had fallen to four times that of white juveniles. During the same period, drug violation arrests for black juveniles fell from five times to less than double the white rate.'0 5 Despite the recent reductions in the arrest bias, these statistics demonstrate that black youth are still significantly more likely to be arrested than white youth.

Disproportionate arrest rates are not necessarily indicative of higher levels of criminality on the part of black youth.

Nationally, white youth were slightly more likely than black youth to commit vandalism, at rates of 39% and 33% respectively.' 0 6 Black youth are also less likely than white youth to have used illicit drugs in the past year. This applies across the full spectrum of specific substances, including marijuana and crack cocaine.10 7 Only in violent crimes did 102. See supra note 85.

103. See CJJReport, supra note 92.

104. Richard J. Cooley & Paul E. Barton, Locked Up and Locked Out: An EducationalPerspectiveon the U.S. Prison Population(February 2006) at 3.

105. Howard N. Snyder & Melissa Sickmund, Juvenile Offenders and Victims: 2006 National Report (U.S. DEP'T OF JUSTICE, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention) at 70, availableat http://ojjdp.ncjrs.gov/ ojstatbb/nr2006/downloads/NR2006.pdf.

106. Id. 107. Punishment and Prejudice:Racial Disparitiesin the War on Drugs, Racially Disproportionate Drug Arrests, (Human Rights Watch, 2000),

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black youth show a higher percentage of participation than white youth. Thirty-six percent of black youth are involved in a serious violent crime-defined as aggravated assaults, robberies, or rapes involving a weapon-by the time they reach seventeen, compared to 25% of white youth. °8 These differences in violent offending, however, are insufficient to explain the huge difference in arrest 09 rates between white and black youth even for such offenses.' c. Implications of O. C.G.A. § 20-2- 751.5(c) on Black Male Students in Georgia Consistent with national trends, black youth in Georgia are 2.86 times more likely to be arrested than white youth. 110 Georgia's disproportionate arrest rates vary by county, as illustrated by three of the larger counties: DeKalb, Gwinnett and Fulton. In DeKalb and Gwinnett Counties, black youth are twice as likely to be arrested as white youth,"' but in Fulton County, black youth are eight times more likely to be arrested than white youth. 1 2 Overall, this disproportionate arrest rate means that black juveniles in Georgia are almost three times as likely to be penalized within the school system for off-campus conduct as are white juveniles.

The data also demonstrates that black students in Georgia are removed from school at higher rates than their peers. While black students comprise 38% of the total school population in Georgia," 3 they account for 60% of students suspended since 2004114 and 66% of the students expelled since 2004.'

When available at http://www.hrw.org/reports/2000/usa/RcedrgOO-05.htm#P307_ 63738.

108. Ellen Hinton Hoytt et al., Pathways to Juvenile Detention Reform: Reducing Racial Disparities in Juvenile Detention, in PATHWAYS TO JUVENILE JUSTICE REFORM 1 (2001), available at http://www.aecf.org/ upload/publicationfiles/reducing%20racial%20disparities.pdf.

109. Id. at 17-18 110. Georgia's Plan for Reducing DisproportionateMinority Contact (DMC), (The Bums Institute), available at http://www.burnsinstitute.org/ dmc/ga/ga_plan.pdf.

111. Id. at 2,4.

112. Id.at 3.

113. O.C.G.A. § 20-2-751.5(c) Open Records Request, supra note 2.

114. Id.

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looking only at suspensions under O.C.G.A. ยง 20-2-751.5(c), account for over 65% of the suspensions under black students 1 16 the statute.

Similarly, male students are overrepresented in school removals. Since 2004, male students have accounted for 68% of all school removals" 7 and 83.5% of students suspended under O.C.G.A. ยง 20-2-751.5(c)." 8 2. Special Education a. Students Requiring Special Education are Removed at HigherRates than Non-DisabledStudents While the consequences of removal can be particularly problematic for minorities, students with disabilities and special education needs are at risk as well. Students enrolled in special education programs generally have unique needs due to learning difficulties, physical or developmental disabilities, and/or mental health issues.1 19 While it would seem logical that because of these students' special needs, school administrators would have greater tolerance in dealing with120the actions of these youth, studies show the opposite to be true.

Pursuant to the Individuals with Disabilities Education Act, a child is eligible for special education services if they have one or more of a broad range of qualifying disabilities, including the two most common disabilities found in the juvenile justice and emotional learning disability system: specific 2 disturbance. 1 Although special education students represent 11-14% of the total school population, they represent 20-24% of the suspended or expelled population. 2 2 Students classified as 115. Id.

116. Id.

117. Id. 118. Id. 119. See U.S. DEP'T OF EDUC., Office of Special Education Programs (OSEP), http://www.ed.gov/about/offices/list/osers/osep/index. html.

120. See MORRISON ET AL., supra note 6, at 51.

121. 20 U.S.C. ยง 1401(3); Sue Burrell & Loren Warboys, Special (July 2000), Education and the Juvenile Justice System http://www.ncjrs.gov/html/ojjdp/2000_6_- 5/page 1.html#definition.

122. Zero Tolerance Task Force Report, supra note 6, at 63. Studies show that special education students are removed over three times the rate

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emotionally disturbed are at a particularly high risk of removal. 123 Nearly half of elementary and middle school students and nearly three-quarters of high school students with 24 emotional disturbance reported being suspended or expelled.1 Studies are mixed as to whether students with disabilities engage in more serious forms of misbehavior. 125 There has been some suggestion, however, that the disparity in removal between students with disabilities and those without is due to the fact that non-disabled students are more adept at "eluding detection." 126 This overrepresentation of special education students exists despite federal mandates that students not be removed from their educational program for more than ten days for conduct that arises from their disabilities. This mandate was first announced by the U.S. Supreme Court in 1988 in the case of Honig v. Doe,1 27 and was later codified in the Individuals with Disabilities Education Act (IDEA) and its implementing regulations. 28 Pursuant to special education law, any removal from school for more than ten days1 29 consists of a change of special education placement, triggering a series of obligations regular education students are removed. Id. Furthermore, of the regular education students, studies have shown that 52% exhibited behaviors that should have triggered referral to special education resources. Zweifler & De Beers, supra note 59, at 206. According to Zweifler and De Beers, this is a

result of some schools' refusal to test students even when there are obvious signs of learning problems. Id. 123. Zero Tolerance Task ForceReport, supra note 6, at 63.

124. Id. The actual rates are 47.7% for elementary and middle school students and 72.9% for high schoolers. Id. Students with other disabilities were only removed at a rate of 11.7% at the elementary/middle school level,

and a rate of 27.6% at the high school level. Id. Another statewide study showed that students who suffered from emotional disturbance were "7.5 times as likely to receive a suspension or expulsion compared to their non[emotionally disturbed] disabled peers, and twelve times as likely compared

to all other students with and without disabilities. Id. 125. Zero Tolerance Task Force Report, supra note 6, at 63.

126. Id. at 63, 64.

127. Honig v. Doe, 484 U.S. 305 (1988).

128. 20 U.S.C. § 1415; 34 C.F.R. §§ 300.530-300.536 (2008); see also Georgia Special Ed. Rules, 160-4-7-. 10.

129. The ten-day trigger refers both to removals for a consecutive period of ten days as well as a series of removals totaling more than ten days if those removals constitute a pattern. 34 C.F.R. § 300.536.

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on behalf of the school system. Within ten school days of the decision of a school district to change a student's placement for disciplinary reasons, the school district must determine whether 130 If the student's conduct was a manifestation of his disability. the conduct is not a manifestation, the student may be removed in the same manner as his non-disabled peers. However, during the removal, the school district must continue to provide the student with his special education services.' 31 If the conduct is a manifestation of the student's disability, except in limited circumstances, the 32student must be returned to his current educational setting.1 b. Youth with EducationalDisabilitiesareArrested at Higher Rates than theirNon-DisabledPeers.

Approximately 14% of public school students qualify for special education services.1 33 Within the juvenile justice system, youth with disabilities are much more likely to have both identified and unidentified disabilities. 34 Although estimates of the percentage of youth with disabilities vary from study to study, some studies suggest that as many 35as 70% of incarcerated youth suffer from disabling conditions.'

130. 34 C.F.R. ยง 300.530. Conduct is a manifestation of a student's disability if: (i) the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or (ii) the conduct in question was the direct result of the LEA's failure to implement the IEP. Id.; Georgia Special Ed. Rules, 160-4-7-. 10.

131. 34 C.F.R. ยง 300.530.

132. Id. Even if the conduct is determined to be a manifestation of the student's disability, a student may be sent to an alternative placement for up to forty-five days if, while at school, on school premises or at a school function, he (i) possesses a weapon, (ii) possesses, uses, sells or solicits the purchase of drugs, or (iii) inflicts serious bodily injury upon another. Id. A student's placement may also be changed upon agreement between the parent and the school district. Id. 133. National Center for Educational Statistics, Percentage of Students Enrolled with Disability, available at http://nces.ed.gov/programs/digest/ d07/tables/dtO7_049.asp.

134. The Special Needs of Youth in the Juvenile Justice System: Implications for Effective Practice, (Children's Law Center, June 2001), at 33, available at http://www.cjcj.org/pdf/special-needs.pdf [hereinafter Children 's Law Center Report].

135. Id. (citing Peter E. Leone et al., Understanding the

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For a variety of reasons, young people with disabling conditions are more susceptible to involvement with the juvenile justice system. Youth with disabilities are often more prone to make poor decisions and social judgments, leading to involvement in criminal activity. They also often have weak or no avoidance techniques, making it more likely that they will get caught.136 Moreover, because it is difficult for them to learn from prior experiences, youth with learning disabilities are more likely to re-offend.' 37 Accordingly, young people with emotional and learning disabilities are more likely to be arrested than their non-disabled peers. Studies have demonstrated that learning disabled youth are 200% more likely to be arrested than non-disabled youth for comparable delinquent activity.' 38 Once arrested, youth with learning disabilities are also more likely to be adjudicated delinquent and to receive lengthier terms of incarceration and probation.' 39 Similarly, youth with emotional disabilities are also more likely to be arrested than their non-disabled peers.

Twenty percent of students with serious emotional disabilities are arrested at least once before they leave school. 140 Fiftyeight percent of youth with emotional disturbance 14' and 3 1%of youth with a learning disability 142 who have been out of school Overrepresentationof Youths with Disabilitiesin Juvenile Detention, 3 D.C. L. REV. 389 (1995)).

136. Children's Law Center Report, supra note 134, at 33-34 (citing Youth Law Center, Disabilities that Compromise Their Ability to Comprehend, Learn and Behave, in UNDERSTANDING ADOLESCENTS: A JUVENILE COURT TRAINING CURRICULUM 12 (ABA Juvenile Justice Center (2000)).

137. Children'sLaw Center Report, supra note 134, at 34.

138. Id. (citing N. Cowardin, PunishingDisabilities, in THE SENTENCING PROJECT (M. Young, ed., In Press 2001)).

139. Id.

140. Susan Black, Learning Behind Bars, AM. SCH. BD. J. (2005), available at http://web.archive.org/web/20060104100611 /http://www.asbj. com/2005/09/905research.html; see also Chesapeake Institute, National Agenda for Achieving Better Results for Children and Youth with Serious Emotional Disturbance, (U.S. DEPT. OF EDUC., Office of Special Education and Rehabilitation Services, 1994)), http://cecp.air.org/resources/ntlag end.asp.

141. Id. 142. Burrell & Warboys, supra note 121.

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for three to five years have been arrested. 43 c. Implications of O.C.G.A. ยง 20-20-751.5(c) on Students with Disabilitiesin Georgia While arrest data relating to disability status is not available for youth in Georgia, a 1997 study of youth in Georgia Regional Youth Detention Centers (RYDC) revealed that 61% of youth in the facilities had at least one diagnosable psychiatric disorder, with 44% of youth admitted to the RYDCs presenting with two or more diagnoses. 44 Thirty percent of the youth had at least one anxiety disorder, 19% had a mood disorder, 35% had a disruptive behavior disorder, and 30% had a substance use disorder.' 45 The prevalence of disorders was much higher than in general population studies, with especially high rates of disruptive behavior, and substance use anxiety disorders, 46 disorders. 1 Similarly, youth with disabilities are overrepresented in suspensions under O.C.G.A. ยง 20-2-751.5(c). While students with disabilities comprise approximately 12% of the population statewide, 1 47 they account for over 30% of the students suspended under this statute. 148 In particular, in Gwinnett at six County, students with disabilities have been suspended 149 times the rate of their population in the school district.

E. Georgia Should Recognize the Flaws in the Policy of Removal Alternative methods of discipline may be more difficult to implement and may require more effort from schools and their teachers. However, the benefits which new methods will yield, particularly on at-risk students, cannot be overstated.

143. Id. 144. F. Marsteller et al., The Prevalence of Substance Use Disorders Among Juveniles Admitted to Regional Youth Detention Centers Operated by the Georgia Department of Children and youth Services, (CSAT Final Report, 1997), available at http://behav.com/projects/CSATFinalReport.

html.

145. Id. 146. Id. 147. O.C.G.A. ยง 20-2-751.5(c) Open Records Request, supra note 2.

148. Id. 149. Id.

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Rehabilitative school discipline policies have the capability to break societal cycles of incarceration, unemployment, crime, and lack of economic contribution to the tax base, all which are more likely to result from a student's removal from school.

With the causal connection between removal and destructive behavior well documented, it is perfectly reasonable to project that a change in our educational disciplinary policy will produce widespread positive effects. Georgia, as a whole, can follow the lead of schools like Oakhurst Elementary in Decatur and dispel the idea that a certain portion of students will inevitably turn to behavior that is destructive to society.

IV. LEGAL CHALLENGES TO O.C.G.A. ยง 20-2-751.5(c)

Under O.C.G.A. ยง 20-2-751.5(c), schools can suspend or expel a student for off-campus behavior if a two-part test is met.

First, the student must have acted in a way "which could result 150 in the student being criminally charged with a felony.'

Second, that action must be one "which makes the student's continued presence at school a potential danger to persons or property at the school or which disrupts the educational process."''

Today in Georgia there are 181 public school systems: 159 are county systems; 21 are city systems; and 1 is run by the Department of Juvenile Justice. 52 Each school system has a student code of conduct that, pursuant to O.C.G.A. ยง 20-2751.5(c), includes a provision designed to address discipline for off-campus activity. Suspensions and expulsions handed out under these provisions may be subject to two different legal challenges, one based on each prong of the two-part test laid out by the code section's language. The first prong of the test uses the language "which could result in the student being criminally charged. . ." This language places a limit on local school districts' authority to discipline for off-campus activity.

However, most schools' current codes of conduct exceed this limitation, and are thus subject to challenge for exceeding statutory authority. Second, the language of the second prong of the test is too broad and amorphous, and is therefore subject 150. O.C.G.A ยง 20-2-751.5(c).

151. Id. 152. GA. DEPT. OF EDUC., Data Report, availableat www.doe.kl2.ga.us.

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to a void for vagueness challenge under the Due Process clauses of the U.S. and Georgia Constitutions. Both challenges are explored below.

A. IndividualDistrict Codes of Conduct Exceed Statutory Authority The Georgia State Constitution provides that "[t]he provision of an adequate public education for the citizens shall be a primary obligation of the State of Georgia. Public education for the citizens prior to the college or postsecondary level shall be free and shall be provided for by taxation." 153 Though the right to education is expressly provided for in the State Constitution, the Supreme Court of Georgia has held that education is not a fundamental right.154 Moreover, the government's obligation to provide free public education is not unlimited under the Georgia Constitution. That obligation can be further defined and limited by statute, 155 and the actions of individual school 156 districts must fit within the parameters of an authorizing statute.

The Georgia General Assembly enacted the Public School Disciplinary Tribunal Act 157 in recognition of the need for local boards of education to limit students' access to education in response to disciplinary infractions.15 8 This Act required that individual county codes of conduct identify consequences of specific misbehavior. 159 O.C.G.A. § 20-2-751.5(c) provides the only statutory authority for schools to punish students for offcampus behavior, and its specific language limits the offcampus behavior a school can punish to actions "which could 160 result in the student being criminally charged with a felony."'

Thus, if a school is punishing off-campus behavior that is not encompassed by O.C.G.A § 20-2-751.5(c), the school may be 153. GA. CONST. art. VIII, § 1,

1.

154. See McDaniel v. Thomas, 285 S.E.2d 156, 167-68 (Ga. 1981); see

also D.B., 469 S.E.2d at 439.

155. See Crim v. McWhorter, 252 S.E.2d 421, 423-25 (Ga. 1979); D.B., 469 S.E.2d at 439-40.

156. D.B., 469 S.E.2d at 440.

157. See O.C.G.A. § 20-2-750 (2007).

158. See D.B., 469 S.E.2d at 439-40.

159. See O.C.G.A § 20-2-751.2(d) (2007) (allowing school action against

students convicted or adjudicated for a felony).

160. O.C.G.A. § 20-2-751.5(c) (2007).

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exceeding its statutory authority in this area.

Determining whether statutory authority is being exceeded requires three steps. First, O.C.G.A. ยง 20-2-751.5(c) must be examined to determine if the Legislature intended to limit the student behavior that school districts can punish. Second, if it is determined that the statute does create limits, school districts' code of conduct provisions regulating the punishment of offcampus behavior must be examined to determine compliance with those limits. Finally, if schools' codes of conduct are out of technical compliance with the law, statistical information on what off-campus behavior is being punished under the code of conduct provisions must be analyzed to determine if there have been actual violations.

1. The Legislative Intent of O.C.G.A. ยง 20-2-751.5(c) The first part of the statutory provision specifically refers to conduct "which could result in the student being criminally charged with a felony."' ' 6' A plain language reading of this provision creates the impression that the student must have committed a felony for which he or she could be criminally charged in order to be subject to discipline under this provision.

The legislative history of O.C.G.A. ยง 20-2-751.5(c) supports this view, because it demonstrates that the legislators who introduced this language intended that same meaning.

In the 2004 Georgia Legislative session, Senate Bill 428 was added to House Bill 1190, which ultimately created the current version of ยง 20-2-751.5(c).

The exact language of this provision originated in Senate Bill 428, and its legislative intent was made clear by its sponsor, Education Committee Chairman, Senator Brush in the following exchange with Senator Steve Henson: Sen. Henson: On page nine it mentions the behavior of a student off-campus. Line 11 and 12 it says behavior of a student "which could result in a student being criminally charged with a felony." The term "could be charged" is open to some interpretation, Senator. And I would like to know what you feel, who will interpret that they could be charged. Someone has a fight after school, maybe it's possible they could be charged with assault, but they aren't

161. O.C.G.A. ยง 20-2-751.5(c).

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charged with assault.

Are you concerned with the interpretation, and the abuse of that section Senator?

Sen. Brush: I'm not worried about.., we are leaving that up to the principal and the local school board to make that decision. I think the key to that addition is though that later in the sentence it says "which makes the student's continued presence at the school a potential danger." I think that is the key in the measurement the principal and the school board have to make in the local system. We have incidences of that, where we have had to deal with that in this state, where the continued presence of that student is a disruption and a danger to that school.

Sen. Henson: ...so, first you have to have to determination

that they could be charged with a felony, and then secondly, you would have to make the determination that the continued presence is a danger? You would have to have both things?

Sen. Brush: Absolutely. Absolutely. And I think that is the key. The second part is the key.

They have to both be 162 present. It is not "or" but "and."'

This portion of Senate floor debate supports a plain meaning reading of the statutory language, making it clear that the statute is addressing criminally punishable, felonious behavior. Thus, O.C.G.A. ยง 20-2-751.5(c) is properly interpreted to limit school punishment for off-campus behavior to felonious behavior for which the student could be criminally charged.

2. DistrictCodes of Conduct Exceed Statutory Bounds Having determined that O.C.G.A. ยง 20-2-751.5(c) limits the off-campus behavior that can be punished, the next step is to look at individual school districts' codes of conduct to see if they mirror what the statute is proscribing. The following chart provides samples of Georgia school districts' language codifying O.C.G.A ยง 20-2-751.5(c).

162. Video of Sen. Proceedings, Feb. 3, 2004 (response by Sen. Brush to

Sen. Henson), http://www.georgia.gov/00/channeltitle/0,2094,4802_6107 103,00.html (follow "2004 Senate Session" hyperlink; then follow "3-2"

hyperlink on February 2004 calendar) (last visited Mar. 23, 2008).

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Cobb

Rome

ThomastonUpson

Fayette

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Conduct Provision Addressing Off-Campus Behavior "Students shall be disciplined for engaging in offcampus conduct that affects the safety and welfare of the school, staff, students, and/or property at the school or that disrupts the discipline or educational environment of the school."' 63 "Any student involved in conduct off the school campus which may cause disruption or threaten the safety or wellbeing of other students may at the discretion of the principal be excluded from school (suspended or expelled) or transferred to the transitional academy or a combination of both."'"

"Administrators are authorized to take disciplinary action for student conduct which has or may have a direct impact on the school discipline, the educational function of the school, or the welfare of the students and staff. This authorization extends to conduct which may occur (a) on the school grounds or within the school safety zone at any time; (b) off the school grounds at a school activity, function, or event; (c) enroute to and from school or a school activity; and (d) during off-campus, non school related situations, 165 at any time of the year."'

"Any off campus behavior of a student which could result in the student being criminally charged with a felony and which makes the student's continued presence at school a potential danger to persons or property at the school or which disrupts the educational process. This includes any such conduct

Rules, Administrative District, School County 163. Cobb http://www.cobb.kl2.ga.us/centraloffice/adminrules/JRules/Rule%20JICD A-H.pdf (last visited April 1, 2008) (on file with the John Marshall Law Journal).

164. Rome City School System, Rome High School Student Code of Conduct (2007-2008), http://www.rcs.rome.ga.us/rhs/07-08handbook.pdf (last visited April 1, 2008) (on file with the John Marshall Law Journal).

165. Thomaston-Upson County School System, Upson-Lee High School Code of Conduct, http://ulhs.upson.kl2.ga.us/www/UpsonULHS/site/ hosting/Student%20Resources/Student%2OHandbook%202007-2008.pdf (last visited April 1, 2008) (on file with the John Marshall Law Journal).

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Jackson

Forsyth

Lumpkin

SuspendingReason outside of school hours or away from school that shows disrespect to school personnel or which endangers the health, safety, morals, or well being of other students, teachers, or employees within the school system (such as, theft or vandalism to property ' 66 of a school employee)."'

"A student who has been arrested, charged, or convicted in a court with a felony or an offense which could be considered to be a felony if the student were an adult, or is charged with an assault upon another student, a violation of the drug laws, or sexual misconduct of a serious nature, or any other criminal offense, and whose presence at school is reasonably certain to endanger other students or staff or cause a substantial disruption to the educational climate may 67 be disciplined or excluded from school.'

"Off-Campus Behavior: A student who is alleged to have committed an offense off-campus on the way to or from school, or any time if the offense is a felony or would be a felony if the student were an adult, may be disciplined at school or excluded from school if his or her continued presence at school poses a potential danger to persons or property or is likely to disrupt 168 the educational process."'

"Students may be disciplined for conduct off campus which is felonious or which may pose a threat to the school's learning environment or the safety of 169 students and employees."'

166. Fayette County School System, Student Code of Conduct (20072008), http://www.fcboe.org/discipline/docs/codeofconduct secondary.pdf (last visited April 1, 2008) (on file with the John Marshall Law Journal).

167. Jackson County School System, Student Code of Conduct (20072008), http://www.jackson.kl 2.ga.us/administration/JC-CodeOfConduct.pdf (last visited April 1, 2008) (on file with the John Marshall Law Journal).

168. Forsyth County Board of Education, 2007-2008 Code of Conduct and DisciplineProceduresGrade 6-12, http://www.forsyth.k12.ga.us/12941 06162160263/lib/1294106162160263/2008_Code of Conduct_6 - 12.pdf (last visited April 1, 2008) (on file with the John Marshall Law Journal).

169. Lumpkin County School District, Lumpkin County High School Student Code of Conduct (2007-2008), http://lchs.lumpkin.kl2.ga.us/handbo ok/ handbook/Handbook_07-08.pdf (last visited April 1, 2008) (on file with the John Marshall Law Journal).

36

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Bibb

Crisp

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"Students shall be disciplined for engaging in offcampus conduct that affects the safety and welfare of the school, staff, and/or students or that has a direct effect on the discipline or educational environment of the school. Off-campus misconduct for which a student shall be disciplined includes, but is not limited to, any off-campus conduct that (a) is prohibited by the Georgia or United States criminal codes; (b) is punishable as a felony or would be punishable as a felony if committed by an adult; and (c) is conduct for which a student has been arrested, indicted, adjudicated to have committed, or convicted.

O.C.G.A. ยง 20-2-751.5(c)."' 17 "Authority to take disciplinary action also extends to any off-campus non-school related actions by students, at any time of the year, which have a direct and immediate impact on school discipline, the educational function of the school, or the welfare of students and staff. A student who has committed a criminal act while off campus is subject to disciplinary action and may be excluded from school.

Such act could include, but is not limited to, a felony, a delinquent act which would be considered to be a felony if committed by an adult, an assault upon another student, a violation of the laws prohibiting controlled substances, or sexual misconduct of a 17 1 serious nature."'

"Off-campus conduct that affects the safety and welfare of the school, staff, and/or students or that has a direct effect on the discipline or education environment of the school shall have a disciplinary consequence. Off-campus misconduct for which a student shall be disciplined includes, but is not limited

170. Fulton County School System, Student Discipline/Code of Conduct (2007), http://www.boarddocs.com/ga/fcss/Board.nsf/b85702f9a5Ofefc885 256ebb00642c8a/6047450072e48bc5852572aa00622b4e?OpenDocument (last visited April 1, 2008) (on file with the John Marshall Law Journal).

171. Bibb County School District, Northeast High School Student Code of Conduct (2006), http://www.bibb.kl2.ga.us/Board%2OofP/2OEd%202nd% 20level/secondary-conduct.pdf (last visited October 25, 2007) (on file with John Marshall Law Journal).

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Suspending Reason to, any conduct that is prohibited by the Georgia or United States criminal codes, is punishable as a felony or would be punishable as a felony if committed by an adult and for which a student has been arrested, indicted, adjudicated to have committed or convicted. The student is required to report such charges to the administrator immediately ' upon retun to school." 172

These code of conduct provisions are representative of those found throughout the state. Generally, local districts that have gone beyond the command of O.C.G.A. ยง 20-2-751.5(c) have done so in one of four ways. First, districts like Cobb, Rome, and Thomaston-Upson have completely abandoned the requirement of felonious behavior and have simply crafted their own off-campus rule, which could cover any potential behavior, even if that behavior is not criminal in nature at all. Second, districts like Fayette, Jackson, and Forsyth recite O.C.G.A. ยง 20-2-751.5(c) accurately, but then go on to list a broad range of behavior not limited to felonious acts as encompassed by the rule. Third, districts like Lumpkin have turned the conjunctive felony and dangerous or disruptive inquiry into an either/or proposition. Finally, districts such as Fulton, Bibb, and Crisp have added the subtle yet expansive language "includes, but not limited to" to their discussion of the specific acts that could lead to punishment.

A large minority of districts have stayed within the boundaries of O.C.G.A. ยง 20-2-751.5(c), usually reciting it verbatim. 173 However, the majority of districts have deviated from the requirements of the statute in one of the four ways listed above, and in so doing have exposed students to punishment for off-campus behavior beyond the authority granted by the Legislature.

172. Crisp County School System, Student Code of Conduct (2007-2008), http://www.gsbaepolicy.org/policy.asp?PC=JCDA&S-4048&RevNo= 1.53& C=J&Z=P (last visited April 1, 2008) (on file with the John Marshall Law Journal).

173. See Complete File of Accessible School District Codes of Conduct (on file with the John Marshall Law Journal).

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3. Off-Campus Behavior Being Punished As the preceding sections demonstrate, the off-campus behavior that may be punished is limited by the plain language of the statute, and a majority of Georgia school districts' codes of conduct exceed those bounds. This section examines data collected from the Georgia Department of Education to determine whether the actual practices of Georgia school districts in applying these codes of conduct exceed statutory limits.

Before delving into the statistics, however, a few facts about the jurisdiction of juvenile and superior courts in Georgia should be noted. Juvenile courts are civil, not criminal, in nature. Therefore, when a child appears in juvenile court, that child is not criminally charged. Under Georgia law, a student is considered a child for purposes of juvenile court jurisdiction if she is under seventeen years of age. 174 When a child commits an act designated as a crime by the laws of Georgia, that child is deemed to have committed a "delinquent act. 15 As a general rule, juvenile courts in Georgia have exclusive original jurisdiction over juvenile matters, and are the sole courts for initiating actions concerning any child who is alleged to be delinquent. 176 However, there are seven offenses that, if committed by a child between the ages of thirteen and seventeen, give the superior court exclusive jurisdiction over the child. Referred to colloquially by those involved in juvenile justice in Georgia as "SB 440 offenses" or the "seven deadly sins," these offenses are murder, voluntary manslaughter, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, and armed robbery committed with a firearm. 7 7 These are the only offenses for which a juvenile between the ages of thirteen and seventeen can be directly criminally charged. 178 All other offenses by juveniles result in civil delinquency charges.

Moreover, a child under the age of 174. O.C.G.A. § 15-11-2(2) (2007).

175. O.C.G.A. § 15-11-2(6)(a).

176. O.C.G.A. § 15-11-28(a) (2007).

177. O.C.G.A. § 15-11-28(b)(2) (2007) (the name SB 440 is in reference to Senate Bill 440 from the 1994 Georgia Legislative Session).

178. See O.C.G.A. §§ 15-11-30.2, 15-11-30.3 (2007) (under certain

limited circumstances, the Georgia Code also permits a juvenile judge to transfer a case to superior court).

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thirteen can never be criminally charged.' 79 Accordingly, for a student between the ages of thirteen and seventeen to be subject to discipline under O.C.G.A. ยง 20-2751.5(c), she would have to have committed one of the "seven deadly sin" offenses. Otherwise, the school could not identify the child's behavior as that "which could result in the student being criminally charged with a felony." However, the data shows that students are being suspended and expelled for a much broader range of activity.

The following chart shows the grounds for reported student suspensions pursuant to O.C.G.A. ยง 20-2-751.5(c) since it was enacted in 2004:180

Miscellaneous Alcohol Arson Battery Burglary Computer Trespass Disorderly Conduct Drugs Not Alcohol Fighting Homicide Kidnapping

2007

2006

2005

2004

-

-

-

-

-

4%

-

-

-

-

1% -

-

-

Total

-

-

-

12%

4%

-

-

-

-

-

-

-

-

4% -

--

4%

-

Larceny Theft Motor Vehicle Theft

-

8%

Robbery

-

-

Sexual Battery

-

-

Sexual Harassment

-

-

4%

-

1%

Sexual Offense Threat Intimidation Tobacco Trespass

-

-

-

30%

35%

5% 16%

23%

1% 26%

-

-

-

3% -

--

-

-

-

-

-

-

-

Vandalism

5%

-

9%

3%

Weapon - Knife

6%

-

-

1%

179. O.C.G.A. ยง 15-11-28.

180. O.C.G.A. ยง 20-2-751.5(c) Open Records Request, supra note 2.

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-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

47%

57%

61%

69%

59%

The ages of the children affected by those suspensions break down as follows: 2007

2006

2005

2004

Total

0-6 years-old 7-9 years-old

-

-

-

-

6%

8%

5%

7%

5%

10-12 years-old 13-15 years-old

41% 47%

37% 44%

27% 50%

24% 60%

32% 52%

16-18 years-old

6%

17%

18%

8%

11%

-

-

-

-

18+ years-old

This data demonstrates that almost all of the students removed pursuant to O.C.G.A. ยง 20-2-751.5(c) cannot be criminally charged with a felony. First, 37% of the students being suspended under O.C.G.A. ยง 20-2-751.5(c) are under the age of thirteen,' 81 and therefore cannot be criminally charged under any circumstances. Second, 52% of the students removed for off-campus behavior are between the ages of thirteen and fifteen, and therefore cannot be criminally charged unless they commit one of the "seven deadly sins." As the chart above illustrates, there have not been any removals on the grounds of murder, manslaughter, aggravated sexual battery, or armed robbery. While the Department of Education has identified several students as being suspended for "sexual offense," this category consists of a total of 1% of all removals under this statute. Thus, even reading this category in the broadest of possible interpretations, at most 1% of the thirteen-to-fifteenyear-old students could have been criminally charged with a felony. This leaves us with the 11% of the students who are between sixteen and eighteen. While the seventeen and eighteen year olds in this grouping could be criminally charged 181. Id.

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with a felony, the data indicates that there is a high likelihood that the offenses for which students are being removed do not constitute a felony.

Accordingly, the statute, code of conduct provisions, and these statistics all demonstrate that in many cases school districts are exceeding the statutory authority granted to them by O.C.G.A. ยง 20-2-751.5(c).

B. Application of the Void-for- Vagueness Doctrine to O. C.G.A. ยง 20-2-751.5(c) As the last section demonstrated, many individual school districts' codes of conduct implementing O.C.G.A ยง 20-2751.5(c) are subject to legal challenge based on the fact that they exceed the authority the statute grants schools to punish off-campus behavior. This section explores a legal challenge to the statute itself on void-for-vagueness grounds.

The void-for-vagueness doctrine is derived from the overarching ideal of fairness embodied in the Due Process Clauses of the 5t h and 14 th amendments to the United States Constitution.' 82 It serves two central purposes: (1) To provide fair notice of prohibitions, so that individuals may steer clear of unlawful conduct;' 8 3 and 8 4(2) To prevent arbitrary and discriminatory enforcement.'

The case law defining the specific tests to be used is varied and not entirely consistent. However, a review of the decisions indicates that the factors that should be considered include the type of rights implicated,' 85 the severity of the sanctions faced 182. See, e.g., Arnett v. Kennedy, 416 U.S. 134, 159 (1974); Mason v.

Florida Bar, 208 F.3d 952, 959 (11th Cir. 2000). For a detailed discussion of the doctrine in the Supreme Court before 1960, see Anthony G. Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REv. 67 (1960).

183. Fair notice requires that the statute provide an adequate description of the conduct in "language that the common world will understand." U.S. v. Lanier, 520 U.S. 259, 264 (1997) (citing McBoyle v. U.S., 283 U.S. 25, 27 (1931)).

184. To prevent arbitrary enforcement, the statute must provide clear standards for those who apply them. See, e.g., Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Smith v. Goguen, 415 U.S. 566 (1974).

185. See, e.g., Village of Hoffman Estates v. Flipside, Hoffman Estate, 455 U.S. 489, 499 (1981).

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by violators of the law,' 86 the need for flexibility in enforcement,' 87 and whether the challenge is to the law on its face or as applied.' 88 1. Void-for- Vagueness Challenges to Off-Campus Conduct Provisionsin Other States Approximately half of the states currently have statutes regulating off-campus behavior.' 89 While actions challenging 186. See, e.g., Id.; see also Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986); Barenblatt v. United States, 360 U.S. 109, 137 (1959).

187. See Bethel School Dist. No. 403, 478 U.S. at 686.

188. See Grayned, 408 U.S. at 108.

189. See, e.g., Texas, V.T.C.A. § 37.006(d) (2007) (a student may be removed for off-campus behavior if: "(1) the superintendent or the superintendent's designee has a reasonable belief that the student has engaged in conduct defined as a felony offense other than those defined in Title 5, Penal Code; and (2) the continued presence of the student in the regular classroom threatens the safety of other students or teachers or will be detrimental to the educational process); Colorado, C.R.S.A. § 22-33106(1)(c) (2007) (suspension or expulsion for "[b]ehavior on or off school property that is detrimental to the welfare or safety of other pupils or of school personnel"); Connecticut, C.G.S.A. § 10-233(a)(1) (2007) (suspension or expulsion is authorized for conduct off school grounds that "is violative of [a published school board] policy and is seriously disruptive of the educational process."); UTA CODE ANN. § 53A-1 1-904(1) (2007) (student may be suspended or expelled for conduct that "threatens harm or does harm to the school or school property, to a person associated with the school, or property associated with that person, regardless of where it occurs."); Vermont, 16 V.S.A. § 1162(a) (2007) (authorizes suspension or expulsion for off-campus misconduct "where direct harm to the welfare of the school can be demonstrated."); Wisconsin, Wis. STAT. § 120.13(l)(b)(2)(d) (2006) (suspension for off campus conduct that endangers the property, health or safety of others at the school or under school supervision, or of any school employee or board member); Alaska, AS § 14.30.045(5) (2008 West) ("conviction of a felony that the governing body of the district determines will cause the attendance of the child to be inimicable to the welfare or education of other pupils."); Massachusetts, ALM GL ch. 71, § 37H1/2 (2007) (provided the continued presence of the student "would have a substantial detrimental effect on the general welfare of the school."); TENN. CODE ANN. § 49-6-3401(a)(14) (2007) (provided the continued presence of the student in Tennessee, "would pose[] a danger to persons or property or disrupt[] the educational process."); Wyoming, Wyo. STAT. § 21-4-305 (e) (2007) (Suspension or expulsion may be imposed as additional punishment for criminal offense if it "is of such nature that

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the constitutional validity of these statutes on void-forvagueness grounds are not common, a brief examination of several of these cases provides useful insight into an analysis of Georgia's law.

In Clements v. Board of Trustees, the Wyoming Supreme Court held that the statute permitting suspension for behavior that is "clearly detrimental to the education, welfare, safety or morals of other pupils" was constitutional on its face. 9 ° The Wyoming Supreme Court held that the statute was not void-forvagueness because it focused on conduct "directed toward other pupils-a narrowed class of individuals" and "the conduct proscribed is strictly limited to conduct which is hostile to welfare, safety, or morals and could not be utilized to prohibit all forms of socially unacceptable conduct."'' The Court also found the statute to be constitutionally valid as-applied to the student, because there was a direct relationship between the student's actions-he intentionally drove his car slowly in front continuation of the child in school would clearly be detrimental to the education, welfare, safety or morals of other pupils."). Kansas, K.S.A. § 728901 (2006) (suspension or expulsion is authorized for "conduct which, if the pupil is an adult, constitutes the commission of a felony or, if the pupil is a juvenile, would constitute the commission of a felony if committed by an adult."); New Hampshire, N.H. REV. STAT. § 193:13(11) (2008) (expulsion for enumerated acts of theft, destruction, or violence as defined by N.H. REV. STAT. § 193-D:1 (2008)); South Carolina, S.C. Code Ann. § 59-63-210 (2006) (punishment authorized for commission of any crime, gross immorality, gross misbehavior, etc.); Hawaii, HRS § 302A-1 134(a) (2007) (student may be excluded from school if he or she "becomes a detriment to the morals or discipline of any school."); Idaho, I.C. § 33-205 (2007) (board may expel any student "whose presence in a public school is detrimental to the health and safety of other pupils"); Illinois, 105 ILCS 5/10-22.6 (2008) (authorizes suspension or expulsion for "gross disobedience or misconduct"); New Jersey, N.J. STAT. § 18A:37-2(c) (2007) ("Conduct of such character as to constitute a continuing danger to the physical well-being of other pupils" constitutes grounds for suspension or expulsion.); New York, NY CLS EDUC § 3214(3) (2007) (authorizes suspension of student whose conduct "endangers the safety, morals, health or welfare of others."); North Carolina, N.C.G.S.A. § 115C-391(d) (2008) (authorizes expulsion of "any student 14 years of age or older whose behavior indicates that the student's continued presence in school constitutes a clear threat to the safety of other students or employees").

190. Clements v. Board of Trustees, 585 P.2d 197 (Wyo. 1978).

191. Id. at 204 (citing People in Interest of K.P., 182 Colo. 409, 414 (1973)).

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92 of a school bus-and the welfare of other school students.'

Similarly, in T.W. v. School District of Philadelphia, a student was removed from school for an off-campus physical alteration under a provision that allowed removal "for conduct that may reasonably be expected to undermine the proper disciplinary authority of the school, the safety of students or staff, or cause disruption within the school."193 The court held the statute was constitutional as-applied to the student, relying heavily on the fact that the party where the fight occurred was that hosted by students from the Plaintiffs school and, further, 94 discussion about the fight disrupted school on Monday.'

However, not all of these statutes have survived a void-forvagueness challenge. In Packer v. Board of Education of the Town of Thomaston,1 95 a student who had been suspended from school for a drug arrest, off school grounds and after school hours, brought a vagueness challenge to the Connecticut statute, which was which authorized discipline for conduct of a student "seriously disruptive of the educational process."' 96 In assessing the plaintiffs as-applied challenge to the statute, the court articulated the standard it would apply to the facts of the plaintiffs case: an as-applied attack will succeed if (1) the statute does not provide fair warning that it applies to the conduct at issue, or (2) if the plaintiff was the victim of arbitrary enforcement practices. 97 In applying this standard to the statutory provision at issue, the court stated that it would read the statute narrowly, rather than broadly, and apply any prior Because no prior interpretations court interpretations.' 98 existed, the court stated that it was guided by the language ' in 99 question: "seriously disruptive of the educational process."'

First, the court looked to the dictionary to define each statutory

192. Id. at 205.

193. T.W. v. School District of Philadelphia, No. CIV.A. 02-886 (April 8,

2003).

194. Id. at 8.

195.

(1998).

196.

197.

198.

199.

Packer v. Board of Educ. of the Town of Thomaston, 246 Conn. 89 Id. at 105; C.G.S.A. ยง10-233(d) (2007).

Packer, 246 Conn. at 107.

Id. Id.

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word. 20 0 After defining each word, the court concluded that the statute was intended "to apply to conduct that markedly 2 interrupts or severely impedes the operation of a school.M 0I Applying the vagueness standard to the defined language of the statute, the court concluded that a reasonable person could not be certain whether the possession of drugs off-campus and after school hours is "by itself and without some tangible nexus to school operation, 'seriously disruptive of the educational process.' 0° 2 Holding the statute to be void-for-vagueness as applied to the plaintiff because of a lack of notice, the court did 20 3 prong. second the reach not Turning to the facial challenge, the court stated that it "must search for an effective and constitutional construction that 20 4 reasonably accords with the Legislature's underlying intent., The court translated the previously quoted language into two prongs: (1) the Legislature must have intended the phrase to mean what its plain words mean; and (2) the statute must possess a core meaning of sufficient clarity to allow it to defeat a facial vagueness attack.20 5 The court determined that the first prong was met by comparing the definitional meaning of the phrase in question to the legislative history of the statute. 20 6 The court also 20 7 concluded that the statute was not devoid of core meaning.

Although the ordinary person might have difficulty in determining that a sufficient nexus exists to bring the conduct into the authority of the school, the court said a student would have less difficulty in determining what conduct to refrain from to avoid expulsion. 2 8 Accordingly, the court found the statute to be valid on its face.20 9

200.

201.

202.

203.

204.

205.

206.

207.

208.

209.

Id. at Id. Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at

109.

110.

110, 119.

115.

119.

115-16.

119.

118-19.

119.

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2. Application of the Void-for- Vagueness Doctrine to the GeorgiaStatute O.C.G.A. ยง 20-2-751.5(c) requires that, first, a student must have acted in a way "which could result in the student being criminally charged with a felony; '210 and second, that action must be one "which makes the student's continued presence at school a potential danger to persons or property at the school or The second part of which disrupts the educational process. the statute is the focus of the void-for-vagueness analysis.

Because the amount of deference to be afforded a statute depends, in part, upon the type of rights implicated, a brief review of the statute's implications is in order. Although education is an explicit right under the Georgia constitution, Georgia courts have held it to be something less than fundamental. 2 3 Accordingly, the statute does not implicate a fundamental right. Similarly, the statute is not criminal in nature.

Instead, O.C.G.A. ยง 20-2-751.5(c) mandates the enactment of school board regulations that provide for longterm suspensions and expulsions.214 While a school's need to have flexibility in discipline is well-recognized in the case law,21 5 given what we know about the effects of removal, these sanctions could be considered severe.216 210. O.C.G.A. ยง 20-2-751.5(c).

211. Id. 212. GA. CONST. art. VIII, ยง 1, 1.

213. While the Georgia Supreme Court has acknowledged that a student's right to free education is guaranteed by the Georgia constitution, the right to education is subject to statutory limitation, and is not a fundamental right.

See Crim, 252 S.E.2d at 423-25; see also D.B., 469 S.E.2d at 439-40. Thus, O.C.G.A. ยง 20-2-751.5(c) could not reach the elevated facial standard on the grounds that it implicates a fundamental right.

214. In Bethel School Dist. No. 403, the Supreme Court recognized that unique circumstances exist within a school, which require a certain degree of flexibility in disciplinary matters in order to maintain security and order.

478 U.S. at 686. The Court further recognized that schools "need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process." Id. Accordingly, the Court held that school disciplinary rules do not need to be as detailed as a criminal code that imposes criminal sanctions. Id. Finally, the Court held that two days' suspension from school "does not rise to the level of penal sanction." Id. 215. See, e.g., Bethel School Dist. No. 403, 478 U.S. at 686.

216. See supra Part III.B and Part III.C. While the Court in Bethel held a

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Examining these factors and the decisions regarding statutes from other states discussed above, it appears that O.C.G.A. § 20-2-751.5(c) will likely survive a facial challenge.

However, much like the Connecticut statute challenged in Packer,218 the Georgia statute is vague enough so that in certain circumstances it may be susceptible to an as-applied challenge. a. FacialChallenge Because the statute neither implicates a fundamental right nor is criminal in nature, a facial challenge will be successful only if 219 the statute is vague in all its applications.

In evaluating a facial challenge to a state statute on void-forvagueness grounds, "courts traditionally have relied on the common usage of statutory language, judicial explanations of its meaning, and previous applications of the statute to the same or similar conduct. 22 ° Courts will also consider legislative intent.221 Because the language is undefined in the Georgia Code and there have been no previous interpretations, it is appropriate to look to the dictionary to identify the statute's ordinary meaning.222 Using the dictionary to define the key words of the two-day suspension was not severe, other cases have indicated that the Supreme Court does recognize the need for additional protections for longer removals. See Goss v. Lopez, 419 U.S. 565 (1975). In Goss, the Court held that a student who is suspended for ten days or less is entitled to minimal levels of due process, but that suspension of more than ten days would require more formal proceedings. Id. at 582. Accordingly, in the school regulation case, the Court has left open the question of whether a more heightened vagueness analysis might be appropriate for those suspensions of greater than ten days. Id. 217. Packer,246 Conn. at 107; Clements, 585 P.2d at 204.

218. Packer,246 Conn. at 105.

219. Village of Hoffman Estates, 455 U.S. at 495.

220. Stephenson v. Davenport Community School District, 110 F.3d 1303, 1309 (8th Cir. 1997) (internal quotations omitted); see also Village of Hoffman Estates, 455 U.S. at 501 n. 18; Grayned, 408 U.S. at 110; Kolender, 461 U.S. at 355; High 01' Times, Inc. v. Busbee, 673 F.2d 1225, 1229 (11th Cir. 1982) ("a court may cure a law's vagueness by statutory interpretation").

221. High 01' Times, Inc., 673 F.2d at 1229 (citing U.S. v. Balint, 258 U.S. 250 (1922)).

222. See, e.g., Village of Hoffman Estates, 455 U.S. at 501 n. 18; see also Central Georgia Railroad Co. v. Johnson, 132 S.E. 78, 79 (1898).

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statute, the phrase "which makes the student's continued presence at school a potential danger to persons or property at the school or which disrupts the educational process" applies to students who behaved in a criminally chargeable, felonious manner under the first prong of the statutory test only if their uninterrupted attendance at school could possibly expose persons or property at the school to harm or prevent the normal continuance of the operation of the school.2 2 3 The legislative history of O.C.G.A. ยง 20-2-751.5(c) supports this definition of the statute. In the following speech on the Senate floor in support of the language, Senator Brush, the sponsor of the legislation, told the story which was the basis for the Bill: We had some students--off-campus, off-hours, on the weekend. I believe it was a middle school. This particular instance I was aware of, the two boys were playing with a weapon. One of the boys was shot and killed. We don't really know what happened. We think they was [sic] playing Russian roulette with the weapon. Monday morning the other child showed up at the classroom. All the students knew it, what had happen. The school was disrupted, in an uproar. Kids were scared, crying, and parents were taking their kids home because of that. The principal and the school board made the decision to remove the child from the school and send him to alternative school. We were sued as the state of Georgia, and the courts forced us to put that child back in that classroom, because we didn't 224 have a code of conduct that addressed off-campus behavior.

Senator Brush's comments affirm the intent of the plain language of the statute. Moreover, Senator Brush's story provides a situation where the statute would be applicable. In 223. Webster's dictionary defines the key words of the statute as follows: "continued" is defined as uninterrupted; "presence" is defined as one's attendance; "potential" is defined as existing in possibility or capable of development into actuality; "danger" is defined as exposure or liability to injury, pain, harm, or loss; "disrupt" is defined as to throw into disorder or turmoil, or to interrupt to the extent of stopping, preventing normal continuance of or destroying; "educational" is defined as the action or process of educating or of being educated; and "process" is defined as progressively continuing operation that consists of a series of controlled actions. WEBSTER'S DICTIONARY (1 th ed. 2006).

224. See Senate Proceedings,supra note 29.

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the situation described by Senator Brush, the operation of the school was clearly disrupted; students were scared and crying, and parents were taking their children home from the school. In this situation, and others like it, the principal would be acting within the parameters of O.C.G.A. § 20-2-751.5(c) in removing this student. Because there are situations that will easily fall within these parameters, O.C.G.A. § 20-2-751.5(c) will likely survive a facial attack. b. As-Applied Challenge A party making an as-applied challenge must show (1) that the statute does not provide fair warning that it applies to the conduct at issue, or (2) that she was the victim of arbitrary enforcement practices. 225 Because the as-applied analysis assumes that the statute has been applied to a specific set of facts, we will present a scenario to consider. Let's consider the case of a foster-care child living in a group home. On a Saturday afternoon, this student threatened the house manager at his group home, thus committing the offense of making a terroristic threat, a felony. 2 26 The offense took place away from any other children, and none of the students at this child's school are aware of the incident. Nonetheless, because juvenile courts have reporting requirements, 227 the school is notified of this incident and decides to suspend our hypothetical student.228 A court presiding over an as-applied challenge on these facts must determine if O.C.G.A. § 20-2-751.5(c) provides fair notice to this student that his or her off-campus conduct "makes the student's continued presence at school a potential danger to persons or property at the school or which disrupts the educational process," 229 by examining whether people of 225. See Grayned,408 U.S. at 108; Goguen, 415 U.S. at 573.

226. See O.C.G.A. § 16-11-37 (2007).

227. See O.C.G.A. §15-11-80.

228. We have reason to believe that numerous students are being suspended pursuant to O.C.G.A. § 20-2-751.5(c) in circumstances similar to those attributed to our hypothetical student. According to data provided to us by the Georgia Department of Education, threat intimidation is the single largest identified type of off-campus offense for which students are being suspended. See O.C.G.A. § 20-2-751.5(c) Open Records Request, supra note 2.

229. O.C.G.A. § 20-2-751.5(c).

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ordinary intelligence could differ as to whether a student's uninterrupted attendance at school possibly exposes persons or property at the school to harm or prevents the normal continuance of the operation of the school.23 ° It seems likely that persons of ordinary intelligence might differ as to whether our hypothetical student's presence in school exposes persons at the school to harm. While some might believe that any student capable of threatening an adult poses a danger to others, it is just as likely that other persons of ordinary intelligence would see no nexus between the offcampus actions of the student and the potential for harm within the school. Indeed, if all such off-campus behavior were punishable, there would be no need for the nexus language to be included in the statute at all. 23 1 Accordingly, O.C.G.A. § 20-2751.5(c), as applied to our hypothetical student, would be voidfor-vagueness because of its failure to provide proper notice.

A reviewing court would also look at the second prong of the test, which focuses on whether the challenging party was the victim of arbitrary or discriminatory enforcement of the statute.

In evaluating this prong, the context in which the statute was enforced must be considered.232 Accordingly, the specific facts of the challenging party's case will be examined, and the focus will be whether the behavior falls squarely within what is proscribed by the statute, so no reasonable official could doubt the application in the circumstances. 233 Although this prong is a separate inquiry from the first, there are overlapping determinations. Where the challenging party has been charged with an off-campus offense that does not have any noticeable connection to the school, it seems likely that just as persons of ordinary intelligence would likely differ as to the application of the statute, so too would reasonable school officials.

As with any as-applied attack, the specific facts of the challenging party's case are crucial. However, the analysis 230. See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609, 629 (1984); see also Village of Hoffman Estates, 455 U.S. at 489.

231. As Senator Brush, the sponsor of the legislation which gave us the language in O.C.G.A. § 20-2-751.5(c), said, "The [nexus] is the key. They have to both be present. It is not "or" but "and." See supra Part III.A. 1.

232. See, e.g., Parker v. Levy, 417 U.S. 733, 754 (1974); see also Perez v.

Hoblock, 368 F.3d 166, 176-77 (2d Cir. 2004).

233. Perez, 368 F.3d at 176-77.

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presented here demonstrates that there are some circumstances where an as-applied challenge to O.C.G.A. § 20-2-751.5(c) could be successful.

V. IMPLICATIONS OF O.C.G.A. § 20-2-751.5(c) ON GEORGIA STUDENTS

This section will present the data collected from the Georgia3 Department of Education through an Open Records Request 1 seeking suspension and expulsion statistics from each School 235 District under O.C.G.A. § 20-2-751.5(c).

A. Suspensions under O.C.G.A. § 20-2-751.5(c) The students suspended pursuant to O.C.G.A. § 20-2-751.5(c) are overwhelmingly black, male, in middle school, and economically disadvantaged.

Furthermore, students with disabilities are overrepresented in these suspensions.

234. O.C.G.A. § 20-2-751.5(c) Open Records Request, supra note 2.

Specifically, with respect to O.C.G.A. § 20-2-751.5(c), the Open Records Request sought the following information: (1) The number of students expelled during each of the last 5 school years in each county pursuant to a student code of conduct provision mandated by O.C.G.A. §20-2-751.5(c), broken down by: Race; Gender; Age; Grade; Free lunch status; and Disability; and (2) The number of students suspended during each of the last 5 school years in each county pursuant to a student code of conduct provision mandated by O.C.G.A. §20-2-751.5(c), broken down by: Race; Gender; Age; Grade; Free lunch status; and Disability. Id. 235. The Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232(g), protects the privacy of student records maintained by schools that receive funds from the U.S. Department of Education. Pursuant to that law, the Department of Education withheld demographic information when there were less than five (5) students in any given category. For all of the demographic charts provided in this section, we have identified the number of students falling into the demographic category in both total numbers as well as in percentages of reported demographics within each category. For example, of the 1,270 students who have been suspended we have been provided with grade-level information for 469 students. The percentages represented in the grade level chart represent a percentage of students out of the 469.

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1. Total Number23of 6 Students Suspended Under O. C.G.A. ยง 20-2-751.5(C) One thousand two hundred and seventy 237 students have been

suspended pursuant to an O.C.G.A. ยง 20-2-751.5(c)-mandated provision since 2004, the year the statute became law. The suspensions per year were as follows:

I2007238 Georgia Students

291

1 2006 1 2005 299

1 2004

ITotal:] 1,270

2. School District Usage of 0. C.G.A. ยง 2 0-2-751.5(c)MandatedProvision One hundred and six school districts have used their O.C.G.A. ยง 20-2-751.5(c)-mandated provision to suspend a student.240 Most School Districts averaged five or fewer 236. O.C.G.A. ยง 20-2-751.5(c) Open Records Request, supra note 2.

237. This is the total number of students reported by the Georgia Department of Education. According to the Georgia Department of Education, this number represents all out-of-school suspensions reported by the districts. Telephone Conversation with Mark Vignati, Operations Analyst, Technology Management, Georgia Department of Education (February 25, 2008).

238. Information for 2007 is current through October 11, 2007, the date we received the response to our Open Records Request from the Georgia Department of Education.

239. See id.

240. Those School Districts were: Appling County; Atkinson County; Atlanta Public Schools; Banks County; Bibb County; Brooks County; Bryan County; Buford City; Bulloch County; Burke County; Camden County; Candler County; Carroll County; Carrollton City; Catoosa County; Chatham County; Chattahoochee County; Chattooga County; Cherokee County; Clarke County; Clayton County; Cobb County; Colquitt County; Columbia County; Commerce City; Cook County; Coweta County; Crisp County; Dalton City; Dawson County; Decatur County; DeKalb County; Douglas County; Dublin City; Emanuel County; Fayette County; Floyd County; Forsyth County; Franklin County; Fulton County; Gainesville City; Gilmer County; Glynn County; Gordon County; Grady County; Greene County; Gwinnett County; Hall County; Haralson County; Harris County; Henry County; Houston County; Irwin County; Jackson County; Jasper County; Jeff Davis County; Jenkins County; Jones County; Lamar County; Liberty County; Long County; Lowndes County; Lumpkin County; Macon County; Madison County; Marietta City Marion County; McDuffie County; Meriwether County; Monroe County; Montgomery County; Morgan County;

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O.C.G.A. ยง 20-2-751.5(c) suspensions per school-year.2 4 ' We have chosen to highlight the following nine school districts because they had reportable demographic information for each year the statute has been in existence.

Gwinnett County DeKalb County Hall County Cobb County Muscogee County Atlanta Public Schools Fulton County Chatham County Bibb County

2007 74 53 16 20 16 11 9 9 2

2006 87 65 16 19 12 10 3 9 5

2005 106 51 14 16 14 2 6 8 8

2004 62 84 28 13 23 11 15 0 11

Total 329 253 74 68 65 34 33 27 26

3. Grade-Level Composition of O.C.G.A. ยง 20-2-751.5(c)Suspensions

A majority of students suspended under O.C.G.A. ยง 20-2751.5(c) are in grades six through eight. Student in these middle school grades comprise 59.7% of reported suspension in 242 this demographic.

Muscogee County; Newton County; Oconee County; Peach County; Pickens County; Pierce County; Polk County; Putnam County; Richmond County; Rockdale County; Rome City; Screven County; Spalding County; State Schools Stephens County; Sumter County; Talbot County; Taliaferro County; Tattnall County; Taylor County; Thomas County; ThomastonUpson County; Thomasville City Tift County; Towns County; Troup County; Twiggs County; Vidalia City Walker County; Walton County; Ware County; Wayne County; Whitfield County; Wilkes County.

241. Pursuant to the Department's policy regarding FERPA, we have very limited demographic data regarding suspensions in those districts.

242. O.C.G.A. ยง 20-2-751.5(c) Open Records Request, supra note 2.

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O.C.G.A. ยง 20-2-751.5(c)-Suspensions by Grade 2007 Grade 3

243

2006

2005

2004

8

-

-

Grade 4

7

9

6

6

Grade 5

12

9

17

13

Grade 6

8

16

8

6

Grade 7

52

51

29

18

33

18

37

73

Grade 8

Total 8

(1.4%) 28 (4.9%) 51 (9.0%) 38 (6.7%) 150 (26.4%) 151

___________(26.6%)

Grade 9

10

21

-

12

Grade 10

6

6

17

-

Grade 11

-

13 ____ ___

Grade 12

9

13 ___

-

8 ____

19

8

1_

43 (7.6%) 29 (5.1%) 34

(6.0%) 36 (6.3%)

4. Age Composition of O. C. G.A. ยง 20-2- 751.5(c)Suspensions The most represented age category for O.C.G.A. ยง 20-2751.5(c) suspensions is thirteen-to-fifteen-year-olds, followed 244 closely by ten-to-twelve-year-olds.

243. Due to the limitations placed upon the information provided to us to comply with FERPA, the lack of students identified in any given field does nnt mean that no such students exist. Instead, it means that there were less than five students meeting that demographic in any school district.

244. O.C.G.A. ยง 20-2-751.5(c) Open Records Request, supra note 2.

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O.C.G.A. § 20-2-751.5(c)-Suspensions by Age 2007 2006 2005 2004 0-6 yrs-old 7-9 yrs-old

9

15

9

15

10-12 yrs-old

66

66

50

52

13-15 yrs-old

76

79

94

129

16-18 yrs-old

10

20

34

18

Total -

28 (3.9%) 234 (32.4%) 378 (52.3%) 82 (11.4%)

18+ yrs-old

5. Gender Composition of 0. C.G.A. § 20-2-751.5(c)Suspensions

Male students are vastly overrepresented in O.C.G.A. § 20-2751.5(c) suspensions, representing 83.5% of all such suspensions.

O.C.G.A. § 20-2-751.5(c)-Suspensions by Gender 2007 2006 2005 2004 Male Students 171 168 165 200 (88.1%) (83.6%) (83.8%) (79.7%) Female Students 23 33 32 51 1 (11.9%)

(16.4%)

(16.2%)

(20.3%)

Total 704 83.5%) 139 (16.5%)

6. Racial Composition of O.C.G.A. § 20-2-751.5(c)Suspensions in Georgia

Statewide, black students are overrepresented in O.C.G.A. § 20-2-751.5(c) suspensions; while black students comprise 38% of the total school population, they account for over 65% of all suspensions under the statute.246

245. Id. 246. Id.

John MarshallLaw Journal Racial Composition of Georgia247 2006-07 2005-06 Black Students 38% 38% White Students 47% 48% Hispanic Students 9% 8% Asian Students 3% 3% Multiracial Students 3% 2% Nat. Am./ AK Native 0% 0%

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2004-05 38% 49% 8% 3% 2% 0%

Racial Composition of 248 O.C.G.A. ยง 20-2-751.5 (c)-Suspensions Statewide 2007 2006 2005 2004 Total 123 130 117 154 524 (70.3%) (68.4%) (62.2%) (66.1%) (66.7%) 42 45 61 64 212 (24.0%) (23.7%) (32.4%) (27.5%) (27.0%) 10 15 10 15 50 (5.7%) (7.9%) (5.3%) (6.4%) (6.3%)

Black Students White Students Hispanic Students Asian Students Multiracial Students Native Am./ AK Native

7. Racial Composition of O.C.G.A. ยง 20-2-751.5(c)Suspensions in Districts

With the possible exception of Hall County, black students are overrepresented in every school district for which we have received reportable demographic data.2 49

247. GA. DEP'T OF EDUC., Report Card, Student and School Demographics, Georgia, http://www.doe.kl2.ga.us/ReportingFW.aspx?Page Req= 102&Stated=ALL&T= 1.

248. O.C.G.A. ยง 20-2-751.5(c) Open Records Request, supra note 2.

249. We were not provided with enough information regarding the racial composition of Fulton County School District and Chatham County School District to provide any meaningful statistics.

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Suspending Reason a. Gwinnett County School District Racial Comnosition of Gwinnett 25 °

2006-07 26% 39% 21% 10% 4% 0%

Black Students White Students Hispanic Students Asian Students Multiracial Students Nat. Am./ AK Native

2005-06 25% 42% 19% 10% 3% 0%

2004-05 23% 47% 18% 10% 3% 0%

Racial Composition of O.C.G.A. 251 § 20-2-751.5(c)-Suspensions in Gwinnett 2007 2006 2005 Black Students 31 34 43 (43.7%) (41.5%) (43.9%) White Students 30 39 45

2004 24 (40.0%) 27

(42.3%)

(47.5%)

(45.9%)

(45.0%)

10 (14.0%)

9 (11.0%)

10 (10.2%)

9 (15.0%)

-

-

Hispanic Students Asian Students Multiracial Students Nat. Am./ AK Native

-

-

---

250. GA. DEP'T OF EDUC., Report Card, Student and School Demographics, Gwinnett County, http://www.doe.kl2.ga.us/ReportingFW. aspx?PageReq= 102&County I d=667&T= I &FY=2007.

251. O.C.G.A. §20-2-751.5(c) Open Records Request, supra note 2.

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b. DeKalb County School District 25 2

Racial Com osition of DeKab 2006-07 2005-06 Black Students 76% 77% White Students 10% 10% Hispanic Students 8% 8% Asian Students 3% 3% Multiracial Students 2% 2% Nat. Am./ AK Native 0% 0%

2004-05 77% 10% 7% 3% 2% 0%

Racial Composition of O.C.G.A. 25 3 ยง 20-2-751.5(c)-Suspensions in DeKalb 2007 2006 2005 Black Students 50 62 49 (94.3%) (95.4%) (96.1%) White Students Hispanic Students Asian Students Multiracial Students Native Am./ AK Native

2004 77 (91.2%)

252. GA. DEP'T OF EDUC., Report Card, Student and School Demographics, Gwinnett County, http://www.doe.kl2.ga.us/ReportingFW. aspx?PageReq= 102&Countyld=667&T= 1&FY=2007.

253. O.C.G.A. ยง20-2- 751.5(c) Open Records Request, supra note 2.

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Suspending Reason c. Hall County School District

Racial Composition of Hall254 2006-07 2005-06 5% 5% Black Students 60% 58% White Students Hispanic Students 32% 31% Asian Students 1% 1% Multiracial Students 3% 2% 0% 0% Nat. Am./ AK Native

2004-05 5% 63% 28% 1% 2% 0%

Racial Composition of O.C.G.A.

255 ยง 20-2751.5(c)-Suspensions in Hall 2007 2006 2005

2004

Black Students

-

-

-

-

White Students

12

6

9

27

(75.0%)

(37.5%)

(64.3)

(96.4)

Hispanic Students Asian Students Multiracial Student Nat. Am./AK Native

254. GA. DEP'T OF EDUC., Report Card, Student and School Demographics, Gwinnett County, http://www.doe.kl2.ga.us/ReportingFW. aspx?PageReq- 102&Countyld=667&T = 1&FY=2007.

255. 0. C.G.A. ยง20-2-751.5(c) Open Records Request, supra note 2.

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John MarshallLaw Journal d. Cobb County School District Racial Comnosition of Cobb256

Black Students White Students Hispanic Students Asian Students Multiracial Students Nat. Am. AK Native

2006-07 29% 48% 14% 4% 4% 0%

2004-05 28% 53% 11% 4% 3% 0%

2005-06 29% 50% 12% 4% 4% 0%

Racial Composition of O.C.G.A. 25 7 ยง 20-2-751.5(c)-Sus pensions in Cobb 2005 2007 2006 6 7 11 Students Black (37.5%) (55.0%) (36.8%) 7 White Students (43.8%) 6 Hispanic Students (30.0%) Asian Students Multiracial Students Nat. Am./ AK Native

2004 -

7 53.8%)

e. Muscogee County School District 25 Racial Composition of Muscogee

Black Students White Students Hispanic Students

2006-07 59% 31% 4%

2005-06 59% 31% 4%

8

2004-05 59% 32% 3%

256. GA. DEP'T OF EDUC., Report Card, Student and School Demographics, Gwinnett County, http://www.doe.kl2.ga.us/ReportingFW. aspx?PageReq=102&Countyld=667&T=1&FY=2007.

257. O.C.G.A. ยง20-2-751.5(c) Open Records Request, supra note 2.

258. GA. DEP'T OF EDUC., Report Card, Student and School Demographics, Gwinnett County, http://www.doe.kl2.ga.us/ReportingFW. aspx?PageReq = 102&CountyId=667&T = 1&FY=2007.

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Suspending Reason Asian Students Multiracial Students Nat. Am./ AK Native

2% 4% 0%

2% 4% 0%

1% 3% 0%

Racial Composition of O.C.G.A. 25 9 § 20-2-751.5(c)-Suspensions in Muscogee 2007 2006 2005 Black Students 12 11 12 (75.0%) (91.7%) (85.7%) White Students Hispanic Student Asian Student Multiracial Student Nat. Am./ AK Native

2004 20 (87.0%)

f Atlanta Public Schools Racial Composition of Atlanta Public 2006-07 2005-06 Black Students 85% 86% White Students 9% 8% Hispanic Students 4% 4% Asian Students 1% 1% Multiracial Students 1% 1% Nat. Am./ AK Native 0% 0%

26°

2004-05 87% 8% 4% 1% 1% 0%

Racial Composition of O.C.G.A. § 20-2-751.5(c)261 Suspensions in Atlanta Public 2007 2006 2005 2004 Black Students 11 10 10 (100%) (100%) (-%) (91.0) 259. O.C. G.A. §20-2-751.5(c) Open Records Request, supra note 2.

260. GA. DEP'T OF EDUC., Report Card, Student and School Demographics, Gwinnett County, http://www.doe.kl2.ga.us/ReportingFW. aspx?PageReq= 102&Countyld=667&T= 1&FY=2007.

261. O.C.G.A. § 20-2-751.5(c) Open Records Request, supra note 2.

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-

-

-

-

g. Bibb County School District Racial Composition of Bibb262 Black Students White Students Hispanic Students Asian Students Multiracial Students Nat. Am./ AK Native

2006-07 73% 22% 2% 1% 1% 0%

2005-06 73% 23% 2% 1% 1% 0%

2004-05 72% 24% 1% 1% 1% 0%

Racial Composition of O.C.G.A.ยง 20-2-751.5(c)26 3 Suspensions in Bibb 2007 2006 2005 2004 Black Students 7 11 (-%) (-%) (87.5%) (100%) White Students Hispanic Students Asian Students Multiracial Students Nat. Am./ AK Native 8. Student Disability Composition of 0. C. G.A. ยง 20-2751.5(c)-Suspensions Statewide, students with disabilities are suspended pursuant to O.C.G.A. ยง 20-2-751.5(c) at greater rates than their nondisabled peers; while they represent 12% of students in Georgia 262. GA. DEP'T OF EDUC., Report Card, Student and School Demographics, Gwinnett County, http://www.doe.kl2.ga.us/ReportingFW. aspx?PageReq= 102&Countyld=667&T = 1&FY=2007.

263. O.C.G.A. ยง20-2-751.5(c) Open Records Request, supra note 2.

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63

public schools, they represent 30.5% of suspensions pursuant to the statute.264 a. Georgia 65 Total % of Disabled Students Enrolled Disabled Students Suspended Under O.C.G.A. ยง 20-

12%266

262 (30.5%)267

2-751.5(c)

Total % of Non-Disabled Students Enrolled Non-Disabled Students Suspended Under O.C.G.A.

88% 596 (69.5%)

ยง 20-2-751.5(c)

b. ReportableDistricts

Students with disabilities are overrepresented in all counties for which we have reportable data, with the exception of Bibb County. In Gwinnett County, students with disabilities have been suspended at six268times the rate of their student population in the school district.

264. Id. 265. The percentage of the state and each District's enrollment of Disabled and Non-Disabled students was arrived at by averaging the yearly percentages from 2004-2007.

266. See supra note 247.

267. O.C.G.A. ยง 20-2-751.5(c) Open Records Request, supra note 2.

268. The percentage of the state and each District's enrollment of Disabled and Non-Disabled students was arrived at by averaging the yearly percentages from 2004-2007; see id.; see supra note 260; GA. DEP'T OF EDUC., Report Card, Student and School Demographics, Chatham County, http://www.doe.k 12.ga.us/ReportingFW.aspx?PageReq= 102&Countyld=625 &T=I&FY=2007; see supra note 256; see supra note 252; GA. DEP'T OF EDUC., Report Card, Student and School Demographics, Fulton County, http://www.doe.kl 2.ga.us/ReportingFW.aspx?PageReq= 102&Countyld=660 &T=I&FY=2007; see supra note 250; see supra note 254; see supra note 258.

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9. Economic Composition of O.C.G.A. § 20-2-751.5(c)269 Suspensions

Statewide, students who are eligible to receive free lunch are overrepresented in O.C.G.A. § 20-2-751.5(c) suspensions; while they comprise 50% of students in Georgia, they represent over 65% of students suspended pursuant to the statute. a. Georgia Georgia 27 ° Total % of Students Eligible for Free Lunch Free Lunch Students Suspended Under O.C.G.A. § 202-751.5(c) Total % of Students Not Eligible for Free Lunch Non-Free Lunch Students Suspended Under O.C.G.A. § 20-2-751.5(c)

50%271

549 (65.9%)272

50% 284 (34.1%)

b. ReportableDistricts

Students who are eligible to receive free lunch are overrepresented in all counties for which we have reportable data, with the exception of Atlanta Public Schools.27 3

269. The percentage of each District's enrollment of Free Lunch Eligible and Non-Free Lunch Eligible students was arrived at by averaging the yearly percentages from 2004-2007.

270. The National School Lunch Program is a federally assisted meal program operating in public and nonprofit private schools. See U.S. DEP'T OF AGRIC., Food Nutrition Website, available at http://www.fns.usda.gov/

cnd/lunch/. Under federal guidelines, students qualify for free lunch when their family has income up to 130% of the federal poverty level. Id. For illustration, a student from a family of four during the 2006-2007 school year qualified for free lunch with a family income of $26,000 or less. Id. 271. See supra note 247.

272. O.C.G.A. § 20-2- 751.5(c) Open Records Request, supra note 2.

273. See supra note 280; see supra note 260; see supra note 262; see supra note 272; see supra note 256; see supra note 252; see supra note 250; see supra note 254; see supra note 258; id.

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B. Expulsions under O.C.G.A. § 20-2-751.5(c) 2 74 Twenty-seven School Districts 2 75 used their O.C.G.A. §20-2751.5(c)-mandated provision between 2004 and 2007 to expel sixty-two students.

12007 Georgia Students

11

I2006 I2005 I2004 ITotal 14

18

19

62

VI. RECOMMENDATIONS FOR LEGISLATIVE REFORM The widespread suspension and expulsion of Georgia's students for off-campus behavior is counterproductive.

Accordingly, in this section we recommend that the Legislature repeal O.C.G.A. § 20-2-751.5(c). In the event that the statute is not repealed, we recommend that the statute be amended to provide clearer parameters for school districts' codes of conduct.

A. O.C.G.A. § 20-2-751.5(c) Should be Repealed In Part III of this Article, we demonstrated that removal from school fails to ensure school safety, has long-term negative consequences for students, and disproportionately impacts youth of color and youth with disabilities. When a child is arrested for conduct that occurs away from school, the processes in place through the judicial system are sufficient to ensure that the safety concerns of the community are addressed. In the event that the court determines that a child should be released into the community, the student's potential to be rehabilitated will best be met by allowing him or her to return to school.

274. 0.C.G.A. § 20-2-751.5(c) Open Records Request, supra note 2.

275. Those School Districts were: Bibb County; Bulloch County; Chatham County; Chattahoochee County; Cherokee County; Clarke County; Cobb County; Columbia County; Crawford County; Dade County; Dalton City; DeKalb County; Fayette County; Forsyth County; Habersham County; Hall County; Houston County; Lanier County; Meriwether County; Paulding County; Polk County; Rome City; Screven County; Social Circle City; Spalding County; Tift County; Vidalia City.

276. Because of FERPA restrictions, this is the extent of the information available on O.C.G.A. § 20-2-751.5(c)-expulsions.

John MarshallLaw Journal Therefore, we recommend that the Legislature O.C.G.A. ยง 20-2-751.5(c).

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repeal

B. At a Minimum, O.C.G.A. ยง 20-2-751.5(c) Should be Limited in Scope andApplication In the event that the Legislature deems O.C.G.A. ยง 20-2751.5(c) necessary to respond to extreme circumstances, several steps should be taken to cure potential constitutional defects and to make sure that the statute is used in the limited circumstances for which it was intended.

1. The Statute Should be Amended to Provide Clear Parametersfor Districts to Follow The current statute does not provide clear enforcement guidelines to individual school districts, resulting in a vague statute that has the potential for arbitrary enforcement. To cure this defect, the statute should be modified in several ways.

First, we recommend that the statute be amended to read as follows: "Each student code of conduct shall also contain provisions that address any off-campus behavior of a student which could result in the student being criminally charged with a felony and which disrupts the educational process."

The phrase that has been removed from our amended statute, "which makes the student's continued presence at school a potential danger to persons or property at the school" is vague, does not provide any guidelines for enforcement, and is inconsistent with the legislative intent of the statute as described

by Senator Brush;2 77 it has been argued by school districts that the commission of a felony automatically means that a student is a potential danger to persons or properties in the school.

Such an interpretation leaves the conjunctive nature of the statute entirely irrelevant. Further, the courts are a more appropriate venue for determining a student's danger to the community.

Second, we recommend that the Legislature add a subsection clearly defining the phrase "disrupts the educational process."

We recommend that this definition require a substantial nexus between the student's off-campus conduct and the learning environment. For instance, school districts should be required 277.

See supra Part IV.B.2.a.

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to demonstrate, at a minimum, that other students are aware of the off-campus conduct, that they have reacted to it, and that removal of the student will lessen the disruption. a. DistrictCodes of Conduct Should Not Exceed the ParametersSet forth in the Statute The plain language of the statute, as well as a review of the legislative history, demonstrates that O.C.G.A. ยง 20-2-751.5(c) currently requires that districts address any off-campus behavior of a student which: (1) could result in the student being criminally charged with a felony; and (2) makes the student's continued presence at school a potential danger to persons or property at the school or disrupts the educational process.278 Yet, the majority of school districts have enacted codes of conduct that far exceed this mandate. Most of these districts have permitted removal for acts for which the student could not be criminally charged with a felony; some have even permitted removal for acts that do not constitute a crime. 279 To rectify this problem, we recommend that the statute expressly limit the circumstances for which a student may be disciplined to those referenced in the statute itself.

VII. CONCLUSION

In 2004, the Georgia Legislature enacted a statute that was intended to be used in extraordinary circumstances. Instead, school districts have used this statute to remove more than 1,300 students from school.

However, the vast majority of empirical data shows that removal from school fails to ensure school safety, fails to dissuade students from offending, and fails to promote a stable learning environment. At the same time, suspension results in lost instructional time, reduced academic achievement, social stigma, and emotional distress. Communities also become less safe as removal rates increase because dangerous and delinquent behaviors increase when children are out of school. All of these consequences produce financial costs to society that are quite substantial-incarceration, unemployment, crime, and lack of 278. O.C.G.A. ยง 20-2-751.5(c) (emphasis added).

279. See supra Part IV.A.2.

70

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economic contribution to the tax base are all more likely to result from a student's removal from school.

By ending the overuse of removal in school discipline and implementing more constructive alternatives, Georgia can protect taxpayer dollars and promote public safety while enhancing children's growth and rehabilitation.

THE GEORGIA DEATH PENALTY: A NEED FOR RACIAL JUSTICE MICHAEL MEARS*

I. Introduction ...................................................................

71 II. The Georgia Racial Justice Act - First Attempt ............ 73 III. Continuing Need for the Racial Justice Act in Georgia... 74 IV. Kentucky's Racial Justice Act ......................................

76 V. The Background Concerning Racial Justice ................. 77 VI. Executions and Relevant Studies ................................

79 A . The Baldus Study .................................................

79 B. Atlanta Journal-Constitution Death Penalty Study ...................................................................

82 VII. The Criminal Justice System as a Whole ..................... 83 A. Current State of Affairs in Georgia ..................... 86 B. Georgia Should Adopt the Racial Justice Act ......... 87 I. INTRODUCTION

A survey of numerous studies has uncovered a notable correlation in the application of the death penalty as it relates to

* Michael

Mears is an Associate Professor at John Marshall Law School.

He teaches Advanced Evidence and Advanced Criminal Procedure. Prior to assuming his position as an Associate Professor at John Marshall Law School, he served as the Director of the Office of the Multi-County Public Defender, which was responsible for providing defense services and training for death penalty cases in Georgia. He held that position from June 1992 until December 2003. He has personally served as lead trial counsel in over 60 death penalty cases since 1984. In addition to serving as trial counsel, Professor Mears has authored numerous publications and professional articles dealing with the defense of criminally charged defendants including The Death Penalty in Georgia - A Modern History, 1970-2000. I want to express my appreciation for the help and assistance of Ms. Leah Brohm, Ms. Angela Landgaard, and Mr. Alex Yusupov. Their dedication to this project was invaluable.

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the race of the victim and the accused.' The studies tend to show that racially based components of official decisions should be subjected to legislative scrutiny and correction wherever proven. 2 There is no substantive argument set forth that the legislative bodies do not have the responsibility or authority to propose measures aimed at preventing, or at least minimizing, the effects of racial bias in the application of statutory laws enacted by the various legislative and governmental bodies in this nation.3 The following discussion illustrates how the enactment of the Georgia Racial Justice Act would address the issue of racial discrimination in the imposition of the death penalty by allowing the accused an opportunity to challenge a prosecutor's choice to seek capital punishment.

1. Professors David C. Baldus, Charles Pulaski, and George Woodworth, prepared and presented a statistical analysis showing a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The "Baldus Study" was actually two regression analyses that examined more than 2,000 murder cases in Georgia. The raw numbers collected by Professor Baldus indicated that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants. [hereinafter Baldus Study].

2. Katzenbach v. Morgan, 384 U.S. 641 (1966) (The Fourteenth Amendment authorizes Congress to exercise its discretion in determining the need for and nature of legislation to secure compliance with the Equal Protection provisions of the Fourteenth Amendment.).

3. See Bazemore v. Friday, 478 U.S. 385, 400-01 (1986) (Correction of violations of racial neutrality in the application of programs under Title VII of the Civil Rights Act of 1964); Turner v. Fouche, 396 U.S. 346, 359 (1970) (Acts of local governing body which created a disparity between blacks and whites in county population for those eligible to be placed on grand jury lists); Gomillian v. Lightfoot, 364 U.S. 339, 815 (1960) (Act of a local government to exclude 395 of 400 black voters without excluding a single white voter by altering the boundaries of a city); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (A local ordinance which denied over 200 applications of Chinese laundry operators while granting all but one of the applications of white laundry owners).

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II. THE GEORGIA RACIAL JUSTICE ACT - FIRST ATTEMPT

One attempt at providing some oversight to the decisions of district attorneys came in 1999 when the Georgia General Assembly first considered legislation titled the "Georgia Racial Justice Act" ("the Act").4 The Act would have prohibited the execution of any person if the sentence was imposed based upon a showing that the race of the victim or the race of the defendant was a factor in the decision to seek the death penalty.5 The Act would also have required that statistical records be kept by local district attorneys so that comparisons of similar cases could be made within each Superior Court jurisdiction.6 Specifically, the Act provided that: (a) No person shall be put to death under color of state law in the execution of a sentence which was imposed based on race. (b) An inference that race was the basis of a death sentence is established if valid evidence is presented demonstrating that race was a statistically significant factor in decisions to seek or impose the sentence of death in the State of Georgia at the time such death sentence was sought or imposed. (c) Evidence relevant to establish an inference that race was the basis of a death sentence may include evidence that death sentences were sought or imposed significantly more frequently: (1) Upon persons of one race more than upon persons of another race; or (2) As punishment for capital offenses against persons of one race more than as punishment for capital offenses against persons of another race. (d) If statistical evidence is presented to establish an inference that race was the basis of a sentence of death, the court shall determine the validity of the evidence and if it provides a basis for that inference. The evidence shall take into account, to the extent it is compiled and publicly made 4. H.R. 137, 145th Gen. Assern., Reg. Sess. (Ga. 1999).

5. Id. 6. Id.

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available, evidence of the statutory aggravating factors and shall include comparisons of similar cases involving persons of different races. (e) If an inference that race was the basis of a death sentence is established, the death sentence shall not be carried out unless the state rebuts the inference by clear and convincing evidence. The state cannot rely on mere assertions that it did not intend to discriminate or that the case fits the statutory criteria for seeking or imposing the death sentence.7 The original Act was sponsored by Representatives Bob Holmes ( 5 3 rd District), Barbara Mobley (69t District), Tyrone Brooks ( 5 4 th District), and Nan Orrock ( 5 6 th District).8 The legislation was assigned to the House Judiciary Committee which held one brief hearing, but never voted on the bill.

Consequently, the Act was never passed out of the committee and moreover, the full membership of the General Assembly never voted on it. Although there is support for the Act in the Georgia General Assembly, the elected representatives have had little opportunity to consider passing legislation which would address the broad discretion given to district attorneys in seeking the death penalty. The Act is not aimed at repealing those laws which provide for the death penalty. The purpose of this legislation is to help ensure that racial discrimination is not a part of the imposition of the death penalty. 9 The Act would provide at least a modicum of oversight to the currently unfettered decisions of the district attorney to select which cases and which defendants he will subject to the death penalty.'l

III. CONTINUING NEED

FOR THE RACIAL JUSTICE ACT IN GEORGIA

Georgia's death penalty statute has been held to be constitutional." However, because its legislative scheme gives the district attorney discretion in requesting the death penalty

7. Id. 8. Id. 9. Id.

10. Id. 11. Gregg v. Georgia, 428 U.S. 153 (1976) (per curiam).

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for capital cases,' 2 legislative safeguards still must be implemented in order to prevent racially motivated decisions of who will become eligible for the death penalty. The proposed Act would provide the necessary legislative safeguards. The Act would provide a capital defendant the means by which he or she may present a challenge to the prosecutor's decision to seek the death penalty. The Act's provisions for a pre-trial hearing on the issue of race would ensure that race does not play a factor in the prosecutor's decision to seek the death penalty.

Any indication of a racially discriminatory process for selecting cases to be singled out for the death penalty would be subject to challenge based upon a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 13

The United States Supreme Court has already held that a defendant who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination.' 4 For the purpose of demonstrating purposeful discrimination, the Act is designed to utilize local historical data of an individual prosecutor's decisions to seek the death penalty.' 5 Specifically, the localized historical data would track the race of both victims and defendants in those cases which the prosecutor decided to seek the imposition of the death penalty. The utilization of localized data of each specific prosecutor in a case will address, in large part, the central reason for the United States Supreme Court's rejection of the data presented in the McCleskeyl case, where statewide data from the Baldus Study 7 was used in an attempt to prove racial discrimination in the application of the death penalty in Georgia.

Under the Act, a challenge of prosecutorial discretion would be allowed only after the defendant presents sufficient statistical evidence to create an inference of racial discrimination in the process. This inference would be created by a significant showing of racial disparity in the prosecutor's selection of death 12. Moore v. State, 243 S.E.2d I (Ga. 1978).

13. See, e.g., Spaziano v. Florida, 468 U.S. 447 (1984); Gregg, 428 U.S. 153; Furman v. Georgia, 408 U.S. 238 (1972).

14. McCleskey v. Kemp, 481 U.S. 279, 293 (1987).

15. H.R. 137.

16. McCleskey, 481 U.S. at 293.

17. Baldus Study, see supra note 1.

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penalty cases. Once a requisite inference has been established through the statistical data, the burden would then shift to the prosecutor to present a race neutral explanation for the decision to seek the death penalty.' 8 Although the use of statistical studies, standing alone, can be difficult in proving generalized discrimination, proving localized, specifically intended discriminatory decisions by prosecutors can be facilitated b9 evidence of a pattern of conduct by the specific prosecutors.

It must also be noted that statistical analysis and historical statistical data have been used in a number of instances to create inferences of racial bias and discrimination. For example, the United States Supreme Court has used statistical data as proof of an equal protection violation in the selection of the jury venire in a particular district. 20 This model for preventing racial discrimination in the decision making process of a trial was duly approved by the United States Supreme Court, by what is referred to as a "Batson Challenge." 21 The historical background of the decisions of individual prosecutors is an important evidentiary source in proving discriminatory practices, particularly if the evidence reveals a series of official actions resulting in discriminatory outcomes. As discussed above, this model of preventing discrimination has already been effectively utilized in other trial stages.22 This Article encourages the same sensible approach to an even more important decision: Which defendants will be subjected to a death penalty trial and which ones will not?

IV. KENTUCKY'S RACIAL JUSTICE ACT

There is precedent for the passage of this type of legislation.

18. H.R. 137.

19. Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218

(1964).

20. Sims v. Georgia, 389 U.S. 404, 407 (1967).

21. Batson v. Kentucky, 476 U.S. 79 (1986) (state courts are permitted to establish the standards used to evaluate the sufficiency of prima facie cases of purposeful discrimination

in jury selection); see also Georgia

v

McCollum, 505 U.S. 42 (1992) (exercise of a peremptory challenge to a prospective juror must not be based on either the race of the juror or the racial stereotypes held by the party).

22. Batson, 476 U.S. at 79.

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In 1998, the Commonwealth of Kentucky passed Kentucky's Racial Justice Act as a statement against racism in the use of the death penalty.23 Before the passage of Kentucky's Racial Justice Act, Kentucky State Senator Charlie Borders, of Russell, said that the Racial. Justice Act "was simply a method of ensuring racism did not play a role in death sentences." The Bill's sponsor, Senator Gerald Neal, of Louisville, said, "This is [not] a vote on whether we're soft on crime ...I'm not soft on crime; I'm strong on justice. 24 The text of Kentucky's act is substantially the same as that proposed in Georgia. 25 In 2006, the Kentucky Supreme Court determined that the Racial Justice Act as a part of the Commonwealth's overall capital sentencing scheme was constitutional.26 No study has been conducted reviewing the effects of the Act in the short period since it was passed, but some articles suggest that the Act has increased public awareness of the racial disparities in punishment that exist throughout the nation. 27 There has been no showing that the 28 act works to prevent the death penalty from being carried out.

V.

THE BACKGROUND CONCERNING RACIAL JUSTICE

In 1994, the United States of America ratified the International Convention on the Elimination of All Forms of Racial Discrimination. 29 This international treaty provided, in part, that the parties to the treaty would: [C]ondemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and Ky. REV. STAT. ANN. ยง 532.300 (West 1998).

Racial Justice Act Becomes Law: Not Soft on Crime, But Strong on Justice, THE ADVOCATE, Vol. 20, No. 4 (July 1998).

25. ComparingKY. REV. STAT. ANN. ยง 532.300 to H.R. 137.

26. Epperson v. Kentucky, 197 S.W.3d 46, 63 (Ky. 2006).

27. Justin R. Arnold, Note, Race and the Death Penalty After McCleskey: A Case Study of Kentucky's Racial Justice Act, 12 WASH. & LEE J. CIVIL RTS. & Soc. JUST. 93 (2005).

28. Id. 29. The International Convention on the Elimination of All Forms of Racial Discrimination, Ratified by the United States of America, October 21, 1994, with reservations. [hereinafter Racial DiscriminationConvention].

23.

24.

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promoting understanding among all races, and, to this end: each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.3" However, ratification by the United States was made with Specifically, the specific reservations and declarations. 3 1 United States refused to acknowledge the need for any additional laws in order to protect U.S. citizens from racial discrimination.

The reservations which accompanied the signing of this international treaty stated, in part, that: "[t]he U.S. Constitution provides enough protection to citizens with regard to racial discrimination; therefore, no new laws are needed for the U.S. to meet its obligations under the on the Elimination of All Forms of International Convention ' 32 Racial Discrimination."

In 1999, Amnesty International issued a report on racial disparity in the imposition of the death penalty entitled "Killing with Prejudice: Race and the Death Penalty in the USA., 33 This twenty-one page report cited statistics, case summaries, and other facts to document the racial disparity of the death penalty in the United States.3 4 The report concluded that the criminal justice system in the United States is infected with prejudice against all minorities but particularly against African Americans. 35 Unfortunately, very little has changed in the past eight years since the issuance of that report.

30. Racial Discrimination Convention, supra note

29.

Vienna

g (1969) (defining a "State Convention on the Law of Treaties, art. 2, Party" as a State which has consented to be bound by the treaty and for which the treaty is in force).

31. Vienna Convention, art. 2, ยง 1, d (defining a "reservation" as: "a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty whereby it purports to exclude or modify the legal effects of certain provisions of the treaty in their application to that State").

32. Racial DiscriminationConvention, reservations submitted, supra note

29.

33. Killing with Prejudice: Race and the Death Penalty in the USA,

Amnesty International Report no. 51/52/99 (May 1999).

34. Id.

35. Id.

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A Need for RacialJustice

VI. EXECUTIONS AND RELEVANT STUDIES

Since the death penalty was reinstated in 1976, thirty-eight states, including Georgia, and the federal government have executed 362 African-Americans, 69 Hispanics, 604 Caucasians and 22 persons classified as either Asian or other. 36 Of these executions, Georgia accounts for the death of thirteen African Americans and twenty-six Caucasians. 37 According to the most recent reports from the Georgia Department of Corrections, there are currently fifty-three Caucasians, fifty African Americans, one Asian, and three Hispanics awaiting execution on death row in Jackson, Georgia. 38 While these statistics may not shock the conscience at first impression, they are dramatic in light of the census data on race, which has remained consistent over the past three decades. In the 2000 census, the population of Georgia was 65.1% Caucasian, and 28.7% African American, 39 yet these statistics show that the death penalty is imposed against nearly 50% of African American defendants.

A. The Baldus Study In the late 1970's, Professors David Baldus, Charles Pulaski, and Georgia Woodworth of the University of Iowa examined over 2,000 murder cases in Georgia. n° What later became known as the Baldus Study, became the basis for appeal to the United States Supreme Court in the case of McCleskey v.

Kemp. 41 The defendant in that case, Warren McCleskey, had 36. Death Row U.S.A., Quarterly Report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc. (Jan. 2007), http://naacpldf.org/content/pdf/pubs/drusa/-DRUSAWinter_2007.pdf.

37. Id. 38. Id.

39. U.S. CENSUS BUREAU, Data Derived from Population Estimates, 2000 Census of Population and Housing, http://www.census.gov/main/www/ cen2000.html.

40. McCleskey, 481 U.S. at 293; see supra note 14 for analysis of the Baldus Study.

41. McCleskey, 481 U.S. at 326 (Brennan, J. dissenting) ("Furthermore, even examination of the sentencing system as a whole, factoring in those

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been convicted and sentenced to death for killing a white police officer during a burglary attempt.42 The use of the Baldus Study was an effort to provide statistical data showing that the decision to seek the death penalty was based, in substantial part, on the race of both the defendant and the victim. While the five justice majority of the Supreme Court refused to overturn Warren McCleskey's death sentence, four Justices adamantly dissented.43 The defeat notwithstanding, Justice Powell, writing for the majority of the Court stated that the data relating to systemic discrimination should be presented to legislative bodies and not to the courts."

Additionally, the four dissenting Justices acknowledged the validity of Warren McCleskey's claim that the decision to seek the death penalty had been used in a racially discriminatory manner. Justice Blackmun, writing for himself and three other dissenting justices, said: The Baldus Study demonstrates that black persons are a cases in which the jury exercises little discretion, indicates the influence of race on capital sentencing. For the Georgia system as a whole, race accounts for a six percentage point difference in the rate at which capital punishment is imposed. Since death is imposed in 11% of all white-victim cases, the rate in comparably aggravated black-victim cases is 5%. The rate of capital sentencing in a white-victim case is thus 120% greater than the rate in a black-victim case. Put another way, over half-55%-of defendants in white-victim crimes in Georgia would not have been sentenced to die if their victims had been black. Of the more than 200 variables potentially relevant to a sentencing decision, race of the victim is a powerful explanation for variation in death sentence rates-as powerful as nonracial aggravating factors such as a prior murder conviction or acting as the principal planner of the homicide. These adjusted figures are only the most conservative indication of the risk that race will influence the death sentence of defendants in Georgia. Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all white-victim cases was almost eleven times greater than the rate for black-victim cases. Furthermore, blacks who kill whites are sentenced to death at nearly twenty-two times the rate of blacks who kill blacks, and more than seven times the rate of whites who kill blacks. In addition, the prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims.").

42. Id. 43. Id. 44. Id.

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A Needfor Racial Justice

distinct group that is singled out for different treatment in the Georgia capital sentencing system. The Court acknowledges, as it must, that the raw statistics included in the Baldus Study and presented by petitioner indicate that it is much less likely that a death sentence will result from a murder of a black person than from a murder of a white person. White-victim cases are nearly 11 times more likely to yield a death sentence than are black-victim cases. The raw figures also indicate that even within the group of defendants who are convicted of killing white persons and are thereby more likely to receive a death sentence, black defendants are more likely than white defendants to be sentenced to death.45 Utilizing 230 non-racial variables, Professor Baldus and his associates discovered several distinctive patterns indicating that the prosecution is more likely to request the death penalty, and the courts are more likely to impose it, when the victim is Caucasian. 4 6 For example, one of his surveys utilizing thirtynine non-racial variables demonstrate that in Georgia over the period covered by the study, district attorneys demanded the death penalty 70% of the time when the defendant was African American and the victim was Caucasian.4 7 In contrast, when the defendant was Caucasian and the victim was African American, the same district attorneys sought the death penalty only 19% of the time.4 8 When both defendant and the victim were African American, the district attorneys requested the death penalty only 15% of the time.4 9 The conclusion of the Baldus Study showed conclusively that a defendant convicted of killing a Caucasian person in the state of Georgia was 4.3 times more likely to receive a death sentence than someone convicted of killing an African American person.50 A report by the United States General Accounting Office in 1990 (hereinafter "the report") confirmed the Baldus Study's findings. 5 1 The report, which was prepared for the Judiciary 45. Id. at 353.

46. Baldus Study, see supra note 1.

47. Id.

48. Id. 49. Id. 50. Charles A. Pulaski, Jr. and George Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. CRIM. L. & CRIMINOLOGY 661 (1983).

51. U.S. GEN. ACCOUNTING OFFICE, DEATH PENALTY SENTENCING:

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Committees of the United States Senate and House, found that of twenty-eight studies examined, 82% found race to be an influential factor in the charging and sentencing of defendants to death, i.e., that African Americans who killed Caucasians were more likely to be sentenced to die than those African Americans who killed other African Americans. 2 B. Atlanta Journal-ConstitutionDeath Penalty Study major The Atlanta Journal-Constitution, Atlanta's newspaper, released a four-part article in September 2007 based on an empirical study of the application of the death penalty in Georgia from 1995-2004. 53 The empirical study reviewed a total of 1,315 cases that were eligible for the death penalty over the ten-year time period. Initial analysis of these 1,315 cases revealed that Georgia prosecutors only sought the death penalty in 344 of them.54 However, further analysis into the specific cases for which the death penalty was sought provided some disturbing information.

The statistics demonstrated that the geography of a crime plays a big role in whether the death penalty will be sought."

For instance, in more rural/suburban communities, like Clayton County, a person is thirteen times more likely to receive the 56 death penalty than in an urban setting like Fulton County.

Statistics also demonstrated that the race of the victim has a determinative effect on whether the accused will be subjected to the death penalty.57 In fact, the statistics showed that a person accused of killing a Caucasian victim was twice as likely to receive the death penalty5 8 as a person accused of killing an African American victim.

The study also found a correlation between committing the crime of armed robbery and being prosecuted with the death

RESEARCH INDICATES PATTERN OF RACIAL DISPARITIES 5

(Feb. 1990).

52. Id.

53. Heather Vogell and Bill Rankin, A Matter of Life or Death, ATLANTA J. CONST., Sept. 23, 2007 at E8.

54. Id. 55. Id. 56. Id. 57. Id. 58. Id.

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A Need for Racial Justice

penalty.5 9 During the period of review, 1995-2004, a prosecutor was six times more likely to seek the death penalty for a person accused of armed robbery. The study found that prosecutors sought the death penalty in just over 14% (33 of 226) of the time in white victim armed robbery murders, while only 1% (2 of 193) of the time in African American victim armed robbery 60 murders.

VII. THE CRIMINAL JUSTICE SYSTEM AS A WHOLE The racial bias of the criminal justice system's sentencing decisions is not limited to the death penalty. Even the most ardent supporters of the death penalty have acknowledged that there is a grave disparity in the administration of the criminal laws in the United States. 6 ' While African Americans comprised 13.3% of the country's population in 2003,62 they accounted for 43.9% of the inmates in state and federal prisons at that time. 63 The Bureau of Justice Statistics has estimated that 28% of African American men are sent to jail or prison at some point in their lives. 4 African Americans are stopped more frequently by police, charged with higher level offenses, afforded less competent counsel, and punished more severely than Caucasians convicted of the same crimes.6 5 A similar report from Human Rights Watch found a pattern of racial disparities in arrests and sentencing for drug related cases in Georgia, as well as on a national level. 66 In 2000, Human Rights Watch also reported that African American inmates comprised 62.7% and Caucasian inmates comprised 36.7% of

59. Id. 60. Id. 61. U.S. GEN. ACCOUNTING OFFICE report, supra note 51.

62. U.S. CENSUS BUREAU Public Information, supra note 39.

63.

Table

Bureau of Justice Statistics of Prison and Jail Inmates Midyear 2003, 13, DEP'T OF JUSTICE (April 6, 2003), http://www.ojp.usdoj.gov/

bjs/abstract/pj im03.htm.

64. Paige M. Harrison and Jennifer Karberg, Prison and Jail Inmates at Midyear 2002, Bureau of Justice Statistics Bulletin (April 2002).

65. Id. 66. Punishment and Prejudice: Racial Disparities in the War on Drugs, HUMAN RIGHTS WATCH REPORT, Vol.

12, No. 2(G) (May 2000).

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all drug offenders admitted to state prisons. 67 Those same studies show that there are five times as many Caucasian drug users than African American. Yet, relative to population, African American men are admitted to state prison on drug charges at a rate that is 13.4 times greater than that of Caucasian men. 68 In large part due to the extraordinary racial disparities in incarceration for drug offenses, African Americans are incarcerated for all offenses at 8.2 times the rate of Caucasians.

In fact, one in every twenty African American men over the age of eighteen in the United States is in 69state or federal prison, compared to one in 180 Caucasian men.

These statistics are even more disproportionate in some states, including Georgia, compared to the overall national statistics. For example, in seven states, African Americans constitute between 80% and 90% of all drug offenders sent to prison. 0 In at least fifteen states, African American men are admitted to prison on drug charges at rates that range anywhere from twenty to fifty-seven times greater than those of Caucasian men. 71 In two states, one in every thirteen African American men is in prison. 72 In seven states, African Americans are incarcerated7 3 at more than thirteen times the rate of Caucasians.

An Amnesty International report published in April 2003 points out that racial disparities can be found throughout the criminal justice system in the United States.74 One of the points made by Amnesty International follows: Given the appallingly low standards of many courtappointed lawyers in numerous jurisdictions, there is an ever-present risk that minority defendants may be represented by lawyers who are not only incompetent, but are also openly bigoted ... [E]ven when the attorney is not

an overt racist, a lack of cultural sensitivity to other ethnic 67. Id. 68. Id. 69. Id. 70. Id. 71. Id. 72. Id. 73. Id. 74. United States of America: Death by Discrimination- The Continuing Role ofRace in CapitalCases, Amnesty International Report (April, 2003).

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A Needfor Racial Justice

groups may affect their ability to prepare adequately for the case. White attorneys who are unable to relate to the black community may be unable to properly defend their black clients." 5 This 2003 report also found that the murder rates for African American and Caucasian victims are almost equal.7 6 However, 80% of defendants executed since the death penalty was reinstated in 1973 have been executed for murders involving white victims. 7 7 In addition, this report showed that more than

20% of African American defendants who have been executed 78 were convicted by all white juries.

A central contributing factor making racial prejudice and bias so pervasive in the imposition of the death penalty is the fact that much of the discretion given to prosecutors and law enforcement officials is left unchecked. 79 A recent law review article, quoting a speech given by Professor Charles Ogletree, says: [T]he criminal justice system is, at all levels of its operation, highly discretionary. The police have discretion to decide whom to stop and frisk. State prosecutors have discretion to determine whom to prosecute, and what charges to bring.

And judges have a great deal of discretion, before trial, when the jury is selected, through the trial itself, and after the trial during sentencing. The existence of such discretion makes possible the pervasive and cumulative discrimination faced by many African Americans who come into contact with the criminal justice system. 0

75. Id. 76. SUNY Downstate Medical Center, The Social & Health Landscape of Urban & Suburban America (June 30, 2004), http://www.hsbklyn.edu/ urbansochealthdata/urban.htm (providing that "[t]he murder rate is the ageunadjusted homicide rate per 100,000 population. Homicide includes murder and non-negligent manslaughter, which is defined as the willful (non-negligent) killing of one human being by another and excludes deaths by negligence, suicide or accident.").

77. Id. 78. Id. 79. Id.

80. Charles Ogletree and Matthew 0. Tobriner, Memorial Lecture: The Burdens and Benefits of Race in America, 25 HASTINGS CONST. L.Q. 219, 228 (1998).

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A. CurrentState ofAffairs in Georgia In Georgia, the decision of whether to seek the death penalty is entirely within the discretion of each county's district attorney. 8 An example of this unfettered discretion by a district attorney can be found in the Ocmulgee Judicial Circuit, encompassing eight counties in south central Georgia. Between 1974 and 1991, the district attorney in that circuit sought the death penalty in twenty-eight cases. 82 The defendants were African-American in twenty-two of those cases.

There is presently no judicial or legislative oversight of a district attorney's decision to seek the death penalty. 83 There is no legal recourse to challenge the prosecutor's discretion to seek the death penalty and there is no procedure in place to assure that the decision is not based upon personal or institutional racial prejudices. In recent years, the Georgia General Assembly has insisted on providing mechanisms for the oversight of the fiscal aspects of both the Executive and Judicial Branches of government. The lack of accountability by the district attorneys concerning which cases become death penalty cases should, by itself, lead to a call for at least greater scrutiny of the application of the death penalty statute. The absence of legal checks and balances with regard to this decision has led to international castigation of the United States for ignoring the reality of racial discrimination.

A question raised by the United States Supreme Court in Warren McCleskey's case8 4 is whether the Georgia General Assembly will take steps to ensure that future cases involving imposition of the death penalty be free from contamination by racial bias and prejudice.

Despite the "reservations and declaration" by the United States government that "[T]he U.S. Constitution provides enough protection to citizens with regard to racial discrimination," 85 the Georgia General Assembly should not ignore the historical and current evidence of the 81. O.C.G.A. ยง 17-10-32.1(b) (2007).

82. Id. 83. O.C.G.A ยง 17-10-32.1 (providing that unless the district attorney has given notice that the state intends to seek the death penalty pursuant to the Uniform Rules of the Superior Courts, the judge shall sentence the defendant to life imprisonment.).

84. McCleskey, 481 U.S. at 321.

85. Racial DiscriminationConvention, supra note 29.

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discriminatory application of the death penalty statutes in Georgia.

B. Georgia Should Adopt the Racial Justice Act Some members of the Georgia General Assembly have not been eager to support Georgia's version of the Racial Justice Act.86 Some law makers are reluctant to pass the act because many district attorneys seemingly oppose objective scrutiny of their decisions to pick and choose which defendants will be subjected to the death penalty.87 Some legislators apparently see the Racial Justice Act as unpopular legislation with no voter constituency, except among those who are opposed to the death penalty itself.88 However, the Act is one way to correct and avoid the continuation of racial discrimination in our state.

Positive protective legislation has seemingly always faced an uphill battle in our nation's history just as regressive legislation and judicial decisions have been hard to change once put into place by our courts and legislative bodies.

Throughout our history we have seen pervasively unjust laws receive popular public approval. Not only have unfair laws allowing racial discrimination received popular support, courts have, in the past, affirmed discrimination as a constitutionally sound policy on behalf of individual states. 89 In the 1850's, the United States Supreme Court not only affirmed slavery but declared unconstitutional a law which would have prevented the spread of slavery to the new western states. 90 In 1892, Louisiana

86. See Penalty Changes Unlikely, AUGUSTA CHRONICLE (January 24,

1999), http://chronicle.augusta.com/stories/012499/metLGO414-3.00.shtml.

87. Id. 88. Id. 89. Dred Scott v. Sandford, 60 U.S. 393 (1857).

90. Dred Scott, 60 U.S. 393. Chief Justice Tanney, writing for the majority of the United States Supreme Court, stated: "Upon these considerations it is the opinion of the Court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner with the intention of becoming a permanent resident." Id at 452.

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enacted a law that required separate railway cars for blacks and whites. In an 1896 challenge to that law, Homer Adolph Plessy took a seat in a "whites only" car of a Louisiana train and refused to move to the car reserved for black passengers. 91 He was arrested and convicted. The United States Supreme Court upheld the Louisiana law and enunciated the infamous "separate but equal" doctrine that was not overturned until 1954.92 Unbelievably, we only have to go as far back as the early nineteen-sixties to find proposed civil rights legislation and proposed voters' rights legislation being condemned by many in the general public. In the mid-sixties, many southern states were still enforcing laws which legalized segregation and prohibited African Americans from exercising the right to vote.

Courageous legislators in many southern states and courageous members of the U.S. Congress enacted laws which effectively 93 If did away with the vestiges of legal racial discrimination. those courageous legislators had listened to what was "popular," it is doubtful that the Civil Rights Act of 1964 or the Voting Rights Act of 1965 would ever have been introduced, much less passed.

Notwithstanding the United States government's reservation set forth in the International Convention on the Elimination of All Forms of Racial Discrimination, 94 legislation is needed to help end racial discrimination in death penalty cases. The racial discrimination and bias is real and it continues in Georgia as in the rest of the states which employ the death penalty as a punishment option. United States Supreme Court Justice Harry Blackmun, in 1994, wrote, "Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die." 95 The federal government's own General Accounting Office has found credible evidence that the race of the victim influences the likelihood of a defendant being charged with capital murder or 91. Plessy v. Ferguson, 163 U.S. 537 (1896).

92. Id. 93. See generally DENTON L. WATSON, LION

IN THE LOBBY: CLARENCE MITCHELL, JR.'S STRUGGLE FOR THE PASSAGE OF CIVIL RIGHTS LAW

(William Morrow and Company Inc. 1990).

94. Racial DiscriminationConvention, supra note 29.

95. Callins v. Collins, 510 U.S. 1141 (1994) (Blackmun, J., dissenting from denial of certiorari).

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receiving the death penalty. 96 In other words, those who murder Caucasians are more likely to be sentenced to death than those who murder African-Americans. 9 7 Selecting which individuals are going to be subjected to the death penalty in Georgia is currently in the hands, and hearts, of forty-nine elected district attorneys. There is no oversight, no control, and no recourse from the decisions made by these district attorneys to seek the death penalty. If Georgia is going to ensure "a policy of eliminating racial discrimination in all its forms," as demanded by international treaty obligations as well as by federal and state constitutions, Georgia legislators must step forward and demand oversight of these decisions determining who will live and who will die within our justice system. The continued racially discriminatory use of the power to seek the death penalty in Georgia and our nation at large presents a moral, ethical, and legal crossroad for each member of the Georgia General Assembly, as well as for each citizen.

The implementation of the Georgia Racial Justice Act would not abolish the death penalty in Georgia, but it would be the first giant step toward erasing the historically proven discrimination which exists in the manner in which death penalty cases are selected in Georgia. The citizens of Georgia should expect nothing less from their elected officials.

The Georgia Racial Justice Act should be reintroduced and enacted by the Georgia General Assembly. Currently, there are no safeguards, no protective measures, and no oversight to the use of the death penalty in Georgia. There is a legitimate and intense need for legislation aimed at providing a procedure which will afford defendants sentenced to death legal recourse when there is evidence that the district attorney's decision to seek the death penalty was based upon any racial factor. The passage of this Act will be the first step in flushing racial bias from Georgia's death penalty and will enhance the legitimacy of the procedure. Georgia's General Assembly should adopt this act and remove race as a factor determining whether a defendant should face the death penalty.

96. U.S. GEN. ACCOUNTING OFFICE, supra note 51.

97. Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities,GGD-90-57, (Feb. 1990).

THE RELIGIOUS RIGHTS OF INCARCERATED PERSONS: THE GEORGIA CLERGY PRIVILEGE, RLUIPA, AND THE FREE EXERCISE CLAUSE ROBERT J. D'AGOSTINO*

I. II. III. IV.

Introduction ...................................................................

Issues Considered .........................................................

The Georgia Clergy Privilege Generally .......................

The Georgia Clergy Privilege is Facially U nconstitutional ...........................................................

V. RLUIPA and Free Exercise ............................................

VI. Free Exercise, RLUIPA, and Spiritual Guidance ...........

VII. Prison Authorities Are Not Compelled to Allow Religious Authority to Threaten the Security of P risons .........................................................................

VIII. Legitimate Penological Interests ...................................

IX. The First Amendment and Religious Exercise in P rison .............................................................................

X. The Burden Imposed on Prison Authorities ...................

XI. C onclusion ......................................................................

91 94 96 100 101 113 124 141 14 5 148 149

I. INTRODUCTION

In dealing with religion, as in many other areas of domestic policy, the United States Supreme Court (the "Court") only permits the executive and legislative branches limited discretionary authority. These limits are often unclear and tend to vary over time depending upon the predilections of a ruling * Professor of Law at John Marshall Law School. Professor D'Agostino is widely published on topics ranging from Bankruptcy to Constitutional Law. Thank you to David Willingham, John Marshall class of 2008, for his crucial assistance in the research, writing, and preparation of the manuscript.

Also, thank you to Kerry Simmons, class of 2008, for her research assistance.

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coalition of at least five justices. This is painfully apparent in

the area of the religious rights of incarcerated persons. As is often said, such persons do not forfeit their constitutional rights as a consequence of incarceration,' although limitations may be placed on the exercise of those rights based on the needs of the penal system as ultimately determined by the courts. 2

Monitoring

communicant-spiritual

advisor

discussions, 3

banning books,4 limiting beard length,5 not providing footbaths,6 not accommodating special diets,7 not providing spiritual advisors,8 cutting hair, 9 not transporting prisoners for religious observances,' ° not allowing proselytizing," denying 1. Bell v. Wolfish, 441 U.S. 520, 545 (1979).

2. Turner v. Safley, 482 U.S. 78, 81 (1987) (those limitations must not be extraordinary or beyond the normal range for like offenses); see Meachum v.

Fano, 427 U.S. 215, 225 (1976).

3. See Tramel v. United States, 445 U.S. 40 (1980); see infra text accompanying note 102.

4. See Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) (limiting the number of books available to a prisoner who needed to read a certain number in order to practice his religion a substantial burden).

5. Gooden v. Crain, 405 F.Supp.2d 714 (E.D. Tex. 2005) (beards not fundamental to religious belief for a Muslim. Prison authorities had compelling government interest in having accurate pictures of inmates); Dakar v. Wetherington, 469 F.Supp.2d 1231 (N.D.Ga. 2007) (facial hair prohibited unless medically indicated is permissible).

6. Perez v. Frank, 433 F.Supp.2d 955 (W.D. Wis. 2006) (not providing foot bath opportunities for Muslims 24/7 a mere inconvenience).

7. See Abdul-Malik v. Goord, (S.D.N.Y. 1997) (discussing special diets as a possible burden on scarce prison resources); Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007) (observance of Kosher diet a religious exercise); Madison v. Riter, 240 F.Supp.2d 566 (W.D. Va. 2003), judgment rev'd on other grounds, 355 F.3d 310 (4th Cir. 2003), cert. denied, 545 U.S. 1103 (2005) (prohibiting a Kosher diet a substantial burden); LaFevers v. Saffle, 936 F.2d 1117, 1119-20 (10th Cir. 1991) (prisoners have a constitutional right to a diet conforming to their religious beliefs).

8. See Cruz v. Beto, 405 U.S. 319 (1972).

9. Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) (hair length restrictions must be justified and if justified must be the least restrictive means of serving the interest claimed).

10. Price v. Caruso, 451 F.Supp.2d 889 (E.D. Mich. 2006) (prison authorities might be required to transport prisoners if there is an insufficient number for services).

11. See Spratt v. Rhode Island Dep't of Corr., 482 F.3d 33 (1 1th Cir. 2007) (ban on preaching by inmates is a substantial burden).

No. 1] access

Religious Rights of IncarceratedPersons to

religious

services

as

punishment,12

93 impeding

compliance with rituals required by some religions particularly Islam,' 3 confiscating religious jewelry,1 4 and denying prisoner requests to be segregated according to religious beliefs' 5 are all claimed to place substantial burdens on religious exercise. If these are substantial burdens, prison authorities must defend those actions as being the least restrictive means to further a compelling government interest. And to make matters even more difficult, case law and the Religious Land Use and Institutionalized Persons Act ("RLUIPA")' 6 make clear that strict scrutiny does not only apply to what is fundamental in

religious observances.

When considering the law applicable to the situations above, are RLUIPA, the Free Exercise Clause1 7 and the Georgia Clergy Privilege' 8 cumulative or redundant? This Article demonstrates that in view of RLUIPA and Free Exercise jurisprudence, the Georgia Clergy Privilege is generally superfluous.

When RLUIPA applies, prison authorities must justify any limitations on the free exercise of prisoners under strict scrutiny, rather

than the rational basis test.

Hence, for clerics-broadly

12. See Mayweathers v. Terhune, 328 F.Supp.2d 1086 (E.D. Cal. 2004) (Muslim prisoners were disciplined for missing work assignments to go to religious services). This suggests that prisoners can not be denied religious services absent a compelling government interest specific for the situation; see also Banks v. Havener, 234 F.Supp. 27 (E.D.Va. 1964) (Muslim prisoners were prohibited by practicing their religion after a riot against prison authority).

13. See Shidler v. Moore, 446 F.Supp.2d 942 (N.D. Ind. 2006); Meyer v.

Teslik, 411 F.Supp.2d 983 (W.D. Wis. 2006); Henderson v. Ayers, 476 F.Supp.2d 1168 (C.D. Cal 2007) (these cases involved impeding religious exercises).

14. Charles v. Frank, 101 Fed. Appx. 634 (7th Cir. 2004) (can restrict wearing and size of jewelry, at least, outside of attendance at religious services).

15. See Lee v. Washington, 390 U.S. 333, 334 (1968) (racial segregation absent "the necessities of prison security and discipline" is unconstitutional); Steel v. Guilfoyle, 76 P.3d 99 (Okla. Civ. App. 2003) (Muslim prisoners prayed four times a day outside of his cell. Having to pray once in the company of a non-Muslim is not a substantial burden but merely an inconvenience).

16. 42 U.S.C. §§ 2000cc et. seq.(2007).

17. U.S. CONST. amend. I, § 1.

18. See infra, text accompanying notes 27-28.

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defined-the laws are redundant. For prisoner-communicants, the laws are cumulative since the protections applied to their speech and actions vary depending upon the circumstances and traditions of the religion involved.

Complaints brought pursuant to RLUIPA often also invoke a §1983 action. 19 RLUIPA seems to only allow injunctive relief while a §1983 action provides that persons "shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."'

Even if prison officials may be liable in their individual capacity, qualified immunity provides "complete protection for government officials sued in their capacities if their conduct 'does not violate a clearly established statutory or constitutional right of which a reasonable person would have known."' 2 1 Its purpose is to "allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly 22incompetent or one who is knowingly violating the federal law."

Note that the discussion applicable to RLUIPA, which applies to the states, is also germane to the Religious Freedom Restoration Act ("RFRA"), 3 which applies only to federal prisons, although RFRA unlike RUILPA limits strict scrutiny to the "central tenets" and "mandated" practices of a religion.24 II. ISSUES CONSIDERED

First, is the Georgia privilege statute facially unconstitutional in that it limits the exercise of the privilege to interactions with 19. 42 U.S.C. § 1983 (2003) (Civil action for deprivation of rights).

20. See Dakar v. Ferraro, 475 F.Supp.2d 1325, 1334-38 (N.D. GA 2007),

for a discussion of the availability of monetary damages against prison officials.

21. Vinyard v Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

22. Lee v. Ferraro, 284 F.3d 1188, 1194 (11 th Cir. 2002).

23. 42 U.S.C. §§ 2000bb (2007).

24. Kikumara v. Hurley, 242 F.3d 950 (10th Cir. 2001) (applied RLUIPA

to a request for religious exercise not mandated or compelled). The court held that the burden shifted to the prisoner-plaintiff as to whether the denial

of his non-mandated ritual could be exercised by an alternative method less burdensome on the prison and whether the denial constituted a substantial burden. Id. at 962.

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Christian and Jewish spiritual advisors--clerics and those analogous to clerics? The short answer is yes. However, recent Georgia cases indicate that the limitation to Christian and Jewish spiritual advisors will be ignored when applying the privilege.

Second, does the privilege statute really make any difference to free exercise rights in view of RLUIPA and the Supreme Court's Free Exercise jurisprudence? The answer is no in the context of incarceration, although when it applies it serves as a protection against compelled testimony.

Third, is the limitation of the privilege to matters of spiritual guidance constitutionally valid? That answer is yes, with two caveats.

The sacrament of Confession recognized by the Roman Catholic Church may under the Court's rulings dealing with accommodating religion and its willingness to take into account differences in religious practices in protecting free exercise, make it too limiting for Roman Catholic clerics. A similar sacrament is recognized in certain Anglican confessions.

In addition, under RLUIPA and the Free Exercise Clause, the privilege may be too limiting in its protective reach.

Fourth, in view of the Court's limitation on the ability of Congress to expand rights beyond what the Court decides are constitutional rights, is RLUIPA's imposition of the strict scrutiny/compelling government interest test for limits on free exercise in prisons an expansion of the historic view of the Court that such restrictions must only pass the rational basis test? The Court seems content with allowing this expansion of its religious accommodationist jurisprudence, 2 5 at least when tied to the spending power or Commerce Clause. At the same time, the "substantial burden" language of RLUIPA, which triggers the least restrictive means, may be given a flexible interpretation.

Fifth, may prison authorities act differently towards literature provided by and practices engaged in by clerics of different religions based upon whether they are consistent with prison security concerns? This implicates the jurisprudence of closed forums, speech potentially inciting behavioral breeches, and speech inciting to criminal activity. It will surprise no one familiar with the Court's decisions that this question may be

25. See infra text accompanying notes 48-76.

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unanswerable until the Court fashions its latest constitutional interpretation. It is a safe bet, however, that facially violent literature meant to be immediately acted upon and religious speech advocating immediate proscribed action or such literature or speech that has led to such action can be banned despite any claim of substantial burden.

Sixth, may prison authorities take into account the allegedly violent and separatist nature of certain religious literature, including passages in the Quran and hadith,26 and treat such texts differently than the Christian Bible and Jewish Scriptures?

This question is related to prior questions raised in issues four and five above. One likely result is the elimination by prison authorities of much religious literature in an attempt to be "neutral."

This may well result in the elimination of constitutionally protected expression and raise issues of priorrestraint as well as run afoul of the RLUIPA requirement that limits on religious expression be accomplished by the "least restrictive" means. Alternatively, if RLUIPA does not apply, neutrally applied regulations-that is, regulations that are not directed at religious free speech-may well pass the reasonableness test.

Ill. THE GEORGIA CLERGY PRIVILEGE GENERALLY

Georgia's statutory clergy privilege reads as follows: Communication to ministers, priests and rabbis: Every

communication made by any person professing religious faith, seeking spiritual comfort, or seeking counseling to any Protestant minister of the Gospel, and priest of the Roman Catholic faith, any priest of the Greek Orthodox Catholic faith, any Jewish rabbi, or to any Christian or Jewish minister, by whatever name called, shall be deemed privileged. No such minister, priest, or rabbi shall disclose

any communications made to him by any such person professing religious faith, seeking spiritual guidance, or seeking counseling, nor shall such minister, priest, or rabbi be competent or compellable to testify with reference to any 27 such communication in any court.

Whether this statute is actually an evidentiary competency 26. See infra text accompanying notes 174-202.

27. O.C.G.A. ยง 24-9-22 (2007).

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28 statute, rather than a privilege statute, will be left to others.

The definition of cleric will be assumed to refer to those persons recognized by a religious faith as spiritual leaders even if not formally members of an established clergy. The statute clearly distinguishes between those religious beliefs that are traditionally thought of as the basis of Western Civilization and those that are not. 29 In short, it privileges Christianity and Judaism while ignoring other religions, inviting a facial challenge.

Perhaps, when the privilege was statutorily established in 1951, other religions, such as Islam, were not on the legislative radar screen or were considered not worthy of notice-cults of various sorts. As applied, however, Georgia 3° courts likely will ignore the limitations.

The privilege covers communications "professing religious faith, seeking spiritual comfort" and after a 1986 amendment, to those "seeking counseling" or more generally, spiritual guidance. This raises interesting issues with regard to Muslim clerics and those Muslims who serve in positions roughly analogous to Christian clergy or Jewish rabbis, particularly with regard to service as chaplains in prisons, since Islam provides its adherents with an all-encompassing set of rules without any separation of the secular and the sacred.3 1

28. See Sec. Life Ins. Co. v. Newsome, 176 S.E.2d 463 (1970) (dicta in concurring opinion states that statute creates an incompetency that cannot be waived); but, see, Alpharetta First United Methodist Church v. Stewart, 472 S.E.2d 532 (1996) (where the Georgia court treated the clergy-parishioner communication as a waivable privilege.).

29. See, e.g., CHRISTOPHER DAWSON, THE HISTORIC REALITY OF CHRISTIAN CULTURE (1965); M. STANTON EVANS, THE THEME IS FREEDOM: RELIGION, POLITICS, AND THE AMERICAN TRADITION (Regnery Publishing, 1994); ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 316 (Vintage,

1955 Vol. 1) ("There is no country in the world where the Christian religion retains a greater influence over the souls of men than in America... it must be regarded as the first of their political institutions, for if it does not impart a taste for freedom it facilitates the use of it...").

30. Parnell v. State, 581 S.E. 2d. 263, 264 (2003); Morris v. State, 571 S.E. 2d. 358 (2002). Both cases referred to a clergy person privilege without the words of limitation in the statute.

31. Islam means "submission." One who has so submitted is a Muslim.

F.E. PETERS, THE MONOTHEISTS: JEWS, CHRISTIANS AND MUSLIMS IN

CONFLICT AND COMPETITION 90 (Princeton University Press, 2003); see infra text accompanying note 202.

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The restriction of the privilege to spiritual guidance is illustrated in Parnell v. State,32 wherein a criminal defendant admitted his participation in a home invasion to a minister not in the context of seeking spiritual guidance. Therefore, the statements were not privileged.33 If, however, the admission was made to a Roman Catholic priest during the sacrament of Confession, the privilege may have been held to be too limiting under the Free Exercise Clause. Generally a privilege belongs to the alleged wrongdoer, that is, a person seeking spiritual guidance. In Georgia, because written as an evidentiary incompetency statute, it is an open question as to whether the privilege can be waived by the wrongdoer or even if waived by the wrongdoer, whether the clergyman could testify. In other jurisdictions, the privilege is waivable by the person seeking spiritual guidance. Under the Free Exercise Clause, religious observance is accommodated, protecting both the person seeking guidance and the cleric exercising religious duties, such as keeping confidential what is said during a Roman Catholic Confession even if not for the purpose of spiritual guidance.

Thus, even in the absence of a statutory privilege, certain communications are protected from discovery.

Georgia has two constitutional provisions protecting religious observance. One provides for "Freedom of conscience." It states: Each person has the natural and inalienable right to worship God, each according to the dictates of that person's own conscience; and no human authority should, in34 any case, control or interfere with such right of conscience.

The others, entitled "Religious opinions; freedom of religion" provides that: No inhabitant of this state shall be molested in person or property or be prohibited from holding any public office or trust on account of religious opinions; but the right of freedom of religion shall not be so construed as to excuse acts of licentiousness or justify,3practices inconsistent with the peace and safety of the state.

32. Parnell v. State, 581

S.E.2d 263 (2003).

33. Id. at 214.

34. GA. CONST. art. 1, ยง 1, 3.

35. GA. CONST. art. I, ยง 1, 4.

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The Georgia Constitution does riot differentiate according to whether one professes Christianity or Judaism on one hand or another religion such as Islam or Hinduism on the other hand.

The Georgia clergy privilege statute, but not the Georgia Constitution, is facially discriminatory.

By favoring Christianity and Judaism, prison authorities could interfere with, for example, a Muslim prisoner's rights, of conscience which could entail certain means of worship and the reading of certain literature. Any such restrictions, pursuant to the Georgia Constitution, must be justified under the limitations set forth in article I, section 1, paragraph 4. Relying on the United States and Georgia Constitutions, the Supreme Court of Georgia held that: While there is no power to control what a person may believe about religion or the type of religion he may adopt or profess, yet there is a power under the law to limit his acts, even though to do such acts may be part of his religious belief. The constitutional guarantee of the exercise of religious freedom does not extend to acts which are inimical to the peace, good order, and morals of society . . . A

person's right to exercise religious freedom, which may be manifested by acts, ceases where it overlaps and transgresses the rights of others. Every one's rights 6 must be exercised with due regard to the rights of others.

Applying this principle and citing the police power, the Supreme Court of Georgia upheld a regulation restricting the time and places for a religious group to sell literature on a public street, which interfered with the purpose of the street, that is, for the passage of persons and the transportation of goods. 37 Similar time, place, and manner restrictions may be placed on prisoners as well.

And, as a general proposition the Court, through the Spending Clause and via the Fourteenth Amendment of the U.S. Constitution, applies federal standards to issues of free exercise.

The standard to be met-strict scrutiny or rational basis-may differ according to which route controls.

36. Jones v. City of Moultrie, 27 S.E.2d 39, 42 (1943).

37. Id. at 43.

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IV. THE GEORGIA CLERGY PRIVILEGE IS FACIALLY UNCONSTITUTIONAL

If the Georgia Clergy privilege statute is violative of the current religion clauses jurisprudence, it would be subject to a challenge as being facially unconstitutional if applied only to Christians and Jews. In Everson v. Board of Education, the United States Supreme Court stated: Neither can [a state nor the Federal Government] pass laws which aid one religion, aid all religions, or prefer one religion over another.

.

. In the words of Jefferson, the

clause against established religion by law was intended to erect "a wall of separation between Church and State."

Further, "[t]hat wall must be kept high and impregnable. We could not approve the slightest breach. 38 The Court quoted from the letter by Thomas Jefferson to Danbury Baptist Association (Jan. 1, 1802). Jefferson also wrote in the same letter "that the legislativepowers of government reach actions only, and not opinions...

In Sherbert v. Vernon, 40 the Court applied the strict scrutiny/compelling state interest test to any state action infringing on free exercise.

In Sherbert, a Seventh Day Adventist was fired for refusing to work on a Saturday, the Sabbath for that faith. According to the Court, this amounted to a penalty for the exercise of religious liberty, thus establishing a religious exemption from otherwise neutral generally applicable laws. 4' In Board of Education of Kiryas Joel v. Grumet,42 the Court reiterated its ban on favoring one religion over another or religion over non-religion citing the Establishment Clause,43 although, the Court pursuant to the Sherbert reasoning allows government to accommodate religion citing the Free Exercise Clause." Hence, a government may make distinctions among 38. Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947).

39. Id. at 18.

40. Sherbert v. Verner, 374 U.S. 398, 404-05 (1963).

41. Id.

42. Bd. of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687 (1994).

43. Id. at 696.

44. Sherbert, 374 U.S. 398; see also Charles v. Verhagon, 348 F.3d. 601

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religious groups if necessary to accommodate a particular religious practice not threatening a compelling government interest. But if a governmental action benefits one religion as opposed to others, that action must satisfy strict scrutiny. This allows an accommodation if all religions are equally affected or, if necessary, to accommodate a particular religious practice without discriminating against other religions, if the government act is neutral in effect. In this way, the Court avoids decision-making under the Establishment Clause while deciding cases under the Free Exercise Clause.

The distinction between the two clauses is apparent - a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.... To be sure, the endorsement test depends on a sensitivity to the unique circumstances and context of a particular challenged practice and, like any test that is sensitive to context, it may not always yield results with unanimous agreement at the margins. But that is true of many standards in constitutional law, and even the modified coercion test offered by Justice45Kennedy involves judgment and hard choices at the margin.

In fact, RLUIPA provides that its provisions do not affect Establishment Clause jurisprudence.4 6 Clearly, the Georgia clergy privilege but not the Georgia Constitution discriminates among religious beliefs without any factual predicate for such discrimination. This favoritism could conceivably have a coercive effect on prisoners seeking acceptance by other prisoners, giving added support to a finding of a violation of the Establishment Clause as well as an unacceptable burden on free exercise.4 7 V. RLUIPA AND FREE EXERCISE The limitation to Christian clergy and Jewish rabbis is inconsistent with the Georgia Constitution, as discussed above.

(7th Cir. 2003) (RLUIPA merely accommodates and protects free exercise which the Constitution permits).

45. Sch. District of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 223 (1963).

46. 42 U.S.C. ยง 2000cc-4.

47. Everson, 330 U.S. at 15-16.

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Since the statute itself is discriminatory, it violates the second prong of the Lemon v. Kurtzman48 test in that it advances Christianity and Judaism while inhibiting other religions.4 9 In effect, the statute is an endorsement of two religions which constitutes an Establishment Clause violation.

To accommodate religion is not to endorse any religion. The opinion of Justice O'Connor in Allegheny, 50 concurring in part and concurring in the judgment, specifies that the government "avoid endorsing religion or favoring particular beliefs over others.", 51 O'Connor seemed concerned with affirmative acts by the government. It is hard not to characterize the Georgia privilege as an affirmative act favoring Christianity and Judaism. The Establishment Clause instead of supporting the Free Exercise Clause as the Founders intended, becomes a limitation on religious free speech. According to the Supreme Court, the state has a compelling interest in avoiding an Establishment Clause violation.52 The Court seemed to shift between the strict separation language illustrated by Everson5 and the neutrality language of Kiryas Joel54 for Establishment Clause purposes as compared

with the accommodationist approach for Free Exercise Clause purposes. The Court then decided Employment Dept. of Human Resources of Oregon v. Smith.55 Congress, responding to Smith wherein ".

. the Supreme Court virtually eliminated the

requirement that the government justify burdens on religious exercise imposed by laws neutral towards religion" 56 passed 48. Lemon v. Kurtzman, 403 U.S. 602 (1971).

49. Id. at 612.

50. County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989).

51. Id. at 631.

52. RLUIPA does not violate the Establishment Clause. It has a legitimate secular purpose of minimizing government entanglement with religion even though it provided for strict scrutiny review for prisoners' religious rights while excluding other fundamental rights from such review. Madison v.

Ritter, 355 F.3d 310 (4th Cir. 2003) cert. denied, 125 S.Ct. 2536 (2005).

53. Everson, 330 U.S. 1.

54. Kiryas Joel, 512 U.S. 687.

55. Employment Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

56. 42 U.S.C. ยง 2000bb(a)(4).

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RFRA, mandating the compelling interest test for striking sensible balances between religious liberty and competing governmental interests which, in essence, required the government to take an accommodationist approach towards religion. The Supreme Court responded by declaring the Act unconstitutional as applied to state and local governments as an attempt by Congress to create new rights or expand the scope of rights which, according to that eminent tribunal, is beyond Congress' power under Section 5 of the Fourteenth Amendment.5 8 The Court's opinions, including the dissents, emphatically iterated the supremacy of the Supreme Court when it comes to the recognition of rights.5 9 The Court held that legislation passed pursuant to Section 5 of the Fourteenth Amendment must be "proportionate" and "congruent," as defined by the Court, to the constitutional violation to be remedied.6 ° Justice O'Connor's dissent raised the issue of whether Smith was wrongly decided, in that it rejected strict scrutiny for challenges to laws of general applicability that burdened religion, at least in the area of criminal violations. 6 1 On its face, Smith seemed inconsistent with Sherbert6 2 and Wisconsin v.

Yoder. 63 In Smith, unlike Sherbert, a criminal law was violated by communicants to the Native American Church, which led to their dismissal from employment. The Court, while reiterating the unconstitutionality of a government targeting "acts or abstentions only when they are engaged in for religious reasons," also said that when "prohibiting the exercise of religion.. .is not the object... but merely the incidental effect..

57. 42 U.S.C. §§ 2000bb et seq.

58. City of Boeme v. Flores, 521 U.S. 507, 519 (1997) ("The design of

the [Fourteenth] Amendment and the text of [Section] 5 are inconsistent with the suggestion that congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the states. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause.").

59. See, e.g., id. at 519 (opinion of Kennedy, J.); id. at 545 (O'Connor, J., dissenting) ("In short, Congress lacks the ability independently to define or expand the scope of constitutional rights by statute.").

60.

61.

62.

63.

Id. at 519-20.

Id. at 544-45 (O'Connor, J., dissenting).

Sherbert, 374 U.S. at 404-05.

Wisconsin v. Yoder, 406 U.S. 205 (1972).

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.the First Amendment has not been offended."' 4 The Court cited Reynolds v. United States65 and distinguished Smith from Sherbert on the basis that Smith involved a criminal law violation which the state does not have to accommodate under Reynolds.66 This, in a sense, marked a return to the conscience/acts dichotomy of 1 9 th Century jurisprudence, with the caveat that that jurisprudence privileged Christianity which would not pass constitutional muster today. 67 Smith arguably replaced strict scrutiny with the rational basis test which was the test historically used to judge prison regulations. This was the view of Congress when Congress first passed RFRA in 1993 and then RLUIPA in 2000. The stated purpose of RFRA is to "restore the compelling interest test as set forth in Sherbert v.

Verner and Wisconsin v. Yoder" and to guarantee its application in all cases where free exercise is substantially burdened.68 In Yoder, like Smith, the violation of state law was criminal, but unlike Smith the issue of whether the Amish could violate the compulsory education laws was considered a matter fundamental for the free exercise of the Amish's religion rather than merely incidental. In other words, the belief was sincerely held, central, and forced a choice between a religious mandate and adherence to a secular law.

Justice Scalia's concurring opinion in City of Boerne v.

Flores69 took issue with the view that Smith departed from previous Court holdings, pointing out that the Smith majority and dissent were really not that far apart. Justice Scalia stated that: Assuming, however, that the affirmative protection of religion accorded by the early "free exercise" enactments sweeps as broadly as the dissent's theory would require, those enactments do not support the dissent's view, since 64. Smith, 494 U.S. at 878.

65. Reynolds v. U.S., 98 U.S. 145 (1878).

66. Smith, 494 U.S. at 884-885.

67. See Lynch v. Donnelly, 465 U.S. at 718 (Brennan, J., dissenting).

Brennan, in dissenting, distanced the Court from "Christian Nation," stating that it would be "a long step backwards to the days when Justice Brown could arrogantly declare for the Court that this is a Christian nation." Id. (citing Church of the Holy Trinity v. U.S., 143 U.S. 457, 471 (1892)).

68. 42 U.S.C. ยง 2000bb(b)(1).

69. City of Boerne, 521 U.S. at 537.

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they contain "provisos" that significantly qualify the affirmative protection they grant. According to the dissent, the "provisos" support its view because they would have been "superfluous" if "the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience." . .. I disagree. In fact, the most plausible reading of the "free exercise" enactments (if their affirmative provisions are read broadly, as the dissent's view requires) is a virtual restatement of Smith: Religious exercise shall be permitted so long as it does not violate general laws 70 governing conduct.

While affirming Smith, that as a "general proposition.., a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice," the Court in Church of Lukimi Babala Aye, Inc. v.

Hialeah71 struck down a law aimed at a specific religious practice of a specific religion, stating that such a law "must be justified by a compelling interest and must be narrowly tailored to advance that interest. 7 2 Reacting to this legislative mess created by the Court, Congress passed RLUIPA to require strict scrutiny for free exercise claims. The Act provides in relevant part: Protection of religious exercise of institutionalized persons: (a) General rule - No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive 73 means of furthering that compelling governmental interest 70. Id. at 539.

71. Church of Lukimi Babala Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).

72. Id.

73. 42 U.S.C. ยง 2000cc-l(a)(l)-(2); see Christine M. Peluso, Cong. Intent v. Judicial Reality: The Practical Effects of the Religious Land Use and InstitutionalizedPersons Act of 2000, 6 RUTGERS J. L. & RELIGION 5 (2004)

(for a history leading to the enactment of RLUIPA). The Court upheld this law from an Establishment Clause challenge to it as impermissively favoring religion over non-religion citing its current accommodationist jurisprudence.

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RLUIPA requires strict scrutiny when a statute or regulation burdens religion involving land and institutionalized persons.

The first is not germane to this discussion. The authority to regulate in the second area is based on the federal government's spending power.7 4 Under Smith, the Free Exercise Clause cannot be used to challenge neutral state and local laws of general application. RLUIPA, applicable to the states, requires strict scrutiny of state and local enactments burdening the free exercise of religion by institutionalized persons including prisoners if federal spending or the Commerce Clause is involved. In effect, RLUIPA imposed the Sherbert-Yoder test to "any exercise of religion, whether or not compelled, or central to a system of religious belief'75 if the state action results in a substantial burden on free exercise.

The legislative history of RLUIPA defines "substantial burden by reference to Supreme Court jurisprudence. 7 6 The legislative rules of construction provide that "[t]his Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution., 7 7 In protecting religious exercise, the Court has articulated various definitions of substantial burden. They include instances when a government puts "substantial pressure on an adherent to modify his behavior and to violate his See Cutter v. Wilkerson, 544 U.S. 709 (2005).

74. See Chapinsky v. New Hampshire, 315 U.S. 568, 572 (1942). The deference to Congress when acting pursuant to its spending power is demonstrated in United States v. American Library Association, 539 U.S. 194, 195-96 (2003), where the Court permitted Congress to require public libraries to use internet filtering software as a condition for receiving federal funds. The Court's plurality stated, "[t]o fulfill [the libraries] traditional missions of facilitating learning and cultural enrichment, public libraries must have broad discretion to decide what material to promote to new patrons." Id. The plurality further remarked that "heightened judicial scrutiny" is "incompatible with the broad discretion that public libraries... have to consider content..." but the libraries are not public forums and even if some constitutionally protected speech is blocked, the government in providing funds to a program is "broadly" entitled to define the programs limits" Id. (citing Rust v. Sullivan, 500 U.S. 173 (1991)).

75. 42 U.S.C. ยง2000 cc-5(7)(A); Cutter v. Wilkerson, 544 U.S. 704, 715

(2005).

76. 146 Cong. Rec. ยง 7776 (July 27, 2000).

77. 42 U.S.C. ยง2000cc-3(g).

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beliefs, ' 78 and when an individual is required to "choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion... on the other." 79 The Court also held that there was no substantial burden where government action interfered with, but did not coerce, an individual's religious beliefs.8 ° Of similar reasoning was the opinion in Lyng v. Northwest Indian Cemetery ProtectiveAss 'n.8 The Court explained that a tendency not to coerce translates Lyng dealt with the federal to no substantial burden. government's plans to harvest timber and build a highway through part of a National Forest used for religious purposes by members of three Native American religions. The members claimed that the noise and pollution from the highway would "diminish the sacredness of the area" 82 and interfere with the religious experience of the members using the area. The Court rejected the position that "incidental effects of government programs, which may make it more difficult to practice certain religions but which has no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. 8 3 This is distinguishable from Thomas v. Review Bd. of Indiana Employment Sec. Division,84 where rather than merely interfering with a religious exercise, the state conditioned the receipt of a benefit upon conduct proscribed by the adherent's religious faith.85 Similarly, in Sherbert the state regulation tended to inhibit, 86not merely interfere with a constitutionally protected activity.

78. Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 141 (1981).

79. Sherbert, 374 U.S. at 404.

80. Bowen v. Roy, 476 U.S. 693, 707-08 (1986).

81. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988).

82. Id. at 448.

83. Id. at 450-51.

84. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707(1981).

85. Id. at 717-18.

86. Sherbert, 374 U.S. at 406 n.6.

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In applying the Court's definitions, the lower federal courts have not been entirely consistent. In Murphy v. Missouri Dept. of Corrections,87 a prisoner-member of the Christian Separatist Church Society, which maintains that Caucasians are uniquely blessed and must segregate themselves from non-Caucasians, challenged the denial by prison officials of group worship services. 88 This matter was initially remanded to the district court 89 and is again on appeal. Murphy alleged that: [D]enial of his request violated the Establishment Clause, the Equal Protection Clause, RLUIPA, and his right to the free exercise of religion. Murphy also alleged that the appellees violated his right to free speech when, pursuant to the MDOC's censorship policy, prison officials refused to provide him with Issue # 36 of 'The Way,' a CSC publication that Murphy received in the mail. . . [W]e reversed the district court's grant of summary judgment only RLUIPA and First Amendment free speech on Murhy's 9 claims.

Murphy's RLUIPA claim was based on a jury instruction as follows: Your verdict must be for the plaintiff on his religious exercise claim against the defendants if all of the following elements have been proved by the greater weight of the evidence: First, Plaintiff requested racially-segregated group services for the Christian Separatist Church; and Second, Defendants denied racially-segregated services for the Christian Separatist Church; and

group

Third, Racially-segregated group services are a sincerely held tenet or belief central or fundamental to Christian Separatist Church doctrine; and Fourth, Plaintiffs right to freely exercise his sincerely held religious beliefs is substantially burdened by the denial of 87. Murphy v. Missouri Dep't of Corr., 506 F.3d 1111 (8th Cir. 2007).

88. Id. at 1114.

89. Murphy v. Missouri Dep't of Corr., 372 F.3d 979, rehearing and rehearingen banc denied (2004) cert. denied 843 U.S. 991 (2004).

90. Murphy, 506 F.3d at 1114.

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racially-segregated Separatist Church.

group

services

for

the

109

Christian

A "substantial burden" must be more than just an inconvenience.

A "substantial burden" is instead government conduct that pressures the plaintiffto commit an act forbidden by his religion or prevents him from engaging in conduct mandated by his faith. However, your verdict must be for the defendants if any of the above elements has not been proved by the greater weight of the evidence or if the defendants are entitled to a verdict under [the next] Instruction. (emphasis added).

The appeals court although citing Murphy's argument that RLUIPA does not require the restricted religious exercise to be central or mandated, 9 held that it is necessary to show that the existence of a sincerely held tenet or belief that is central or fundamental to an individual's religion is a prerequisite to a "substantially burdened" claim under RLUIPA.9 2 The court pointed out that: In Murphy I, we explained that, to constitute a substantial burden, the government actions must significantly inhibit or constrain conduct or expression that manifests some central tenet of a [person's] individual [religious] beliefs; must meaningfully curtail a [person's] ability to express adherence to his or her faith; or must deny a [person] reasonable opportunities to engage in those activities that are fundamental to a [person's] religion. . . We additionally implied that the religious belief must be sincerely held. 93 Perhaps what the court meant is that even if a practice is not central or mandated, if it is central for an individual's exercise, it implicates RLUIPA. In attempting to clarify what a substantial burden on religious exercise is, the Fifth Circuit requires answers to two questions: (1) Is the burdened activity "religious exercise," and if so (2) is the burden "substantial?" 94 They stated: The plaintiff has the burden of persuasion on whether the challenged government practice substantially burdens the 91.

92.

93.

94.

See 42 U.S.C. ยง2000cc-5(7)(A).

Murphy, 506 F.3d at 1115.

Id. at 1116 n.7.

Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004).

110

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plaintiffs exercise of religion. Once the plaintiff establishes this, the government bears the burden of persuasion that application of its substantially burdensome practice is in furtherance of a compelling governmental interest 9 5 and is the least restrictive means of furthering that interest.

Adkins rejected Murphy insofar as it adopted the substantial burden test as only applicable to central or mandated religious exercise as is the situation under RFRA.9 6 Citing to Sherbert and Thomas,9 7 the Fifth Circuit defined substantial burden as: Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on98an adherent to modify his behavior and to violate his beliefs.

If the incidental effects of a government's actions are only to make "it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs," then the government has no duty "to bring forward a compelling justification for its otherwise lawful actions." 99 The Fifth Circuit claimed its reading of RLUIPA on the issue of substantial burden is consistent with the Seventh Circuit' 0 0 and the Ninth Circuit.' 0 The Eleventh Circuit reviewed its "substantial burden" 102 jurisprudence in Midrash Sephardi,Inc. v. Town of Surfside:

95. Id. at 567 (citing 42 U.S.C ยง 2000cc-2; 146 CONG. REc. ยง7776 (July 27, 2000)).

96. Id. at 567.

97. Thomas, 450 U.S. 707.

98. Adkins, 393 F.3d at 569.

99. Id. 100. See Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003), cert. denied, 541 U.S. 1096 (2004) ("[I]n the context of the RLUIPA's broad definition of religious exercise, a ... regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for effectively impracticable"). rendering religious exercise ...

101. San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) (substantial burden as one that imposes a significantly great restriction as ones upon such experience).

102. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (1 th Cir. 2004), cert. denied, 573 U.S. 1146 (2005).

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We have held that an individual's exercise of religion is "substantially burdened" if a regulation completely prevents the individual from engaging in religiously mandated activity, or if the regulation requires participation in an activity prohibited by religion. See Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995) (applying the Religious Freedom Restoration Act, we found no substantial burden when religion did not require particular means of expressing religious view and alternative means of religious expression were available); Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater,2 F.3d 1514, 1550 (1lth Cir. 1993) (finding a substantial burden when regulation had the effect of mandating religious conduct)... The combined import of these articulations leads us to the conclusion that a "substantial burden" must place more than an inconvenience on religious exercise; a "substantial burden" is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly. Thus, a substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure 03 that mandates religious conduct. 1 Perhaps the most comprehensive review of substantial burden was attempted by the Third Circuit, which defined the concept in Washington v. Klein. °4 A practitioner of the Children of the Sun Church claimed that a restriction on the number of books allowed in his cell substantially burdened his free exercise since the reading of a certain number of cult related books was "in essence the religion itself."'' 0 5 The limitation was justified based upon security, hygiene, and safety reasons.10 6 In making its decision, the Third Circuit adopted the "disjunctive test" that couples the holdings of Sherbert and Thomas.

For the purposes of RLUIPA, a substantial burden exists where: 1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; or 2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his 103. Id. at 1227.

104. Washington v. Klem, 497 F.3d 272 (3d Cir. 2007).

105. Id. at 275.

106. Id.

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beliefs.107

In criticizing Murphy and rejecting Lyng, the Third Circuit adopted the Adkins standard for substantial burden, which incorporates the holdings of both Sherbert and Thomas. The Third Circuit went on to say: This [Adkins] definition accords with ยง 5(g) of RLUIPA and the statute's legislative history in that it recognizes that Congress intended to create a broad definition of substantial burden. We recognize that this definition is narrower than the dictum in footnote six of Sherbert and the negative implication of Lyng, but is still broad enough to accurately reflect the statute's plain text and to effect its purpose.

Using an expansive definition of "substantial burden" derived from language not essential to the holdings of either Sherbert or Lyng poses at least two problems. First, postSherbert, the Supreme Court has not squarely adopted its dictum in footnote six of Sherbert as a holding in a Free Exercise or RLUIPA case. Second, there is reason to question whether Lyng can be read to hold that any incidental effect of a government program which may have some tendency to coerce individuals into acting contrary to their religious beliefs satisfies the substantial burden standard. Such a reading fails to take into account that the discussion of "substantial burden" in Lyng occurred while the Court approvingly discussed Sherbert and Thomas. The "any incidental effect/some tendency" standard would also conflict with other statements in Lyng where the Court decided whether the Government's actions constituted a substantial burden. See Lyng, 485 U.S. at 451, 108 S. Ct. 1319 (no substantial burden even though "we can assume that the threat to the efficacy of at least some religious practices is extremely grave"); Id. at 452, 108 S. Ct. 1319 ("However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires. ").

Applying the above definitions, the Third Circuit held that the limitation on books for the prisoner was "a substantial burden because it inhibits his ability to read [the requisite

107. Id. at 280; see also Spratt v. Rhode Island Dep't of Corrs., 482 F.3d 33 (1st Cir. 2007); Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006).

108. Washington, 497 F.3d at 280.

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number of] new books a day."' 9 The burden shifts to the government to show that this restriction must serve a compelling government interest and is the least restrictive means of furthering that interest. 110 In recognizing a compelling government interest, the Klem court then stated that "[e]ven in light of the substantial deference given to prison authorities, the mere assertion of security or health reasons is not, by itself, enough for the Government to satisfy the compelling governmental interest requirement. Rather, the particular policy must further this interest."1 1' 1 In analyzing the policy, the court pointed out that the prison authorities had several other options in dealing with their 2security concerns and could have accommodated the prisoners."I The circuits considering the substantial burden test all cite to Cutter." 3 Cutter involved a challenge under RLUIPA from adherents of non-mainstream religions to Ohio prison practices.

The Court, citing Kiryas Joel, 1 4 made plain that RLUIPA must be "administered neutrally among different faiths.""..5 To be consistent with Supreme Court precedent, RLUIPA does not allow officials to differentiate among bona fide faiths. "It confers no privileged status on any particular religious sect, and ' 16 singles out no bona fide faith for disadvantageous treatment." "

VI. FREE EXERCISE, RLUIPA, AND SPIRITUAL GUIDANCE Although proposed Federal Rule of Evidence 506,1 17 providing for a federal clergy privilege, was rejected, current Federal Rule of Evidence 501 provides: Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules 109.

110.

111.

112.

Id. at 282.

Id. at 282; see 42 U.S.C. ยง2000cc-2(b).

Klem, 497 F.3d at 282.

Id. at 285-86.

113. Cutter v. Wilkerson, 544 U.S. 709 (2005).

114. Kiryas Joel, 512 U.S. 687.

115. Cutter, 544 U.S. at 720.

116. Id. at 724.

117. See CHARLES ALAN WRIGHT AND KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE, ยง5612 Chapter 6, Privileges: Rejected Rule 506, Penitent's Privilege (2007).

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prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law." 8 Although the privilege is to be determined in accordance with state law, such privilege cannot limit free exercise rights nor can the state apply less than strict scrutiny to the exercise of religion by prisoners if federal aid is involved. Support for the view that a privilege cannot limit a statute or constitutional provision comes from this statement by Justice Scalia in his City of Boerne concurring opinion: The closest one can come in the period prior to 1850 is the decision of a New York City municipal court in 1813, holding that the New York Constitution of 1777, required acknowledgement of a priest-penitent privilege, to protect a Catholic priest from being compelled to testify as to the contents of a confession. People v. Phillips, Court of General Sessions, City of New York (June 14, 1813), excerpted in Privileged Communications to Clergymen, 1 Cath. Lawyer 199 (1955). Even this lone case is weak authority, not only because it comes from a minor court, but also because it did not involve a statute, and the same result might possibly have been achieved (without invoking constitutional entitlement) by the court's simply modifying the common-law rules of evidence to recognize such a privilege.119

The federally recognized common law privilege generally provides that a communication is privileged if it is made to a cleric for spiritual guidance with a reasonable expectation of privacy. This is analogous to the Georgia privilege.

From all of the foregoing, some variation of a clergy privilege will be recognized under Georgia state law, if not by statute then the Georgia Constitution, and as mandated by the

118. FED. R. EVID. 501.

119. City of Boerne, 521 U.S. at 543 (emphasis added).

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Free Exercise Clause as an accommodation to religion. In fact, the Georgia statute and the Georgia Constitution do not go far enough with regard for the Roman Catholic sacrament of Confession.

The Georgia privilege is consistent with U.S. constitutional and common law in that it covers communications "professing religious faith, seeking spiritual comfort" and after a 1986 amendment, to those "seeking counseling" or as stated above the privilege extends to spiritual guidance.' 20 Although notions of spiritual guidance in the Christian or Jewish faiths is based on familiarity with those faiths, that is not necessarily so for the Muslim faith. 12 1 Free exercise is not merely a question of spiritual guidance.

In this respect the protection afforded spiritual guidance which is held to be a compelling government interest along with the imposition of the compelling interest test for interference with free exercise are cumulative. Courts have determined that for an action to be successfully challenged under RLUIPA (1) the burden must fall on a sincerely held religious belief rather than a philosophy or lifestyle, and (2) it must prevent the adherent from engaging in conduct or having a religious experience, if not central, then important to free exercise. If central or mandated, prison authorities would be hard pressed to comply with RLUIPA by providing alternative means without demonstrating a compelling government interest needing prompt action.

For example, the compelling government interest of maintaining control over prison inmates justified authorities handcuffing of inmates during a scheduled prayer service when a confrontation between the Muslim chaplain and prison officers became heated. 2 2 Inconvenience to a religious

120. O.C.G.A. ยง 24-9-22 (2003).

121. The Five Pillars of Sunni Islam are mainly concerned with mandated acts. They are: (1) Profession of Faith; (2) Ritual Prayer Five Times Per Day; (3) Fasting During Ramadan; (4) Tax on the Community for support of the poor; and (5) Pilgrimage to Mecca (hajj). Shiites recognize additional pillars or practices which include jihad and doing good. F.E. PETERS, THE MONOTHEISTS:

JEWS,

CHRISTIANS

AND

MUSLIMS

IN

CONFLICT AND

Vol. II at 107 (Princeton University Press 2003); Wikipedia.org/wiki/FivePillars-of Islam.

122. Asad v. Bush, 170 Fed. Appx. 668 (1 1th Cir. 2006) (prison officials were reasonable in anticipating imminent danger).

COMPETITION,

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belief, not central,23 makes it more difficult to establish a substantial burden.'

In Reynolds, the Court stated that "Congress was deprived [by the First Amendment] of all legislative power over mere opinion, but was free to reach actions." 124 Under RLUIPA as well as current free exercise jurisprudence, state authorities are not necessarily free to reach actions. 25 The Court, however, recognizes that public safety is a compelling state interest that may justify curtailment of religious liberty. In Prince v.

Massachusetts,126 the Court said "the right to practice religion freely does not include liberty to expose the community ...

to

ill health or death."' 127 This, of course, is reflected in Lemon wherein the Court stated it would not strike down regulations incidentally burdening a religion if the primary purpose is secular. 128 Additionally, any law that creates a denominational preference is always subject to strict scrutiny unless 29 narrowly tailored to further a compelling governmental interest.1 Until 1990, the Court was not clear in its application of strict scrutiny to laws that burdened religiously motivated conduct.

Whether Smith clarified or changed the law with respect to state action that burdened religious exercise is a matter of dispute.

That case upheld an Oregon law banning peyote possession with no allowance for sacramental use of drugs. Accordingly, the State could deny unemployment benefits to persons dismissed from their jobs because of their religiously inspired

123. See San Jose Christian Coll. v. City of Morgan Hill, 2001 WL 186224 (N.D. Cal. 2001); Christian Gospel Church, Inc. v. City of Courts of

San Francisco, 896 F.2d 1221, 1224 (9th Cir. 1990) (dealing with the denials of rezoning requests); Perez v. Frank, 433 F.Supp.2d 955 (W.D. Wis. 2006) (not providing footbath opportunities 24/7).

124. Reynolds, 98 U.S. at 164.

125. See 146 CONG. REc. ยง 7774-01, 7775, 7776 (daily ed. July 27, 2000) (setting forth Congress' intent not to change the meaning of the phrase "substantial burden previously established by the Supreme Court").

126. Prince v. Massachusetts, 321 U.S. 158 (1944).

127. Id. at 166 (upholding child labor laws from a free exercise challenge).

128. Smith, 494 U.S. at 878-82 (First Amendment's Free Exercise Clause does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct).

129. Id. at 890.

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peyote use. 130 The Court did recognize that the political branches could shield religious exercise through legislative accommodation, for example, by making an exception to proscriptive drug laws for sacramental peyote use if they choose to do so.13 ' On the other hand, the Court refused to allow a state to deny unemployment benefits to someone who quit his job rather than violate his 32religious-based belief against producing military equipment. 1 In summary, the belief/behavior or conscience/acts dichotomy along with the Court's historical recognition of the Judeo-Christian underpinnings for Western civilization generally and the specifically Protestant influence on American culture led the Court to grant a privileged position to Christian inspired regulations of behavior including enforcing blasphemy laws, Sabbath Lord's Day closing laws and Bible reading in public schools.' 3 3 The Court had no difficulty in labeling the United States a Christian Nation. 134 By 1991, the privileged place of religion over non-religion and Christianity in particular 135 were no more.

Under current law, protection goes to both speech and actions stemming from sincerely held religious beliefs. Mandating violation of a religious belief considered central is a most obvious substantial burden on free exercise. As to burdens on beliefs or actions not central or religiously mandated, prison authorities have more discretion with considerations of conserving limited resources more likely to meet the test of a compelling government interest, particularly when an

131.

Id. Id.

132.

Kiryas Joel, 512 U.S. 687.

130.

133. See Daniel F. Piar, Majority Rights, Minority Freedoms: Protestant Culture, Personal Autonomy, and Civil liberties in Nineteenth-Century America, 14 WM & MARY BILL RTS. J. 987, 999-1015 (2006); see also LAWRENCE R. BROWN, THE MIGHT OF THE WEST (Joseph. J. Binns 1963); see also M. STANTON EVANS, THE THEME IS FREEDOM (Regnery Publishing

1994).

134. See Vidal v. Gerard's Executors, 43 U.S. 127 (1844) (Christianity as the "law of the land" according to Daniel Webster); JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Carolina Academic Press 1987).

135. Lee v. Weisman, 505 U.S. 577, 593-594 (1992); see supra notes 33 and 60.

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alternative means can be provided such as substituting a candle for a fire pit or providing a secure rather than a general prison 36 area to practice the rites of a particular cult.'

Similarly, when adequate opportunity for religious exercise is provided and the prisoner requested activity is not central, a prisoner does not suffer a substantial burden by the denial of his request.' 37 Although, Muslims, by rule, are not to be seen naked by strangers, the compelling government interest in 38 prison security allows strip searches when reasonable.'

Generally, statements made to or by clergy for purposes other than spiritual guidance are not privileged and are subject to discovery unless free exercise jurisprudence is implicated. This is the rule in Georgia and comports with the federal common law privilege. Alabama, apparently taking note of the Catholic priest-penitent privilege, extends the privilege further to communications made to clergyman in the clergyman's professional capacity and in a confidential manner. 13' Trammel v. United States 4 ' is of similar import. There the Court held: "[t]he priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return."' 141 This suggests that under the Free Exercise Clause, the sacrament of Confession of the Roman Catholic Church will be recognized as protected even if beyond the state or federal common law privilege. The Florida privilege is similar in that it extends to communications made "in the usual course of his or her practice or discipline."'' 42 However, in Nussbaumer v. State the court cited the Florida privilege statute and went on to state 136. See Smith v. Allen, 502 F.3d 1255 (11th Cir. 2007).

137. Sparone v. City of New York, 420 F.Supp.2d 236 (S.D.N.Y. 2005) (city jail did not offer Catholic Bible study even though offered to Protestants); Orafan v. Goord, 411 F.Supp.2d 153 (N.D.N.Y. 2006) (Shiites could attend allegedly Sunni services when the service was considered "unified," there were other religious activities available to Shiites, and there weren't many Shiites).

138. Jean-Laurent v. Wilkerson, 438 F.Supp.2d 318 (S.D.N.Y. 2006).

139. ALA. R. EvID. 505.

140. Trammel v. United States, 445 U.S. 40 (1980).

141. Id. at 51.

142. FLA. STAT. ANN. ยง 90.505(1)(b) (West 1999).

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that "the clergy communications privilege does not apply unless the confider consults the member of the clergy 'for the purpose of seeking spiritual counsel or advice,"' 1 4 3 making it narrower than a free exercise right while providing for confidentiality.

In Nussbaumer, a pastor was subpoenaed to produce records relating to his counseling of the defendant, who was being prosecuted for child molestation. 1" The defendant moved to quash the subpoena on the grounds that his communications with the pastor were protected under Florida's clergy communications privilege. The evidence showed that the defendant referred to the pastor as "Pastor," that he was aware of the pastor's role as a clergy member, and that he sought him out precisely for that reason.14 5 Moreover, counseling sessions between the defendant and the pastor were conducted either in church itself or on church property, 146 hence, the Court held that the defendant's communications to the pastor were made in the 47 usual course of the pastor's practice or discipline. 1 "Thus, considering the plain meaning of the words in the phrase 'in the clergyman's professional capacity' and the observations of the Nussbaumer court, we hold that the phrase means that the clergyman is serving in his professional capacity when he is serving as a specialist in the spiritual matters of his religious organization.' 1 48 Whether a communication is made to a clergyman "in the clergyman's professional capacity" must be examined on a case-by-case basis. 14 9 "The common thread in such cases 'is that the privilege may not be invoked to enshroud conversations with wholly secular purposes solely because one of the parties to the conversation happened to be a religious minister.' 1 50 But how is one to know that, particularly if the deciding court must consider the Free Exercise Clause in addition to any privilege statute, that is, must it decide from the cleric's view as well as the communicant's 143. Nussbaumer v. State, 882 So.2d 1067 (Fla. Dist. Ct. App. 2004).

144. Id. at 1070.

145. Id. at 1076.

146. Id. 147. Id. 148. Exparte Zoghby, 958 So.2d 314 (Ala. 2006).

149. Id. at 322.

150. Nussbaumer, 882 So.2d at 1075 (quoting People v. Carmona, 82

N.Y.2d 60 (N.Y. 1993)).

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view?

Florida and Alabama seemingly expand the privilege beyond Georgia's by referring to communications generally made to the clergyman in his professional capacity. Under the RLUIPA provision entitled "Rules of Construction" the following appears: (a) Religious belief unaffected. Nothing in this chapter shall be construed to authorize any government to burden any religious belief. (b) Nothing in this chapter shall create any basis for restricting or burdening religious exercise or for claims against a religious organization including any religiously affiliated school or university, not acting under color of 15 1 law.

A fair reading of the free exercise jurisprudence combined with RLUIPA would establish the following: (1) as to what is protected, free exercise jurisprudence controls; (2) as to the standard to be applied for restrictions on religious exercise in prison, RLUIPA applies if federal aid is involved; and (3) as to what is privileged, the federal evidentiary rules reflecting federal common law and the state privilege laws will control unless the privilege is so limited so as to place a burden on religious exercise not justified by a compelling government interest.

There are, however, competing compelling government interests.

The North Carolina privilege which is called a competency statute provides: No priest, rabbi, accredited Christian Science practitioner, or a clergyman or ordained minister of an established church shall be competent to testify in any action, suit or proceeding concerning any information which was communicated to him and entrusted to him in his professional capacity, and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted, provided, however, that this section shall not apply where communicant in open court waives the 151. 42 U.S.C. ยง 2000cc-3(a)-(b).

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52

In construing the North Carolina Constitution from which the above statute is derived, the North Carolina Supreme Court stated: We think it clear that the term 'rights of conscience' as used in [a]rticle I, [section] 26, of the Constitution of North Carolina, must be construed in relation to the right to worship God according to the dictates of one's own conscience. Consequently, the freedom protected by this provision of the State Constitution is no more extensive than the freedom to exercise one's religion, which is protected by the First Amendment to the Constitution of the United States.

Clearly, these constitutional provisions do not provide immunity for every act which one's conscience permits him to do, or even for every act which one's conscience classified as required by ethics, nor do they shield the defendant from a command by the State that he do an act merely because he believes it morally or ethically wrong. It is the right to exercise one's religion, or lack of it, which is protected, not one's sense of ethics.

The freedoms protected by these constitutional provisions are not limited to clergymen. Indeed, they are not limited to members of an organized religious body, and consequently, are not contingent upon proof that others share the views of the individual who asserts his own constitutional right to the freedom to exercise his religion or 'right of conscience.'

Thus, if a clergyman, not otherwise privileged to refuse to testify, is protected from compulsion to do so by these constitutional provisions, because he believes that for him to so testify would violate his religious duty, a layman having such belief would also be protected from compulsion to testify. The constitutional provisions extend their protection to the unorthodox, unusual and unreasonable belief as truly as to the belief shared by many. This, a holding that these constitutional provisions grant to the clergymen a privilege against compulsion to disclose upon the witness stand information given him in confidence because such disclosure would violate the clergyman's concept of religious duty, may well give rise to claims of a like privilege by laymen.

The consequence might well be to deprive the courts of testimony necessary in order to administer justice, or to 152.

N.C. GEN. STAT. ยง 8-53.2 (2007).

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require them to embark upon the hazardous undertaking of 53 determining the sincerity of the belief asserted. 1 The North Carolina privilege does not establish the outer limits with regard to testamentary compulsion. The North Carolina constitutional provision is held to be coextensive with the Free Exercise Clause while the definition of clergy is broad and not restricted to the formally ordained or licensed. Even if a communicant may be prevented from exercise of a religious requirement, a clergyman cannot be compelled to testify if doing so would violate his religious duties. A Georgia court considering the Georgia Clergy privilege statute and the Georgia Constitutional provisions previously cited should reach the same conclusion as the North Carolina Supreme Court.

A government's avoidance of a free exercise violation is a compelling interest, so too, is a government's interest in the security of a prison. 154 To foster the first, religious liberty must be constitutionally accommodated by the recognition of a clergy privilege although the privilege like other privileges limits access to probative evidence.

The privilege's ultimate justification rests on the presumed idea that such privilege fosters religious tolerance, will lead to repentance, spiritual absolution and more importantly, from a societal viewpoint behavioral reform. 55 The protection for free exercise has no such underpinnings as the case law demonstrates. Not only is freedom of conscience and religious speech recognized as a constitutional mandate, but so to is the performance of certain physical acts, although the court also recognized that there is a greater limit to individual autonomy in a prison setting than on the civilian community. Specifically, the Court recognized a government's "countervailing compelling interest in not facilitating inflammatory ...

activity that could imperil prison

153. In re Williams, 152 S.E.2d 317 (1967).

154. See Benning v. Georgia, 391 F.3d 1299 (11 th Cir. 2004).

155. See, e.g., Jaffee v. Redmond, 518 U.S. 1 (1996); see also Fred L. Kulhmann, Communications to Clergymen - When are They Privileged? 2 VAL. U. L. REv. 265 (1968). Whether the privilege survives the recent enactments of duty-to-report statutes, generally directed at child abuse, depends upon the state of enactment. See R. Michael Cassidy, Sharing Sacred Secrets: Is It (Past) Time for a DangerousPerson Exception to the Clergy - Penitent Privilege? 44 WM. & MARY L. REv. 1627, 1666-74

(2003).

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security."' 56 Further, "should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist adjudication in as-applied In that event, the imposition.

15 7 order."' in be would challenges Citing favorably to Reimann v. Murphy,158 the Court seemed to approve wide discretionary authority for prison officials to prevent violence even if not imminent. 59 In that case, decided under RFRA, prison officials excluded racist literature advocating violence as "the least restrictive mean of furthering the compelling state interest in preventing prison violence.'

The Reimann decision actually held that the literature at issue which was "replete with racial hatred and language inciting violence" was not "a required or important part of [the] religion or that [a person] would be unable to practice his religion without [this literature].' 161 Not being a burden on religion and not being fundamental to it, the exclusion of such literature was A similar decided under the rational basis standard. withholding which burdens religious exercise would be subject to the compelling interest standard assuming RLUIPA applied.

Since prisons are a closed forum context matters, 162 which permits wider discretion to authorities.

Lawmakers were mindful of this and anticipated that the courts would apply RLUIPA with "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security, and discipline, 16consistent with consideration of costs and limited 3 resources."

This is consistent with the "special needs" doctrine allowing For a deviation from otherwise constitutional norms.' 64 156. Cutter 544 U.S. at 725.

157. Cutter at 720.

158.

159.

160.

161.

Reimann v. Murphy, 897 F.Supp. 398,402-403 (E.D. Wis. 1995).

Cutter 544 U.S. at 723.

Id. at 723 n.ll.

Reimann, 897 F.Supp. at 402-403.

162. Grutter v. Bollinger, 539 U.S. 306 (2005) (citing Cutter, 544 U.S. at 723).

163. Cutter, 544 U.S. at 723.

164. Vemonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)

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example, under the special needs doctrine a suspicionless search 65 may be permitted absent individual suspicion of wrongdoing.'

Reimann may be reanalyzed for the purpose of RLUIPA by arguing that the literature was so inflammatory that it was presumptively dangerous.

To qualify as requiring strict scrutiny, the religious exercise need not be central or compelled by a system of belief. 66 The literature at issue in Reimann not only advocated violence but did so without exception or cause except for a person's race. It did not merely justify violence or advocate violence under certain defined provocations such as certain Islamic literature does. This left prison authorities no real choice except to ban it, thus explaining the 67court's finding that banning was the "least restrictive means."'

VII. PRISON AUTHORITIES ARE NOT COMPELLED TO ALLOW RELIGIOUS AUTHORITY TO THREATEN THE SECURITY OF PRISONS

There is no question that prison authorities may prevent clerics from open advocacy of violence and other dangerous activities. The issue is, under the guise of spiritual guidance and relying on the clergy privilege or the Free Exercise Clause, whether prison authorities must refrain from limiting the activities of some clerics determined in the sound discretion of prison authorities to be a danger to the peace and security of a prison?

Strict scrutiny, unlike a lower level of scrutiny, shifts the burden to the government to establish that a law, regulation, or action serves a compelling government interest. To survive strict scrutiny, a law, regulation, or act must be justified by a compelling government interest, such as the security of a prison, must be narrowly tailored, and must be the least restrictive means to achieve the government's compelling interest. The narrowly tailored requirement may be seen as forbidding overinclusiveness.' 68 To be the least restrictive, means the avoidance of unnecessary limitations on First Amendment (random drug testing for student athletes permitted).

165. Samson v. California, 547 U.S. 843, 848, 852 (2006).

166. 42 U.S.C. ยง 2000cc-5(7)(A).

167. Reimann, 897 F.Supp. at 402.

168. Schad v. Mt. Ephraim, 421 U.S. 61, 71-74 (1981).

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rights.' 69 Under RLUIPA, it would substantially burden a prisoner's free exercise to limit access to a cleric. It would also limit a prisoner's First Amendment rights to deprive that prisoner of the clergy privilege.

It should be understood that the clergy-communicant privilege as recognized in the early 19 th century in People v.

Phillips170 is directed at protecting the religious duties of the clergyman, in that case the Roman Catholic sacrament of Confession. The Georgia privilege which seems to redefine the privilege as an incompetency rule is, in effect, both the clergyman's and the communicant's.

The Georgia Constitutional provision protects the free exercise of both the communicant and the cleric up to the point where such exercise "overlaps and transgresses the rights of others."' 7' These aspects of Georgia law would not contravene the Establishment Clause or RLUIPA and should withstand challenge for a case where state law controls if the deciding court severs or reinterprets the statute's unconstitutional provisions This leaves the discussion of the effect of the Free Exercise Clause on the privilege. Sherbert172 and Presbyterian Church in U.S. v. Mary Elizabeth Blue Hall Memorial Presbyterian Church 173 both recognized the Church Autonomy Doctrine.

This arose from the Free Exercise Clause and the antientanglement prong of Establishment Clause jurisprudence as described in Mockaitis v. Harcleroad.174 As previously indicated, the Free Exercise Clause may be used to protect more activities of a clergy than are covered by a typical privileges statute.

In a recent op-ed piece in the Atlanta Journal Constitution,

169. McIntyre v. Ohio Elections Com. 514 U.S. 334 (1995).

170. City ofBoerne, 521 U.S. at 543.

171. Anderson v. State, 65 S.E.2d 848, 851 (1951).

172. Sherbert, 374 U.S. 404-05.

173. Presbyterian Church in U.S. v. Mary Elizabeth Blue Hall Memorial Presbyterian Church 393 U.S. 440, 449 (1960) (recognizing the church autonomy doctrine springing from both the Free Exercise Clause and the anti-entanglement prong of Establishment Clause jurisprudence as set forth in Lemon.).

174. Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997) (regarding

the state's claim of necessity for taping the confession of a priest to his archbishop on both Free Exercise and RFRA grounds).

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Melissa Robinson, a convert to Islam, told of a sermon by an Imam in an Atlanta mosque wherein the Imam "vilified the 'West"' and "told the congregation that Islam is incompatible ' with 'Western values, and that the 'West' is a corruption." 175 This is not to suggest that this attitude necessarily pervades Muslim attitudes, but it raises an issue of what spiritual guidance actually is in the Muslim faith. If it is so that there is a governmental interest in establishing a general clergy or communicant privilege because protecting confidentially leads to repentance and socially desirable behavioral changes, then it is necessary to know what is being protected.

Since Muslims are a rapidly growing segment of the United States population as well as the prison population, some understanding of what constitutes spiritual guidance and free exercise for a Muslim is necessary. One must begin by understanding the way Muslims view the Quran and the Prophetic Reports known as the hadith. There is much publicly available material for the interested reader.

The Quran is viewed as a recitation of God's words with Muhammad as the conduit of God's revelation. The Quran is inimitable in both context and language. It is literally the Word of God. 176 The allegorical tradition of both Jewish and Christian exegesis has virtually no influence in contemporary Islam. 177 Any apparent contradictions or inconsistencies between two or more passages in the Quran are explained in suras 2:106, 13:39, 16:101 and 17:86 as a result of God substituting one verse for another, thereby abrogating or canceling the earlier verse. "God abrogates and confirms what He pleases." 178 This makes it incumbent on Muslims to 1 79 determine the chronological order of the suras or chapters.

This is especially so since a number of suras are nonviolent and advocate tolerance. For example Quran 2:256 states "There 175. Melissa Robinson, Op.-Ed., ATLANTA J. CONST., Nov. 8, 2007 at 134.

176. THE KORAN (Trans. N.J. Dawood 1956) Published with a Parallel Arabic Text in 1990, sura 13:39 at 253. Similarly, sura 2:106 "If we abrogate a verse or cause it to be forgotten, we will replace it with a better one or one similar." at IX. 177. Peters, supra note 31, at 48-54, 227-37.

178. Dawood, supra note 175, at 16.

179. Id at IX.

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shall be no compulsion in religion."' 80 Sura 5:8 states "Do not allow your hatred of other men to turn you away from justice."' 181 Sura 29:46 states that Muslims should "[b]e courteous when you argue with the people of the Book [Christian and Jews], except with those among them who do evil." 82 Sura 60:8 states: "God does not forbid you to be kind and equitable to those who have neither made war on your religion nor driven you from your homes. God loves the equitable."' 83 In apparent contradiction to sura 60:8 is sura 9:29 which states "Fight against such of those to whom the Scriptures were given as believe neither in God nor the Last Day, who do not forbid what God and His apostle have forbidden, and do not embrace the true Faith, until they pay 84 tribute out of hand and are utterly subdued."1 The Quran, however, is not organized chronologically but rather by descending length.18f Scholars establish a chronological order by separating suras by style with the Meccan suras divided into early, middle and late followed by the much longer Medinan suras which contain detailed regulations for the converted as well as abrogating the earlier 86 suras.'

Meccan inconsistent Muslim scholars insist the doctrine of abrogation must be mastered by those who wish to achieve competency in understanding the Quran.187 Most scholars cite sura 9 of the Quran as the last or next to last revealed to Muhammad. 188 It contains numerous violent passages and pursuant to the doctrine of abrogation apparently supersedes earlier peaceful revelations.

180.

Id. at 41.

181.

Dawood, supra note 175, at 107.

Id. at 401. See generally Farroq Ibrahim, The Problem of Abrogation

182. in the

Quran, www.answering-islam.org/Authors/Farooqjbrahim/abro-

gation.

183. Id. at 549.

184. Id. at 190.

185. RICHARD

BELL,

INTRODUCTION

TO

THE

QUR'AN

(Edinburgh

University Press 1953) at 57-6 1.

186. See generally Peters, supra note 31, at 105-06.

187. See DAVID BuKAY, THE MIDDLE EAST QUARTERLY, PEACE OR

JIHAD? ABROGATION IN ISLAM, Fall 2007 Vol. XIV, No. 4 n.14, 15 and text

related thereto.

188. Id., see supra text accompanying note 176.

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For example, sura 9:73 is said to abrogate earlier suras advocating tolerance. It states: "Prophet, make war on the unbelievers and the hypocrites and deal rigorously with them.

Hell shall be their home: an evil fate."' 189 Sura 9:5 (the verse of the sword) seems to make it obligatory for Muslims to kill nonMuslims. That verse and the proceeding state: Proclaim a woeful punishment to the unbelievers, except to those idolaters who have honored their treaties with you in every detail and aided none against you. With these keep faith, until their treaties have run their term. God loves the righteous. When the sacred months are over slay the idolaters wherever you find them. Arrest them, besiege them, and lie in ambush everywhere for them. If they repent and take to prayer and render the alms levy, allow them to go their way. God is forgiving and merciful. 0 The hadith purport to record the sayings and acts of Muhammad and serve as a guide to Muslim behavior.' 91 The hadith regarded as constituting a Muslim's guide to behavior are known as the "sunna" of the Prophet. 192 Those provide an authoritative guide to permitted and forbidden actions and beliefs. The Shiite and Sunni versions of the hadith are somewhat different but that is not important to this discussion.

If the goals of spiritual guidance are to live a life as demanded by the Deity worshiped and to achieve salvation after death, then it becomes quite relevant what a cleric advises his communicants and whether that advice is consistent with ordered liberty as provided for by the laws of the United States and the states and in the exercise of the police power. Freedom 189. Dawood, supra note 176, at 198.

190. Id. at 186.

191. Maulana Muhammad Ali, A Manual ofHadith, www.sacredtexts.co m/isl/bakhari/bhl_23.htm.

192. Mohammad Omar Farooq, Islamic Law and the use and abuse of Hadith, (http://www.globalwebpost.com/ farooq/writings/islamic/lawhadith .html). See supra note 142. For example, hadith 1:24 provides: Allah's Apostle said: "I have been ordered (by Allah) to fight against the people until they testify that none has the right to be worshiped but Allah and that Muhammad is Allah's Apostle, and offer the prayers perfectly and give the obligatory charity, so if they perform a that, then they save their lives an property from me except for Islamic laws and then their reckoning (accounts) will be done by Allah."

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of conscience is historically protected in the United States. 193 In fact, the mere advocacy of revolution or violence is not actionable absent a context that would make itso.'

But well as constraints on actions have always been recognized as constraints on speech that may reasonably lead to criminal 95 behavior or otherwise threaten the safety of the public.'

Objections to limits on acts or speech do not rely on a privilege 1 96 but on free exercise rights.

Many speak of Islam and Islamism as implying different attitudes.' 97 However, many Muslim scholars, as well as nonMuslim scholars including Robert Spencer,' 98 Bat Ye'or 99 and Bernard Lewis 200 consider Islam as a way of life encompassing legal, social, political, and economic rules. If this is so, then the Imam quoted in Ms. Robinson's op-ed is correct that Islam is incompatible with the West. 20 1 It might be that spiritual Supra text accompanying notes 36, 39, 124.

Infra text accompanying notes 227-28.

195. Supra text accompanying notes 36, 125-126.

196. Supra text accompanying notes 36, 76.

197. See Wikipedia.org/wiki/Islamism.

198. Robert Spencer, author of The Truth About Muhammad: Founder of the World's Most Intolerant Religion., is a Catholic American writer on Islam. He has published seven books, including two bestsellers, on topics related to Islam and terrorism. See http://en.wikipedia.org/wiki/RobertSpencer.

199. Bat Ye'or, author of Islam and Dhimmitude: Where Civilizations Collide, an Egyptian-born British historian specializing in the history of nonMuslims in the Middle East, and in particular the history of Christian and Jewish dhimmis living under Islamic governments, See http://en.wikipedia.org/wiki/BatYe'or..

200. Bernard Lewis, widely read Expert on the Middle East, See http://en.wikipedia.org/wiki/BemardLewis.

201. See Ann Elizabeth Mayer, The Islam and Human Rights Nexus: Shifting Dimensions, THE MUSLIM WORLD J. OF HUMAN RIGHTS, Vol. 4, Issue 1, Art. 4 (2007). Although Prof. Mayer takes the politically correct position that Islamic hostility to human rights is America's fault, her analysis is provocative and gives some hope that significant segments of Muslim society are trying to "reverse the impression that Islam is inherently incompatible with human rights [which] has been encouraged by the reservations that many Muslim countries have continued to enter when they ratify human rights conventions. These reservations invoke supposedly unchangeable Islamic rules that are said to bar accepting any human rights that contravene them. Thus, for example, in 1996 when ratifying the 193.

194.

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guidance and free exercise based on the Quran and hadith is not the spiritual guidance and free exercise of the Judeo-Christian West and other religions which seem more adaptable to Western values such as Hinduism and its near relative, Buddhism. If Islam is a "deen" 202 rather than a religion, that is, is concerned with the entire conduct of life including spiritual and temporal, religious and secular, moral and material, social, cultural, economic, and political as many Muslim scholars maintain then there are no other sources of law except the Quran and hadith. 20 3 That is not the premise behind the District court convention on the Rights of the Child, Saudi Arabia entered "reservations with respect to all such articles as are in conflict with the provisions of Islamic law." In similar fashion, Saudi Arabia in reserving to the Convention on Elimination of All Forms of Discrimination Against Women in 2000 warned: 'In case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Convention."' Id. at 5.

202. "Deen is defined by Imam Mohamed Baiananie at the Islamic Center of Raleigh, N.C., Dee. 27, 1996 as follows: "These four linguistic meanings constitute the concept of the word deen in the Qur'an where it implies a comprehensive system of life that is composed of four parts: (1) The rulership and the authority belong to Allah; (2) The obedience and submission to this rulership and authority by those who embraced this deen; (3) The comprehensive system (intellectual and practical) established by this authority (Allah); and (4) The reward given by this authority (Allah) to those that followed the system and submitted to it and the punishment inflicted upon those rebel against it and disobey it. Id. Based on this definition of deen, we can summarize that deen is submission, following and worship by man for the creator, the ruler, the subjugator in a comprehensive system of life with all its belief intellectual, moral andpracticalaspects.

After understanding this definition of the Arabic word deen, we realize that it is wrong to translate it to the English word "religion". But, we should take precaution and warn Muslims against these conspiracies that are plotted against Muslims to keep them away from the reality of their deen and distort the concept of deen or restrict it to one aspect of life- like they (None Muslim) did with their religion and church after the French Revolution. "[S]haria constituted the prescribed pattern of Muslim behavior and originated in only one ground, God's will. Sharia is made available to its intended beneficiaries either through his formal revelation in the Quran or mediated through the instructions or example . . . of his chosen Prophet, Muhammad." Peters, supra note 134, at 105.

203. Peters, supra note 134. Quranic verses include "140 on dogmatic and devotional matters like prayer, fasting, pilgrimage, and the like, 70 on

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2 0 4 Prison authorities decision in Knuckles v. Prasse. did not permit Black Muslims to gather for what they considered nonreligious purposes on the basis that such gatherings were not necessary for the exercise of religion and presented a clear and present danger to prison security. 20 5 The Third Circuit in affirming the District court and referring to the differences in First Amendment rights based on the context, agreed that Black Muslim religious doctrine absent prior peaceful interpretations by a Muslim cleric could be banned. 20 6 Although not decided under RLUIPA, the decision would not change.

Prison authorities were dealing with literature that seemed to advocate immediate and violent action against others solely on account of race. No claim was made that the Quran itself was "so 20 7 inflammatory as to be harmful to prison security."

Nevertheless, a number of cases have found that Black Muslims, in particular, are disruptive and a threat to security if their activities are not restricted.20 8 Prison authorities are allowed wide discretion in banning literature based on experience, and even if unsaid, on a reasonable fear of imminent danger.

The determination of a reasonable fear of imminent danger involving literature requires the application of the tests set forth in Thornburgh v. Abbott. 209 In order to avoid a claim of prior restraint by a prisoner, Thornburgh established a requirement for clear standards.2 1 0 The censorship policy must further a "substantial government interest unrelated to the suppression of expression," merely because of its content. 2 1 ' The literature

must be reviewed before-hand to determine if the literature

questions of personal status (marriage, divorce, inheritance, etc.), 70 more on commercial transactions (sales, loans, usury), 30 on crimes and punishments, another 30 on justice, and a final 10 on economic matters." at 107 "Prophetic reports (hadith) . . . form the bases of the Muslims' legal exegesis of the Quran." at 48.

204. Knuckles v. Prasse, 302 F.Supp. 1036 (D.C.Pa. 1969).

205. Id. 206. Knuckles v. Prasse, 435 F.2d 1255 (3d Cir. 1970).

207. Id.

208.

209.

210.

211.

See Knuckles, 302 F.Supp. at 1053-59.

490 U.S. 401 (1989).

Id. at 416-17.

Id. at 415.

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created "an intolerable risk of disorder under the considerations of a particular prison at a particular time, '21 2 does not involve a pre-determined judgment, is not too broad, and has "procedural safeguards for both the recipient and the sender" to review any decision. 213 This last requirement seems to implicate due process. The Fourth Circuit agreed 2 4 and required notice and 21 5 an opportunity to be heard for both recipients and senders.

Prison regulations banning literature that are too vague 216 or based on banning literature advocating unpopular or even repugnant ideas are violative of either due process or the First Amendment. 21 7 The Thornburg tests should be read with those factors set forth in Turner v. Safley2 18 which, although based on a rational relationship test, are still applicable but must be judged against the higher compelling interest standard.

Fearing prison disruption after 9/11, the Federal Bureau of Prisons, after ascertaining that terrorists Jose Padilla and Richard Reed had converted to Islam while in prison and AlQaeda had actively recruited in prisons, instituted a blanket moratorium on the hiring of new Muslim chaplains. 219 Such a blanket ban cannot be justified under RLUIPA and would be difficult to justify under RFRA and current Free Exercise jurisprudence. The author of "The Silence of Prayer" 220 argues that this ban has the affect of criminalizing Islam and has a disparate impact, at least, in part because the number of Black Muslims in prisons and because it targets a specific religion.221 The regulation should have targeted specific practices 212. Id. at 416.

213. Id. at 416-17.

214. Moncalm Publishing Corp. v. Hodges, 80 F.3d 105 (4th Cir 1996).

215. Id. at 106.

216. Procunier v. Martinez, 416 U.S. 396, 405 (1974) (overruled by Thornburgh v. Abbott, 490 U.S. 401 (1989)); Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir. 1986).

217. For a discussion of cases dealing with sexually explicit literature see MICHAEL MUSHLIN, RIGHTS OF PRISONERS, 1 Rights of Prisoners ยง5.3 (3d

ed) (2007); see also accompanying text, supra notes 55-83.

218. Infra note 272.

219. See Stephen Seymour, The Silence of Prayer: An Examination of the FederalBureau of Prisons' Moratoriumon the Hiring of Muslim Chaplains, 37 COLUM. HUM. RTs. L. REv. 523 (2006).

220. Id. 221. Id. at 526.

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threatening prison security and discipline rather than the 22 scattershot approach adopted in order to withstand challenge.

This is despite the prevalence of terrorist recruitment in prisons.

In short, if experience indicated that following a meeting with a Muslim cleric or the receipt of Muslim literature, prison peace and security were compromised, prison authorities are justified in restricting such practices including individual meetings with Muslim clerics. The Knuckles court went on to distinguish practices of a religious and non-religious nature, presuming that Muslims recognized the limited sphere of religion as do Christian and Jews.22 3 This would seem to be a reasonable assumption if United States constitutional values are respected, even if not in accord with Muslim teaching. Otherwise the narrowly tailored test, combined with the accommodation jurisprudence, might leave prison authorities with a serious problem in defining religious exercise for Muslims. This raises several issues, including: (1) What are the limits to free speech where violence or disruption is possible in the context of a prison where prisoners request spiritual guidance from a clergyman?; (2) What constitutes a reasonable apprehension of disruption or violence in a prison setting?; (3) How much discretion do prison authorities have?; (4) What language can be constitutionally prohibited?; and (5) Is there a special rule for religious language?

Constitutional guarantees of freedom of speech forbid states to punish use of words or language not within narrowly limited classes of speech including fighting words, and speech which incites imminent lawlessness.224 Fighting words are defined as personally abusive epithets which by their very utterance are likely to incite immediate physical retaliation in the ordinary citizen. For example, the Court held that the following words ". . . I'll kill you ... you son of a bitch ... I'll choke you to death" did not tend to cause

222. Id.; see also supra notes 10, 11, and 13. See Terrorist Recruitment and Infiltration in the United States: Prison and Military as Operational Base: Hearing Before the Subcomm. on Terrorism, Technology, and Homeland Security of the Senate Comm. on the Judiciary, 108th Cong.

(2003).

223. Knuckles, 302 F.Supp. at 1057-58.

224. Gooding v. Wilson, 405 U.S. 518 (1972).

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an immediate breach of the peace. 225 This is because mere offensive language that is unlikely to incite an immediate breach of the peace may not serve as a basis of prosecution because such words do not fall into the relatively narrow definition of fighting words.226 With respect to advocacy of illegal conduct, the Court has said: [C]onstitutional guarantees of free speech do not permit a State to forbid or proscribe advocacy of the use of force or a law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

. .'the

mere abstract

teaching of the moral propriety or even moral necessity for a resort of force and violence is not the same as preparing a 227 group for violent action and steeling it to such action.'

Applying this principle, the Court in Brandenbergreversed a conviction of an individual involved with organizing a Ku Klux Klan meeting wherein violence was advocated.228 Violence or disruption has to be imminent in order for the speech not to be protected by the First Amendment.

Thus if violence or disruption is merely possible then the speech is protected and restrictions must be supported by a substantial government interest. However, in the context of a prison setting, speech which would not otherwise rise to the level of unprotected speech may be prohibited because of the uniqueness of the prison setting. This applies to limiting activities to those which are compatible with the intended purposes of the forum.2 2 9 After all, a prison is a closed forum with certain purposes and goals including punishment and rehabilitation.23 ° 225. Gooding,405 U.S. at 518.

226. Id.

227. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (quoting Noto v.

U.S., 367 U.S. 290, 297-98 (1961)).

228.

Id.

229. Carlow v. Mruk 425 F. Supp.2d 225 (D.R.I. 2006).

230. Closed or non-public forums are government institutions or properties that are not open for public communication based on a traditional time, place and manner analysis. See Renton v. Playtime Theatres, Inc. 475 U.S. 41, 48 (1986); Lebron v. National R.R. Passenger Corp. Amtrak, 69 F.3d 650 (2d Cir. 1995), opinion amended on other grounds on denial of reh'g, 89 F.3d. 39 (2d Cir. 1995), cert. denied 517 U.S. 1188 (1996).

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To summarize, to be upheld against a First Amendment attack, the regulation and practice alleged to infringe First Amendment rights of prisoners must further a legitimate penological interest unrelated to the suppression of expression and furthering security, order, and rehabilitation.23?

This included materials that are psychologically inflammatory. In McCabe v. Arave, the Ninth Circuit, in weighing the above factors, held that a prison regulation that restricted inmates access to literature advocating racial purity, but not advocating violence or illegal activity as means of achieving that goal, was not so racially inflammatory to be reasonably likely to cause violence.23 2 In Jones v. North Carolina Prisoners' Labor Union, the Court held that as long as it was reasonable for the correction officials to believe that union would create friction, there was no burden on the officials to show affirmatively that the union would be detrimental to proper penological objectives or would constitute a clear and present danger to security and order.23 3 This case can be reanalyzed for purposes of RLUIPA which includes burden-shifting. A prisoner union might justifiably be considered presumptively dangerous as well as a clear and present danger to prison authority. Prison authorities have discretion to determine what constitutes a reasonable apprehension of disruption or violence. The Supreme Court has recognized "judgments regarding prison security are particularly within the province and professional expertise of corrections officials, and in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters. 2 3 4 However, this discretion is only valid when the prison authority posits a legitimate security interest, and evenhandedly imposes

231. Thornburgh v. Abbott, 490 U.S. 401, 408 (1989) (unnecessarily broad censorship of inmate correspondence invalid).

232. McCabe v. Arave, 827 F.2d 634 (9th Cir. 1987); Nichols v. Nix, 810 F. Supp 1448 (S.D. Iowa 1993), aff'd 16 F.3d 1228 (8th Cir. 1994) (ban on publication of religious material of white supremacist church invalid as no threat to security).

233. Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119 (1977).

234. Turner,482 U.S. at 86 (quoting Jones, 433 U.S. 119).

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restrictions on religious practices that might threaten those interests.

Many previous decisions are based on the rational basis test, not strict security as required by RLUIPA and often by RFRA. If certain decisions are reanalyzed based on the higher standard, it is not clear whether prison authorities would prevail. The neutrality test of Smith with its content neutral and rational basis baggage is not equivalent to the least restrictive test under RLUIPA and RFRA. The Court, in another context, held that "[f]or liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims. ,,235 Advocacy alone is protected, that is, it is not enough to establish a reason for government proscription of speech. 36 The government does, however, have a freer hand in restricting expressive conduct.237 Conceding for the sake of argument that there are many Islamic leaders and scholars that support and even encourage violent behavior by Muslims directed at those who differ with the particular world-view espoused, including toward other Muslims, and that such advocacy alone generally cannot be restricted by government applying a strict scrutiny standard, where does that leave prison authorities? RLUIPA explicitly applies strict scrutiny to prison regulations by its reference to "exercise of religion," 238 which is beyond the usual time, place, and manner analysis whose restrictions survive constitutional challenge if reasonable in furthering a legitimate governmental interest, are content neutral, and are narrowly tailored rather than having to meet the least restrictive test.

Applying the least restrictive test under RFRA, courts have upheld regulations on hair length,239 unbraiding dreadlocks when transferring to and from a prison,240 and refusing religiously-based requests for segregated living quarters. 24 ' On 235. NAACP v. Claiborne Hardware Co., 558 U.S. 886, 920 (1982).

236. See Healy v. James, 408 U.S. 169, 186 (1972).

237. See Texas v. Johnson, 491 U.S. 397, 406 (1968).

238. 42 U.S.C. ยง 2000cc-1.

239. Diaz v. Collins, 114 F.3d 69 (5th Cir. 1997); Davie v. Wingard, 958 F.Supp. 1244 (D. Ohio 1997).

240. May v. Baldwin, 522 U.S. 921 (1997).

241. Ochs v. Thalacter, 90 F.3d 292 (8th Cir. 1996).

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the other hand, regulations of general application specifying hair length may not survive under RLUIPA, 2 42 but under certain circumstances excessive hair or beard length may be considered presumptively dangerous because of the possibility of hiding weapons. Although, RLUIPA doesn't seem to have actually institutionalized the least restrictive standard 24 3 since the language of reasonableness is often used, restrictions found to be too broad, such as forbidding all beards, not just excessively long ones, apparently will not be upheld.2 4 4 There are only a few reported Georgia cases decided after the enactment of RLUIPA. In Hearns v. Terhune, the plaintiff 245 Hearns was a Muslim inmate at Calipatria State Prison.

Hearns reported to the Muslim chaplain that, what he referred to as, a ruling Muslim group stole prayer oil from another Muslim inmate.24 6 Hearns planned a secret delivery of a later prayer oil shipment intended by Heams to avoid another theft. 2 4 ' The Muslim group learned of the street delivery and Hearns was attacked by a member of the Muslim group in a prison chapel. 24 8 The Muslim chaplain reportedly informed other Muslim inmates that Hearns held beliefs which required him to be killed under the teachings of Islam. 249 It would seem that this particular Muslim chaplain had the specific intent to incite prisoner violence sufficient to ban him from the prison despite any claim that such incitement is mandated by Islam.

In Pell v. Procunier,250 the court pointed out that a prisoner's First Amendment rights extend only so far as they: [A]re not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison 242. Hoevenar v. Lazaroff, 276 F.Supp.2d 811, rev'd, 108 Fed. Appx.

250, 2004 WL1664043 (6th Cir.), vacated, cert. denied, 2004 WL2372177 (2006).

243. See Lindell v. McCallum, 352 F.3d 1107, on remand 2004 WL 230935 (2004.

244. Mayweathers v. Terhune, 328 F.Supp.2d 1086 (E.D. Cal. 2004).

245. Hearns v. Terhune, 413 F.3d 1036 (N.D.Ga. 2005).

246. Id. at 1038.

247. Id. 248. Id. 249. Id. at 1038-39.

250. Pell v. Procunier, 417 U.S. 817 (1974).

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restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system to whose custody and care the prisoner has 25 been committed in accordance with due process of law. ' In McCree v. Pocock, McCree was a Muslim inmate housed at the Atlanta City Detention Center ("ACDC") 52 Plaintiff requested that ACDC permit him to transfer between prison housing units on Fridays in order to participate in a Muslim religious exercise called Jumu'ah.253 Muslim religious doctrine prevents Muslims chaplains from performing more than two Jumu'ah services on a given Friday.254 ACDC houses Muslim inmates in more than four housing units and does not allow 255 them to transfer to other pods for this weekly prayer.

Therefore, McCree was prevented from meeting with one of these two Muslim leaders if neither chose to visit his pod for 256 one of their two Jumu'ah services.

The Georgia court applied a two-prong test for determining whether a prisoner's rights of religious exercise were violated under RLUIPA. "Under the provisions of RLUIPA, an inmate must make a prima facie case, demonstrating that: (1) A prison official imposed a 'substantial burden' on his religious exercise; and (2) This burden was either imposed in a program or activity receiving federal funding or that affects interstate commerce." 257 The second element was not an issue in this case. Neither party disputed that ACDC receives federal funding for its housing of inmates. "If a prima facie case is demonstrated, the burden then shifts to the government to show that this imposition was both (1) in furtherance of the compelling government interest; 258and (2) the least restrictive means of furthering that interest."

The court examined two separate issues in determining whether not allowing Plaintiff McCree to gather with other 251. Id. at 822.

252. McCree v. Pocock, slip op. at 2007 WL 1810143 (N.D.Ga. 2007).

253. Id. at 2.

254. Id. 255. Id. 256. Id.

257. Id. at 2-3.

258. Id. at 3.

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Muslims and an Imam for Jumu'ah substantially burdened his religious exercise. First, the court considered whether Jumu'ah prayer is so important to the Muslim faith that its denial constitutes a substantial burden on McCree's religious exercise; and, second, what is required for a Muslim adherent to perform Jumu'ah. Neither party disputed that denying the Jumu'ah ceremony would be a substantial burden on McCree's religious exercise, so the court decided to base their determination on what was required to perform Jumu'ah. The court discovered that an Imam allegedly told the prison chaplain that an Imam was not required for Jumu'ah, but that many Muslims feel more comfortable with one present.259 The court determined that, if no Imam is required, then no substantial burden has been imposed by the Imam's absence. Also, the court discovered if two or three Muslim men were present, they could perform 60 Jumu'ah.2 The court then determined that if McCree is able to demonstrate a substantial burden on his religious exercise, jail authorities must show that its refusal to permit him to congregate with other Muslims in other housing units for Jumu'ah constituted the least restrictive means of furthering a compelling state interest. 26' Here, jail authorities. argued that it has a significant security and safety interest in refusing to accommodate the Plaintiffs request. The court pointed out, however, that they cited no instances262of prison violence at ACDC arising out of religious exercise.

Despite the alleged security and safety concerns, the court found a genuine issue of fact existed by finding that ACDC allows the majority of Muslim inmates to congregate in one housing unit during the last night of Ramadan.26 ' The jail administrator testified that the prison officials in charge of Ramadan looked only at the files for each attendee and "who is in maximum security and what for." 264 The court concluded that no real explanation was provided as to why this same procedure could not be performed on a weekly basis. There 259.

260.

261.

262.

263.

264.

Id. at 4.

Id. at 5.

Id. Id. Id. at 6.

Id.

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was evidence in the record that inmates are reclassified each week based on potential changes in their behavior after court appearances. Plaintiff contends that because of this necessity for reclassification, no additional burden existed in requiring authorities to determine whether an inmate should be permitted Based on these to transfer each Friday for Jumu'ah. contentions, the court inferred that ACDC's main concern in refusing to grant Plaintiffs request appears to be lack of resources. 265 Accordingly, the Georgia District court stated that a lack of resources argument must be heavily scrutinized and both Eleventh Circuit precedent and RLUIPA's legislative history indicates that a concern for lack of resources may not meet RLUIPA's strict scrutiny requirements.266 Another alternative suggested by Plaintiff was for the prison to permanently house all Muslims in a few selected units in order to permit sufficiently large groups of Muslim inmates to worship together. The court ascertained that at least one other Muslim lived in Plaintiffs housing unit and Defendant offered no evidence why ACDC could not place at least three Muslims in a given housing unit. Therefore, the court found that this departure" from alternative would not constitute a "radical 267 ACDC's normal operating procedures.

The court concluded that a genuine issue of fact existed as to whether Defendant engaged in the least restrictive means of furthering its compelling government interest and security of its facility. Accordingly, the court found that awarding summary judgment to either party was unwarranted.268 The perception of a problem arising in McCree is not enough to meet strict scrutiny although the facts in McCree would have met the reasonable basis or neutrality tests. Hearns, unlike McCree, dealt with the actual conduct that ensued from the activities of a Muslim cleric.

In Daker v. Ferrero,269 the District court, among a number of other issues, was asked to rule on the restriction of access to certain publications and a restriction on the times and places a

265. Id. at 266. Id. 267. Id.

7.

268. Id. at 8.

269. Daker v. Ferrero, 475 F.Supp.2d 1325 (N.D.Ga. 2007).

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Muslim inmate could wear certain headwear. If the District court had really applied the least restrictive standard, it is probable that a ban on literature directly advocating immediate violence or security breaches, rather than a generalized rationale for violence as found in the Quran and the hadith, may be banned whereas the latter cannot. As for headgear restrictions, they can be upheld generally as necessary to limit the flow of contraband but under RLUIPA probably must be allowed during religious ceremonies.27 ° VIII. LEGITIMATE PENOLOGICAL INTERESTS

The regulation and the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.271 In determining whether a regulation restricting constitutional rights of a prisoner bears a reasonable relationship to legitimate penological interests, a court is to consider factors such as: (1) whether the regulation has a logical connection to the legitimate government interests invoked to justify it; (2) whether there are alternative means of exercising the rights that remain open to the inmates; (3) the impact that accommodation of the asserted constitutional right will have on other inmates, guards, and prison resources; and (4) the presence or absence of ready rights at de alternatives that fully accommodate the prisoner's 272 minimis cost to valid penological interests.

A logical connection to legitimate government interest of security and safety was found where the court in McCabe upheld prison authorities' refusal to permit group worship by close-custody prisoners led by an inflammatory religious leader but reversed the District court which had upheld a ban on racially charged literature.273 In Turner, the United States Supreme Court held that a prohibition on a prisoner's 270. Id. at 1350 (Court did not decide issue of head gear during religious services under RLUIPA standard.).

271. James v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977).

272. Turner, 482 U.S. at 89-91.

273. McCabe, 827 F.2d at 637-38 (literature standing alone did not create an imminent danger to security); see also supra text accompanying notes 8790, 232.

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communication with other inmates is justified as preventing a potential impetus to criminal behavior which was a legitimate penological interest in prison, as even contact between former inmates outside of prison creates a potential for criminal behavior.2 7 4 In another case a court held that prohibiting an inmate in a sexual offender treatment program from keeping his or her written prose does not violate the inmate's First Amendment rights, where the restriction is reasonably related to a legitimate penological interest in rehabilitation. OLone v.

Estate of Shabazz 2 75 involved a challenge to policies adopted by

prison officials which resulted in the plaintiffs, members of the Islamic faith, being unable to attend weekly Muslim congregational service during working hours.2 76 The United States Supreme Court upheld the policies, stating that prison officials are not required by the Constitution to sacrifice legitimate penological objectives if there were "alternative means of exercising the right . . . remaining open to prison

inmates. 277 Although, the restriction in this case left no alternative means for the inmates to practice their religious beliefs at a particular time, the Court refused to strike down the regulation based on a legitimate penological interest in administration and security. The Court stated that the proper inquiry is whether the inmates were deprived of "all means of expression. "278 Since the inmates retained the ability to participate in other Muslim religious ceremonies, alternative 274. Turner, 482 U.S. at 91, 92.

275. O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).

276.

Id.

277. Id. at 351 (citing Turner,482 U.S. at 89-90).

278. Compare OLone, 482 U.S. 342, to Cruz v. Beto, 405 U.S. 319 (1972). Prison authorities did not provide a Buddhist with access to the prison chapel nor did they permit him to share his religious materials while

at the same time Christian and Jewish prisoners were rewarded for religious activity. Id. at 1080. The Court said in vacating the lower court's denial of relief: "We do not suggest, of course, that every religious sect or group within a prison-however few in number- must have identical facilities or personnel. A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest, or minister be provided without regard to the extent of the demand. But reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendment without fear of penalty." Id. at 1081 n. 2.

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avenues of expressing the religious expression existed, and the restrictions at issue were reasonable. O Lone, decided in 1987, cannot be relied upon today. OLone involved a prison regulation interfering with Muslim inmates' attendance at Jumu'ah as commanded by the Quran. Suit was brought under 42 U.S.C. ยง1983 alleging interference with the Free Exercise rights.

In deciding 0 Lone, the Court applied the "reasonableness test which is less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights., 2 79 In citing Turner,28the Court specifically rejected a "more rigorous" scrutiny test. 0 In rejecting the Court of Appeals decision which "established a separate burden on prison officials to prove 'that no reasonable method exists by which [prisoners'] religious rights can be accommodated without creating bona fide security problems,"' the Court adopted the District court's reasonableness analysis. 28 1 RLUIPA shifts the burden to prison officials to demonstrate that an accommodation, here to a mandatory religious duty, would imperil a compelling governmental interest.

In discussing the proposed accommodation, the Court said: [That] the case for the validity of these regulations is strengthened by examination of the impact that accommodation of respondents' asserted right would have on other inmates, on prison personnel, and on allocation of prison resources generally.

See Turner, supra at 2.

Respondents suggest several accommodations of their practices, including placing all Muslim inmates in one or two inside work details or providing weekend labor for Muslim inmates ...As noted by the District Court, however, each of respondents' suggested accommodations would, in the judgment of prison officials, have adverse effects on the institution. Inside work details for gang minimum inmates would be inconsistent with the legitimate concerns underlying [the regulation] and the District Court found that the extra supervision necessary to establish weekend details for Muslim prisoners "would be a drain on scarce human resources" at the prison ...Prison officials determined that the alternatives would also threaten prison security by 279. OLone, 482 U.S. 280. Id. at 350.

281. Id.

at 349.

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allowing "affinity groups" in the prison to flourish.

Administrator O'Lone testified that "we have found out and think almost every prison administrator knows that any time you put a group of individuals together with one particular affinity interest ... you wind up with ... a leadership role and an organizational structure that will almost invariably challenge the institutional authority." Finally, the officials determined that special arrangements for one group would create problems as "other inmates [see] that a certain segment is escaping a rigorous work detail" and perceive favoritism. These concerns of prison administrators provide adequate support for the conclusion that accommodations of respondents' request to attend Jumu'ah would have undesirable results in the institution. These difficulties also easy alternatives to make clear that there are no "obvious, 282 the policy adopted by petitioners."

Justice Brennan's dissent seems more consistent RLUIPA and current accommodationist jurisprudence.

with

The religious ceremony that these respondents seek to attend is not presumptively dangerous, and the prison has completely foreclosed respondents' participation in it. I therefore would require prison officials to demonstrate that the restrictions they have imposed are necessary to further an important government interest, and that these restrictions 2 83 are no greater than necessary to achieve prison objectives.

The constitution was not adopted as a means of enhancing the efficiency with which government officials conduct their affairs, nor as a blueprint for ensuring sufficient reliance on administrative expertise. Rather, it was meant to provide a bulwark against infringements that might otherwise be justified as necessary expedients of governing . . . While we must give due consideration to the needs of those in power, this Court's role is to ensure that fundamental restraints on that power are enforced ... Where exercise of the asserted right is not presumptively dangerous, however, and where the prison has completely deprived an inmate of that right, then prison officials must show that "a particular restriction is necessary to further an important governmental interest, and that the limitations on freedoms occasioned by the restrictions are no greater than necessary to effectuate the 282. Id. at 352-53.

283. Id. at 354.

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governmental objective involved".. . The prison in this case has completely prevented respondent inmates from attending the central religious service of their Muslim faith. I would therefore hold prison officials to the standard articulated in Abdul Wali, and would find their proffered justifications wanting.

The State has neither demonstrated that the restriction is necessary to further an important objective nor proved that less extreme measures may not serve its purpose.

Even if accepted the Court's standard of review, however, I could not conclude on this record that prison officials have proved that it is reasonable to preclude respondents from attending Jumu'ah. [Prison officials] have provided mere unsubstantiated assertions that the plausible alternatives proposed by respondents are infeasible.2 84 Jumu'ah is a core religious ceremony and under RLUIPA and RFRA must be accommodated absent an imminent threat, since it is not presumptively dangerous as, for example, allowing prisoners to organize a union or allowing a beard to grow so long as to enable a prisoner to hide a weapon in it. In fact, as Justice Brennan pointed out, the then relevant Federal Bureau of Prisons regulations required: [T]he adjustment of work assignments to permit inmate participation in religious ceremonies, absent a threat to "security, safety, and good order." The Bureau's Directive implementing the regulations on Religious Beliefs and Practices of Committed Offenders, 28 C.F.R. §§548.10548.15 (1986), states that, with respect to scheduling religious observances, "[t]he central the religious activity is to the tenets of the inmate's religious faith, the greater the presumption is for relieving the inmate from the institution '' 5 program or assignment. 11 It is apparent that the sincerity and facially reasonable arguments of prison officials, although prevailing in OLone would not prevail today.

IX. THE FIRST AMENDMENT AND RELIGIOUS EXERCISE IN PRISON In general, regulations which infringe on free speech with

284. Id. at 285. Id.

356.

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respect to religious language must at times withstand a higher scrutiny than when non-religious language is involved. The Supreme Court, in passing upon the limitations that can be imposed upon freedom of religious expression, said in Cantwell v. Connecticut that while freedom of conscience (that is the freedom to believe) cannot be restricted by law as it safeguards the free exercise of one's chosen form of religion, the freedom to speak, in the nature of things, cannot be absolute.2 86 Despite the effects of those who use religion as a means of racial or ethnic stigmatization or polarization, prisoners' religious rights and freedoms are not to be adjudged on the basis of the philosophical or sociological soundness of the concepts they espouse in the name of their religion.2 87 Prison authorities have the right to subject the practices of the followers of any religion to reasonable regulations necessary for the protection and welfare of the community involved. This means that while religious language in general must not be restricted based on the popularity of the content, religious language advocating acts of aggression against others,2 88or disobedience to those in lawful authority can be regulated.

In Banks v. Havener, the court stated that regulations prohibiting the exercise of religion must meet the clear and present danger test. 2 89 Prison officials must prove by satisfactory evidence that the teachings and practices of the particular religious group create a clear and present danger to prison security or to the orderly functioning of the institution.

Teachings and practices create a clear and present danger if prison officials have a reasonable belief that religious language is readily susceptible to an interpretation that encourages aggressive hostility toward other prisoners and prison officials as well as toward those prisoners of the same affiliation who refuse to conform. 290 Even in the absence of actual threat or harm, language which can reasonably be interpreted to encourage prisoners to act contrary to the demands of orderly prison administration, may lead to increased tension, instability and an increased probability of hostile outbursts, conflict among 286. Cantwell v. Connecticut, 310 U.S. 296 (1940).

287. Knuckles, 435 F.2d at 1255.

288. Id. at 1256.

289. Banks, 234 F. Supp. at 27.

290. Knuckles, 435 F.2d at 1256.

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the prisoners, or other breaches of prison discipline may be prohibited.2 9 1 For example, in Knuckles, the Third Circuit found that words used by members of the Muslim religion which referred to members of the Caucasian race as devils, enslavers, and the national enemy of Negroes and other nonwhite races, could be restricted as a clear and present danger even in the absence of actual breach of prison discipline by and/or attributable to the preaching Muslim prisoners following 2 92 of their Muslim leader.

Pursuant to RLIUPA, the rationale for labeling such references as a clear and present danger needs to go beyond its mere content. There must be something about the time, specific place, or audience that precipitated a restrictive reaction by prison authorities. Prison officials, therefore, must show more than mere antipathy of inmates and staff to justify suppression of practice of religion.2 9 3 In Banks, Black Muslim religious followers were prohibited from the free exercise of Muslim rituals and doctrines, including the right to preach their beliefs.

The prohibition followed a violent reprisal against prison authority, although there was evidence that participants in the riot included non-Muslims and prisoners from other religions.

Prison authorities believed that the Muslims were the motivating influence of the riot and stated that the practice of the religion created a clear and present danger to the security of the institution and its inmates, because it created tensions which seriously jeopardized the therapeutic program instituted for the rehabilitation of the prisoners. 2 9' The court struck down the restrictions holding that the evidence was not conclusive that the riots were instigated or lead by members of the Black Muslims because other inmates of other religions equally participated in the riots. Further, the probability of MuslimThe court inspired future riots was speculative at best. recognized that there was no clear and present danger and the restriction on religious expression was invalid.2 9 5 In Long v. Parker, the Court reversed an order of summary judgment in favor of prison officials who denied Black Muslims 291. Banks, 234 F. Supp. at 31.

292. Knuckles, 302 F.Supp. at 1059.

293. Banks, 234 F. Supp. at 30.

294. Id. 295. Id.

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the right to receive books because they were considered racist and highly inflammatory. 296 There were material issues of fact regarding whether the literature created clear and present dangers. The prison officials conceded that the doctrines and teachings of the Quran did not constitute any grave problems for prison administrators, nor was the language so inflammatory as to be harmful to prison security.2 9 7 In McCabe v. Arave, a case decided before the enactment of RLUIPA,2 9 8 the Ninth Circuit considered prison authorities' banning of group worship for close-custody adherents of a white supremacist religion and a ban of their literature. 299 In upholding the ban on group worship, the court found that such a ban was neutrally applied to all close-custody prisoners, plus the clergyman involved, preached "racial hatred, revenge, and violence."3 00 Authorities did "permit the prisoners to visit individually with [their] ministers." 30 1 Under RLUIPA it is doubtful that the neutrally applied rule would be found significant but because the prisoners were considered dangerous, the minister involved preached violence, and alternative means of receiving religious instruction-so to speak-was provided, the ban would likely be upheld as protecting against an imminent or clear and present danger.

Citing Turner, the Circuit court reversed the ban on literature as a content regulation infringing of the First Amendment rights of prisoners. 30 2 The court indicated that the books, although advocating racial purity, did not advocate violence, a factor that may not be germane under RLUIPA absent evidence of imminent danger or a clear and present danger.

X. THE BURDEN IMPOSED ON PRISON AUTHORITIES Prison authorities must demonstrate that in placing a substantial burden on an inmate's religious practice, such 296. Long v. Parker, 390 F.2d 816 (3d Cir. 1968).

297. Id at 821.

298. McCabe, 827 F.2d at 634.

299. Id at 636. The Church was identified as the "Church of Jesus Christ Christian."

300. Id at 637.

301. Id. 302. Id at 638.

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burden is the least restrictive means of furthering a compelling government interest. RLUIPA places the evidentiary burden on prison officials to identify alternatives, if possible, and to rebut prisoner claims of the inaccessibility of such alternatives. 30 3 In analyzing the validity of prison regulations under the Constitution and the Congressional mandates of RLUIPA and RFRA, prison authorities restricting religious exercise may well have to demonstrate that any action is imposed as a result of an imminent danger, a presumptively dangerous situation, or a clear and present danger. In addition, a court may take into account the availability of prison resources including personnel and money.

XI. CONCLUSION

The Georgia statutory privilege, whatever its continuing viability in other contexts, is generally superfluous in the prison context. It might, however, cloak prisoner-clergy conversations meant to be private and claimed to be for spiritual guidance and, if an applicable privilege statute so provides, occurring as part of the clergy's professional responsibilities. This might well limit the legality of prison authority monitoring of such conversations.

Such monitoring would violate the very purpose of the privilege which entails society's interest in repentance, reform, and rehabilitation. This, of course, is not the motivation behind the protection of religious exercise generally, which should be obvious from the protection currently afforded to various allegedly religious beliefs which involve the advocacy of racial purity, hostility to non-adherents and even the encouragement of violence. The messenger and the messages only need to reflect sincerely held "religious" beliefs to trigger RLUIPA, RFRA, and free exercise protections.

When the spending power or Commerce Clause is involved, RLUIPA combined with free exercise jurisprudence will protect both the prisoner and his spiritual advisor from restrictions on religious meetings, speech, and activities based on sincerely held religious beliefs absent a competing compelling governmental interest based on the safety, security, or excessive 303. See, e.g., Sanders v. Ryan, 484 F.Supp. 2d 1028 (D. Ariz. 2007).

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administrative burden on religious exercise. Even if RLUIPA is not involved, RFRA will impose the same burdens on federal prison authorities, at least, insofar as central or mandatory acts are involved.

When neither RLUIPA nor RFRA is applicable, free exercise jurisprudence will protect prisoner rights although the standard for restricting such rights will be the rational basis test.

Because of the ambiguity of the least restrictive means requirement which may be applied very differently depending upon the resources and facilities available to prison authorities and the varying demands of various religions, old and newly conceived, with regard to religious rituals, litigation is likely to continue unabated. The all-encompassing nature of Islam, its non-separation of the secular and the sacred, its rejections of Western values, and its many specific behavioral mandates, including those seen as a threat to prison safety and security, will continue to create a disproportionate litigation burden involving Muslim prisoners. Attempts at limiting religious literature in a neutral manner as an excuse for not confronting the violent nature of much religious literature will fail. On the other hand, banning the Quran and hadith will fail because although they may contain justifications for violent behavior towards others, there is both alternative interpretations and the advocated violence is not directed at immediate specific targets.

Any literature that advocates immediate violent action can be banned. Clerics' speech can not be monitored while engaged in spiritual guidance but if their presence has led to violence, they can be barred.

The burden that must be met in restricting free exercise might, depending upon the circumstances, include evidence that the activity is presumptively dangerous or is a clear and present danger or constitutes an imminent threat. The test becomes whether the speech or activity is likely to trigger a response threatening the compelling government interest in safety and security taking into account the time, place, and audience. If there is an alternative mode of expression not implicating the valid concerns of prison authorities, and such authorities wish to restrict the activity, those authorities must provide alternatives that are narrowly tailored based on a compelling government interest and meet the least restrictive test.

Put differently, the 1 9 th Century conscience/acts dichotomy has been replaced by an accommodationist approach to actions

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even when applying the traditional time, place, and manner regulations. In the prison context, limitations may be placed on presumptively dangerous activities and literature. Activities not presumptively dangerous, whether or not central to religious observance, cannot be restricted unless there are readily The exception to this rule of nonavailable alternatives. restriction is the presence of a competing compelling government interest with the restriction narrowly tailored.

Banning allegedly dangerous literature requires a prior review by the prison authorities and a chance to challenge such banning by both the intended recipient and the sender. In short, in order to merit judicial deference to any limitations on free exercise, prison authorities must present credible evidence to support their stated penological goals.

By effectively mandating the United States Supreme Court's accommodationist jurisprudence to a prison setting, Congress has placed a severe burden on prison authorities. Perhaps this is an inevitable result of the Supreme Court's legislating limitations to the 1 9 th Century conscience/acts dichotomy and the privileged position of Christianity. Perhaps it is because the courts, particularly the federal courts, so expert in the creation and manipulation of abstract principles, often have little competence in dealing with reality.

REQUIRING NOTICE: GEORGIA PROBATIONERS' FOURTH AMENDMENT RIGHTS AFTER JONES V. STATE STEWART D. BRATCHER*

I. Introduction ......................................................................

II. United States Supreme Court Cases Dealing With Probationer Searches .....................................................

A. Griffin v. Wisconsin and the Special Needs D octrine ................................................................

1. B ackground ..................................................

2. United States Supreme Court Opinion .........

B. United States v. Knights and the Reasonableness T est .......................................................................

III. Probationer Searches in the Georgia Courts .....................

A. Georgia Decisions Prior to United States v.

Knights .................................................................

B. Jones v. State: A Notice Requirement for Probationer Searches ..........................................

1. B ackground ...................................................

2. The Opinion of the Supreme Court of G eorgia ........................................................

IV. An Analysis of the Jones Decision in Light of Griffin and Knights ..........................................................

V. An Alternative Approach: Notice as a Factor in Determining Reasonableness ..........................................

A. Georgia's Interests in Conducting Warrantless Probationer Searches ............................................

B. Reasonable Expectation of Privacy .........................

C. Factors Affecting Both Sides of the Reasonableness Balance ......................................... * Assistant

154 156 157 157 158 159 162 162 163 163 164 165 169 170 172 175

District Attorney, State of Georgia. The opinions expressed in

this Article are those of the author and should not be attributed to his office, or any other member thereof. Special thanks to Elizabeth Koppany and Rosemary Heidmann for their invaluable assistance and support.

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V I. C onclusion ......................................................................... 176 I. INTRODUCTION

Since the U.S. Supreme Court first addressed the issue in 1987, courts have struggled with determining the extent of Fourth Amendment protections afforded to individuals under criminal probationary sentences.

The Court has approved warrantless searches by probation officers based upon "reasonable grounds" to believe that a probationer possessed contraband-conducted pursuant to a Wisconsin regulationunder the "special needs doctrine." 1 Later, seemingly shifting its analysis away from the special needs doctrine in this context, the Court approved a warrantless search-based on reasonable suspicion and conducted pursuant to a consent to search agreement2 included as a condition of probation-under the traditional reasonableness balancing test customarily applied in Fourth Amendment cases.3 The Court has also applied this reasonableness test to approve suspicionless searches of parolees based on a similar consent to search agreement imposed as a condition of parole. 4 The Court has never disapproved of a search of a probationer or parolee based on the absence of a warrant or probable cause.

Because the Court has altered the test used to analyze searches of probationers, as well as the fact-specific nature of the opinions themselves, lower courts have struggled with defining the extent of protections afforded by the Fourth Amendment to individuals on probation. 5 One area of disagreement among courts is whether the warrant and probable

1. Griffin v. Wisconsin, 483 U.S. 868 (1987).

2. A "consent to search agreement" is a condition of probation agreed to by the defendant at sentencing by which he agrees to waive some or all of his Fourth amendment rights while on probation. Consent to search agreements are also known as "Fourth Amendment Waivers," and other names, but for the purposes of this Article will be referred to as consent to search agreements.

3. U.S. v. Knights, 534 U.S. 112 (2001).

4. Samson v. California, 547 U.S. 843 (2006).

5. See, e.g., 1-3 CRIMINAL CONSTITUTIONAL LAW

(MB) ยง 3.14 (discussing questions left open after Knights and Griffin and comparing the treatment of those issues by various courts).

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cause requirements of the Fourth Amendment remain applicable to probationer home searches where a state has no law or regulation authorizing warrantless searches, and the probationer has not signed a consent to search agreement as a part of his sentence.

In Jones v. State, the Supreme Court of Georgia recently held that absent "a state law, legally authorized regulation, or sentencing order," the search of a probationer's home was per se unreasonable absent a search warrant, probable cause, or a generally applicable exception to the warrant requirement because the probationer was not put on notice that his Fourth Amendment rights would be diminished under such circumstances. 6 By contrast, other courts, including the Eleventh Circuit, treat the absence of such laws, regulations, and sentencing orders as just one factor in a balancing test designed to determine the reasonableness of a particular search under the totality of the circumstances in existence at the time of the search.7 This Article argues that the Supreme Court of Georgia adopted the wrong approach to determine the reasonableness of probationer home searches where there is no law, regulation, or sentencing order allowing such searches without a warrant or probable cause. Specifically, Jones rests on a misconstruction of the decisions of the U.S. Supreme Court in Griffin v.

Wisconsin8 and United States v. Knights.9 A better reading of those cases, adopted by other courts, treats notice to the probationer as a significant, but not indispensable factor in determining the reasonableness of a probationer home search.

Part II discusses the decisions of the U.S. Supreme Court in Griffin v. Wisconsin and United States v. Knights, which frame the discussion regarding probation searches. Part III presents an overview of cases discussing the Fourth Amendment rights of probationers in Georgia, prior to the U.S. Supreme Court's decision in Knights, and then discuses the decision by the Supreme Court of Georgia in Jones v. State. Part IV analyzes the Jones decision in light of the U.S. Supreme Court decisions

6. Jones v. State, 653 S.E.2d 456 (Ga. 2007).

7. U.S. v. Yuknavich, 419 F.3d 1302 (11th Cir. 2005).

8. Griffin, 483 U.S. 868.

9. Knights, 534 U.S. 112.

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in Grifin and Knights. Part V argues that the test adopted by other courts-including the Eleventh Circuit Court of Appeals-to determine the reasonableness of warrantless searches of probationers based on less than probable cause is the better approach than the rule adopted in Jones. This Article concludes in Part VI by discussing the pragmatic implications of the Jones decision for the State of Georgia and offers possibilities on how to remedy the effects of the decision.

II. UNITED

STATES SUPREME COURT CASES DEALING WITH PROBATIONER SEARCHES

The U.S. Supreme Court first dealt with the extent to which individuals on probation are protected by the Fourth Amendment in Griffin v. Wisconsin.10 There, the Court upheld a warrantless search conducted on the basis of reasonable suspicion by a probation officer, pursuant to a valid regulation." In United States v. Knights,12 the Court upheld a warrantless search based upon reasonable suspicion conducted pursuant to a consent to search agreement that the defendant agreed to as a condition of probation.' 3 While heavily relying on its prior decision in Griffin, the Court upheld the search in Knights based on a traditional balancing test designed to assess the reasonableness of the search based on the totality of the circumstances. 4 Thus, although it appears the Court has largely shifted its analysis from a special needs test to a reasonableness balance, 5 it is still critical to understand the Griffin decision due to the extent to which the factors discussed in that case informed the reasonableness balance conducted by the Court in Knights.

10. Griffin, 483 U.S. 868.

11. Id. 12. Knights, 534 U.S. 112.

13. Id. 14. Id. at 118-19.

15. See Antoine McNamara, Note, The Special Needs of Prison, Probation, and Parole, 82 N.Y.U. L. REv. 209 (advocating a return to the special needs doctrine because the reasonableness test undervalues probationers' rights).

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A. Griffin v. Wisconsin and the Special Needs Doctrine 1. Background On September 4, 1980, Joseph Griffin was convicted of the offenses of obstructing an officer, resisting arrest, and disorderly conduct in Wisconsin State Court and was placed on probation.' 6 Under Wisconsin law, probationers were considered to be in the custody of the State Department of Health and Human Services, and therefore subject to the rules and regulations established by that department.17 One such regulation promulgated after Griffin was sentenced allowed a probation officer to conduct a warrantless search of a probationer's home so long as the officer had "reasonable grounds to believe contraband was present, and [] approval of a supervisor."' 18 The regulation instructed probation officers to consider a variety of factors in order to assess whether "reasonable grounds" existed, including: the reliability and specificity of the information, informant reliability, the officer's prior experience with the individual on probation, and the need to "verify compliance"9 with both the rules of probation and with state and federal law.'

Probation officers supervising Griffin were informed by a police detective in April of 1983 that Griffin might have guns in his apartment. 20 A probation officer went to the apartment with three police officers and conducted a warrantless search, pursuant to the regulation, and located a firearm. 2' Griffin was charged with possession of a firearm by a convicted felon. 22 At his trial, Griffin moved to suppress the firearm claiming that the search of his apartment conducted by the probation officer violated the Fourth Amendment.2 3 The trial court denied the

16. Griffin, 483 U.S. at 870.

17. Id. (citing Wisc. STAT. § 973.10 (1) (1985-1986)).

18. Id. at 870-871 (citing Wis. ADMIN. CODE HHS §§ 328.21 (4), 328.16(1) (1981)).

19. Id. at 871 (citing WIs. ADMIN. CODE HHS § 328.21 (7)).

20. Id. at 871.

21. Id. 22. Id. at 872.

23. Id.

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motion, and Griffin was convicted.24 The Wisconsin Supreme Court affirmed the conviction, holding that the fact that Griffin was on probation alone so diminished his expectation of privacy that a warrantless search based on reasonable grounds was permissible.25 2. United States Supreme Court Opinion The U.S. Supreme Court affirmed the decision of the Wisconsin Supreme Court using a different rationale. The Court found no need to reach the issue of whether a probationer's expectation of privacy was so diminished that a warrantless search based on reasonable grounds would always be permitted.26 Rather than accept or reject this "new principle of law," the Court affirmed the search on the basis of the special needs doctrine.27 Justice Scalia, writing for a seven justice majority, noted that the Fourth Amendment requires searches of probationers' homes to be "reasonable." 28 While reasonableness generally requires a warrant and probable cause, the opinion notes that the Court has allowed exceptions to these requirements "when special needs beyond the needs of normal law enforcement, requirement warrant and probable-cause make the 29 The Court held that a State's operation of a impracticable." probation system was one such special need.3 ° First, the Court noted, "probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or guilty plea." 31 Second, the Court pointed out that "it is always true of probationers... that they do not enjoy the absolute liberty to which every citizen is entitled, but only conditional liberty properly dependent on observance of special restrictions. ' '32 The restrictions are designed to serve 24. Id. 25. State v. Griffin, 388 N.W.2d 535 (Wis. 1986).

26. Griffin, 483 U.S. at 872.

27. Id. at 872-74.

28. Id. at 873.

29. Id. 30. Id. at 873-74.

31. Id. at 874 (citing G. Killinger, H. Kerper, & P. Cromwell, Probation and Parolein the CriminalJustice System (1976)).

32. Id. at 874.

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the two primary purposes of probation-rehabilitation of the offender and protection of the public-and supervision was needed to serve those purposes.3 The Court thus concluded that supervision of probationers was a special need of the state that allowed infringements on privacy that would violate the Fourth Amendment if applied to the public at large. 34 Because the opinion then pointed out that the allowable infringements were not unlimited, the Court went on to analyze the Wisconsin system under the special needs doctrine.35 The Court approved the warrantless search conducted pursuant to the Wisconsin regulation, determining that the warrant and probable cause requirements would unduly frustrate the operations of the Wisconsin probation system.3 6 First, the Court stated that a warrant requirement would replace the probation officer with a magistrate in determining the proper level of supervision of a probationer. 3 7 Second, "the delay inherent in obtaining a warrant would make it more difficult for probation officials to quickly respond to evidence of misconduct, and would reduce the deterrent effect that the 38 possibility of expeditious searches would otherwise create."

The Court also determined that a probable cause requirement would "unduly disrupt"3 9 the probation system, because it "would reduce the deterrent effect of the supervisory arrangement,, 40 and would not allow probation officers to act on the basis of the complete knowledge of the offender's history and circumstances possessed by probation officers. 4 ' B. United States v. Knights and the Reasonableness Test In 1998, Mark Knights was placed on probation for a drug offense and agreed as a condition of probation to submit his "person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant 33.

34.

35.

36.

37.

38.

39.

40.

41.

Id. at 875.

Id. Id. Id. at Id. at Id. Id. at Id. Id. at

876-80.

876.

878.

879.

160

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of arrest, or reasonable cause by any probation officer or law enforcement officer."42 Three days after being placed on probation, a Deputy Sheriff obtained reasonable suspicion that Knights was involved in several acts of vandalism resulting in over one million dollars worth of damage to a local gas and electric company.43 Aware of the search condition imposed as a part of Knights's sentence, the Deputy conducted a search of Knights's home, finding several items implicating him in the 44 vandalism.

Knights was charged for the new offense in Federal District court and moved to suppress the evidence obtained during the search of his home. 4' Relying on Ninth Circuit case law decided after Griffin,46 the District court granted the motion to suppress, holding that the search was investigative in nature rather than being conducted for probationary purposes.47 The Ninth Circuit Court of Appeals affirmed,48 and the United States appealed to the Supreme Court.

The U.S. Supreme Court unanimously reversed the granting of the motion to suppress. The Court rejected the distinction drawn by the Ninth Circuit between investigative searches and searches by probation officers pursuant to special needs. 49 The opinion referred to the logic of the Ninth Circuit's interpretation of Griffin as "dubious," rejecting the idea that "an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search not like it." 5° The Court also refused to decide the case based on the government's argument that Knights's acceptance of the special condition of probation constituted consent to search within the meaning of the Fourth Amendment.51 It was unnecessary to reach that issue, said the Court, because the case could be decided under the "general Fourth Amendment approach" of examining the totality of the 42. Knights, 534 U.S. at 114.

43. Id. at 114-15.

44. Id.at 115.

45. Id.at 116.

46. Id. 47. Id.

48.

49.

50.

51.

U.S. v. Knights, 219 F.3d 1138 (9th Cir. 2000).

Knights, 534 U.S. at 116-18.

Id.at 117.

Id.at 118.

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circumstances surrounding the search. 52 Under the totality of the circumstances approach, the Court determines the reasonableness of a search by balancing the degree to which the search intrudes on an individual's privacy against the extent to which the search is needed to further legitimate governmental interests. 53 The opinion noted two factors that "significantly diminished Knights'[s] reasonable expectation of privacy." 54 First, relying on prior decisionsincluding Griffin-the Court noted that the fact that an offender 55 is on probation itself reduces his expectation of privacy.

Second, Knights was unambiguously informed of the search condition when he was sentenced, thus further lowering his privacy expectations. 5 6 On the governmental interest side of the balance, the Court relied on the State's interest in serving the two primary purposes of probation identified in Griffin-rehabilitation and prevention of recidivism. 57 The opinion, citing high recidivism rates for probationers, noted that efforts to protect society from recidivist probationers made it reasonable for a State to "focus on probationers in a way it does not on the ordinary citizen. 5 8 Moreover, probationers have a greater incentive to conceal criminal activities than the ordinary criminal does, because probation revocations lack many of the procedural safeguards of a criminal trial.59 Balancing the interests, the Court determined that the warrantless search of Knights, based on reasonable suspicion, was not unreasonable 60 with the signed search condition constituting a "salient circumstance" in the reduction 61 of Knights's expectation of privacy.

52. Id.

53. Id. at 118-19 (citing Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).

54. Knights, 534 U.S. at 119-20.

55. Id. 56. Id. at 119.

57. Id. at 119-20.

58. Id. at 120.

59. Id. 60. Id. at 121.

61. Id. at 118.

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III. PROBATIONER SEARCHES IN THE GEORGIA COURTS

A. GeorgiaDecisions Priorto United States v. Knights Prior to the U.S. Supreme Court's decision in Knights, Georgia-like several other jurisdictions-adopted a "waiver theory" to probation searches. 62 Waiver theory holds that where a defendant agrees to a waiver of his Fourth Amendment rights as a special condition of a probationary sentence, that waiver constitutes consent, and searches conducted pursuant to the condition are valid.63 Georgia courts interpreted the question of when a defendant consented to a Fourth Amendment waiver narrowly, however. For example, in Fox v. State,64 the defendant signed a sentence sheet stating that he agreed to follow "all general and special conditions" of probation included in page two of his written sentence. 65 A Fourth Amendment waiver was one of the conditions listed on page two. 66 Despite this fact, the Court determined that the defendant had not waived his Fourth Amendment rights because he was not specifically advised of the condition until right after his sentence by a probation officer, outside the presence of his attorney.67 Thus, the Court concluded that the defendant did not 68 consent to the waiver as a condition of his sentence.

This did not end the analysis in Fox, however. After finding that the defendant did not consent to the Fourth Amendment waiver, the Court then addressed the issue of whether the search was nonetheless reasonable under the special needs test set forth in Griffin v. Wisconsin.69 Despite the fact that the Griffin Court 62. See Allen v. State, 369 S.E.2d 909 (Ga. 1988) (adopting waiver theory); see also 3 WAYNE LAFAVE, SEARCH AND SEIZURE, A TREATISE ON THE FOURTH AMENDMENT ยง 10.10 (b) (3d ed. 1996) (discussing waiver

theory and the States which have adopted it).

63. LAFAVE, supra note 62, ยง 10.10 (b).

64. Fox v. State, 527 S.E.2d 847 (Ga. 2000).

65. Id. at 851 (Hunstein, J., Concurring).

66. Id. 67. Fox, 527 S.E.2d at 848.

68. Id. at 848-49.

69. Id. at 849 ("The question remains, however, [after finding that the defendant had not waived his Fourth Amendment Rights] whether the search of Fox's residence was reasonable under the Fourth Amendment.").

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specifically stated that it was not ruling on whether a search based on less than reasonable grounds could pass constitutional muster,7 ° the Fox majority interpreted Griffin to mean that any special needs search must be based, at a minimum, on "reasonable grounds to believe that the probationer has contraband in the home or is engaged in some criminal activity there."' 7 The Court concluded that reasonable grounds did not exist in Fox and held the search unconstitutional.72 What is noteworthy is not the result of the special needs analysis, but the fact that the Court conducted the analysis at all. Given the absence of any waiver of rights as a condition of the defendant's probation-and the absence of a Georgia statute or regulation authorizing probationer home searches without a warrant and probable cause-this balance of interests would be unnecessary to reach a determination that the search was unreasonable today, after the opinion of the Supreme Court of Georgia in Jones v.

State.

B. Jones v. State: A Notice Requirementfor Probationer Searches 1. Background Jerry Jones73 was under two separate probationary sentences for possession of a firearm by a convicted felon, obstruction of an officer, and a motor vehicle law violation.74 Jones's sentencing order out of Gordon County contained a pre-printed warrantless search condition, but the box next to that condition was not checked. 75 As a condition of that sentence, Jones was to serve four to six months on intensive probation that included a Fourth Amendment waiver, but at the time of the search at issue on this case the intensive probation period had ended.76 70. Griffin, 483 U.S. at 872-73.

71. Fox, 527 S.E.2d at 850.

72. Id. at 850-51.

73. Jerry Jones's sentencing trial is still pending. The author has had no involvement in this case, and this article contains no information about the case not already available to the public through the opinion of the Supreme Court of Georgia.

74. Jones, 653 S.E.2d at 458-59.

75. Id. at 458.

76. Id.

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There was no evidence that Jones's sentence out of Floyd County contained a Fourth Amendment wavier at all.7 7 The search of Jones's apartment occurred when a probation officer, who had obtained an arrest warrant but no search warrant, went to Jones's apartment along with several law enforcement officers to effectuate an arrest for a probation violation.7 8 It is unclear from the opinion what type of probation violation was alleged against Jones in the arrest warrant. What is clear, however, is that at the time Jones was suspected in a quadruple homicide that occurred in Gordon County.

While present to serve the arrest warrant, the probation officer, accompanied by several law enforcement personnel, conducted a warrantless search of the apartment.8 0 Jones ultimately pleaded guilty to four counts of murder and eighteen other crimes, and the State announced that it would seek the death penalty. 8 Jones filed a motion to suppress the evidence found at his apartment, seeking to have it excluded at his sentencing trial.82 The trial court entered an order denying Jones's motion to suppress, and the Supreme Court of Georgia 83 granted his application for interim review.

2. The Opinion of the Supreme Court of Georgia In Jones v. State, the Supreme Court of Georgia held that any evidence beyond that which was in plain view of the officers present should be suppressed because the search conducted violated the Fourth Amendment.8 4 The Court determined that Jones did not consent to a waiver of his Fourth Amendment rights as a condition of his prior sentence beyond the four to six month period of intensive probation that he already completed.8 5 Furthermore, no Georgia law or regulation created

77. Id. at 459.

78. Id. at 457.

79. Id. 80.

81.

82.

83.

84.

Id.

Id. Id. Id.

Id.

85. Id. at 458-59.

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a blanket search provision applicable to probationers.8 6 Thus, Jones did not have notice that his Fourth Amendment rights were diminished based solely on the fact that he was under a 8 7 probationary sentence.

The Court first noted that probationers are protected by the Fourth Amendment and that any search of their residence must be reasonable. 8 8 The Court looked to Griffin for guidance, but noted that in Griffin the special needs analysis was conducted in a case where the state of Wisconsin had a legal regulation authorizing the search of a probationer based on "reasonable grounds. ' ' 89 The opinion also cited Knights, but pointed out that there was an explicit search condition agreed to by Knights as a condition of probation that limited his Fourth Amendment rights. 90 Reading Knights and Griffin together, the Court concluded that the U.S. Supreme Court had "strongly suggested that the Fourth Amendment right not to have one's home searched without a warrant may only be denied to probationers through a valid law, legally authorized regulation, or sentencing order giving notice of that deprivation of rights." 9 ' Because Jones did not have such notice-which the court concluded was a "critical consideration" in determining his expectation of privacy-the search was unconstitutional.9 2 The opinion did not conduct a balancing test based on reasonableness under totality of the circumstances, implicitly determining that such a test was unnecessary based on the lack of notice provided to Jones.

IV. AN ANALYSIS OF THE JONES DECISION IN LIGHT OF GRIFFIN AND KNIGHTS

The problem with Jones v. State and the Supreme Court of Georgia's approach to probationer searches does not necessarily lie in the result reached by the Court in that particular case. The search conducted there may or may not have been 86.

87.

88.

89.

Id.

Id. Id. at 457.

Id. at 457-58.

90. Id. at 458.

91. Id. at 459.

92. Id.

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constitutional, depending on a host of circumstances that the opinion does not even consider. Rather, the problem lies in the fact that the Court held that, absent notice to the probationer through a valid law, regulation, or sentencing order, there is no diminution of the probationer's Fourth Amendment rights based 93 on the fact that he is on probation.

To read Knights and Griffin as the Jones Court did, to establish the proposition that notice is an absolute requirement for conducting a warrantless search of a probationer's home, is, at best, a selective reading of what those opinions hold. Relying on their own decisions and the U.S. Supreme Court's decision in Griffin, the Jones Court focused on the assertion that "the Fourth Amendment applies to probationers as well as other citizens," and that a probationer's home is protected by the requirement that searches be reasonable. 94 While true, these observations shed no light on the extent to which the Fourth Amendment applies, or how the fact that an individual is on probation might affect a court's determination of whether a search of their home is in fact reasonable. 95 To be sure, there was a regulation authorizing searches based on reasonable grounds in Griffin and a Fourth Amendment waiver in Knights, but neither opinion states that such notice to the probationer is a constitutional prerequisite to a warrantless search. In fact, the circumstances of Griffin suggest the opposite.

In Griffin, the defendant was subject to a Wisconsin regulation allowing searches of probationers based on reasonable grounds, but that regulation was not promulgated until over a year after the defendant was already under sentence. 96 Even assuming that the defendant regularly read the regulations of the Wisconsin Department of Health and Social 93. Id. 94. Id. at 457 (citing Griffin, 483 U.S. at 873; Allen, 369 S.E.2d 909; Fox, 527 S.E.2d at 847).

95. See Samson, 547 U.S. at 850 (noting "... to say that Fourth Amendment applies to parolees says nothing about the extent to which it applies.").

96. Knights, 534 U.S. at 117 (citing Griffin, 483 U.S. at 870-71); see also U.S. v. Keith, 375 F.3d 346, 350 (5th Cir. 2004) (relying on the application of a regulation passed after sentencing in Griffin as a major factor in upholding a warrantless probation search even in the absence of a law, regulation, or sentencing order).

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Services-and thus had actual notice of the search regulationit cannot be seriously argued that the notice was in any sense meaningful. Since the regulation was not on the books at the time of his sentencing, he could not have objected to it at that time. When it was later made retroactively applicable to him, it would constitute a violation of his probation if he refused to allow a search pursuant to the provision.97 Thus, even if the defendant had notice of the provision, there was essentially nothing he could do to prevent its application to him. It can be reasonably asked what good notice does under such circumstances, and it is difficult to read this opinion in conjunction with Knights and come to the conclusion that the Supreme Court of Georgia did-that notice is somehow the constitutional touchtone of reasonableness under the circumstances.

The Court also pointed out that the defendant in Knights expressly consented to a waiver of his Fourth Amendment rights as a condition of his probationary sentence. 98 Of course, the Knights opinion pointed to the fact that the defendant had notice and consented to the condition as a "salient circumstance" in determining that he had a lesser expectation of privacy than a normal citizen did.99 But to say that something is a salient factor in an overall balancing test to determine reasonableness is not the same as saying that it is a factor that, without which, a balancing test would become unnecessary.

Nothing in Knights-or Griffin for that matter-necessarily leads to the conclusion that notice through a statute, regulation, or law is an absolute constitutional prerequisite to a diminution of a probationer's privacy rights. In fact, the Court in those cases pointed out that probationers' rights are diminished to some extent even without notice of a specific search condition, based solely on the fact that they are under a criminal sentence and are on probation.' ° Moreover, in Samson v. California, the U.S. Supreme Court has interpreted Knights to mean that the fact that the defendant was under a probationary sentence was the real "salient factor" in their reasonableness analysis, while 97. Griffin, 483 U.S. at 871 (citing Wis. ADMIN. 328.04(3)(k) (1981)).

98. Jones, 653 S.E.2d at 458.

99. Knights, 534 U.S. at 118.

100. Id. at 119-22; see also Griffin, 483 U.S. at 874-80.

CODE

HHS §

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the fact that the defendant was clearly informed of the probation condition was just another factor that the Court considered in upholding the search.' 0 1 In sum, it appears that the Supreme Court of Georgia is employing the same "dubious logic" criticized by Justice Rehnquist in Knights-"an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it." 102 In addition to their discussion of Griffin and Knights, the Jones decision also lists several cases from state and federal appeals courts in a string citation to support its conclusion. 0 3 The majority of these cases, however, simply stand for the proposition that warrantless "reasonable cause" searches based on state regulations, 104 or sentencing orders,105 do not violate the Fourth Amendment.

This is no different than the conclusions reached in Griffin and Knights. Again, the Jones Court is making a logical jump by citing opinions upholding the constitutionality of a search where there is a probation condition or a regulation present to state that searches not based on such a condition or regulation are necessarily unconstitutional. The Court did cite three cases where other courts have explicitly held that the warrant and probable cause requirements apply to 06 probationers absent a law, regulation, or sentencing order.1 But the Jones decision also cited three cases where other courts have upheld warrantless searches despite the absence of a law, regulation, or sentencing order authorizing the search.' 07 The 101. Samson, 547 U.S. at 848.

102. Knights, 534 U.S. at 117.

103. Jones, 653 S.E.2d at 459.

104. U.S. v. Godsey, 224 Fed. Appx. 896 (11th Cir. 2007) (unpublished opinion); U.S. v. Grimes, 225 F.3d 254, 258-59 (2nd Cir. 2000).

105. U.S. v. Midgette, 478 F.3d 616 (4th Cir. 2007); U.S. v. Giannetta, 909 F.2d 571 (1st Cir. 1990); U.S. v. Schoenrock, 868 F.2d. 289 (8th Cir. 1989); People v. Hale, 714 N.E.2d 861 (NY. 1999); State v. Lockwood, 632 A.2d 655 (Vt. 1993).

106. U.S. v. Freeman, 479 F.3d. 743 (10th Cir. 2007); Commonwealth v.

Pickron, 634 A.2d 1093 (Pa. 1993); People v. Flagg, 577 N.E.2d 815 (I11.

App. 1991).

107. Yuknavich, 419 F.3d 1302; U.S. v. Hill, 967 F.2d 902 (3d Cir. 1992); Keith, 375 F.3d 346; see also U.S. v. Scott, 678 F.2d 32, 34-35 (5th Cir. 1982) (case decided prior to Griffin and Knights upholding warrantless

search of a probationer based on reasonable suspicion despite the absence of a regulation or consent order); Latta v. Fitzharrs, 521 F.2d 246, 250 (9th Cir.

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Court made no effort to discuss or analyze these contrary cases in order to determine which courts better interpreted Knights and Griffin. The opinion just asserted without 0analysis that the 8 Court was persuaded that notice was "critical."'

The Jones Court also ignored parts of one of its own prior decisions in reaching this result. As previously discussed, in Fox v. State, the Court concluded that there was no valid sentencing order that the defendant consented to waiving his Fourth Amendment rights.'0 9 Even without this sentencing order, however, and in the absence of any state law or regulation putting the probationer on notice of his reduced expectation of privacy, the Court still analyzed the search conducted in that case under the special needs doctrine to determine if "reasonable grounds" existed for the search.'o Though the Court did not find reasonable grounds in that case,11 1 the noteworthy fact is that the Court applied a reasonable grounds analysis rather than requiring a warrant and probable cause in absence of notice, as Jones would require.

Fox was decided between the Supreme Court decisions in Griffin and Knights. But the Court in Jones made no effort to explain what it found in reading Knights, a decision upholding the constitutionality of a probation search that would alter the approach taken in Fox. Rather, the Court apparently implicitly overruled this portion of the Fox opinion without any real analysis.

V. AN ALTERNATIVE APPROACH: NOTICE AS A FACTOR IN DETERMINING REASONABLENESS

Rather than treating the lack of such notice as making any search of a probationer's home unconstitutional absent a warrant and probable cause, a better application of the opinions in Knights and Griffin is to treat lack of notice through a statute, regulation, or sentencing order as one factor-albeit a "salient" factor-in the reasonableness under the totality of the circumstances balancing test set forth in Knights. At least three 1975).

108. Jones, 653 S.E.2d at 459.

109. Fox, 527 S.E. 2d at 849.

110. Id. at 850.

111. Id. at 850-51.

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circuits," 2 including the Eleventh Circuit Court of Appeals," 3 have adopted this approach. As the Fifth Circuit Court of Appeals has explained, "The core reasoning of the Court in [Griffin and Knights] is directed at explaining why the needs of the probation system outweigh the privacy rights of the probationers generally," and was not directed at highlighting the importance of a "written condition of probation or an explicit regulation permitting the search."" 14 This reasoning is sounder than the Jones approach because it takes into account both sides of the balancing test to determine Fourth Amendment reasonableness, just as the Supreme Court did in Knights.'

As previously discussed, this test balances the Government's need to conduct the search to promote legitimate governmental interests against the degree to which the search intrudes on the individual's privacy. 1 6 To understand why treating lack of notice to the probationer as only one factor in a reasonableness balance, rather than treating it as outcome determinative, is the better approach, it is necessary to look at both the governmental and the individual sides of the reasonableness balance to see how they are affected by notice to the probationer, or lack thereof.

A. Georgia's Interests in Conducting WarrantlessProbationer Searches The State of Georgia is second only to Texas in the number of individuals under a sentence of probation." 7 Georgia has a higher percentage of its population under probationary supervision than any other state in the nation. 118 The number of individuals under a sentence of probation in Georgia nearly tripled between 1995 and 2006.'" 9 While state to state comparisons of recidivism rates are scarce, it appears that the 112.

Freeman, 479 F.3d. 743; Pickron, 634 A.2d 1093; Flagg,577 N.E.2d

815.

113.

Yuknavich, 419 F.3d 1302.

Keith, 375 F.3d at 350.

115. Knights, 534 U.S. at 119.

116. Id. 114.

117. LAUREN E. GLAZE & THOMAS P. BONCZAR, PROBATION AND PAROLE IN THE UNITED STATES, 2006 3 (U.S. Dep't of Justice, 2007).

118. Id.

119. Id. at 11.

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rate of unsuccessful probation completion in Georgia is comparable with the rest of the nation.120 The U.S. Supreme Court has recognized that the purposes of probation are to rehabilitate criminal offenders and to protect society from them. 12 ' The Court has also noted, "the very assumption of the institution of probation is that the probationer 122 is more likely than the average citizen to violate the law."'

Moreover, because he is subject to probation revocations, which are not protected by all of the rights normally associated with a criminal trial, the probationer has more of an incentive to destroy evidence and conceal his criminal activities.' 23 Thus, in this context, there is a special need for supervision to rehabilitate offenders and protect society, justifying departures from the probable cause and warrant requirements. 124 The Court has noted that it is both "unrealistic and destructive of the whole object of the continuing probation relationship" to require the same degree of reliability for the state to act against a probationer than against an ordinary citizen. 12 5 It has also held that probation systems would be interfered with by a warrant requirement. 126 This is unaffected by whether or not the defendant received notice through a sentencing order or regulation that his Fourth Amendment rights are diminished.

That is, probationer recidivism, the need to protect society, and the need to rehabilitate the offender are just as real in Georgia as in Wisconsin or any other State. Also, given the number of individuals under a probationary sentence in Georgia and the fact that recidivism rates appear to be roughly equal to those of other states, 127 it isdifficult to imagine that it is any more realistic to demand a finding of probable cause for probationer searches, or that a warrant requirement is any less

120. GEORGIA DEP'T OF CORRECTIONS, PROBATION DIVISION, PROBATION

IN THE NEW CENTURY 1 (2001) (Successful completion of probation nationally is 60%; in Georgia, it is 66%).

121. Knights, 534 U.S. at 120-21.

122. Id. at 120 (quoting Griffin, 483 U.S. at 880).

123. Knights, 534 U.S. at 120.

124. Id. at 121.

125. Griffin, 483 U.S. at 879.

126. Id. at 876.

127. See supra note 117, at 11.

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disruptive to Georgia's probation system than it was in Wisconsin at the time of Griffin. These reasons for departure from the probable cause and warrant requirements exist whether or not the probationer is put on notice regarding his diminution of Fourth Amendment rights. Thus, the governmental needs side of the reasonableness balance is not at all affected by the lack of notice to the probationer through a law, regulation, or sentencing order containing a consent to search.

B. ReasonableExpectation of Privacy A probationer's expectation of privacy is undoubtedly affected by whether or not he is given notice that his Fourth Amendment rights are diminished because he is on probation.128 But under the balancing test, an expectation of privacy consists of both a subjective and an objective component.129 That is, the defendant must not only have a subjective expectation of privacy, but that expectation must be one that society accepts as reasonable. 3 ° While it might well be the case that absent notice a given probationer may subjectively expect that he will be treated the same as a law abiding citizen with respect to searches-despite the fact that he is under a sentence for violating a criminal law-the presence or absence of notice seems only tangentially related to whether society recognizes that expectation as objectively reasonable.

As the U.S. Supreme Court has noted, probation "is a form of criminal sanction imposed on an offender,"' 13 1 and "it is always true of probationers that they do not enjoy the absolute liberty to which every citizen is entitled."' 3 2 Thus, the status of a probationer alone justifies "reasonable conditions that deprive the offender of some freedoms enjoyed by law abiding citizens." '1 33 The Jones opinion never discussed whether the defendant's expectation was objectively reasonable in light of these holdings or to what extent the fact that Jones was on probation alone may have reduced the reasonableness of his 128. Knights, 534 U.S. at 119.

129. See Smith v. Maryland, 442 U.S. 735, 740 (1979).

130. Id. 131. Knights, 534 U.S. at 119.

132. Id. (quoting Griffin, 483 U.S. at 874, in turn, quoting Morrissey v.

Brewer, 408 U.S. 471, 480 (1972)).

133. Knights, 534 U.S. at 119.

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privacy expectation.

In order to determine what extent probationers in Georgia have an objectively reasonable expectation of privacy, it is necessary to look at Georgia's probation system more closely, in combination with the above descriptions by the U.S. Supreme Court regarding the nature of probation generally.

This is because, even if a defendant is not put on specific notice that his rights against warrantless searches based on less than probable cause are diminished by being on probation, the nature of probation in Georgia could affect whether it is objectively reasonable for a probationer to expect to be treated the same as a law abidin citizen where his Fourth Amendment rights are concerned. 13 Probationers in Georgia are placed under supervision of the Georgia Department of Corrections by statute.' 35 Probation officers are required by statute to "keep informed of the conduct, habits, associates, employment, recreation, and 136 whereabouts" of probationers by visits and requiring reports.

Probationers are required by statute to keep their officers informed of their current residence. 137 Moreover, probation officers may arrest a probationer without a warrant anytime she has materially violated the terms or "believes" the probationer 38 conditions of probation.'

Sentencing courts are given wide discretion in determining what conditions of probation to impose in a given case, 139 and However, certain no conditions are mandated by statute. "general conditions" of probation are suggested by statute, 140 and sentencing courts generally impose these as part of a probationary sentence as a matter of course, 4 1 in addition to any "special conditions" of probation imposed by the court. 4 2 134. See Yuknavich, 419 F.3d at 1310 (considering how conditions of probation can affect the reasonable expectation of privacy, even in the

absence of a search condition, law or regulation).

135. O.C.G.A. § 42-8-27 (2007); O.C.G.A § 42-8-22 (2007).

136. O.C.G.A. § 42-8-29 (2007).

137. O.C.G.A. § 42-8-36 (2007).

138. O.C.G.A. § 42-8-38 (2007).

139. Grant v. State, 336 S.E.2d 354 (Ga. App. 1985).

140. O.C.G.A. § 42-8-35 (2007).

141. Hill v. State, 606 S.E.2d 831, 834 (Ga. App. 2004).

142. Grant, 336 S.E.2d at 354.

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The statutory general conditions that could affect the reasonableness of the probationers' expectation of privacy include, avoiding injurious and vicious habits14 3 as well as places and persons of disreputable character, 144 reporting to the probation officer as directed, 145 permitting the supervisor to visit him at home or elsewhere, 146 remaining within a specified Moreover, location, 147 and maintaining employment. 148 sentencing courts have nearly limitless discretion in determining special conditions of a probationary sentence in addition to these general conditions. 149 Thus, simply being sentenced to probation under the general conditions of probation in Georgia limits the rights of probationers to do a host of things that law abiding citizens are able to do. Probationers are told who they may not associate with, what activities they may participate in, and what location they must remain. They must report to probation officers as directed, keep the officer abreast of their current residence, and allow the officer to visit them at that residence and elsewhere.

Moreover, they are subject to arrest in their homes without a warrant or probable cause.15 ° All of this is in addition to any special conditions of probation a sentencing court may impose 5 that could further bear on the rights of the probationer.

Under these circumstances, it is fair to question whether it is objectively reasonable for a probationer to expect officers to obtain a warrant and probable cause in order to conduct a search of his home. This is a question that the Court in Jones did not even consider, because despite the fact that the probationer had notice that his rights were diminished in all of these ways, he was not given specific notice that his search rights might be diminished.

143. O.C.G.A. § 42-8-35 (1).

144. O.C.G.A. § 42-8-35 (2).

145. O.C.G.A. § 42-8-35 (3).

146. O.C.G.A. § 42-8-35 (4).

147. O.C.G.A. § 42-8-35 (6).

148. O.C.G.A. § 42-8-35 (5).

149. Grant, 336 S.E.2d at 354-55 ("We see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.").

150. O.C.G.A. § 42-8-38.

151. Hill, 606 S.E.2d 831.

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C. FactorsAffecting Both Sides of the Reasonableness Balance Courts that treat the absence of a sentencing order, law, or regulation as one factor in the overall analysis of the reasonableness of a search consider a number of factors foreclosed by the Supreme Court of Georgia's analysis in Jones.

These courts have reasoned that the offense for which the offender is on probation' 52 as well as the contraband he is suspected of possessing at the time of the search 153 are relevant factors in determining reasonableness. For example, if a probationer is suspected of possessing controlled substances or firearms-items that are easily disposable-the government's interest in conducting a warrantless search is greater than would be the case in other circumstances.' 54 If the probationer's prior offenses were committed out of his home, this might reduce his 55 expectation of privacy in that area while on probation.

Courts have also looked to how the defendant has performed on probation up until the time of the search as a factor that can diminish the probationer's expectation of privacy and increase the governmental interest in conducting the search. 156 Under the Jones approach, however, these factors are not taken into account because of the absence of a sentencing order, law or regulation allowing probationer home searches absent a warrant and probable cause.

152. Yuknavich, 419 F.3d at 1310.

153. Id. 154. Id.; see also Griffin, 483 U.S. at 879 ("In some cases, especially

those involving drugs or illegal weapons, the probation officer must be able to act upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before a probationer does damage to himself or society.").

155. See Yuknavich, 419 F.3d at 1310 (being on probation for crime involving computer child pornography reduced expectation of privacy in any computer probationer owned).

156. Id. at 1310-11; see also Griffin 483 U.S. at 879 (a probation agency "must be able to proceed on the basis of its entire experience with the probationer to assess probabilities in light of its knowledge of his life, character, and circumstances.").

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VI. CONCLUSION

The U.S. Supreme Court has twice upheld warrantless searches of probationers' homes based on less than probable cause. While Jones v. State is distinguishable because Jones was not subject to a consent to search agreement and there was no law or regulation providing him notice of the possibility of a warrantless search, nothing in Knights or Griffin establishes this factor as a constitutional prerequisite to a reasonableness balancing test. The better approach is to treat a lack of notice as a salient factor in determining the reasonableness of the search at issue.

From the facts provided in the opinion by the Supreme Court of Georgia, it is not possible to make a determination whether the search conducted in Jones violated the Fourth Amendment.

To correctly reach a determination, the Court would have to balance the expectation of privacy of the defendant-shaded by the fact that he is a probationer-against the government's need to conduct the search at the time the search occurred. To determine reasonableness under the circumstances, the fact the defendant was not given notice through a law, regulation, or sentencing order is a salient circumstance that should have been taken into account, but should not be treated as outcome determinative. The Court's determination should have also looked at the totality of the circumstances at the time of the search, including, the government's interest in conducting the search, the seriousness of the offenses for which Jones was on probation, the nature of the offense for which Jones was suspected leading to the search, other conditions of Jones's probation which may have informed his expectation of privacy, and any other factor bearing on the issue of reasonableness.

Instead, the Court misinterpreted Knights and Griffin to hold that in absence of a sentencing order, regulation, or law, searches of probationers' homes based on less than probable cause can never be reasonable, absent a generally applicable exception to the warrant requirement.

At first glance, it would seem that the decision in Jones would not pose any real pragmatic problems for the probation system. Because Georgia has no law or regulation relating to probationer home searches, sentencing judges would simply have to include a consent to search provision as a condition of probation. But a problem emerges when one considers the

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interpretation of the Court in Fox regarding whether the search There, even though the condition was validly imposed. defendant signed a form acknowledging the search condition, it was held inapplicable because he was not informed of it by the judge at the time he entered his plea.' 57 This would necessitate an officer obtaining a transcript of the plea colloquy in order to determine whether the search provision is applicable-because the condition is only valid if the judge mentions it in the colloquy. This is, of course, impractical, and good officers will likely be deterred from conducting probation searches even when they are permissible, because they cannot rely on a defendant's signed acknowledgement to establish the applicability of the condition. Instead, the officer would have to read a transcript of the probationer's sentencing, which can often take some time to obtain.

Because Jones v. State was decided recently and unanimously, it is unlikely that the Supreme Court of Georgia will alter its approach to probationer searches any time in the near future. But this is a rare instance where a misapplication of the constitution can be corrected by the legislature. Should the Georgia General Assembly pass a statute similar to the regulation at issue in Griffin allowing probationer searches based on reasonable grounds, or similar to a Georgia statute already in existence, allowing warrantless arrests, this would resolve the notice issue that so concerned the Supreme Court of Georgia. Moreover, this statute could be applied retroactively to individuals already on probation without constitutional difficulty, as established in Griffin. Absent such a statute-or U.S. Supreme Court decision clarifying the issue-probationers are likely to be treated the same as law abiding citizens with respect to their Fourth Amendment rights in Georgia.

157. Fox, 527 S.E.2d at 849.

EYEWITNESS IDENTIFICATION PROCEDURES IN GEORGIA: YEARS, DOLLARS, AND

WHAT CAN BE DONE I. THE PROBLEM: WRONGFUL CONVICTIONS BASED ON MISTAKEN EYEWITNESS IDENTIFICATION

One hundred and eleven years1 and $2.7 million. 2 That is the cost for the conviction of seven men in Georgia for crimes that they did not commit. 3 Each of these men was convicted primarily on the basis of eyewitness identification.4 Each of these men has subsequently been exonerated through exculpatory DNA evidence.5 This Comment will discuss wrongful convictions based on mistaken eyewitness identification and reforms that should be 1. See Mike Morris, DNA Frees Man in '79 Rape: Group Helps Make Case; Another Man Jailed after Evidence Revisited, ATLANTA J. CONST., Dec. 12, 2007, at Al, available at http://www.ga-innocenceproject.org/ Articles/ Article_86.htm [hereinafter Morris, John White Profile]; The Innocence Project, Robert Clark Profile, http://www.innocenceproject.org/ Content/71.php (last visited Mar. 17, 2008); The Innocence Project, Douglas Echols Profile, http://www.innocenceproject.org/Content/91.php (last visited Mar. 17, 2008); The Innocence Project, Clarence Harrison Profile, http://www.innocenceproject.org/Content/173.php (last visited Mar. 17, 2008); The Innocence Project, Calvin Johnson Profile, http://www.innocence project.org/Content/186.php (last visited Mar. 17, 2008); The Innocence Project, Scott Samuel Profile, http://www.innocenceproject.org/Content/ 259.php (last visited Mar. 17, 2008); The Innocence Project, Willie Williams Profile, http://www.innocenceproject.org/Content/367.php (last visited Mar. 17, 2008).

2. See Morris, John White Profile, supra note 1, at Al; The Innocence Project, Robert Clark Profile, supra note 1; The Innocence Project, Douglas Echols Profile, supra note 1; The Innocence Project, Clarence Harrison Profile, supra note 1; The Innocence Project, Calvin Johnson Profile, supra note 1; The Innocence Project, Scott Samuel Profile, supra note 1; The Innocence Project, Willie Williams Profile, supra note 1.

3. See id.

4. Id. 5. Id.

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instituted in Georgia to fix that problem. It will initially explore some of the implications of the issue in Georgia, and then provide some background on the science behind eyewitness identification. In that context, the best practices in eyewitness identification, which evolved out of hearings held by the General Assembly in the fall of 2007, will be compared to current eyewitness identification practices in Georgia.

Recommendations for changes to existing practices in Georgia will be made, along with the likely costs and benefits of doing so. Finally, results from other jurisdictions that have already implemented some of the eyewitness identification best practices will be discussed.

A. MisidentificationIs the Leading Factorin Wrongful Convictions "[M]isidentification [is] the leading factor in the wrongful conviction of those who have been exonerated nationally by DNA evidence." 6 Approximately 75% of convicted individuals who have later been exonerated through DNA evidence were convicted based on eyewitness identification.7 Although perhaps previously unknown to the general public and even the general legal community, the relationship between eyewitness identification and wrongful conviction has been studied by social scientists since 1932.8 The United States Supreme Court 6. Letter from Justice I. Beverly Lake, Chief Justice, N.C. Supreme Court, Roy Cooper, N.C. Attorney Gen., and Robin Pendergraft, Dir., N.C. State Bureau of Investigation, to Scott Perry, Dir., N.C. Dep't of Criminal Justice, Julia Lohman, Dir., N.C. Dep't of Justice Sheriffs' Training & Standards, Donna Maynard, Executive Dir., N.C. Sheriffs' Ass'n, Charles Wilkins, Executive Dir., N.C. Ass'n of Chiefs of Police, Sheriff Jim Pendergraph, President, N.C. Sheriffs' Ass'n, Chief Frank Palombo, President, N.C. Ass'n of Chiefs of Police, Chief Gregg Jarvies, N.C. Police Executives Ass'n, all N.C. Police Chiefs, and all N.C. Sheriffs (Oct. 6, 2003) (on file with the John Marshall Law Journal).

7. The Innocence Project, Understand the Causes: Eyewitness Misidentification, http://www.innocenceproject.org/understand/EyewitnessMisidentification.php (last visited Mar. 17, 2008).

8. Gary L. Wells, Eyewitness Identification Evidence: Science and Reform, CHAMPION, 12, 14, Apr. 29, 2005, [hereinafter Wells, Eyewitness Identification Evidence] (citing EDWIN M. BORCHARD, CONVICTING THE INNOCENT: ERRORS OF CRIMINAL JUSTICE xiii (Yale U. Press 1932), available at http://library.albany.edu/preservation/brittlebks/Borchard_

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has recognized the problem as far back as 1967. 9 The Georgia Assembly recently attempted to address the issue of eyewitness identification. House Bill 308, legislation which would have mandated specific procedures for law enforcement agencies to follow while conducting live and photo° lineups, was introduced in the 2007 legislative session.'

Ultimately, the Bill was tabled in favor of a resolution to further study the issue of eyewitness identification in Georgia. 1 To that end, the House Study Committee on Eyewitness Identification Procedures held several hearings in the fall of 2007.12 The hearings featured national experts on eyewitness identification and key stakeholders in Georgia as well as individuals who have been personally affected by the issue, either because they were the victim or were wrongfully convicted in a crime involving eyewitness identification.1 3 As a

Convicting/preface.pdf).

9. Richard S. Schmechel, Timothy P. O'Toole, Catharine Easterly & Elizabeth F. Loftus, Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, 46 JURIMETRICS. J. 177, 195 (2006) (citing U.S. v. Wade, 388 U.S. 218, 228 (1967)).

10. See State of Georgia 2008 Composite Status Sheet, H.R. 308, Feb. 8, 2007 (Feb. 20, 2008).

11. See H.R. Res. 352, Gen. Assem. (Ga. 2007); Telephone Interview with Rep. Stephanie Stuckey Benfield, House District No. 85 (August, 2007).

12. Jonathon Springston, State House Committee Approves Eyewitness ID Reforms, ATLANTA PROGRESSIVE NEWS, Feb. 9, 2008, http://www.atlanta progressivenews.com/news/0291.html. See Interview with Rep. Stephanie Stuckey Benfield, supra note 11.

13. Interview with Rep. Stephanie Stuckey Benfield, supra note 11 (speakers included Aimee Maxwell, Dir., Ga. Innocence Project, Calvin Johnson, Ga. Exoneree & Board Member, Ga. Innocence Project, Shareef Cousin, La. Exoneree & Ga. Resident, Chris Mumma, Executive Dir., N.C. Ctr. on Actual Innocence, Dale Mann, Dir., Ga. Pub. Safety Training Ctr., Louis M. Dekmar, Chief of Police, LaGrange, Ga., Mike Jolley, Sheriff, Harris County, Ga. & President, Ga. Sheriffs' Ass'n, Butch Beach, Ga. Pub. Safety Training Ctr., Ken Patenaude, Captain, Northampton, Mass. Police Dep't, Paul Carroll, Sgt. (retired), Chicago Police Dep't, Jennifer Thompson, victim in case involving wrongful identification, Barry Scheck, DNA Expert Attorney & Co-Dir., The Innocence Project, Dr. Gary Wells, Professor of Psychology, Iowa State University, Dr. Roy Malpass, Professor of Psychology at University of Tex. at El Paso, Gwen Keyes Fleming, DeKalb County Dist. Attorney, Ron Jayson, Former DeKalb County Magistrate.)

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result of the hearings, the chair of the study committee, Representative Stephanie Stuckey Benfield (D-District 85) introduced House Bill 997 and House Resolution 1071.14 In contrast to House Bill 308, House Bill 997 does not call for specific reforms.' 5 Instead, it would require the Georgia Peace Officer Standards and Training Council to establish procedures for conducting lineups and work with the state Prosecuting Attorneys' Council to develop a program to train law enforcement officials on those procedures. 6 House Resolution 1071 would require Georgia law enforcement agencies to develop their eyewitness identification procedures in conformity with recommendations that were made during the fall 2007 hearings.' 7 Although the House Judiciary (Non-Civil) Committee favorably reported the Bill and the resolution out of committee,1 8 the House Rules Committee failed to vote on either of the measures in time for them to have any realistic 19 chance of passing during the 2007-2008 legislative session.

B. DNA Evidence: The Tip of the Iceberg The Innocence Project, an organization devoted to helping those who have been wrongly convicted, has cleared 214 men nationwide through the use of DNA evidence, 21 including the seven men in Georgia previously mentioned. 1 Unfortunately, DNA evidence that could be determinative of guilt or innocence is only available in a limited number of cases, with some estimates at 10 to 20% of all serious felony cases. 22 Assuming 14. See H.R. 997, 149th Gen. Assem. (Ga. 2008); H.R. Res. 1071, 149th Gen. Assem. (Ga. 2008); Springston, State House Committee Approves Eyewitness ID Reforms, supra note 12.

15. Compare Ga. H.R. 997 with Ga. H.R. 308.

16. See Ga. H.R. 997; Springston, State House Committee Approves Eyewitness ID Reforms, supra note 12.

17. Ga. H.R. Res. 1071; Springston, State House Committee Approves Eyewitness ID Reforms, supra note 12.

18. Springston, State House Committee Approves Eyewitness ID Reforms, supra note 12.

19. See State of Georgia 2008 Composite Status Sheet, Ga. H.R. 997, Mar. 12, 2008 (Mar. 14, 2008); State of Georgia 2008 Composite Status Sheet, Ga. H.R. Res. 1071, Mar. 12, 2008 (Mar. 14, 2008); Ben Smith, 1,240 Bills and Resolutions Dead for Session, ATLANTA J. CONST., Mar. 13, 2008, available at http://www.ajc.com/metro/content/metro/stories/2008/03/12/ deadbill_0313.html.

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DNA evidence is available in as many as 20% of all serious felony convictions and the same ratio of wrongful convictions exists in cases without DNA evidence, then the 214 people that have been exonerated potentially represent just one-fifth of all wrongfully convicted persons. That means there could be more than 800 people nationwide, including twenty-eight in Georgia, that are presently incarcerated for crimes they did not commit.

Based on the finding that approximately 75% of the national DNA exonerees were convicted primarily due to eyewitness identification,2 3 there could be as many as twenty-one people in Georgia wrongly convicted because of mistaken eyewitness identification. Admittedly, these projections are based on approximations of a small sample size. However, even if the projections are somewhat simplified, they indicate that other innocent people are incarcerated in Georgia based on eyewitness misidentification.

Another inference that could be drawn is that every time the wrong person goes to jail, the actual perpetrator remains free.2 4 That means there have been potentially 800 crimes committed nationwide, including an estimated twenty-eight in Georgia, where the actual perpetrator may still be a threat to society.

Although it is possible that the actual perpetrator may have been convicted for subsequent crimes, their sentence would not

20. The Innocence Project, The Innocence Project, http://www.innocence project.org (last visited Mar. 17, 2008).

21. The Innocence Project, News and Information: GA Overview,

http://www.innocenceproject.org/news/state.php?state=GA (last visited Mar. 17, 2008).

22. Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REv. 55, 116 (2008) (citing Protecting the Innocent: Proposals to Reform the Death Penalty: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 221 (2002) (statement of Prof. Barry Scheck, Co-Dir. of the Innocence Project) ("The vast majority (probably 80%) of felony cases do not involve biological evidence that can be subjected to DNA testing."); Nina Martin, Innocence Lost, S.F. MAG., Nov. 2004, at 78, 105 (noting that "only about 10% of

criminal cases have any biological evidence--blood, semen, skin--to test")).

23. The Innocence Project, supra note 7.

24. See General Overview: Hearings Before the H. Eyewitness Identification Procedures Study Comm., 2007 Ga. Gen. Assem., (Ga. Sept.

17, 2007) (testimony of Christine C. Mumma, Executive Dir., N.C. Center on Actual Innocence), available at http://media.legis.ga.gov/hav/07study/ eyewitnessid91707.wmv, 1:16:35 [hereinafter Mumma Testimony].

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account for prior criminal history. As such, their sentence would probably be shorter than what the perpetrator deserves, and allow them to walk the streets without repaying their true debt to society.

C. Cost ofReimbursing the Wrongfully Convicted Georgia has already spent approximately $2.7 million reimbursing those who have been wrongfully convicted. 5 That figure may change soon as legislators are considering awarding $1.2 million to Pete Williams, who served almost twenty-two years in prison for a rape that he did not commit. 26 The legislature has previously granted compensation of $1 million for a man who was wrongfully imprisoned for seventeen years, 27 and $1.2 million for a man who was wrongfully imprisoned for twenty-four years.2 8 Since Mr. Williams falls between those two men in terms of the number of years spent in prison, an award of $1.2 million seems reasonable.

Compensation may also be given to the latest exoneree, Mr. John White, who spent approximately thirteen years in prison after he was29wrongfully convicted of raping a seventy-four year old woman.

It should be noted that future compensation for wrongful convictions is not guaranteed because Georgia's legislature decides compensation on a case-by-case basis rather than Indeed, the legislature has through a statutory scheme. 30 declined to compensate two other men in Georgia whose exonerations3 are still opposed by prosecutors in their jurisdiction. 1 As mentioned, DNA evidence only exists in a small 25. See sources cited, supra note 2.

26. Springston, State House Committee Approves Eyewitness ID Reforms, supra note 12.

27. Carlos Campos & Bill Torpy, Men Freed by DNA Wait for Compensation, ATLANTA J. CONST., Jan. 27, 2007, at B1, available at

http://www.ga-innocenceproject.org/Articles/Article_67.htm.

28. Carlos Campos, Man Wrongly Jailed to Get $1.2 Million from State, ATLANTA J. CONST., May 25, 2007, at D6, available at http://www.ga-

innocenceproject.org/Articles/Article_78.htm.

29. Morris, supra note 1, at Al. 30. Campos & Torpy, supra note 27, at BI. 31. Id.

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percentage of all cases.3 2 Future technological developments, for example, a highly accurate lie detector test, could have an impact similar to that of DNA evidence for the exoneration of

those who have been wrongfully convicted.

If such a

development occurs, there would probably be an additional

wave

of exonerations

and additional

efforts

to

secure

compensation.

II. EYEWITNESS IDENTIFICATION SCIENCE AND RESEARCH A. The Mind Is Not a Video Camera In order to gain a better understanding of some of the problems with eyewitness identifications, it is necessary to explore the science behind memory as applied to lineups.

Human memory does not work like a video camera.33 The memory can only accurately perceive and record a small amount of what one witnesses.34 Not only is memory hindered in its ability to record data, the act of remembering is not as

simple as selecting the metaphorical tape of the desired memory and hitting "play."

Instead, the act of remembering is reconstructive," like "putting puzzle pieces together."3 6 This

means that memory can change due to exposure to new information after the remembered event.3 7 Imagine that during

an interrogation or through some other process, the witness is

32. Garrett, supra note 22 (citing Protecting the Innocent: Proposals to Reform the Death Penalty: Hearing Before the S. Comm. on the Judiciary, supra note 22, at 221 (statement of Prof. Barry Scheck, Co-Dir. of the Innocence Project); Martin, supra note 22, at 105).

33. David M. Shofi, Comment, The New York Courts' Lack of Direction and Discretion Regarding the Admissibility of Expert Identification Testimony, 4 PACE L. REv. 1101, 1104 (1994).

34. Schmechel, O'Toole, Easterly & Loftus, Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, supra note 9, at 195.

35. Id. (citing KARL HABERLANDT, HUMAN MEMORY: EXPLORATION AND

APPLICATION 4 (Allyn & Bacon 1999)).

36. Schmechel, O'Toole, Easterly & Loftus, Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, supra note 9, at 195.

37. Id.

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exposed to slightly different information about an event.38 The next time the witness has to recall that event, the new information could become spliced together with the earlier 39 information, thereby producing a new, different memory.

Each interrogation or step in which the witness is asked to reproduce the memory increases the risk of altering the memory.'n B. Relative Judgment The phenomenon of relative judgment demonstrates how the lineup is prone to the fallibility of memory. Relative judgment describes the tendency of the eyewitness to compare one lineup member to another and pick the one that looks most like their memory of the perpetrator. 4 ' In laymen's terms, relative judgment could be called process of elimination. 42 In other words, the eyewitness looks at all the suspects and methodically eliminates those suspects that least resemble their memory of the actual perpetrator until there is only one suspect left.43 This is an effective strategy in lineups where the actual perpetrator is present, but in lineups without the actual perpetrator, there is a high risk that the person who most closely resembles the perpetrator will be selected by the eyewitness.'

Hopefully, other evidence found by diligent law enforcement officers would exculpate that person.45 Unfortunately, without any exculpatory evidence, that person may be wrongfully convicted

38. Id. 39. Id.

40. Id. 41. Wells, Eyewitness Identification Evidence, supra note 8, at 14.

42. Implementing Reform: Law Enforcement's Perspective: Hearings

Before the H Eyewitness Identification Procedures Study Comm., 149th Gen. Assem., (Ga. Oct. 1, 2007) (testimony of Captain Ken Patenaude, Northampton, MA Police Dep't), available at http://media.legis.ga.gov/hav/ 07study/eyewitnessid 10107.wmv, 1:50:10 [hereinafter Patenaude Testimony].

43. See id.

44. Id.

45. See Implementing Reform: Law Enforcement's Perspective: Hearings Before the H. Eyewitness Identification ProceduresStudy Comm., 2007 Ga. Gen. Assem., (Ga. Oct.1, 2007) (testimony of Louis M. Dekmar, Chief of Police, LaGrange, GA), available at http://media.legis.ga.gov/hav/07study/e ye witnessidl0107.wmv, 40:50.

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because they happened to look more like the eyewitness's memory of the actual perpetrator than anyone else in the lineup.

C. False Confidence Another phenomenon that demonstrates one of the weaknesses of relying too heavily on eyewitness identifications is false confidence. Juries tend to view a high degree of witness confidence as proof-positive of the accuracy of the witness's identification.4 Not surprisingly, confident witnesses are more likely to be accurate than non-confident witnesses.47 However, many confident witnesses are inaccurate, and many nonconfident witnesses are accurate. 48 Another problem with placing too much credence in the confidence of the eyewitness is that confidence could sometimes be affected by post-identification feedback.49 In one experiment, 352 participants all identified the wrong suspect in a lineup.5 ° After the identification, one group of participants was informed that they identified the actual suspect while the other group was given no feedback.5 ' When asked how confident they were that the person they identified was the actual perpetrator, only 15% of the group that did not receive any feedback said that they were highly confident of their selection.52 On the other hand, 50% of the group that had been given feedback said that they were highly confident.53 The group that had been given feedback also denied that being told they had correctly identified the suspect after the identification

46. Wells, Eyewitness Identification Evidence, supra note 8, at 15.

47. Gary L. Wells, Eyewitness Identification: Systemic Reforms, 2006

Wis. L. REv. 615, 621 (2006) [hereinafter Wells, Systemic Reforms].

48. Id. 49. Wells, Eyewitness Identification Evidence, supra note 8, at 17 (citing

Gary L. Wells & Amy L. Bradfield, "Good, You Identified the Suspect": Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 J. APPLIED PSYCHOL. 360, 363-67 (1998), available at http://www.psychology.iastate.edu/-glwells/Wells-articlespdf/Good,_You_ Indetified the Suspect.pdf). See Patenaude Testimony, supra note 42, at 2:09:00.

50. Wells, Eyewitness Identification Evidence, supra note 8, at 17.

51. Id. 52. Id. 53. Id.

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had any influence on them.54 Yet, there were no other factors that could explain the disparity in the confidence between the groups.

One real-life example demonstrates how post-identification feedback can inflate the confidence of the eyewitness. In 1984, Jennifer Thompson, then a college student living in North Carolina, was raped.56 Mrs. Thom son initially picked Ronald Cotton out of a photo lineup.T She was told by an administrator, "We thought this might be the one."5" She subsequently identified Ronald Cotton in a live lineup.5 9 After this identification, she was told she had "picked the same guy." 6° Although those statements to Mrs. Thompson were natural and well-intentioned, they confirmed Mrs. Thompson's belief that Ronald Cotton was the rapist. 6' She was so confident

that, when she later saw Ronald Cotton in the same courtroom with the man who actually raped her, she was still convinced that Ronald Cotton was her rapist. 62 Even after DNA evidence

finally convinced Mrs. Thompson that another man raped her, 63 she saw her rapist's face as Ronald Cotton's.

III. EYEWITNESS IDENTIFICATION BEST PRACTICES

Dr. Gary Wells, a professor of psychology at Iowa State University and national eyewitness identification expert,64 has compared memory evidence to trace evidence.6 Trace evidence is physical evidence (e.g. semen, fibers, fingerprints) left at the crime scene which can help law enforcement identify the actual perpetrator. 66 Obviously, one's memory is not physical, but the idea is the same: the perpetrator has left a trace 54. Id.

55. Id. 56. Frontline: What Jennifer Saw (PBS television broadcast, Feb. 25, 1997), available at http://www.pbs.org/wgbh/pages/frontline/shows/dna/etc/ script.html.

57. Id. 58. Id. 59. Id. 60. Id. 61. Id. 62. Id. 63. Id.

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behind in the mind of the eyewitness which provides a clue as to the identity of the perpetrator. 67 Law enforcement agencies recognize the fragile nature of physical trace evidence and have 68 developed detailed procedures on how to capture and store it.

Eyewitness memory, which is similarly fragile, should receive the same treatment.6 9 Recognizing that faulty eyewitness identification has contributed to the wrongful convictions of the majority of those who have been exonerated by DNA evidence," experts like Dr. Wells and others in the legal and scientific communities have developed some of the following best practices for conducting lineups.

A. Double-blindLineup Administration The most important reform that can be made to the eyewitness identification process is the implementation of In a double-blind lineup, the double-blind lineups. 7 1 administrator of the lineup does not know which lineup member is the actual suspect.72

The double-blind methodology is

borrowed from medical and social science.7 3 During a medical study, the test subject is given either the actual drug being tested or a placebo.74 Both the test subject and the administrator are "blind" because they do not know whether the test subject has

64. Ga. H. Eyewitness Identification Procedures Study Comm., Revised Agenda (2007) (unpublished, on file with the John Marshall Law Journal).

65. Barry C. Scheck, Symposium, Reforming Eyewitness Identification: Convicting the Guilty, Protectingthe Innocent, 4 CARDOZO PUB. L. POL'Y & ETHICS J. 233, 235 (2006).

66. Id. 67. Id. 68. Id.

69. Id. 70. The Innocence Project, supra note 7.

71. Wells, Eyewitness Identification Evidence, supra note 8, at 18.

72. Wells, Systemic Reforms, supra note 47, at 629 (citing Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photo spreads, 22 LAW & HUM. BEHAV. 603, 605 (1998)).

73. Id. (citing Amy L. Bradfield, Gary L. Wells & Elizabeth A. Olson, The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. APPLIED PSYCHOL. 112, 118 (2002)).

74. Id.

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been given the actual drug or the placebo.75 Since bothparties are "blind," the experiment is considered "double-blind."

There are several benefits to the double-blind lineup. It reduces the rate of error without reducing the number of correct It also prevents the administrator from identifications.77 unintentionally influencing the subject. 78 Conversely, since the witness is instructed before the lineup that the administrator does not know who the actual suspect is, the witness will not be tempted to "read" the administrator for clues as to the actual suspect's position in the lineup. 79 Double-blind administration also counters the problem of false confidence because after the identification is made the administrator will not be able to let the witness know if they identified the actual suspect. 80 Any statement the witness makes about their confidence in their identification will be unbiased and can be checked later in the event of a trial. 81 It should be stressed that the advocacy of the double-blind lineup is not an indictment on the integrity of the law enforcement agencies administering lineups.12 Rather, it is a precaution against the possibility that an administrator with good intentions can inadvertently "leak" information to the eyewitness, either through verbal or nonverbal cues.8 3 For example, if the administrator placed the suspect in position three, and the eyewitness uttered words to indicate that they were considering lineup member one or two, the administrator might innocently remind the eyewitness to study all the 75. Id.

76. Id. 77. Barry C. Scheck, Professor of Law and Dir., Innocence Project at the Benjamin N. Cardozo School of Law, Barry Scheck Lectures on Wrongful Convictions (Oct. 3, 2005), in 54 DRAKE L. REv. 597, 606 (2006).

78. Patenaude Testimony, supra note 42, at 2:05:30; Wells, Systemic Reforms, supra note 47, at 629.

79. Wells, Systemic Reforms, supra note 47, at 630. See Mumma Testimony, supra note 24, at 1:22:25.

80. Schmechel, O'Toole, Easterly & Loftus, supra note 9, at 202.

81. Wells, Eyewitness IdentificationEvidence, supra note 8, at 18.

82. Wells, Systemic Reforms, supra note 47, at 629. See Mumma Testimony, supra note 24, at 1:22:00.

83. Wells, Systemic Reforms, supra note 47, at 629 (citing ROBERT ROSENTHAL, EXPERIMENTER EFFECTS IN BEHAVIORAL RESEARCH (Irvington 1976)).

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photos. 84 Body language, such as "smiling, frowning, and leaning" can also be difficult for the administrator to control.85 Many experienced investigators probably could control these tendencies. However, with a double-blind administrator, the risk of any sort of inadvertent influence is nil.

Some opponents of the double-blind procedure have argued that it is not feasible for smaller departments to conduct double86 blind lineups due to a lack of personnel or other resources.

That is a valid concern in Georgia where many of the smaller departments must ask for assistance from a larger neighboring 87 agency or state agency when they need to conduct a lineup.

Despite that challenge, resourceful and effective double-blind lineup administration is possible. Agencies may be able to train other non-law enforcement personnel to assist in the administration of the lineup. 88 Technological tools, such as computer software, could make it possible to conduct the lineup without requiring the presence of an administrator. 89 Even a lack of technology should not prevent an agency from implementing double-blind lineups or their equivalent. ° In a simple, almost costless double-blind procedure, the administrator places photos of the suspect and the fillers in different envelopes, shuffles the envelopes randomly, numbers them, and passes them to the witness.9 ' The witness is then able to study the different photos without the administrator knowing 92 at any time which particular photo the witness is viewing.

84. Wells, Systemic Reforms, supra note 47, at 630. See Patenaude Testimony, supra note 42, at 2:05:45.

85. Wells, Systemic Reforms, supra note 47, at 630.

86. See Mumma Testimony, supra note 24, at 1:22:45.

87. See General Overview: Hearings Before the H. Eyewitness Identification ProceduresStudy Comm., 149th Ga. Gen. Assem., (Ga. Sept.

17, 2007) (testimony of Aimee Maxwell, Dir., Ga. Innocence Project), available at http://media.legis.ga.gov/hav/07study/eyewitnessid9l707.wmv, 19:55 [hereinafter Maxwell Testimony].

88. Mumma Testimony, supra note 24, at 1:48:20.

89. Id. 90. See id. at 1:22:45.

91. Id. at 1:49:20.

92. Id.

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B. Instructionsto the Eyewitness Providing instructions to the witness is another best practice that could be implemented to avoid faulty eyewitness identifications. The following are some instructions that could be considered: The actual offender might not be in the lineup. A simple reform is to instruct the witness that the actual offender might not be in the lineup. 93 This instruction takes the pressure off the witness, who may understandably feel compelled, perhaps out of a desire to help the police do their jobs or to aid the victim, to make an identification. 94 This instruction reduces the rate of error when the actual offender is not present in the lineup without substantially reducing the chance that the actual offender will not be identified when they are present.95 96 The administrator does not know who the suspect is.

This instruction prevents the witness from trying to read the administrator for clues as to the placement of the actual suspect in the lineup. 97 The investigation will continue even if you do not identify the suspect.98 This takes the pressure off any witness who might be concerned that the victim will never get their day in court if witness does not make an identification."

The administrator may not give you any feedback. 100 This instruction lets the witness know that once they have made an identification the administrator will not be able to confirm whether they identified the actual suspect. That prevents the witness's confidence from being artificially manipulated.' 0 ' In 93. Patenaude Testimony, supra note 42, at 1:59:05; Mumma Testimony, supra note 24, at 1:26:25; Wells, Systemic Reforms, supra note 47, at 625.

94. Wells, Systemic Reforms, supra note 47, at 625 (citing Roy S. Malpass & Patricia G. Devine, Eyewitness Identification: Lineup Instructions and the Absence of the Offender, 66 J. APPLIED PSYCHOL. 482,486-87 (1981)).

95. Id. 96. Mumma Testimony, supra note 24, at 1:25:55.

97. Wells, Systemic Reforms, supra note 47, at 630.

98. Patenaude Testimony, supra note 43, at 1:59:10; Mumma Testimony,

supra note 24, at 1:26:05.

99. Mumma Testimony, supra note 24, at 1:26:05.

100. Id. at 1:26:40.

101. Wells, Systemic Reforms, supra note 47, at 629 (citing Bradfield, Wells & Olson, supra note 73, at 117).

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the Jennifer Thompson case, this would have prevented the officer from telling Mrs. Thompson that she picked, "the 0same 2 guy," after she identified Ronald Cotton in the live lineup.'

C. Lineup Composition Regarding lineup composition, there should only be one suspect in each lineup. 0 3 When there is only one suspect per lineup, a witness who misidentifies a lineup member is likely to err by picking a filler rather than by picking the actual suspect. 1 4 T he more suspects there are in one lineup, the greater the chance that a mistaken eyewitness will identify an 10 5 actual suspect.

Another important practice for lineup composition is that the 10 6 suspect should not "stand out" from the fillers in the lineup.

For example, the eyewitness describes the suspect as being a thin male with a moustache and dark hair.' 0 7 Yet, all the fillers in the lineup are either clean-shaven, overweight, or have light hair. 10 8 In this situation, there is a high risk that the suspect will be identified simply because they are the only member of the lineup that matches the description given by the eyewitness. 0 9 Various circumstances can make it more difficult to achieve the "not unduly standing out" standard, which will require training."O Regardless, if a non-witness can identify the suspect just from the eyewitness's description of the offender or can pick the suspect out just by viewing the lineup, the suspect is probably "unduly standing out,"'' and is at risk of being 102. See Frontline: What JenniferSaw, supra note 56.

103. U.S. DEP'T OF JUSTICE, TECHNICAL WORKING GROUP FOR EYEWITNESS EVIDENCE, EYEWITNESS EVIDENCE: A GUIDE FOR LAW ENFORCEMENT 29 (1999), available at http://www.ncjrs.org/pdffilesl/nij/

178240.pdf [herein after U.S. Dep 't of Justice Eyewitness Guidelines].

104. Wells, Systemic Reforms, supra note 47, at 623.

105. Id. 106. Patenaude Testimony, supra note 42, at 1:59:10; Wells, Systemic Reforms, supra note 47, at 624.

107. Wells, Systemic Reforms, supra note 47, at 624.

108. Id. 109. Id. 110. Id. 111. Id. (citing Special Issue, Measuring Lineup Fairness, 13 APPLIED COGNITIVE PSYCHOL. (1999)).

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identified regardless of whether they are the actual perpetrator.

D. Statement of the Witness's Confidence of Their Identification After making an identification, the witness should be asked to state how confident they are that the person they identified is the actual offender." 2 This should be done before the witness can receive any feedback from the administrator or from some other source that could potentially influence them.113 The witness's response should be documented to preserve an unbiased record of the witness's independent recollection.' 14 The recorded statement of the witness's confidence then becomes the primary means for the jury to gauge the accuracy of the eyewitness's identification.'

If a witness stated that they were pretty confident at the time they made the initial identification and then stated later for the jury that they were extremely confident, the earlier statement of confidence would 6 1 record. the for check to available be E. Documentation of the Eyewitness Identification Process The eyewitness identification itself should be documented in some form, either by video, audio, or in writing." 7 In addition to creating an unbiased record," 8 having a record of the identification preserves the integrity of the evidence." 9 An additional benefit of the video recording is that it would allow an experienced investigator in a double-blind lineup, in which they could not be the lineup administrator, 2 ' to go back and study the eyewitness's reaction as the eyewitness views each lineup member.

112. PatenaudeTestimony, supra note 43, at 1:59:20; Mumma Testimony, supra note 61, at 1:25:40; Wells, Systemic Reforms, supra note 47, at 631.

113. Wells, Systemic Reforms, supra note 47, at 631.

114. Id.

115. Id. 116. Id. 117. Mumma Testimony, supra note 24, at 1:26:40; U.S. Dep't of Justice Eyewitness Guidelines,supra note 103, at 33-38.

118. Wells, Systemic Reforms, supra note 47, at 631.

119. U.S. Dep 't ofJustice Eyewitness Guidelines, supra note 103, at 35.

120. See Wells, Eyewitness Identification Evidence, supra note 8, at 18.

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F. More Information Needed: Sequential Lineup Method One area of reform that has generated some controversy in scientific and legal communities is the sequential lineup method.

In a sequential lineup, the lineup members are presented to the witness one-by-one with the witness having a 2 chance to study each participant and make an identification.' ' This is opposed to the traditional simultaneous lineup in which the lineup members are presented to the eyewitness all-atonce. 22 The sequential lineup method is designed to prevent the use of relative judgment, l21where the witness compares the lineup members to their memory of the perpetrator and picks the individual that most closely resembles that memory. 24 In a sequential lineup, the witness cannot be sure if the next lineup member will look even more like their memory of the 25 perpetrator than the lineup members they have already seen.'

It therefore encourages the use of the eyewitness's absolute judgment. 126 The eyewitness must look at each lineup member, ask, "Is this the person that I saw?" and answer either yes or no. 127 The chief advantage of the sequential lineup method is that it reduces the rate of eyewitness error. 128 The tradeoff for this reduced rate of error is that some accurate identifications may 13 be lost, 129 especially in eyewitnesses with weaker memories. 0 121. Id. at 14.

122.

Id.

123. See Wells, Systemic Reforms, supra note 47, at 627.

124. Wells, Eyewitness IdentificationEvidence, supra note 8, at 14.

125. Id. 126. See U.S. DEP'T OF JUSTICE, TECHNICAL WORKING GROUP FOR EYEWITNESS EVIDENCE, EYEWITNESS EVIDENCE: A TRAINER'S MANUAL FOR

LAW ENFORCEMENT 41 (2003), available at http://www.ncjrs.gov/nij/eye

witness/I 88678.pdf.

127. Wells, Systemic Reforms, supra note 47, at 625 (citing R.C.L. Lindsay & Gary L. Wells, Improving Eyewitness Identifications from Lineups: Simultaneous Versus SequentialLineup Presentation,70 J. APPLIED PSYCHOL. 556, 559 (1985)).

128. Scheck, Lecture on Wrongful Convictions,supra note 77, at 608.

129. Wells, Systemic Reforms, supra note 47, at 626 (citing Nancy M. Steblay et al., Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations: A Meta-Analytic Comparison, 25 LAW & HUM. BEHAV. 459, 471 (2001)).

130. Wells, Systemic Reforms, supra note 47, at 628.

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Furthermore, the sequential method is probably worse than the simultaneous method in a non-double-blind lineup because it presents a greater opportunity for the administrator to influence 31 the eyewitness.'

The sequential lineup method may yet prove to be more beneficial than the traditional simultaneous method. Currently, however, the controversy surrounding its adoption takes too 32 much attention away from the non-controversial reforms.'

Given the current lack of consensus on the sequential lineup method, 33 its use should be at the discretion of the individual law enforcement agency and not part of any mandatory reform until more conclusive data on its use is available.

IV. CURRENT USE OF BEST PRACTICES IN GEORGIA

In a 2007 survey conducted by the Georgia Innocence Project on eyewitness identification procedures used by Georgia law enforcement agencies,' 34 a few of the responding law enforcement agencies, including Acworth, Garden City, Marietta, DeKalb County, Forsyth County, Roswell, Greensboro, Lilburn, Norcross, Henry County, Arcade, and Hoschton, indicated that they currently use some of the best

131. See Gary L. Wells, Police Lineups: Data, Theory and Policy, 7 PSYCHOL. PUB. POL'Y & L. 791, 794 (2001) (citing M. R. Phillips, B. D.

McAuliffe, M. B. Kovera, & B. L. Cutler, Double-Blind Photo Array Administration as a Safeguard Against Investigator Bias, 84 J. APPLIED PSYCHOL. 940, 951 (1999)).

132. See Eyewitness Identification: Scientific Studies and Best Police Practices: Hearings Before the H. Eyewitness Identification Procedures Study Comm., 149th Gen. Assem., (Ga. Oct. 22, 2007) (testimony of Dr. Gary Wells, Professor of Psychology, Iowa State Univ.) (no recording available) [hereinafter Wells Testimony].

133. Id. 134. See GA. INNOCENCE PROJECT, 2007 GEORGIA INNOCENCE PROJECT LAW ENFORCEMENT SURVEY pt. i, 1-6 (Nov. 2007) (unpubiished survey, on

file with the John Marshall Law Journal) (statistics based on 355 responses to survey sent to an estimated 493 law enforcement agencies in the state of Georgia under open records request; thirty-eight responses were not included because the cost to the Georgia Innocence Project of obtaining the data was "prohibitive" or there was a dispute about whether the response was sent) [hereinafter Ga. Law Enforcement Survey].

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practices in their lineup procedures.' 35 Unfortunately, these agencies are in the minority.

Double-blind Lineups. Of the responding agencies, only 3.9% reported having a written policy requiring that lineups be supervised or performed by a blind administrator for live lineups, and only 1.4% reported having such procedures for 1 36 photo lineups.

Warning Instructions. Only 2% of the responding agencies for live lineups, and 5.4% for photo lineups reported having a eyewitness that the suspect may not written policy advising 1the 37 be present in the lineup.

Confidence Statement. Of the responding agencies, only 2.5% for live lineups, and 2.8% for photo lineups reported having a written policy of requiring that the confidence level of the eyewitness38be recorded upon making or not making an identification.'

Documentation of Eyewitness Identification. Only 13% of the responding agencies for live lineups, and 2% for photo lineups reported having a written policy of recording the eyewitness identification procedures, whether by video, audio, 39 writing.' in or Regardless of whether they are incorporating best practices into their procedures, only 18% of the responding law enforcement agencies indicated having any written policy on the collection of eyewitness evidence at all. 14 ° In fairness, 14.4% of the agencies that reported not having any written procedures do not conduct lineups, 14 ' as some of the smaller agencies in Georgia rely on assistance from other agencies with more resources for conducing lineups. 142 For those smaller agencies, that might make the need for their own written policy somewhat However, even after factoring out those less important.

135. Id. pt. ii, at 1-20 (agencies indicated that they have a written policy, and at least record a confidence statement from the witness or conduct double-blind lineups).

136. Id. pt. i, at 4.

137. Id. 138. Id.

139. Id. pt. i, at 3.

140. Id. at 1.

141. Id. 142. Maxwell Testimony, supra note 87, at 19:55.

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agencies that do not conduct their own lineups, approximately 69.2% of the responding lagencies indicated that they do not conduct their own lineups.

The Georgia Association of the Chiefs of Police has recognized the need for the statewide adoption of written procedures and recently called for all of its agencies that do not currently have written policy on eyewitness identification to either adopt standard procedures that it has developed or draft procedures that are similar.'" This is a step in the right direction. Unfortunately, for the most part, the procedures advocated by the Georgia Association of the Chiefs of Police do not include the reforms suggested in the fall 2007 hearings conducted by the General Assembly. 145 More importantly, 146 allowing the agencies to draft their own "similar" procedures creates a loophole that can be used avoid implementing some of the recommended best practices. Agencies should have the discretion to draft their own procedures to accommodate their individual circumstances. 147 However, within that discretion, certain minimum requirements must be met in order to ensure that the reforms do not lose their effectiveness.

V. RECOMMENDATIONS

Every law enforcement agency in Georgia should have written procedures for conducing eyewitness identifications.

Although each agency should have some discretion in drafting the procedures, law enforcement agencies may wish to consider adopting some uniform set of procedures statewide so agencies can rely on lineups conducted by other agencies with greater

143. Ga. Law Enforcement Survey, supra note 134, pt. ii, at 1-20.

144. Memorandum from D. Mike Edwards, Dir. of State Certification, Ga. Ass'n of Chiefs of Police, to Chiefs & Certification Managers of State Certified Agencies (Dec. 12, 2007) (on file with the John Marshall Law Journal).

145. Compare GA. ASS'N OF CHIEFS OF POLICE, SAMPLE LAW ENFORCEMENT POLICY MANUAL: INVESTIGATIVE FUNCTION 27-29 (2007), http://www.gachiefs.com/DeptResrcs-SamplePolicyManual.htm (follow "Chapter 17- Investigative Function" hyperlink) (last visited Mar. 17, 2008), with H.R. Res. 1071.

146. Memorandum from D. Mike Edwards, supranote 144.

147. See PatenaudeTestimony, supra note 42, at 2:20:20.

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confidence. 48 The procedures must incorporate certain minimum requirements. Specifically, these procedures must: A. Require double-blind lineup administration.

Again, double-blind lineup administration is the single most important reform in the area of eyewitness identification. 4 9 As an accommodation, double-blind administration may be the preferred, not mandatory, method of conducting lineups for smaller departments only.' 5' However, when those smaller departments are unable to conduct double-blind lineups, they should document their reasons for not being able to do so. 15 The House Study Committee on Eyewitness Identification Procedures recommended that all law enforcement agencies in Georgia conduct double-blind lineups whenever possible. 5 2 In contrast, the Georgia Association of the Chiefs of Police sample policy manual does not call for double-blind lineup administration.153 Instead, it suggests that administrators in photo lineups should, "[n]ever make suggestive statements that ' 15 4 may influence the judgment or perception of the witness," and in live lineups, "[s]crupulously avoid using statements, clues, casual comments or providing unnecessary or irrelevant information that in any manner may influence the witnesses' decision-making process or perception. ' 55 However, those guidelines do not address the chance that the administrator may 56 accidentally leak information to the eyewitness. 1 B. Require a warning instruction be given to the eyewitness that the perpetratormay not be present in the lineup.

This recommendation was made by the House Study Committee on Eyewitness Identification Procedures,' 57 but it is 148. See Mumma Testimony, supra note 24, at 1:30:55.

149. Wells, Eyewitness Identification Evidence, supra note 8, at 18.

150. See PatenaudeTestimony, supra note 42, at 2:20:35.

151. Id. 152. See H.R. Res.1071.

153. GA. Ass'N OF CHIEFS OF POLICE, supra note 145, at 27-29.

154. Id. at 28.

155. Id. at 29.

156. See Patenaude Testimony, supra note 42, at 2:05:30 (emphasis added).

157. Ga. H.R. Res. 1071.

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sample policy manual from the Georgia not included in the 58 Chiefs of Police.'

C. Address the composition of the lineup to ensure that the suspect does not unduly stand out.

The composition of the lineup was not a specifically addressed in the recommendations of the House Study Committee on Eyewitness Identification Procedures.15 However, this does not mean that the Committee discouraged taking measures to ensure that the suspect in the lineup does not unduly stand out. Rather, the Committee may not have felt it was necessary to address the topic because the sample policy manual of the Georgia Chiefs of Police already provides guidelines for selecting fillers in lineups so that the suspect does not unduly stand out. "' D. Require that the administratorsecure a statement of the witness's confidence after an identificationis made.

The sample policy manual does not require securing any sort of post-identification confidence statement, 16 1 and although the House Study Committee on Eyewitness Identification Procedures recommended that any result of the lineup is it did not specifically documented in the witness's own words, 62 recommend a statement of confidence.'

E. Document the lineup process, either through video, audio or in writing.

The House Study Committee on Eyewitness Identification Procedures recommended that any responses made by the witness to the lineup should be documented either through video, audio, or in writing. 63 Similarly, for live lineups, the sample policy of the Georgia Chiefs of Police calls for video 64 recording and a complete written record of the lineup.'

158. GA. Ass'N OF CHIEFS OF POLICE,

supranote 145, at 27-29.

159. See Ga. H.R. Res. 1071.

160. GA. Ass'N OF CHIEFS OF POLICE, supra note 145, at 27-28.

161. Id.

162. Ga. H.R. Res. 1071.

163. Id.

164. GA. ASS'N

OF CHIEFS OF POLICE,

supra note 145, at 29.

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However, for photo lineups, the sample policy manual only requires the administrator to "[p]reserve the photo array, together with full information about the identification process, for future reference."' 65 While that policy may be interpreted as requiring documentation, it could and should66 do so more specifically, as the manual does for live lineups.'

VI. BENEFITS

There are several benefits to adopting formal written 1 67 procedures that include the above-discussed best practices.

Obviously, having these procedures in place lessens the possibility that an eyewitness would erroneously identify an innocent suspect. 168 The reduction of misidentifications allows for efficient use of limited law enforcement resources since after a misidentification those resources are likely inefficiently 69 focused on an innocent suspect.'

Another benefit of having written procedures that incorporate the suggested reforms is that it makes it easier for judges, attorneys, and jurors to evaluate any identification made since there will be a detailed record of the identification including a statement of the witness's confidence.' 70 Additionally, when eyewitness identifications are based on best practices, there will be less opportunity for defense attorneys to present eyewitness experts to refute those identifications because expert testimony commonly focuses on any deficiencies in the lineup process from which the identification was made.' 71 Reducing the need for expert testimony also promotes judicial economy by reducing the time and expense of trial.

The reduction of government expenditures is another indirect benefit of eyewitness identification reform. As discussed, the state of Georgia has already spent $2.7 million reimbursing exonerees who have been wrongfully convicted on the basis of

165. Id. at 28.

166. Id. at 29.

167. Wells, Systemic Reforms, supra note 47, at 631.

168. Id. 169. Id.

170. Wells, Systemic Reforms, supra note 47, at 632.

171. Id.

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eyewitness identification evidence. 72 Since DNA evidence is only available in approximately 10% to 20% of all serious crimes, 173 that $2.7 million represents only the tip of the proverbial iceberg.

If future evidentiary techniques are developed on par with DNA in terms of their exculpatory effect, then there could be an additional wave of exonerees and calls for legislative compensation.

Implementing eyewitness identification reforms now would reduce the chance of future wrongful convictions and concurrently reduce the risk of future claims for compensation by those who have been wrongfully incarcerated.

VII. COSTS As almost every legislative mandate comes with a price tag, law enforcement agencies are understandably concerned about having to find room in their already limited budgets for the implementation of new eyewitness identification procedures.

The good news is that those jurisdictions that have implemented similar reforms' 74 have been able to do so while incurring either minimal or no expenses.

New Jersey achieved the implementation of these best practices without providing any extra budget. 175 Similarly, none of the approximately fift departments in North Carolina that implemented77 reforms17 6 have indicated any impact on their cost as a result.1 No law enforcement agency should be required to bear the burden of an unfunded mandate, no matter how small the cost.

Even though other states have not indicated any significant expenses as a result of implementing reforms, 178 the legislature should ensure that any required funding needs are met. Any 172. See sources cited, supra note 2.

173. Garrett, supra note 22 (citing Protecting the Innocent: Proposals to Reform the Death Penalty: Hearing Before the S. Comm. on the Judiciary,

supra note 22, at 221 (statement of Prof. Barry Scheck, Co-Dir. of the Innocence Project); Martin, supra note 22, at 105).

174. The other jurisdictions have also implemented the sequential procedure instead of the traditional simultaneous method.

175. Wells Testimony, supra note 132.

176. Mumma Testimony, supra note 24, at 1:50:20.

177. Mumma Testimony, supra note 24, at 1:36:55.

178. See supra notes 170-72 and accompanying text.

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necessary expense is justified by the avoidance of future costs due to the reduced likelihood of future wrongful convictions and exonerations which can result in substantial legislative compensation,179 not to mention a decrease in public confidence in the criminal justice system.

Estimates for required training on the new procedures range from two hours for police officers to four hours for detectives in one department in Northampton, Massachusetts,1 80 to eight hours for a state training session in New Jersey where reforms were implemented in 180 days.1 81 Regarding double-blind lineup administration, although the detectives conduct most of the lineups, training the police officers on the double-blind procedures has the advantage of providing the department with a steady supply of capable blind administrators.' 82 If necessary, trained persons who have no familiarity with the process can be 183 to serve as a blind administrator in as few as ten minutes.

VIII. FEEDBACK FROM OTHER JURISDICTIONS

Other states that have implemented similar reforms' 84 include New Jersey, Wisconsin, and North Carolina. 185 On the local level, reforms have been implemented in Suffolk County, 186 and 188 87 in Northampton, Massachusetts,' Virginia Beach, Virginia, Santa Clara County, California, 189 and, to some extent, a 179. See sources cited, supra note 2..

180. Patenaude Testimony, supra note 42, at 2:19:05.

181. Id. at 2:31:30.

182. See id. at 2:19:20.

183. See id. at 2:20:00.

184. replace 185.

186.

The other states have also implemented the sequential procedure to the traditional simultaneous method.

Wells, Systemic Reforms, supra note 47, at 641.

Id. at 642 (citing Suzanne Smalley, Police Update Evidence

Gathering: Suspect IdentificationIs Focus of Changes, BOSTON GLOBE, July

20, 2004, at BI).

187. Id. (citing

NORTHAMPTON POLICE DEP'T, ADMINISTRATION & OPERATIONS MANUAL: EYEWITNESS IDENTIFICATION PROCEDURE (2005),

available at http://www.innocenceproject.org/docs/Northampton-MA

ID_

Protocols.pdf).

188. Id. (citing Karin Brulliard, Revamping Va. 's Police Lineups: New Methods Urgedto Curb Mistakes, WASH. POST, Mar. 6, 2005, at C1).

189. Id. (citing POLICE CHIEFS ASS'N OF SANTA CLARA COUNTY, LINE-UP

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1 90 handful of agencies in Georgia.

In those reform jurisdictions, the perhaps expected negative feedback has not materialized. Four police departments in Hennepin County, Minnesota, conducted a pilot program that tested three of the reforms recommended in this Comment, double-blind administration, the warning instruction, and documentation of confidence statements. 9 1 Although the program did not specifically call for either an audio or video recording of the identification process, it did require a complete written report of the process.' 9 2 Also, the pilot program called for the use of the sequential lineup,' 93 which is not one of the recommendations of this Comment due to the current controversy surrounding its use.' 94 After one year, all four police departments remained committed to the use of the procedures, and investigators who were initially skeptical of the procedures "found that they were not hindered by the [procedures].' 95 Similarly, over 80% of law enforcement agencies in New Jersey were able to implement double-blind testing "with no difficulties or with only minor difficulties that were easily overcome."'1 96 Agencies in North Carolina that implemented reforms have not reported any problems as result,197 and detectives or prosecuting attorneys in

FOR LAW ENFORCEMENT (2002), available at http://www.innocenceproject.org/docs/SantaClaraLineupPro tocols.pdf).

190. See supra note 135 and accompanying text.

191. Amy Klobuchar & Hilary Lindell Caligiuri, Protecting the Innocent/Convicting the Guilty: Hennepin County's Pilot Project in Blind Sequential Eyewitness Identification, 32 WM. MITCHELL L. REv. 1, 19 -20 (2005) (citing Memorandum from Paul Scoggin, Managing Attorney, Violent Crimes Div., Hennepin County Attorney's Office to the Investigators/Detectives, Minneapolis (Central Investigation Div.), Bloomington, Minnetonka, and New Hope Police Dep'ts on Pilot Program for the Sequential Identification Process Memorandum 1 (Oct. 27, 2003)).

192. Id. at 20-21.

193. Id. at 19-20.

194. See supra notes 132-33 and accompanying text.

195. Klobuchar & Caligiuri, supra note 191, at 24.

196. Winn S. Collins, Looks Can Be Deceiving: Safeguards for Eyewitness Identification, 11 WiS. LAW. 8, 11 (2004) (citing Telephone Interview with Lori Linskey, Deputy Attorney General, N.J. Dep't of Justice (Jan. 6, 2004)).

197. Mumma Testimony, supra note 24, at 1:30:20.

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Northampton, Massachusetts have not provided the policy developers with negative feedback. 98 The main source of negative data on the suggested eyewitness identification reforms comes from an Illinois field study which compared identification results in a sequential double-blind lineup with identification results in the traditional non-blind simultaneous lineup. 199 The results of the study indicated that the non-blind simultaneous method produced more positive identifications of the actual suspect and fewer inaccurate filler identifications than the double-blind sequential On this basis, the report concluded that the method. z 0 traditional non-blind simultaneous method was superior to the sequential double-blind method.20 1 The Illinois field study should not be an impediment to the First, it tested the suggested reforms in this Comment. sequential lineup method in tandem with the double-blind lineup administration.20 2 The sequential lineup is not one of the or in House reforms recommended in this Comment," Resolution 1071 .204 Therefore, the only proposed reform it could potentially discredit is the use of the double-blind lineup.

To that extent, the higher rate of positive identification reported in the non-double-blind simultaneous lineups in the study may be entirely consistent with the reasoning that favors the adoption of the double-blind lineup. 20 5 One of the purposes of the double-blind lineup is to prevent the administrator from intentionally or unintentionally influencing the eyewitness's 198. See PatenaudeTestimony, supra note 42, at 2:27:10.

199. OFFICE OF

Wis.

ATTORNEY GEN., RESPONSE TO CHICAGO REPORT ON

EYEWITNESS IDENTIFICATION PROCEDURES 2-3 (2006), http://www.doj.state.

wi.us/dles/tns/ILRptResponse.pdf.

200. Id. (citing SHARI H. MECKLENBURG,

REPORT TO THE LEGISLATURE OF THE STATE OF ILLINOIS: THE ILLINOIS PILOT PROGRAM ON SEQUENTIAL

DOUBLE-BLIND IDENTIFICATION PROCEDURES 37-42 (2006), http://www.chi

cagopolice.org/IL%2OPilot%20on%2OEyewitness2OlD.pdf).

201. Id. (citing MECKLENBURG, supra note 200, at 27).

202. Daniel L. Schacter, Robyn Dawes, Larry L. Jacoby, Daniel Kahneman, Richard Lempert, Henry L. Roediger, & Robert Rosenthal, Policy Forum: Studying Eyewitness Investigations in the Field, 32 LAW & HUM. BEHAV. 3, 4 (2008).

203. See supra notes 132-33 and accompanying text.

204. H.R. Res. 1071.

205. OFFICE OF WIS. ATTORNEY GEN., supra note 199, at 3.

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selection.2 0 6 In a non-double-blind scenario, if the administrator was unintentionally influencing the eyewitness, a higher rate of positive identifications would be expected.2 °7 In fact, there was a higher rate of positive identifications under the non-doubleblind lineups in the Illinois study. 20 8 If that higher rate of positive identifications was due to the non-blind administrator's that only supports the case for adopting unintentional influence, 20 9 double-blind lineups.

Unfortunately, it is impossible to tell whether the higher rate of positive identifications was due to the use of (a) the simultaneous method as opposed to the sequential method or (b) non-blind administration, as opposed to double-blind administration because the study did not separately compare double-blind simultaneous lineups to double-blind sequential lineups.210 Another concern with the study is the validity of the data upon which it draws its conclusions. 21' Two of the locations reported no instances of filler identifications.2 12 This result is "surprising given that other jurisdictions consistently report an average of 20.5% filler identifications in actual lineups.'

206. Patenaude Testimony, supra note 42, at 2:05:30; Wells, Systemic

Reforms, supra note 47, at 629.

207. OFFICE OF Wis. ATTORNEY GEN., supra note 199, at 3.

208. Id. (citing MECKLENBURG, supra note 195, at 37-42).

209. Gary L. Wells, Field Experiments on Eyewitness Identification: Towards a Better Understandingof Pitfalls and Prospects, 32 LAW & HUM. BEHAV. 6, 7 (2008) [hereinafter Wells, Pitfalls].

210. OFFICE OF Wis. ATTORNEY GEN., supra note 199, at 3-4.

211. Wells, Pitfalls, supra note 209, at 8.

212. Id. 213. Id. (citing B.W. Behrman & S.L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 LAW & HUM. BEHAV. 475-

91 (2001); B.W. Behrman & R.E. Richards, Suspect/foil Identification in Actual Crimes and in the Laboratory: A Reality Monitoring Analysis, 29 & HUM. BEHAV. 279-301 (2005); A. SLATER, IDENTIFICATION PARADES: A SCIENTIFIC EVALUATION (Police Research Award Scheme, LAW

Police Research Group, Home Office 1994); T. Valentine, A. Pickering & S. Darling, Characteristics of Eyewitness Identification that Predict the Outcome of Real Lineups, 17 APPLIED COGNITIVE PSYCHOL. 969-93 (2003); D.B. Wright & A.T. McDaid, Comparing System and Estimator Variables Using Data from Real Lineups, 10 APPLIED COGNITIVE PSYCHOL. 75-84 (1996); D.B. Wright & E.M. Skagerberg, Post-identification Feedback Affects Real Eyewitnesses, 18 PSYCHOL. SCI. 172-78 (2007)).

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The good news is that a planned national field study should provide additional concrete evidence regarding the validity of scientific procedures in the field.2t 4 In any case, it should be stressed that the other jurisdictions that have implemented reforms over the past several years have indicated only minor problems or no problems at all with the reforms, 21 5 and, in contrast to the Illinois field study, the pilot program in Hennepin County, Minnesota was not controversial and its results were consistent with previous research.216 IX. CONCLUSION

Although, as with almost any type of legislative reform, there are costs involved, the costs here are minimal when compared with the actual costs already incurred as a result of wrongful convictions based on eyewitness evidence: 111 years217 and $2.7 million.2t 8 Further, the risks involved are minimal as both the doubleblind procedure 21 9 and the warning instruction 220 have been demonstrated to reduce the rate of error without substantially affecting the rate of correct identifications. In North Carolina, legislation enacting these reforms unanimously passed in both houses. 22' Some law enforcement agencies in Georgia have already adopted many of2the reforms voluntarily and should be 22 commended for doing so.

Those that have not adopted the reforms should take this opportunity to implement them on their own accord. If they decline to do so, the state legislature should take any necessary measures to ensure the reforms are implemented. The costs for 214. Mumma Testimony, supra note 24, at 1:31:55.

215. See supra notes 195-98 and accompanying text.

216. Schacter, Dawes, Jacoby, Kahneman, Lempert, Roediger, & Rosenthal, supra note 202, at 4.

217. See sources cited, supra note 2.

218. Id. 219. Scheck, Lecture on Wrongful Convictions, supra note 77, at 606.

220. Wells, Systemic Reforms, supra note 47, at 625 (citing Malpass & Devine, supra note 94 at 486-87).

221. Mumma Testimony, supra note 24, at 1:31:55.

222. Ga. Law Enforcement Survey, supra note 134, pt. ii, at 1-20.

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not doing so, in terms of personal liberty and unnecessary expense to the state, are too great.

MICHAEL A. ALBINO*

* J.D. Candidate, May 2008, John Marshall Law School; B.A., University of Georgia. I would like to thank my editor, Rachel Scott, for her honest advice and hard work. I would like to thank my parents for their unwavering patience and understanding. Lastly, I have to thank my wife, for her support, for every sacrifice that she made during the last three years, and for always believing in me.

REASONABLENESS FOUND: SUPERMAJORITY SENTENCING IN GEORGIA DEATH PENALTY CASES I. INTRODUCTION

A major campaign1 seeking to reform Georgia's death penalty law resulted in the introduction of House Bill 185 ("HB 185"). z The impetus for the campaign was a Georgia court's failure to impose the death penalty in a heinous murder case where the defendant was convicted of murdering a mother and her two-year-old daughter, and ten of the twelve jurors voted for the death penalty.3 Georgia law currently requires a unanimous jury vote for the imposition of the death penalty.4 HB 185 enables a supermajority of at least ten jurors to recommend the death penalty to the judge.5 In cases of jury deadlock over the proper 1. See Lateef Mungin, Gwinnett murders created activists 10 angry people: After a deadlock saved a killer's life, upset jurors launched a fight against unanimous verdicts. ATLANTA J. CONST., Feb. 11, 2007, available at http://nl.newsbank.com/nl-search!we/Archives.

2. H.R. 185, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

3. See Headline Prime (CNN television broadcast Oct. 24, 2005) transcript available at http://transcripts.cnn.com/TRANSCRIPTS/0510/ 24/ng.01.html. Whitney Land and her two-year-old daughter were carjacked in November 1999 in Clayton County. Id. The assailant robbed Ms. Land, shot her three times, and put her body in the trunk of her car. Id. The assailant then shot two-year-old Jordan, still in her car seat, in the face and chest. Id. After both were dead, the defendant set fire to the car, possibly to destroy any incriminating evidence. Id. The jury found the defendant guilty of murder and guilty of several statutory aggravating circumstances, (pursuant to O.C.G.A. ยง 17-10-30 (2007)). Id. During the sentencing phase, ten jurors recommended imposition of the death penalty. Id. Failure to reach a unanimous recommendation forced the judge to sentence the defendant to life imprisonment. Id. 4. O.C.G.A. ยง 17-10-31 (2007).

5. H.R. 185, available at http://www.legis.ga.gov/legis/2007_08/full text/hbl85.htm. The most relevant portion of the proposed bill alters O.C.G.A. ยง 17-10-31.1(2007) to enable the judge to impose a sentence of death or life imprisonment, if the judge is informed by the jury foreperson

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sentence, the Bill would allow a judge to select the appropriate penalty. 6 Two central constitutional issues are raised: first, who must decide a defendant's death sentence and second, if the jury decides, must the decision be unanimous? U.S. Supreme Court precedent has never held judicial sentencing unconstitutional.'

This Comment focuses on the legality of HB 185. We begin with a brief history of death penalty jurisprudence, concentrating primarily on its past flaws and its evolution in Georgia. Next, we analyze the proposed changes contained in HB 185 and their effects on the current scheme. Then, we examine current death penalty procedures employed by Alabama and Florida, states whose sentencing statutes have survived constitutional challenges and are similar to HB 185's proposed changes. In doing this, we will show that HB 185's changes are more limited in scope than the sentencing statutes in Alabama and Florida. Finally, we examine the constitutionality of HB 185 under both the U.S. and Georgia Constitutions.

II. DEATH PENALTY LAW IN GEORGIA

The imposition of the death penalty has always been controversial. Numerous challenges to the death penalty have been brought before the U.S. Supreme Court. These challenges forced the Supreme Court to evaluate not only the propriety of the sentence itself but also the procedure for imposition and the method of application, setting the legal bounds of the penalty.

That landscape changed dramatically in 1972 with the case of Furman v. Georgia. The implications of HB 185 cannot be fully understood without first examining the problems Georgia has had in the past with its death sentencing scheme and how subsequent changes have resolved those problems. that upon their last vote, at least ten of the jurors voted for imposition of the death penalty. Id. This Bill passed the Georgia House of Representatives on March 20, 2007 and was read and referred in the Georgia Senate on March 27, 2007. Id. 6. Id. 7. To date, the U.S. Supreme Court has not held unconstitutional procedures that enable the Judge to impose sentence. E.g., Ring v. Arizona, 536 U.S. 584 (2002); Harris v. Alabama, 513 U.S. 504 (1995); Spaziano v.

Florida, 468 U.S. 447 (1984); Proffitt v. Florida, 428 U.S. 242 (1976).

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A. Evolution of the Death Penalty in Georgia In 1972, the Supreme Court issued a per curiam decision in Furman v. Georgia that struck down then existing death penalty sentencing statutes.8 The root of the problem was that Georgia, as well as other states, gave the jury broad discretion with little or no guidance in determining whether a death sentence was appropriate. 9 The exercise of this broad discretion resulted in inconsistently imposed death sentences in Georgia and other states, leading to unconstitutional results.'0 The Court took issue with the fact that the sentencing statutes allowed similarly situated defendants to be given dissimilar sentences. 1 With the holding in Furman, the Court effectively voided forty death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country to life imprisonment. This suspended all death sentences because all existing statutes were no longer valid. 12 Justice Douglas, attributing the problem to 8. Furman v. Georgia, 408 U.S. 238 (1972) (consolidating three cases, Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas). In Furman, the defendant was burglarizing a home when the owners returned; when he attempted to flee, Furman tripped causing his gun to fire accidentally killing the homeowner. Id. at 252. In both Jackson and Branch, the defendants were convicted of rape. At their trials, all three defendants were found guilty and sentenced to death. Id. at 253.

9. Dan T. Coenen, Government and Politics: Furman v. Georgia, http://www.georgia encyclopedia.org/nge/Article.jsp?id=h-2931 (last visited June 29, 2007); Office of Planning and Analysis: A History of the Death Penalty in Georgia:Executions 1924-2006, http://www.dcor. state.ga.us/pd f/TheDeathPenaltyinGeorgia.pdf (last visited Nov. 6, 2007).

10. McGautha v. California, 402 U.S. 183 (1971). In the McGautha decision, the Court noted that unguided discretion by the jury could lead to unconstitutional results, a reality that was realized in Furman. Id. 11. Furman, 408 U.S. at 313 (cited by Gregg v Georgia, 428 U.S. 153, 188 (1976) (per curiam) ("Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. Mr. Justice White concluded that 'the death penalty is exacted with great infrequency even for the most atrocious crimes and ... there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.')).

12. Death Penalty Information Center, Introduction to the Death Penalty: Suspending the Death Penalty, http://www.deathpenaltyinfo.org/article. php?scid = 15 &did=410#EarlyandMid-Twentieth Century (last visited Nov. 6, 2007).

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the broad discretion given to the jury, noted in his concurring opinion that: Any penalty, a fine, imprisonment or the death penalty could be unfairly or unjustly applied. The vice in this case is not in the penalty but in the process by which it is inflicted. It is unfair to inflict unequal penalties on equally guilty parties, or on any innocent parties, regardless of what the penalty 13 is.

Justice Stewart's separate concurrence followed with the oftquoted line, "[t]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."'4 After the Furman decision, state legislatures around the nation were forced to develop statutory schemes that would satisfy the Constitution's mandates.

The Georgia General Assembly passed a new death penalty law that went into effect

on March 28, 1973.1 5

With this new law, Georgia created a

bifurcated system that separated

sentencing phase.' 6

the guilt phase from the

Georgia's new statute, which provided

guidance to the jury and bifurcation of the phases, was challenged in the landmark case of Gregg v. Georgia-which,

13. Furman, 408 U.S. at 248 (emphasis added).

14. Id. at 310 (emphasis added). The 'wanton and freakishly imposed' language has been cited numerous times in important cases, including: Kansas v. Marsh, 548 U.S. 163 (2006); Lewis v. Jeffers, 497 U.S. 764, 774 (1990); Walton v. Arizona, 497 U.S. 639, 658-659 (1990); McCleskey v.

Kemp, 481 U.S. 279 (1987); Pulley v. Harris, 465 U.S. 37, 61-62 (1984); and Gregg, 428 U.S. at 188.

15. Office of Planning and Analysis, supra note 9, at http://www.dcor.stat e.ga.us/pd/TheDeathPenaltyinGeorgia.pdf (providing a historical explanation of the death penalty in Georgia from 1924 through 2006).

16. Gregg,428 U.S. 153. While hitchhiking, Gregg robbed and murdered two men. Id. at 158. In accordance with the new Georgia scheme, Gregg's trial was split into two phases, a guilt phase and sentencing phase. Id. at 160.

At the close of the guilt phase, the jury returned a verdict of guilty. Id. During the sentencing phase, the jury found the existence of two aggravating circumstances and returned a verdict for death on each count. Id. at 161. On appeal, the Supreme Court of Georgia affirmed the convictions and upheld Gregg's death sentence for the murder charge, but reversed the death sentence for the robbery charge. Id. at 161-62.

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in effect, reinstated the death penalty. 17 In Gregg, the U.S. Supreme Court held that the death penalty itself was constitutional and that a "bifurcated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman."'18 The Court in Gregg noted that "freakish" and "inconsistent" imposition of the death penalty would likely be avoided because any and all sentencing issues were separated from guilt issues.' 9 Under Georgia's sentencing procedures, the sentencer was given specific guidance on when death could be imposed and how each defendant should be considered individually.2 0 Furthermore, the Court noted that "[w]here the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner."2 1 Since Furman and Gregg, the Supreme Court has never held that a jury has the exclusive authority to impose a death sentence. 2 Nor has it held that it is unconstitutional for a judge to impose a death sentence. 3 It has, however, remained concerned with limiting discretion in sentencing. As discussed below, HB 185 comports with Supreme Court precedent and constitutional requirements.

In examining HB 185's constitutionality, we will survey Georgia's current death penalty law, HB 185's proposed changes, and schemes from sister jurisdictions that are similar to HB 185.

B. Current GeorgiaDeath Penalty Law Current Georgia law requires that, during the sentencing phase of a death penalty eligible crime, the jury must determine whether any aggravating circumstances are present before the death penalty can be imposed. 4 However, a unanimous finding 17. Id.

18. Id. at 192.

19. Id. at 192-94.

20. Id. 21. Id. at 195.

22. See cases cited, supra note 7.

23. Id. 24. O.C.G.A. ยง 17-10-30 (Currently there are eleven statutory aggravating factors that can be presented to the jury; however, with the exception of treason or airplane hijacking, the jury must find the existence of at least one

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that one or more aggravating circumstances are present does not result in automatic imposition of the death penalty. 25 The jury must unanimously recommend imposition of the sentence, 26 and the jury's unanimous sentencing recommendation is binding on the trial court.27 Identified as motivation for the Bill, the current system enables the jury to unanimously find a defendant guilty of a death penalty crime, unanimously find the existence of one or more aggravating circumstances, and then fail to impose the 28 death penalty if one juror refuses to recommend the sentence.

This process is the focus of HB 185's changes to the current law. These adjustments do not remove the guided discretion of the jury, nor do they remove the requirement that the jury unanimously find the aggravating circumstances. 29 The Bill only affects who determines the ultimate sentence in cases of jury deadlock. 30 Because the mandates of Supreme Court precedent-like Furman and Gregg-are maintained, the constitutional basis of the scheme is preserved.

III. HOUSE BILL 185's CHANGES TO THE CURRENT SCHEME

Critics of HB 185 argue that its enactment will result in a dramatic increase in the number of death sentences imposed.3 ' However, important restrictions have been engineered in the language of the Bill to keep this perceived threat in check. JIB 185 is only applied in criminal cases where a unanimous jury has found the defendant guilty of a death eligible crime, and also found the presence of at least one statutory aggravating circumstance. 32 Even then, the new aspects of the law would not be triggered unless at least ten jurors also voted to impose a aggravating factor before the death penalty may be imposed).

25. O.C.G.A. §§ 17-10-31-31.1.

26. Id. 27. O.C.G.A. § 17-10-31; Burden v. Zant,

975 F.2d 771 (11 th Cir. 1992).

28. O.C.G.A. §§ 17-10-30-31.1.

29. H.R. 185.

30. Id. (The judge

is given some discretion based on the jury recommendation).

31. Georgia Sessions Archives, Video Archives 2007 House Session, http://www.georgia.gov/00/article/0,2086,4802_6107103_72682804,00.htm, Mar. 20, 2007 (beginning at 1:55).

32. H.R. 185.

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death sentence.33 First, the jury is given the chance to determine the sentence, just as it is under the current law. Only when the jury cannot agree on a sentence would the attributes of HB 185 be triggered.

The proposed changes to Georgia law are found in section (d)(2) of the Bill.34 This section demonstrates the way the jury's discretion is guided, and how the judge can break a jury deadlock and impose a sentence within certain confines. The relevant text of the Bill would amend O.C.G.A. ยง 17-10-3 1.1 as follows: (d) In imposing sentence, if the jury finds beyond a reasonable doubt that the defendant committed at least one statutory aggravating circumstance, the judge may sentence the defendant to: (1) Imprisonment for life without parole if the judge has been informed by the jury foreperson that upon their last vote, a majority of the jurors cast their vote for a sentence of

death or for a sentence of life imprisonment without parole; or (2) Death if the judge has been informed by the jury foreperson that upon their last vote, at least ten of the jurors

cast their vote for a sentence of death; provided, however, that the judge may impose a sentence of life imprisonment or 35 imprisonment for life without parole as provided by law.

The statute would still require a judge to order life imprisonment if the jury does not unanimously find the existence of at least one aggravating circumstance.3 6 The proposal also leaves untouched the requirement that the judge impose imprisonment for life without parole if the jury unanimously recommends37 it, after unanimously finding an aggravating circumstance.

The law currently directs the judge to dismiss the jury and impose either life imprisonment or life imprisonment without parole when the jury finds at least one aggravating circumstance 33. Id. 34. Id.

35. Id. (emphasis added).

36. Compare id. to ยง 17-10-31.1 (a).

37. Compare id. to ยง 17-10-31.1 (b).

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but cannot reach a unanimous sentence recommendation. 38 HB 185 changes this procedure by adding the death penalty as an 39 circumstances. limited in select could judge the option HB 185 also addresses an ambiguity which, if left alone, could lead to unconstitutional results. Current law allows the judge to impose a sentence of imprisonment for life without parole if a majority of the jurors cast their vote for a sentence of death or life imprisonment without parole, as long as the court finds beyond a reasonable doubt that the defendant committed at least one statutory aggravating circumstance. 40 HB 185 would amend that language and would require the jury, not the court, to find the presence or absence of aggravating circumstances beyond a reasonable doubt.4 ' This change satisfies the mandate of U.S. Supreme Court precedent which requires that the jury find the presence of aggravating circumstances, not the judge.42 As evidenced by the above description, HB 185 does not 43 come into play until several prerequisites have been met.

When the Bill is implicated, the jury's findings are still given weight. In some cases, the judge would not deviate from the current statutory process. The material change occurs only when the final vote of the non-unanimous jury results in at least ten votes for death.44 Even then, the judge is not required to impose the death penalty. The judge may choose to follow the will of the supermajority, and impose the death penalty, or choose to impose life or life without parole.45 The next section examines the sentencing schemes in other jurisdictions and explains how HB 185 incorporates language similar to other schemes that have survived constitutional scrutiny, while avoiding constitutional pitfalls.

38. O.C.G.A.

ยง 17-10-31.1 (c).

39. H.R. 185.

40. O.C.G.A. ยง 17-10-3 1.1 (c) (emphasis added).

41.

42. issues 43.

H.R. 185.

Ring, 536 U.S. 584 (holding that aggravating circumstances, as factual which can increase sentence, must be found by a jury).

H.R. 185.

44. Id. 45. Id.

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IV. SENTENCING SCHEMES IN OTHER JURISDICTIONS "Today thirty-eight states, the United States military, and the United States government have in place statutory schemes permitting the [imposition] of the death penalty for certain crimes. 46 Among the states that permit the death penalty, "three distinct types of capital sentencing schemes emerged: systems [1] where juries have exclusive sentencing authority; [2] where judges have exclusive sentencing authority; or [3] where juries play an advisory role to the judge, who ultimately renders the final verdict., 47 While the most prominent scheme gives juries exclusive sentencing authority, the Supreme Court has never held that judges could not impose sentence. In fact, in the Court's opinion,4udicial sentencing should result in more consistent sentences.

These distinctions developed in the aftermath of Furman, when states attempted to create systems that avoided the "freakish" imposition of the death penalty. 49 Basically, states "gave the judge or jury exclusive power, or combined power in both."5 States with a combination of the two types of capital sentencing are said to have a "hybrid [sentencing] scheme." 51 Currently in the United States there are four hybrid states:

46. Andrew Ditchfield, Challenging the Intrastate Disparities in the Application of Capital Punishment Statutes, 95 GEO. L.J. 801 (2007); see also Death Penalty Info. Ctr., Facts About the Death Penalty (2006), http://www.deathpenalty info. org/FactSheet.pdf [hereinafter Ditchfield Article] (noting that the capital punishment statute in New York was declared unconstitutional in 2004; thus, while New York is listed as a

retentionist jurisdiction, its status as a state employing the death penalty is unclear.).

47. John M. Richardson, Comment, Reforming the Jury Override: ProtectingCapitalDefendants' Rights by Returning to the System's Original Purpose,94 J. CRIM. L. & CRIMINOLOGY 455, 461 (Winter.2004).

48. Proffitt, 428 U.S. at 251.

49. Furman, 408 U.S. at 310. The Court never prescribed exact procedures to the states, but merely held that they must develop constitutional schemes that avoided the deficiencies found in Furman. Thus, state laws vary in procedure, although most can be grouped in the above three categories.

50. DitchfieldArticle, supra note 46.

51. Id.

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Alabama, Delaware, Florida, and Indiana.52 To the extent that the hybrid schemes, and schemes which allow judicial sentencing, have been challenged, they have been upheld as constitutional; 53 providing strong evidence that the similar scheme proposed in HB 185 would survive scrutiny. Just like Georgia, two of the hybrid states, Alabama and Florida, are within the Eleventh Circuit.

A. The Alabama Scheme The Alabama death penalty scheme also employs a bifurcated system, where the jury must first find the defendant guilty of a death eligible crime. 54 Once the jury finds a defendant guilty, a sentencing hearing is held where relevant evidence is presented to the jury. 55 The jury then decides whether there are

52. Id. (citing Jason C. Tran, Death by Judicial Overkill: The Unconstitutionalityof OverridingJury Recommendations Against the Death Penalty, 30 LoY. L.A. L. REV. 863, 865 (1997) ("The Delaware and Indiana legislatures, however, passed legislation changing their systems such that the trial judge must now accept the jury's findings with respect to aggravating factors, thus transforming the jury's advisory role."); Ortiz v. State, 869 A.2d 285 (2005) (upholding the constitutionality of Delaware's death sentencing statute).

53. See, e.g., Marsh, 548 U.S. 163; Harris, 513 U.S. at 514; Spaziano, 468 U.S. 447; Proffitt, 428 U.S. 242; Bottoson v. Moore, 833 So.2d 693, 695 (Fla. 2002).

54. ALA. CODE ยง 13A-5-46 (e, f) (2007) (providing: (e) After deliberation, the jury shall return an advisory verdict as follows: (1) If the jury determines that no aggravating circumstances as defined in Section 13A-5-49 exist, it shall return an advisory verdict recommending to the trial court that the penalty be life imprisonment without parole; (2) If the jury determines that one or more aggravating circumstances as defined in Section 13A-5-49 exist but do not outweigh the mitigating circumstances, it shall return an advisory verdict recommending to the trial court that the penalty be life imprisonment without parole; (3) If the jury determines that one or more aggravating circumstances as defined in Section 13A-5-49 exist and that they outweigh the mitigating circumstances, if any, it shall return an advisory verdict recommending to the trial court that the penalty be death. (f) The decision of the jury to return an advisory verdict recommending a sentence of life imprisonment without parole must be based on a vote of a majority of the jurors. The decision of the jury to recommend a sentence of death must be based on a vote of at least ten jurors. The verdict of the jury must be in writing and must specify the vote.).

55. Id.

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aggravating circumstances present and considers any mitigating circumstances, weighing the aggravating and mitigating factors.5 6 This system requires the jury to advise the court as to the sentence within certain procedural parameters. The jury is to return an advisory verdict of life imprisonment without parole if a majority of the jurors vote for life without parole.57 The system requires the jury to return an advisory sentence of death to the court if at least ten of the twelve jurors vote for death.58 Upon receiving the advisory sentence from the jury, the court hears evidence concerning the presentence report.59 In imposing its sentence, the court considers the evidence presented and the jury's advisory sentence. 61 When rendering a sentence, the court must enter a report detailing the existence or nonexistence of each aggravating circumstance, each mitigating circumstance, and the court's findings of fact summarizing the 61 crime and the defendant's participation in it.

Recently, legislation was proposed in Alabama that would amend the above-mentioned process. 62 The proposed change would remove the word "advisory" from the current sentencing 56. Id. 57. Id. 58. Id. 59. ALA. CODE ยง 13A-5-47(b) (2007). This report is created to inform the court of the investigations findings, the kinds of sentences and the sentencing range believed to apply, and any mitigating or aggravating circumstances.

The report must be a current representation of the defendant's circumstances.

While insufficient reports have required remand, Guthrie v. State, 689 So.2d 935 (Ala. Crim. App.1996), failure to produce a presentence report is plain error and calls for a reversal of conviction. Nelson v. State, 681 So.2d 252 (Ala. Crim. App. 1995).

60. ALA. CODE ยง 13A-5-47(e) (2007) (the trial court shall determine whether the aggravating circumstances outweigh the mitigating circumstances, and in doing so, the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to Section 13A-5-46(a) or 13A-5-46(g).

While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court.).

61. Scott v. State, 937 So.2d 1065 (Ala. Crim. App. 2005). When a judge fails to produce such findings, sentences have not been reversed, but are remanded to the trial court for its findings. This report shows that the court fully considered all available information when deciding the sentence.

62. H.R. 52, Leg. Reg. Sess. (Ala. 2007).

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statute and make the jury's verdict binding on the judge, thus 63 removing the judge's discretion from the sentencing process.

This change would mean that if a majority of the jurors voted for life without parole, the court must impose that sentence.

Furthermore, if at least ten of the twelve jurors voted for death, then the court must impose death.64 Alabama's current law gives the judge discretion to determine the sentence after considering the jury's advisory findings and the evidence presented.65 This law goes much further than Georgia's HB 185, which makes the jury's unanimous sentence determination binding on the court and 66 only gives the judge discretion in very limited circumstances.

The proposed changes to Alabama's statutory scheme completely remove the advisory character of the jury's verdict, and make a non-unanimous sentence recommendation for death binding on the court.6 7 In contrast, HB 185 provides that a nonunanimous jury recommendation for death be presented to the judge for the court's oversight and consideration. 68 Even under HB 185, only a unanimous recommendation for death is binding on the court. 69 Thus, HB 185 involves a more narrow change to 63. Id. 64. Id. 65. Alabama's scheme was upheld in Harris, 513 U.S. 504. Harris was convicted of capital murder after she arranged for the man she was having an affair with to kill her husband, a deputy sheriff. Id. at 507. Harris and her lover planned to split the life insurance proceeds. Id. Alabama law considers the jury recommendation as to sentence as purely advisory. Id. at 509. The jury recommended, by a 7 to 5 vote, that she be imprisoned for life without parole. Id. at 508. The trial judge then considered her sentence holding that because Harris had planned the crime and financed its commission and stood to benefit the most from her husband's murder, the sentence ought to be death. Id. The U.S. Supreme Court held that Alabama law, which vested sentencing authority in the trial judge but required the judge to consider the advisory jury verdict, did not violate the Eighth Amendment by failing to specify the weight the judge must give to the jury's recommendation. Id. The Court noted that because the Constitution permits the trial judge, acting alone, to impose a capital sentence, see Spaziano, it is not offended when a State further requires the judge to consider a jury recommendation and trusts the judge to give it the proper weight. Id. 66. H.R. 52 (Ala. 2007).

67. Id. (emphasis added).

68. H.R. 185.

69. Id.

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Georgia's current statutory scheme and does not extend to the full breadth of Alabama's current and proposed statutory procedure, buttressing the constitutionality of HB 185.

B. The FloridaScheme The other Eleventh Circuit state with a hybrid sentencing scheme is Florida.7 0 In Florida, the jury also renders advisory verdicts for sentencing in a bifurcated penalty phase. 7 ' The jury advises the court whether sufficient aggravating circumstances exist, whether sufficient mitigating circumstances exist that outweigh the aggravating circumstances, and, based on those determinations, whether the defendant should be sentenced to life imprisonment or death.72 Then, the court considers the aggravating circumstances, any mitigating circumstances, and the jury's advisory sentence. At that point, the court renders a sentencing verdict. 73 Florida's statute, like Alabama's, requires

the court to enter a report explaining the findings upon which the sentence is based.74 The main difference between Florida's current system and Georgia's proposed system is that under Florida's current statute, the jury's verdict is based on a 70. Florida's scheme was upheld in Spaziano, 468 U.S. 447; Proffitt, 428 U.S. 242; and Bottoson, 833 So.2d 693.

71. FLA. STAT. ANN. ยง 921.141 (2007) ("Part (2) Advisory sentence by the jury-After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matters: (a) Whether sufficient aggravating circumstances exist as enumerated in subsection (5); (b) Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and (c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death. Part (3) Findings in support of sentence of death.

Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts: (a) That sufficient aggravating circumstances exist as enumerated in subsection (5), and (b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.").

72. Id. 73. Id. 74. Id. If the judge imposes a death sentence, she must put in writing the facts that led her to conclude that sufficient statutory aggravating circumstances exist and that there are insufficient statutory mitigating circumstances outweighing the aggravating circumstances. Id.

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majority vote and is advisory.7 5 HB 185 confers some discretion upon the judge when a jury deadlocks over sentence in death penalty cases, and still ensures that each defendant gets individualized consideration and the benefit of a second-look at their crime. 76 It has been suggested that Florida's death penalty statute, and other hybrid schemes, will be challenged in coming years based on the level of judicial discretion.77 Even if those procedures are successfully challenged, HB 185 would likely survive similar scrutiny because it is more narrowly tailored and it is compliant with Supreme Court precedent. As explained below, HB 185 is constitutional under both the federal and state constitutions.

V. CONSTITUTIONALITY OF PROPOSED HOUSE BILL

185

Within the confines of checks and balances, the province of the judicial branch is to determine the constitutionality of enactments, not to question their propriety.78 If enacted, HB 185 must pass constitutional muster under both the United States Constitution and the Georgia Constitution.

A. FederalConstitution The plain language of the Sixth Amendment of the United States Constitution guarantees that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.. ."" The Eighth Amendment guarantees citizens freedom from the imposition of cruel and unusual 75. Id. 76. See Furman, 408 U.S. 238; see also Gregg, 428 U.S. 153. H.R. 185 comports with the "twin objectives."

77. Benjamin F. Diamond, Note, The Sixth Amendment: Where Did the Jury Go? Florida'sFlawed Sentencing in Death Penalty Cases, 55 FLA. L. REv. 905, 923-24 (2003).

78. Luther v. Borden, 48 U.S. 1 (1849). ("[I]t is the true province of the judiciary to decide what they rightfully are under such constitutions and laws, rather than to decide whether those constitutions and laws themselves have been rightfully or wisely made."); see also Fletcher v. Peck, 10 U.S. 87 (1810); Cherokee Nation v. State of Georgia, 30 U.S. 1 (1831).

79. U.S. CONST. amend. VI.

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punishment.8 0 Both of these amendments were made applicable to the States through the Fourteenth Amendment. 8 1 The plain language of these amendments does not address whether a jury must impose the sentence. Nor do the amendments address, in instances where the jury does impose the sentence, whether the sentence must be imposed by a unanimous jury. In applying basic tenets of construction, given the high regard for juries and concerns about maintaining the jury's independence, 82 one could infer that the framers would have included this language in the Constitution had they intended unanimity and unbridled 83 discretion of the jury.

In its post-Furmanjurisprudence, whether challenged under the Sixth and/or the Eighth Amendment, the U.S. Supreme Court has never held that the Constitution requires a jury to determine whether the death penalty is the appropriate sentence.8 4 The Court noted in Furman v. Georgia and Gregg v. Georgia: [A] state capital sentencing system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a jury [or sentencing judge] to render a reasoned, individualized sentencing determination based on a deatheligible defendant's record, personal characteristics, and the circumstances of his crime. So long as a state system 80. Id. at amend. VIII. 81. The Sixth Amendment's applicability to the states is evidenced in Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968). "The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States." Id. at 156.

82. See American Bar Association Division for Public Education, Dialogue on the American Jury: We the People in Action, PartI The History of Trial by Jury, http://www.abanet.org/jury/more info/dialoguepart 1.pdf; see also Diamond, supra note 77.

83. Robinson v. Shell Oil Co., 519 U.S. 337 (1997); Marbury v. Madison, 5 U.S. 137 (1803) (The generally accepted cannons of construction are as follows: (1) Plain meaning of the words (the generally accepted meaning; common usage), (2) The effect of all the words, (3) How the term is used elsewhere in the document, (4) A list of terms that have something in common, (5) Affirmative statements imply negative intent, (6) Framers' Intent, and (7) How the structure of the document is itself put together).

84. See cases cited, supra note 7.

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satisfies these requirements, our precedents establish that a State enjoys a range of discretion in imposing the death penalty, including the manner in which aggravating and mitigating circumstances are to be weighed.85 Since Furman and Gregg, the Supreme Court has emphasized the pursuit of these "twin objectives" and that "[n]othing in those twin objectives suggests that the sentence must or should be imposed by a jury."8 6 While death penalty jurisprudence has evolved since Furman, the Court stated it is "unwilling to say that there is any one right way for a State to set up its capital sentencing scheme." 8 7 The Court further held that a scheme is constitutional when a jury is only giving an advisory opinion on what the sentence should be as long as the "penalties imposed are the product of properly guided discretion and not arbitrary whim."'

Even though the new statutes that were created after Furman limited the sentencer's discretion, defendants still claimed that the death penalty was being applied unconstitutionally. These claims required the Supreme Court to supply constitutional rules for the states to apply.

1. Early Challenges One of the first post-Furman death sentencing schemes to be 89 challenged was Florida's, in Proffitt v. Florida.

Proffitt challenged Florida's new sentencing scheme under the Eighth Amendment, arguing that Florida law still allowed the death penalty to be imposed in an arbitrary manner. 90 The U.S. Supreme Court held that the statute, on its face, appeared to solve the constitutional deficiencies that were identified in

85. Marsh, 548 U.S. 163.

86. Spaziano, 468 U.S. at 460.

87. Id. at 464.

88. Harris,513 U.S. at 514.

89. Proffitt, 428 U.S. 242. Charles Proffitt was convicted of first degree murder. Id. at 245. In a separate sentencing hearing, the jury returned a recommendation for death. Id. at 246. After the judge specifically found the existence of four aggravating circumstances and that no statutory mitigating circumstances were present, he sentenced Proffitt to death. Id. 90. Id. at 253. The Court has noted that the death penalty is being applied in an 'arbitrary' manner when "there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." Furman,408 U.S. at 313.

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Furman, because it directed the Court to weigh the statutorily defined aggravating circumstances against the statutorily defined mitigating circumstances. 9 1 The Court concluded that this weighing forced the sentencing judge to focus on the particular aspects of the homicide as well as the individual characteristics of the defendant.92 While acknowledging the importance of the jury's role in capital sentencing, the Court also acknowledged that "it has never suggested that jury sentencing is constitutionally required."93 The Court found that Florida's procedures supplied adequate safeguards against 94 arbitrary and capricious death penalty imposition.

Furthermore, the Court added that judicial sentencing should lead to more consistency in sentencing in capital cases, since the judge "is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those 95 imposed in analogous cases."

A second challenge to Florida's death penalty sentencing scheme arose in Spaziano v. Florida.96 During its weighing of the aggravating and mitigating circumstances, the trial court found the existence of two aggravating circumstances and no mitigating circumstances, "except, 7perhaps, the age [,twentyeight years old,] of the defendant."9 The court then imposed a death sentence, overriding the jury recommendation of life imprisonment.98 After several appeals and remands in the Florida court system, Spaziano's case finally made it to the U.S. Supreme Court.

There, Spaziano presented several constitutional challenges, arguing, inter alia, that Florida's system, which allows the judge to override the jury's recommendation, violated the Eighth Amendment.99 He also argued that, given the Supreme 91. Id. at 251.

92. Id. 93. Id. 94. Id. 95. Id. 96. Spaziano, 468 U.S. at 447. Spaziano was convicted of first degree murder; in a separate sentencing hearing, a majority of the jury recommended life imprisonment. Id. at 451.

97. Id. at 452.

98. Id.

99. Id.

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Court's emphasis on the jury's importance in capital sentencing, Florida's system also violated the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment.' 00 The Court addressed the petitioner's fundamental premise that "the capital sentencing decision is one that, in all cases, should be made by a jury."'0 ° The Court again articulated the "twin objectives" of capital sentencing and said that "nothing in those twin objectives suggests that the sentence must or should be imposed by a jury.

The Supreme Court noted that the capital sentencing phase is not a "trial" in itself and does not implicate the Sixth Amendment's guarantee of a jury trial.' 0 3 Justice Blackmun, writing for the majority, stated that capital sentencing is basically the same as any other sentencing proceeding, "a determination of the appropriate punishment to be imposed on an individual ...The Sixth Amendment never has been thought

to guarantee a right to a jury determination of that issue."'10 4 In upholding Florida's scheme against another constitutional attack, the Court concluded that: In light of the fact that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional. 5 Thus, the Court held that a judge acting alone could impose a 06 death sentence.'

2. Recent Challenges

After

Proffitt and

Spaziano,

some

states

still

had

100. Id. at 457.

101. Id. at 458.

102. Id. at 460. The twin objectives are that the sentencing scheme must rationally narrow the class of death-eligible defendants and permit a jury to render a reasoned, individualized sentencing determination. See supra Part V.A. 103. Id at 459.

104.

Id.

105. Id. at 464.

106. See, e.g., Harris, 513 U.S. at 515; Spaziano, 468 U.S. 447.

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constitutional flaws in their sentencing schemes concerning who should make certain factual findings. In 2000, Arizona law allowed the trial judge, sitting alone during the sentencing phase, to determine the presence or absence of aggravating factors. 107 These factors are required under Arizona law for the imposition of the death penalty.1 0 8 In Apprendi v. New Jersey, the U.S. Supreme Court held that if a state makes an increase in the defendant's maximum penalty contingent on a finding of fact, that fact must be found by a jury beyond a reasonable 10 9 doubt, even if the state defines the fact as a sentencing factor.

Two years after its decision in Apprendi, the Supreme Court decided Ring v. Arizona, which extended the Apprendi rule to Ring challenged Arizona's capital capital sentencing." 0 sentencing statute under the Sixth and Fourteenth Amendments.'

Ring argued that the scheme was unconstitutional because it entrusted to the judge, and not to the jury, the finding of facts that subjected the defendant to the

107. ARIZ. REV. STAT. ANN. ยง 13-703 (2007).

108. Ring, 536 U.S. at 588. If statutory aggravating circumstances are

employed as factors to guide the discretion of the judge or jury in imposition of the death penalty, but not prerequisites for such a sentence, there is no problem with the judge alone finding the existence of such circumstances.

However, if a sentencing scheme requires finding the existence of aggravating circumstances before the death penalty can be imposed, the aggravating circumstances are used as facts, not guiding factors.

109. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Apprendi was

not a capital case. In Apprendi, the Defendant was convicted pursuant to guilty plea for possession of firearm for unlawful purpose and unlawful possession of prohibited weapon. Id. Apprendi's sentence was extended under New Jersey's hate crime statute. Id. 110. Ring, 536 U.S. at 588. Ring was tried for a number of offenses related to the burglary of a Wells Fargo van and the murder of its driver. Id. at 589-90. The alternative charges of premeditated murder and felony murder were presented to the jury. Id. The jury had a six to six deadlock on the issue of premeditated murder but unanimously found Ring guilty of felony murder. Id. Under Arizona's law, the death penalty can only be imposed for felony murder if the defendant was the actual killer, or if he was a "major participant" in the armed robbery that led to the killing by exhibiting a reckless disregard for human life. Id. at 595. Based on testimony from the sentencing hearing, the trial judge answered both of these questions affirmatively. Id. 111. Id. at 595.

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maximum sentence, which was death."l 2 The judge found the existence of two aggravating factors and one non-statutory mitigating factor, Ring's minimal criminal history." l 3 Because the judge determined that aggravating circumstances were present and not sufficiently mitigated, the death sentence could be and was imposed.'14 On appeal, the U.S. Supreme Court addressed whether the Sixth Amendment's guarantee to a jury trial requires the jury to determine the existence of aggravating circumstances. 1 5 Applying the holding of Apprendi to Arizona's sentencing statute, the Court acknowledged that entrusting the finding of facts necessary to support a death sentence to a judge might ' be6 "an admirably fair and efficient scheme of criminal justice." "1 However, the Supreme Court also recognized that the "founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights.""' 7 According to the Court, since the death penalty could not be imposed without a finding of the existence of aggravating factors, those aggravating factors "operate as "the functional equivalent of an element of a greater offense," and therefore118 the Sixth Amendment requires that they be found by a jury."''

While Ring was being decided, another Florida prisoner petitioned the U.S. Supreme Court challenging Florida's death penalty sentencing statute in Bottoson v. Moore. 1 9 In February 2002, the U.S. Supreme Court stayed Bottoson's execution and 120 placed his case in abeyance pending the decision in Ring.

112. Id. 113. Id. 114. Id.

115. Id. at 597.

116. Id. at 607 117. Id.

118. Id. at 609.

119. Bottoson, 833 So.2d at 695. After Bottoson was convicted of first degree murder, he appealed the sentence to the Supreme Court of Florida.

Id. Florida affirmed the sentence and Bottoson petitioned the United States Supreme Court, which summarily denied defendant's petition for writ of certiorari. Id. Then, Bottoson petitioned for writ of habeas corpus, which failed. Id. 120. Id.

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Once the Court decided Ring, it lifted Bottoson's stay without mentionin its decision in Ring and denied his petition for certiorari.' 2' The Court did not direct the Florida Supreme Court to reconsider Bottoson's case in light of Ring.1 22 In effect, the Court's action gave Florida a "green light" to execute Bottoson. The Florida Supreme Court pointed out that the U.S. Supreme Court had repeatedly upheld Florida's capital sentencing statute against several challenges.' 23 In his concurring opinion, Florida Supreme Court Justice Wells stated that to interpret Ring as undermining Florida's capital sentencing scheme, one must reach the absurd result that the U.S. Supreme Court lifted Bottoson's stay124even though Ring rendered Florida's scheme unconstitutional.

However, concurring only in the result were Justices Lewis, Pariente, and Shaw who called for Florida to revise its death penalty scheme.'2 5 They proposed that the jury should decide the presence of aggravators.12 F They also recommended use of special verdict forms that require the jury to indicate what aggravators they found and the vote as to each aggravator so that they "do not run afoul of the spirit, intent, and reasoning of Ring."127 3. Application of FederalPrecedentto House Bill 185 From these cases, one can determine some parameters for capital sentencing statutes. The Supreme Court has repeatedly emphasized the "twin objectives" of any capital sentencing scheme. 128 As long as the capital sentencing statute meets these objectives, narrowing the class of death eligible defendants and allowing the jury to conduct individualized consideration of the defendant and the circumstances of the crime, 129 the Court is unlikely to interfere with a State's determination of how to 121. Id. 122. Id. 123. Id.

Id. at 697.

125. Id. at 710. The aspects of the scheme noted by the justices as in danger of constitutional challenge are absent in HB 185's scheme.

124.

126. Id. 127. Id. at 723-24.

128. Spaziano, 468 U.S. at 460.

129. Marsh, 548 U.S. 163.

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achieve those objectives.' 30 Georgia HB 185 is in accordance with all of these requirements and with U.S. Supreme Court precedent.

As required by Gregg, Georgia's bifurcated sentencing scheme provides guided discretion to the jury in sentencing because it narrows the class of death eligible defendants by requiring the jury to find the existence of at least one aggravating circumstance to impose the death penalty and requires the jury to take into account the defendant's individual characteristics and circumstances.' 3 1 As dictated by Apprendi, imposition of the death penalty requires finding the existence of aggravating circumstances; thus, this function is appropriately assigned to the jury. 132 Along the same lines, the jury must be the finder of all facts, especially the presence of aggravating factors, as required by Ring.13 3 Under HB 185, the judge has no input regarding the existence of aggravating factors. 134 These are solely determined by the jury and must be found unanimously.' 35 Other Supreme Court precedent has required the jury to look closely at the individual and not just the crime that was committed, by way of loosened evidentiary rules allowing mitigation evidence. 136 As such, HB 185 still accomplishes the "twin objectives" that a state capital sentencing statute must achieve in order to pass constitutional muster. 137 As noted in Proffitt and Spaziano, the United States Constitution does not require the jury to determine the sentence38 of a defendant, nor does it prohibit the judge from doing so.'

130. Spaziano, 468 U.S. at 460. ("If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not. It must also allow the sentencer to consider the individual circumstances of the defendant, his background, and his crime.").

131. Gregg,428 U.S. at 192.

132. Apprendi, 530 U.S. at 490.

133. Ring, 536 U.S. at 588.

134. H.R. 185.

135.

136.

137.

138.

Id. Lockett v. Ohio, 438 U.S. 586, 604 (1978).

Gregg, 428 U.S. 153; Furman, 408 U.S. 238.

Proffitt, 428 U.S. 242; Spaziano, 468 U.S. 447.

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The Constitution only requires the jury to find beyond a reasonable doubt the facts that comprise the elements of the charged offense.' 3 9 The Supreme Court held that laws which allow the judge to determine sentences are still expressing the 140 voice of the community by way of the legislative process.

The fact that HB 185 enables the judge, in limited circumstances, to impose the death penalty in the absence of a unanimous jury recommendation does not run afoul of the U.S. Constitution. Furthermore, the Court noted that in certain situations, the judge may be better equipped to impose the sentence.14 1 The only time the judge has the discretion to impose a death sentence is when a supermajority of ten jurors vote for the death penalty, after unanimously finding the existence of aggravating circumstances.1 42 All fact finding is still reserved for the jury. 143 "In light of the fact that the Sixth Amendment does not require jury sentencing," allowing the a very narrow set of judge to determine the sentence in 144 circumstances is constitutionally sound.

In sum, HB 185 complies with the language of the U.S. Constitution and the spirit of the document as interpreted by the U.S. Supreme Court. HB 185 has built-in protections carefully designed to avoid the constitutional defects of previously flawed schemes. It is narrowly tailored and is only triggered in limited circumstances. Accordingly, HB 185 would meet the federal constitutional requirements if enacted by the legislature.

B. Georgia Constitution Next, the validity of HB 185 is tested under the Georgia 139. U.S. CONST. amend. V & XIV. (The due process clauses of the Fifth and Fourteenth Amendments "[protect] the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970)).

140. Spaziano, 468 U.S. at 462.

141. Proffitt, 428 U.S. at 251. (The Court added that judicial sentencing should lead to more consistency in sentencing in capital cases since the judge

is "more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.").

142. H.R. 185.

143. Id. 144. Spaziano, 468

U.S. at 464.

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Constitution. Georgia guarantees its citizens that "the right to trial by jury shall remain inviolate . . . In criminal cases, the

defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the ' 45

facts."'

1. In Georgia, the Judge Decides Issues ofLaw Facially, the provision "the jury shall be the judges of the law and the facts" appears to give the jury complete control over all of the issues in a criminal case, including issues of both fact and law. 146 In interpreting this language, the Supreme Court of Georgia explained: It has long been settled that this language, identical to that in earlier constitutions, means that jurors are made absolutely and exclusively judges of the facts in the case, and, they are, in this sense only, judges of the law. It is the province of the court to construe the law and give it in charge, and of the jury to take the law as given, apply it147to the facts as found by them, and bring in a general verdict.

A Georgia jury does not have heightened responsibilities, as a result of the above noted constitutional provision. 148 Contrary to the strong language, a Georgia jury's responsibility is to be the finder of fact.

This phrase is not applied literally and actually means that the jury decides most issues of fact and can interpret how the law applies to their factual determinations. 150 According to Georgia law, the jury "shall be the judges of the law and the facts in the trial of all criminal cases and shall give a general verdict of 'guilty' or 'not guilty."""' The statute states, "[u]pon a verdict of 'guilty,' the sentence shall be imposed by the judge, unless otherwise provided by law."' 52 This statute specifically gives 145. GA. CONST. art. I, ยง 1, . 11

(emphasis added).

146. The authors are in no way intending to allege there is a constitutional deficiency in the quoted constitutional phrase.

147. Conklin v. State, 331 S.E.2d 532, 542 (Ga. 1985) (emphasis added).

148. Id. 149. Id. 150. GA. PROC. CRIM. PROC. ยง 21:6 (2007).

151. O.C.G.A. ยง 17-9-2 (2007) (emphasis added).

152. Id.

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the judge the right to sentence the defendant and even implies that there is a difference in the Jury's role, depending on which phase of prosecution is ongoing.' 53 In 2007, the Georgia Court of Appeals acknowledged that "[i]t is the province of the court to construe the law applicable in the trial of a criminal case, and of the jury to apply the law so construed to the facts in evidence."' 54 Thus, the jury's role even as fact finder is not 155 always exclusive.

2. In Georgia, the Judge Can Decide Issues of Fact Though Georgia's Constitution has very strong language regarding the jury's role in a criminal case, the Supreme Court of Georgia has not always interpreted this language to allow the jury to have exclusive discretion regarding all facts. Pursuant to Batts v. State, it is not repugnant to the Georgia Constitution to give the court the authority to make certain fact-finding decisions.' 56 HB 185 does not infringe on the jury's factfinding responsibilities.

The jury is the sole fact finder regarding the defendant's guilt or innocence, and the jury is the sole fact finder regarding any aggravating factors. 15' The judge's decision-making only occurs during the penalty phase, and only after ten jurors have recommended a sentence of death.

If the Georgia Constitution allows the judge to make certain factual determinations in the guilt/innocence phase of a criminal trial, it is reasonable to assume that the judge is allowed to exercise his or her discretion as to the proper sentence, in a very limited set of circumstances, during the penalty phase of a criminal trial.

3. Bifurcation: The Differences in the Phases The guilt/innocence phase is the more substantive portion of the trial. During this phase, the jury hears all the evidence that demonstrates whether the defendant is guilty or not guilty of the crime charged. If the defendant is found not guilty during this phase, there is no sentencing phase. However, if the defendant is found guilty, the procedurally-based sentencing phase commences. The jury has already unanimously found the 153. Id.

154. Garza v. State, 648 S.E.2d 84 (Ga. Ct. App. 2007).

155. Id.

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defendant guilty; thus all that remains undetermined is what the defendant's sentence will be. After presentation of additional evidence affecting sentence, the jury votes on the defendant's sentence.

As explained above, the jury is not required to decide issues of law, and the judge is even allowed to make some factual 58 determinations during the guilt phase of prosecution.

Because of the differences in the guilt and sentencing phase, HB 185 can confer more discretion on trial judges than is currently allowed. a. Evidentiary Rules As stated, the two phases of Georgia's bifurcated scheme are quite different and serve different purposes. In fact, it was the bifurcation of the phases, in part, that led to the approval of Georgia's death penalty scheme in Gregg.' 59 One difference in the two phases is the evidentiary rules. In the penalty phase, evidence of past crimes is admissible against the defendant, something often excluded in the guilt phase, and the defendant is given wide latitude to admit almost anything that could mitigate their actions.160 After the defendant is found guilty, the jury then considers not only evidence of aggravating circumstances, but also any evidence of mitigating

156. Batts v. State, 235 S.E.2d 377 (Ga. 1977). In Batts, the defendant allegedly confessed to committing two armed robberies. Id. at 665. At trial, he was found guilty of two armed robberies and sentenced to life in prison.

The defendant challenged the court's admission of the confession, arguing it was involuntary. Id. To make this decision, the court held a hearing outside the presence of the jury. Id. The defendant claimed this procedure violated his rights and Georgia's constitutional requirement that "in criminal cases the jury shall be the judges of the law and the facts." Id. He claimed that this provision required the jury to determine the voluntariness of the confession.

Id. at 666. The Supreme Court of Georgia held that the law allowed the judge alone to determine the voluntariness of a confession as long as the defendant did not make a timely motion to charge the jury. Id. Since the defendant in this case did not request a charge, the court correctly decided the issue. Id. 157. H.R. 185.

158. Batts, 235 S.E.2d 377.

159. Gregg, 428 U.S. at 153.

160. Lockett, 438 U.S. at 604.

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circumstances. 161 In Lockett v. Ohio, the U.S. Supreme Court held that the "Eighth and Fourteenth Amendments require that the sentencer. • . not be precluded from considering, as a mitigatingfactor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."' 162 Georgia law provides a defendant with more latitude than required under Lockett, and dictates that the trial judge "exercises broad discretion in allowing any evidence reasonably tending toward mitigation."' 163 Furthermore, in acknowledging the importance of mitigating circumstances, the Supreme Court of Georgia held "that evidentiary rules may be trumped by a defendant's need to introduce mitigation evidence."'1 64 During this phase, the defendant can set forth any evidence that would suggest leniency. Also, there is no requisite level of proof for the jury to apply in determining whether there are sufficient mitigating circumstances to require leniency, as opposed to aggravating circumstances, which must be proven beyond a reasonable doubt. This presentation of evidence compels the jury to look closely at the individual before them and not just the crime that was committed. b. SentencingFactors Another difference was illustrated in Jones v. State, where the Supreme Court of Georgia held that "under Georgia law statutory aggravating circumstances are sentencing factors rather than 'elements' of death eligible murder. Accordingly, we reaffirm that statutory aggravating circumstances need not be included in indictments." 65 In other words, evidence or burdens of proof used in the guilt phase are not controlling 161.

Id.

162. Barnes v. State, 496 S.E.2d 674, 688 (Ga. 1998) (emphasis added) (quoting Lockett, 438 U.S. at 604).

163. Id. at 359 (quoting Cofield v. State, 274 S.E.2d 530 (1981)).

164.

Id.

165. Jones v. State, 653 S.E.2d 456 (Ga. 2007). Defendant Jones pled guilty to four counts of murder and eighteen related offenses. Id. at 457.

After State gave notice of its intent to seek the death penalty in a sentencing trial, defendant applied for interim review. Id. The state was allowed to proceed in seeking the death penalty. Id.

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during the sentencing phase.

Even though aggravating circumstances are not required to be included in the indictment, Georgia law does require a finding of at least one statutory aggravating circumstance, beyond a reasonable doubt by a unanimous jury, before the death penalty can actually67 be imposed.

66

HB 185 does nothing to alter that requirement.

c. The Bifurcation Process,Generally A third difference in the two phases is how the bifurcated phases should be viewed. In Kansas v. Marsh, the U.S. Supreme Court upheld Kansas's death penalty statute. 68 The challenged scheme, in effect, automatically imposed death in certain situations.1 69 Justice Thomas, writing for the majority, noted that the challengers' arguments of unconstitutionality centered on fears that the law would impose death on innocent persons. However, he stated that the issue being addressed in the sentencing phase was not a person's innocence or guilt but whether Kansas's sentencing scheme was constitutional. 7 ' Justice Scalia, in his concurring opinion, noted that a person's guilt was not at issue because sentencing schemes are only triggered when a person has been found unanimously guilty by

166. O.C.G.A. ยง 17-10-30.

167. H.R. 185.

168. Marsh, 548 U.S. 163. Marsh was convicted in Kansas state court of capital murder, first-degree premeditated murder, aggravated arson, and aggravated burglary. Id. at 164. The jury found three aggravating circumstances that were not outweighed by mitigating circumstances and sentenced him to death. Id. Marsh claimed on appeal that Kansas law establishes an unconstitutional presumption in favor of death by directing imposition of the death penalty when aggravating and mitigating circumstances are in equipoise. Id. The Kansas Supreme Court agreed and concluded that the scheme's weighing equation violated the Eighth and Fourteenth Amendments and remanded for a new trial. Id. The U.S. Supreme Court reversed and remanded, upholding Kansas' scheme. Id. at 165.

169. Id. (Kansas' scheme provides, "if a unanimous jury finds that aggravating circumstances are not outweighed by mitigating circumstances, the death penalty shall be imposed", meaning that the penalty was automatically imposed when the jury found aggravators and not mitigating circumstances.) (emphasis added).

170. Id. at 179-80.

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a jury of his peers. 171 In sum, proposed HB 185 is constitutional under the Georgia Constitution, and the right to a jury remains "inviolate."' 172 The Bill does nothing to impinge on a person's right to a jury to unanimously find his guilt or innocence during the guilt phase. 73 It does nothing to encroach upon the jury's duty to

determine whether there are aggravating circumstances present during the sentencing phase.' 74

As required by Georgia, the

jury is still the arbiter of fact and is able to "apply the law so construed to the facts in evidence."' 175 HB 185 merely clarifies the procedures already in place which allow the judge to76impose sentence if the jury cannot reach a unanimous decision.1 VI. CONCLUSION

Any time proposals are made concerning the death penalty, there will be increased scrutiny and fervent debate.

Furthermore, as long as the death penalty remains an option, there will be challenges to its constitutionality. However, it is important to analyze the actual proposal being made to death penalty jurisprudence and not the emotional issues surrounding capital punishment as a whole. As explained above, Georgia proposed HB 185 does not intrude on the jury's important and requisite role during the guilt phase of prosecution. Moreover, it preserves the jury's power and duty to determine the factual issues during the sentencing phase of prosecution. Enactment would still require a unanimous jury to find the defendant guilty, and it would still require a unanimous jury to find the presence of aggravating circumstances before execution was considered as an option.

HB 185 adheres to the "twin objectives" of capital sentencing and does not extend as far as other hybrid schemes which have been upheld. 78 The changes proposed by the Bill simply allow the trial judge some 171. Id. at 183.

172. GA. CONST. art. I, ยง 2,

11 (a).

173. H.R. 185.

174. Id. 175. Garza, 648 S.E.2d at 85.

176. O.C.G.A. ยง 17-10-31.1(c).

177. H.R. 185.

178. Furman, 408 U.S. 238; Gregg, 428 U.S. 153; see supra note 76.

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discretion to break the jury deadlock over a defendant's Giving the judge power to sentence is sentence.1 79 constitutional and may prove the wiser choice.' 8° These proposed procedures are in accordance with both the U.S. and Georgia Constitutions, and are in line with Supreme Court precedent. If enacted, as currently drafted, proposed Georgia House Bill 185 is constitutional.

AMANDA K. KEE* AND DIONA M. POTTER"

179. H.R. 185.

180. Harris,513 U.S. 504; Spaziano, 468 U.S. 447; Proffitt,428 U.S. 242. * J.D. Candidate, May 2008, John Marshall Law School; B.S., University of Tennessee, cum laude; A.A.S., Chattanooga State Technical Community College, magna cum laude. I would like to thank Professor Melanie Wilson and Professor Robert J. D'Agostino for their invaluable advice, and Katie Andrews and John Duncan for their astute editing. Sincere thanks to my family and to my husband, Eric Kee, for his tireless support throughout this process.

J.D. Candidate, May 2008, John Marshall Law School; B.S., Georgia State University, cum laude. I would like to thank Professor Daniel F. Piar for his help and incomparable advice. I would also like to thank my co-author Amanda Kee for her invaluable friendship and support throughout this process, my husband Chris Adolph for putting up with me for the past three years, and my family for their unwavering support and encouragement.

I could not have done this without any of you.

PUTTING PAROLE BACK ON THE TABLE: AN EFFICIENCY APPROACH TO GEORGIA'S AGING PRISON POPULATION

I. INTRODUCTION

The prison population in Georgia has been steadily aging over the last twenty years due in large part to the enactment and implementation of laws mandating minimum sentencing schemes. This trend is likely to grow as more repeat offenders are sentenced to life without parole under Georgia's Recidivism statute.1 The cost to incarcerate older prisoners is significantly more expensive due to more frequent and severe illnesses and rising healthcare costs. Therefore, Georgia's incarceration costs can be expected to rise as the age and size of its prison population increases. The parole mechanism represents one viable option for dealing with this demographic trend by allocating prison resources in such a way as to keep high-risk prisoners behind bars while transitioning lower-risk prisoners to less costly monitoring programs. This Comment proposes an amendment to the Georgia Recidivism statute that would replace the mandatory imposition of life without parole for second violent felony offenders in O.C.G.A. ยง 17-10-7(b)(2), with a provision that allows for a discretionary parole determination once an inmate has (1) served at least 70% of the maximum sentence for a first offense, and (2) reached the age of sixty-five years old.2 1. O.C.G.A. ยง 17-10-7 (2007).

2. O.C.G.A. ยง 17-10-7(b)(2) ("Any person who has been convicted of a serious violent felony in this state or who has been convicted under the laws of any other state or of the United States of a crime which if committed in this state would be a serious violent felony and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonment for life without parole. Any such sentence of life without parole shall not be suspended, stayed, probated, deferred, or withheld, and any such person sentenced pursuant to this paragraph shall not be eligible for any form of pardon, parole, or early release administered by the State Board

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II. BACKGROUND ON GEORGIA'S RECIDIVISM STATUTE

O.C.G.A. ยง 17-10-7(b)(2) requires that a person convicted of a second serious violent felony must be sentenced to life without parole and expressly removes all discretion from the State Board of Pardons and Paroles to evaluate the prisoner for early release.3 Georgia is the only state in the United States that requires inmates to serve 100% of their sentence for specified crimes.4 Most of the available research shows that prior criminal history is a reliable predictor of reconviction of a crime within three years of release.5 By subjecting criminal groups that pose a higher risk of recidivism to longer periods of incarceration, the statute likely prevents, or at least defers, future crimes that would otherwise be committed by this group.

At some point, however, even inmates with multiple convictions cease to pose a significant risk of recidivism due to old age and declining health.

The primary social benefit associated with mandatory sentences for repeat offenders results from the longer periods of incapacitation for inmates with the greatest probability of recidivism. Empirical data shows that longer sentences lead to lower recidivism rates, however, this deterrent effect decreases as the length of time served accrues. 6 Furthermore, broad population data suggests a correlation between the overall crime rate and the percentage of young people in the population.7 In fact, 82% of inmates released between the ages of fourteen and of Pardons and Paroles or for any earned time, early release, work release, leave, or any other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the sentence of life imprisonment without possibility of parole, except as may be authorized by any existing or future provisions of the Constitution.").

3. Id. 4. Georgia State Board of Pardons and Paroles: FAQ, http://www.pap.stat e.ga.us/opencms/openc ms/ (last visited Nov. 20, 2007) [hereinafter Pardons and ParolesFAQ].

5. Andrew D. Leipold, Recidivism, Incapacitation, and Criminal Sentencing Policy, 3 U. ST.THOMAS L.J. 536, 550 (2006).

6. Ilyana Kuziemko,

Going Off Parole: How the Elimination of

Discretionary Prison Release Affects the Social Cost of Crime 29 (Nat'l

Bureau of Econ. Research, Working Paper No. 13380, 2007).

7. Richard Posner, An Economic Theory of the Criminal Law, 85 COLUM.

L. REv. 1193, 1217 (1985).

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seventeen will be re-arrested, while8 only 45% of those released at age forty-five and above will be.

The purpose of this proposed amendment to the statute is not to take the teeth out of the current Recidivism statute.

Legislators, with strong support from their constituents, have enacted mandatory sentences for crimes that are the most violent and harmful to society. 9 An informal poll reported that Georgians believe that the "average prisoner... served far less prison time than. . . he should".' 0 In response, the Georgia General Assembly passed the Sentence Reform Act of 1994.11

The Act provides for a mandatory minimum sentence of ten years for any person "convicted for the first time' 2 of [a] 'serious violent felon[y]" 3 with the sentence to be served in its entirety.' 14 If a jury convicts a person of a second serious violent felony, the mandatory minimum sentence is life in prison without the possibility of parole.' 5 This proposal seeks to arrive at an economic balance between the social benefit of longer sentences for repeat offenders and the increased cost associated with housing older prisoners. For 8. Leipold, supra note 5, at 555.

9. See Justice System Lacks "Truth in Sentencing, " ATLANTA INQUIRER, Nov. 16, 1996, at 4.

10. See id.

11. O.C.G.A. § 17-10-6.1, § 1, 1994 Ga. Laws 1959.

12. O.C.G.A. § 17-10-7(b)(2) (A first time conviction of a serious violent felony "means that the person has never been convicted of a serious violent felony under the laws of this state or of an offense under the laws of any other state or of the United States... ").

13. O.C.G.A. § 17-10-6.1(a) (1997) "serious violent felony" means: (1) Murder or felony murder, as defined in Code Section 16-5-1; (2) Armed robbery, as defined in Code Section 16-8-41; (3) Kidnapping, as defined in Code Section 16-5-40; (4) Rape, as defined in Code Section 16-6-1; (5) Aggravated child molestation, as defined in Code Section 16-6-4; (6) Aggravated sodomy, as defined in Code Section 16-6-2; or (7) Aggravated sexual battery, as defined in Code Section 16-6-22.2.

14. Review of Selected 1994 Georgia Legislation, 11 GA. ST. U. L. REv. 159 (1994), Prisoners must also serve a sentence imposed beyond the mandatory minimum sentence, with the exception of life or capital punishment sentences, in its entirety without the possibility of sentence reducing measures. See id. Additionally, the Act applies "to juveniles whom the court will try as adults because of another bill" that was passed by the Georgia General Assembly. Id. at 165 (citing O.C.G.A. § 15-11-5 (1999)).

15. O.C.G.A. § 17-10-7(b)(2) (1997).

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example, a prisoner convicted of armed robbery at the age of twenty-one would serve a ten year mandatory minimum sentence.' 6 If, at the age of thirty-seven, the same prisoner is convicted of armed robbery he would receive a sentence of life without parole under the current statute. When he has served 70% of the mandatory sentence, had this been his first offense (seven years), he will be only forty-four years old. Under our proposal, the prisoner will not be eligible for parole for twentyone more years, thus still mandating a significant amount of time to be served. And remember, he is then only eligible for parole, not released. Replacing the current mandatory sentence of life without parole with a sentence of life with the possibility of parole only after the inmate has served 70% of what would have been the maximum sentence for the first offense and is over sixty-five years of age, would preserve the incapacitation benefits of the longer sentences while allowing the system some flexibility to discharge inmates at the point where it is most expensive to continue housing them.

III.

AN OVERVIEW OF CURRENT AND PROJECTED PRISON DEMOGRAPHICS

The cost of corrections nationwide has increased considerably in the last twenty years, and will only continue to climb as prison populations continue to increase and age. State governments spent $42.9 billion on corrections in 2005, and that spending is estimated to increase by an additional $27 billion through 2010.17 Additionally, the number of inmates incarcerated in federal, state, and local facilities increased by nearly 3% between June 2005 and June 2006.18 Between 1993 and 2002, Georgia's incarceration rate increased from 398 per 100,000 in population to 552, making Georgia's incarceration rate the sixth highest in the country.' 9 In 2006, the Georgia 16. O.C.G.A. ยง 16-5-40 (1994).

17. Geoffrey F. Segal & Alexander McCobin, Making Prisons Compete: How Private Prisons Enhance Public Safety and Performance, ENGAGE, Oct., 2007, at 71.

18. Id. 19. GA.

DEP'T

OF

CORR.,

Georgia's Aging

Inmate

http://www.dcor.state.ga.us/Reports/AgingPopulation.html#1 Nov. 15, 2007).

Population,

(last

visited

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Department of Corrections spent $17,504 per prisoner per year. 20 In January of 2006, the total number of state inmates was 51,947, representing an annual cost to Georgia taxpayers of $909,280,288.21 The prison population in Georgia is also aging. From 1979 through 2002, the average inmate age increased from 28.7 to 34.7 years, and this growth rate is expected to continue until 2010 when it is projected to accelerate.2 2 California data estimates that the cost of incarcerating prisoners over the age of fifty-five is three times the cost of incarcerating younger prisoners.2 3 This increase is predominantly due to increased health care costs associated with housing older prisoners. In Georgia, inmates age fifty and older are twenty times more 24 likely to be assigned to a medical bed than younger prisoners.

It is estimated that while prisoners over the age of fifty make up only 6% of the prison population in Georgia currently, this 6% 25 currently consumes 12% of the prison healthcare resources.

This is attributed to the fact that, in general, prisoners with a chronological age of fifty have a real biological age of sixty due to years of drug and alcohol abuse, a lack of routine medical care, and poor eating habits prior to admission into the system.2 6 The costs associated with incarcerating older inmates can only be expected to increase as the average age of the population increases.

One of the primary factors contributing to the aging of the Georgia prison population has been the trend toward limiting parole board discretion in granting early release, resulting in more prisoners serving longer sentences. In Georgia, the inmate population eligible for parole fell from 96% in 1996 to 87% in

20. Georgia Department of Corrections: FY2006 Costs of Adult Offender Sanctions, http://www.pap.state.ga.us/opencms/opencms/ (last visited Nov. 20, 2007).

21. Georgia Board of Pardons and Paroles: Georgia Offender Summary: January 2006, http://oldweb.pap.state.ga.us/criminal.nsf/0/74BD1EE6D92 B890B8525712400730AAF?OpenDocument (last visited Nov. 20, 2007).

22. Georgia'sAging Inmate Population,supra note 19.

23. Joan Petersilia, Understanding California Corrections, CALIFORNIA POLICY RESEARCH CENTER REPORT (2006).

24. Georgia'sAging Inmate Population,supra note 19.

25. Id. 26. Id.

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2002.27 This percentage is expected to continue to fall as more inmates are admitted into the system under mandatory minimum 28 sentences.

IV. THE BENEFITS OF PAROLE

The possibility of parole can provide significant cost savings to the correctional system. The Georgia Board of Pardons and Paroles estimates the cost of parole supervision to be $2.91 per parolee per day, or approximately $1,060 annually. 29 This represents a cost reduction of roughly 93.9% compared to the cost of continued incarceration. These figures are based only on the average overall cost of incarceration. The cost reductions associated with paroling older inmates would likely be greater when the increased costs of housing this population is taken into account. Of course, released prisoners might well depend on public assistance for healthcare and other costs.

It is important to note that the possibility of parole does not mandate early release. Georgia inmates do not have a liberty interest in parole and the Parole Board has "significant discretion" in applying or departing from the Parole Decision Guidelines.30 Allowing the parole board to evaluate prisoners for early release merely utilizes information about a prisoner's subsequent recidivism risk that is unavailable at the initial sentencing. The Parole Board has broad discretion to either grant or deny early release based on more current information regarding a particular inmate. 31 For example, a prisoner who participates in skills-building programs during incarceration is less likely to recidivate after release than one who does not.32 The parole board is able to take this information into account when making an early release determination. There is empirical information showing that Georgia prisoners with a diminished possibility of parole are 12% less likely to participate in

Id. Id. 29. Pardonsand ParolesFAQ, supra note 4.

30. Heard v. Georgia State Bd. Of Pardons and Paroles, 222 FED.APPX. 27.

28.

838, 841 (2007).

31. Id.

32. Kuziemko, supra note 6, at 29.

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rehabilitative programs. 33 The same study shows that limiting parole leads to an increase in the number of disciplinary violations during incarceration. 34 Reintroducing the possibility of parole would, therefore, lead to a more manageable prison population in Georgia as well as the ability to more efficiently allocate scarce and expensive prison resources.

All available information suggests that the Parole Board in Georgia exercises its discretion in an efficient manner.

Approximately 12% of Georgia's 25,000 parolees are returned to prison annually, and of that group only 10% were returned for committing a new crime. 35 Most parolees in Georgia are returned to prison for failing to abide by the technical terms of their conditional early release. 36 This means that only 1.2% of any given annual parolee population in Georgia actually commit a new crime while on supervised release. This success rate illustrates that that the Georgia Parole Board is very effective in denying early release to inmates with higher recidivism risk.

Princeton economist Ilyana Kuziemko was able to confirm this finding empirically. By exploring data from 1981 where Georgia released 900 prisoners in a single day to alleviate an over-crowding crisis, she was able to compare recommended time served under a discretionary parole regime with an exogenous control group created by the mandatory early release.

She found that unconstrained parole boards use available information regarding recidivism in an efficient manner. This means that higher-risk inmates are recommended to serve more time than lower-risk inmates. 37 There is no evidence to suggest the Georgia Parole Board's discretion would be applied any differently to inmates sentenced under the recidivism statute.

Since repeat offenders are a higher recidivism risk, the Parole Board could be expected to lean on the side of denying early release if the Board perceived that a particular inmate posed a significant risk to society.

33.

34.

35.

36.

37.

Id. Id. Pardonsand ParolesFAQ, supra note 4.

Id. Kuziemko, supra note 6, at 29.

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STRIKING A BALANCE THAT MAKES SENSE

We propose amending the current Georgia repeat offenders statute to replace the mandatory imposition of life without parole with a provision allowing for reconsideration of parole once an inmate has (1) served at least 70% of the maximum sentence for a first offense, and (2) reached the age of sixty-five years old. Our claim is that amending the statute in this manner will strike a more reasonable economic balance between the significant societal benefits of longer sentences for multiple offenders and the costs associated with housing a prison population that is both growing and aging. The cost savings will result primarily from the additional flexibility to continue sorting prisoners based on recidivism risk after admission into the system; however, additional benefits will be realized due to increased manageability of the incarcerated population as well.

John J. Dilulio, Jr. identifies four primary purposes of imprisonment. 38 Retribution is the punishment society demands of the offender for the crime committed. 3 9 Deterrence is the

impact of the punishment both on the inmate and on other potential offenders in the community.4' Rehabilitation is the product of the prisoner's participation in programs while incarcerated that may reduce the chances of recidivism if released. 41 Finally, incapacitation is the preclusive effect of incarceration whereby an inmate behind bars is unable to commit additional crimes in the community.4 2

The current

Georgia Recidivism statute has a beneficial impact in terms of retribution, deterrence, and incapacitation while it probably hinders rehabilitation.

As discussed below, however, our analysis will focus primarily on incapacitation, because that is the benefit that could potentially be most directly impacted by our proposed changes.

Because our proposed amendment is designed to preserve the longer sentences required by the statute, society's interest in retribution will be preserved as well. For example, a prisoner 38. John J. Dilulio, Jr., Zero Prison Growth: Thoughts on the Morality of Effective Crime Policy, 44 AM. J. JURIS. 67, 69 (1999).

39. Id. 40. Id. 41. Id. 42. Id.

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247

who has served 70% of the maximum sentence for a first offence by age fifty would still be required to serve an additional fifteen years before parole would become an option under our proposal. Likewise, a prisoner sentenced at age sixtyfive for a crime with a maximum sentence of twenty years for a first offense would not become eligible for parole consideration until age seventy-nine. Under either scenario, an inmate is going to serve a substantial period of time before parole is even introduced as an option.

The community's demand for retribution will, therefore, be no less vindicated under our proposed amendment than it would be under the current statute.

Similarly, the deterrent effect of the current statute will be substantially preserved under our proposed amendment. There is significant evidence supporting the fact that longer sentences have a deterrent effect both on inmates as well as other potential criminals. This proposal would have minimal, if any real, impact on the deterrence value of the statute because it would still exact long sentences on offenders. Professor Kuziemko points out that any deterrent effect of increasing punishment is likely to decrease with time served such that increasing a sentence from one year to two probably has a greater deterrent effect than increasing the length from eleven to twelve.4 3 Since our proposal would only potentially affect the back end of a given sentence, it would only come into play at a point where most of the deterrence value has already been realized. Also, when parole is reintroduced, the Parole Board will still have full discretion to deny early release based on the recidivism risk of any particular inmate so that the actual time served could very well extend beyond the time at which the possibility of parole actually becomes viable. The cumulative result of these factors is that the statute amended as we propose will retain most, if not all of the deterrent power that it possesses as currently written.

Our proposed changes would actually improve the rehabilitative impact of the current statute. As noted above, Georgia prisoners with a diminished possibility of parole are 12% less likely to participate in rehabilitative programs.44 Introducing the possibility of parole would create strong incentives for prisoners to invest in their own rehabilitation

43. Kuziemko, supra note 6, at 29.

44. Id.

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because that is one of the criteria the Parole Board would take into account when considering early release. Allowing for the resumption of parole consideration would also have the additional effect of creating a more manageable inmate population due to the expected lower incidence of disciplinary infractions associated with parole.4a While it is very likely that rehabilitation was not the primary consideration in drafting the current statute, if rehabilitative gains can be realized with little or no impact on the benefits contemplated in lengthening sentences, it would represent a net social gain over the current enactment.

We presume for the purposes of this proposal, however, that the primary societal value in imposing longer sentences on repeat offenders derives from the incapacitation of the inmate that prevents future crimes perpetrated by that specific individual. Economist Steven Levitt has estimated that into the early 1990's, each additional incarcerated felon averted approximately fifteen street crimes nationally.46 Because the current statute requires incapacitation for life with no exceptions for second serious violent felonies, this is the benefit that will potentially be directly impacted by our proposed amendment.

We have therefore attempted to design the changes in such a way that persons sentenced under the statute will continue to be incapacitated during the time period when their recidivism risk is high. We target only the segment of the prison population that due to age and declining health has probably exceeded its productive criminal years. While the segment of the Georgia prison population over the age of fifty comprised only 6% of the total population in 2002, this group is projected to increase at an annual rate of at least 12.5% for the foreseeable future.4 7 This trend creates a situation where each additional year of incapacitation will become increasingly more expensive while the crime prevention benefit associated with it will simultaneously diminish.

The societal benefit will be maximized under our proposed regime because the costs and benefits of incapacitation are rebalanced so that prison beds are allocated to inmates who pose the greatest risk of committing new crimes if released while less expensive supervision 45. Id. 46. Dilulio, supra note 44, at 69.

47. Georgia'sAging Inmate Population,supra note 19.

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modalities are made available for lower-risk inmates.

The statute as currently written encumbers the prison system with the obligation of providing health care services for inmates for the rest of their lives regardless of any risk of future crime that they may impose on the community. The Supreme Court has mandated that prisons have an obligation to provide healthcare to all inmates for the entire period of incarceration and that failure to do so is a violation of the Eighth Amendment. 48 The Court concluded that the ".

.

. deliberate

indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain."' 49 The result of this holding is that prisoners are the only segment of the population that is guaranteed health care by law. Since the medical costs increase dramatically for prisoners over fifty, the current statute leads to both an increase in the older prison population and all of the associated healthcare costs.

The Parole Board is expressly stripped of any discretionary authority to consider early release for inmates convicted of a second serious violent felony. Current law mandates that inmates serving life sentences who are denied parole must be reconsidered for parole at least every eight years." Prisoners sentenced under the current statute, on the other hand, are required to remain incarcerated for the rest of their natural lives regardless of any decrease in their risk of recidivism. As more inmates are sentenced under the statute, a greater proportion of the prison population will become permanent wards of the Department of Corrections, which will lead to prisons monopolizing a growing percentage of the state budget. In financial terms, the expenses associated with housing these inmates are sunk costs which are incurred at the time of sentencing because they represent constantly recurring budgetary outlays with no opportunity for mitigation for the 51 entire lives of the inmates in this category.

These costs will impact both housing expenses and prison 48. Estelle v. Gamble, 429 U.S. 97, 104 (1977).

49. Id. 50. FAQ, supra note 4.

51. "Sunk costs" can be defined as costs that have been incurred which cannot be reversed. Economist.com: Research Tools: Economics A-Z, http://www.economist.com/research/Economics/searchActionTerms.cfm?qu ery=sunk+costl (last visited Mar. 22, 2008).

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capacity. Between 1990 and 2002, Georgia increased its prison capacity from 18,800 beds to more than 47,000 beds, which was the largest increase in prison capacity in the history of the state.'

As of January 2006, Georgia's total prison capacity stood at 49,090, while the total number of state inmates was 51,947. 3 The Georgia prison population exceeded its available capacity by 2,857 at the beginning of 2006, and this number will continue to grow as more inmates are sentenced to longer terms. At some point in the near future, Georgia will either be forced to build more prisons or find viable ways to reduce its prison population.

The Parole Board is in an ideal position to potentially mitigate some of these costs by utilizing current information about recidivism risk and sorting inmates accordingly. Our proposed amendment would convert a sentence of life without parole to a sentence of life without the possibility of parole until an inmate has (1) served at least 70% of the maximum sentence for a first offense, and (2) reached the age of sixty-five years old. Once the time served and age criteria are met, the sentence would function as a life sentence with parole consideration at least every eight years. Our goal is to achieve additional flexibility in the system that determines which inmates will remain incarcerated and which ones are candidates for graduation to less restrictive monitoring. Because our proposal is based primarily on the age of the inmate, the risk of dangerous inmates being released into the community will be minimal.

VI. CONCLUSION

Georgia's aging prison population is likely to cause a major economic strain on an already under-funded system. An amendment to Georgia's Recidivism statute could reduce the amount of money spent on healthcare costs for elder inmates by providing flexibility to a law that currently fails of its essential purpose once an inmate has exceeded his or her criminal productive years. The Georgia Board of Pardons and Paroles has proven to be efficient in making early release decisions. By allowing the Board to consider inmates who have served at least 52. Georgia'sAging Inmate Population,supra note 19.

53. Georgia Offender Summary: January2006, supra note 21.

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70% of the maximum sentence for a first offense, and reached the age of sixty-five years old for supervised release, Georgia will continue to reap the benefits of incarcerating some of the worst offenders while maximizing the financial and societal benefits of parole. Legislation should be introduced that puts this option back on the table.

AMELIA

* J.D.

M. INMAN* AND MILLARD W. RAMSEY, JR.**

Candidate, May 2008, John Marshall Law School; B.A., Georgia'

State University, cum laude. The author would like to thank Daniel Shaughnessy for his tireless assistance editing this Comment.

J.D. Candidate, May 2008, John Marshall Law School; M.B.A., University of Tennessee at Chattanooga, B.A., University of Tennessee at Chattanooga. The author would like to thank Professor Ilyana Kuziemko for her assistance with the initial research for this Comment.

STUDENT SEARCHES AND SEIZURES: GEORGIA'S CURRENT APPROACH AND RECOMMENDED CHANGE

I. INTRODUCTION

Since March 21, 2005, over seventy-five students and school administrators have been shot and killed, and another sixty-four1 wounded, by students possessing guns on school grounds.

With this rise in violence and the presence of guns on school grounds comes the need for better protection. Despite this, Georgia courts are inappropriately interpreting Georgia law governing law enforcement officer involvement in school searches. The result is unsafe schools and ineffective protection for the students, faculty, and staff.

This Comment explores how Georgia law should be interpreted, and also compares Georgia law with surrounding states' laws governing school searches by law enforcement officers. Two main issues will be discussed: (1) whether a search conducted by a law enforcement officer, on school premises, at the request of a school official should qualify as law enforcement officer involvement which would require probable cause; and (2) whether the mere presence of a law enforcement officer during a search conducted by a school official should qualify as law enforcement officer involvement, which would require probable cause.

Under current Georgia case law, a law enforcement officer is required to have probable cause in both of these situations in order to conduct a lawful search of a student.2 Placing this requirement on law enforcement officers puts school officials and students in jeopardy. The Fourth Amendment and two Georgia cases, Young v. State and State v. K.L.M., govern this 3 topic in Georgia.

1. A Time Line ofRecent Worldwide School Shootings, http://www.infopl ease.com/ipa/A0777958.html (last visited Mar. 10, 2008).

2. State v. Young, 216 S.E.2d 586, 594 (Ga. 1975); State v. K.L.M., 628 S.E.2d 651, 652 (Ga. Ct App. 2006).

3. Young, 216 S.E.2d at 586; K.L.M., 628 S.E.2d at 651.

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II. APPLICABLE LAW

A. FourthAmendment The Fourth Amendment does not require school officials to have probable cause in order to search a student.4 As long as a school official's search of a student is reasonable, based on all the circumstances surrounding the search, it will be legal.5 The Fourth Amendment originally applied only to the federal government, but became applicable to the states under the due process clause of the Fourteenth Amendment.6 When dealing with the Fourth Amendment in this context, one must also look to see how the exclusionary rule applies, or if it applies at all. The exclusionary rule allows for the suppression of evidence seized in violation of the Fourth Amendment. 7 However, it must be noted that the Fourth8 Amendment and the exclusionary rule are not coextensive.

Neither are they in Georgia, which by state statute applies the to searches and seizures made by law exclusionary rule only 9 enforcement officers.

B. Facts of Young In Young, an assistant principal observed three students (one of the students was Young) sitting together on school premises.' ° As the assistant principal walked toward the three students, one of them jumped up and tried to conceal something When the assistant principal reached the in his pants." students, he asked them to accompany him to his office, where he then asked each of them to empty their pockets. 12 Young 4. Patman v. State, 537 S.E.2d 118, 120 (Ga. Ct. App. 2000) (citing New Jersey v. T.L.O., 469 U.S. 325, 341-42 (1985)); see also Young, 216 S.E.2d

at 592.

5. Patman, 537 S.E.2d at 120; see also Young, 216 S.E.2d at 592.

6. Young, 216 S.E.2d at 588.

7. Id. at 587 (citing Weeks v. U.S., 232 U.S. 383 (1914)).

8. Id. at 589.

9. O.C.G.A. § 17-5-30 (2007).

10. Young v. State, 209 S.E.2d 96 (Ga. Ct. App. 1974), rev'd, 216 S.E.2d 586 (1975).

11. Id. 12. Id.

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complied and produced marijuana from one of his pockets; he was soon after arrested and charged with possession of one ounce or less of marijuana. 13 Young waived his right to a jury trial and was convicted in a Fulton County court by the trial judge.' 4 The Defendant filed a motion to suppress which was denied. 15 Young then appealed, and the Georgia Court of Appeals reversed, ruling that "the assistant principal was a government agent, and concluded that his search of the student violated the Fourth Amendment and that the student's motion to suppress the marijuana should therefore have been granted."' 6 The Supreme Court of Georgia granted certiorari in order to: [D]etermine the extent to which the Fourth Amendment right against unreasonable searches and seizures and the associated exclusionary rule could be invoked by a minor student of a public high school to secure the suppression in a pending criminal prosecution of marijuana found upon his person by an assistant principal conducting a personal search not without cause but with less than probable cause for a search by a law enforcement officer.17 The Supreme Court of Georgia ruled that the search was constitutional, that there was no violation of the student's Fourth Amendment rights, and that Young's motion to suppress should have been denied.' 8 The court pointed out that the exclusionary rule only applies when there is a "Fourth Amendment violation by law enforcement officers - not merely state action" such as by a public school official.' 9 Young established that school officials are "allowed to search without hindrance or delay, subject only to the most minimal restraints necessary to ensure that students are not whimsically stripped of personal privacy and subjected to petty tyranny."20 Further, even if actions taken by a school official or state official are in violation of the Fourth Amendment, such actions do not

Id. Id. Id. Young, 216 S.E.2d at 588.

Id. Id. 19. Id. at 589 (emphasis added).

20. Id. at 591-93; see also KL.M, 628 S.E.2d at 652.

13.

14.

15.

16.

17.

18.

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21 necessarily require the application of the exclusionary rule.

The language in Young also gives school officials discretion in how to keep their schools safe. Young specifies that school officials must be allowed the latitude to enforce school policies and make effective searches. 22 Young also states that students are subject to all reasonable school rules and regulations, and school officials, who are given the right to make such rules and regulations, must be allowed to enforce them.23 Young went even further by saying, "there are governmental interests of discipline, security, and enablement of the education function, to be served by allowing searches of students by the officials charged with their education and control. 24 This language bestows upon school officials a great deal of discretion in how they enforce school polices, and how they conduct searches of students on school grounds.

However, once the Young court recognized this authority, it inadvertently restricted their discretion by stating, "the standards announced here for action by school officials will pass constitutional muster only if those officials are acting in their proper capacity and the search is free of involvement by law enforcement personnel. 25 Unfortunately, the court was silent as to what constituted law enforcement involvement.26 The lack of definition for the phrase "free of involvement by law enforcement personnel," has stalled Georgia's progress in this area of the law.27

21. Young, 216 S.E.2d at 591.

22. Id. at 592.

23. Id. 24. Id. 25. Id. at 593-94.

26. When considering the plain meaning of a word, the U.S. Supreme Court has often relied upon the dictionary definition. U.S. v. Montgomery, 468 F.3d 715 (10th Cir. 2006) (citing Mississippi v. Louisiana, 506 U.S. 73 (1992)). Using definitions elicited from the dictionary, the court in Boim v.

Quranic Literacy Institute, 127 F. Supp. 2d 1002, 1012 (N.D. Ill. 2001), defined involve as "to engage as a participant" or to "oblige to take part."

Involve has also been defined as to "engage or employ." Reyes v. Brown, 399 F. 3d 964, 969 (9th Cir. 2005) (construing Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004)).

27. Young, 216 S.E.2d at 593. This phrase seems inadvertent because the rest of the language in the case gives school officials great discretion in how they choose to keep their school safe and enforce rules. The paragraph that

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C. Facts of K.L.M. In K.L.M., a high school principal was informed by a student that another student, K.L.M., was arranging to sell drugs during an in-school suspension.2 8 In response to this information, the principal contacted the city's Director of Public Safety, Jeff Johnson, and asked for his assistance. 2 9 After Johnson arrived, the principal escorted K.L.M. into his office for questioning, where K.L.M. proceeded to deny arranging to sell or possessing any drugs. 30 "The principal then asked Johnson to search the boy. Johnson did so and found a bag containing marijuana in K.L.M.'s pocket and placed him under arrest. 3 1 K.L.M. later filed a motion to suppress the evidence found during the school search, which was granted by the trial court, and the State appealed.3 2 The Georgia Court of Appeals affirmed the decision made by the trial court, and based its decision on the "free of involvement by law enforcement personnel" language found in Young. 33 The Court of Appeals held that the search was not subject to the minimal restraints analysis applied to school officials because, despite the fact that Johnson was merely present for the safety of school personnel and performed the search only after being directed to do so by the school principal, he was a law enforcement officer involved in the search.3 4 Therefore, as a law enforcement officer, he was required to have probable cause to search.3 5 Young set out to make a bright line rule, but managed only to murk-up the waters by failing to define the phrase "free of

included the phrase "free of involvement by law enforcement personnel" seemingly came in as an afterthought. However, even if this phrase was not inadvertent, the school environment of today is much different than it was in 1975, and a change is needed to better protect our school officials, students, faculty, and staff. Id. 28. K.L.M, 628 S.E.2d 651.

29. Id.

30. Id. at 652-53.

31. Id. 32. Id. 33. Id. (noting Young, 216 S.E.2d at 593).

34. Id. at 653.

35. Id.; see also Patman, 537 S.E.2d 118.

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involvement by law enforcement personnel. 36 In its attempt to follow this bright line rule, K.L.M. set a rule that prevents school officials from requesting the help of law enforcement officers in conducting school searches in any manner.

D. A Lower Court'sInterpretationof these Cases What is truly disturbing is how Georgia's lower trial courts are interpreting Young and K.L.M. Even though the rulings set out in Georgia's trial courts are not binding authority, they do provide insight into the application of current law. A perfect example37 is the Carroll County State Court case of State v.

Osorio.

The facts of Osorio establish that on September 12, 2006, law enforcement officers went to Temple High School in Carroll County, Georgia with information leading them to believe that drugs and weapons may be on campus.38 After arriving at the school, the officers informed the assistant principal, John Jacobs, ("Jacobs") of their suspicions and beliefs. In response, Jacobs called student Kadeem Osorio ("Osorio") to his office, at which time he searched Osorio's book-bag. 39 Jacobs conducted the search; however, the officers remained in the room for security purposes. 40 Because Jacobs had previously been physically confronted by a student while conducting a search, he felt more comfortable having the officers in the room. 4 The search revealed what appeared to Jacobs as marijuana in Osorio's book-bag.42 After discovering the marijuana, Jacobs held the book-bag out so one of the officers, Chief Repetto, could look inside and confirm that the substance in the bookbag was marijuana.43 Once the substance was confirmed to be marijuana, Osorio was arrested and charged with possession of 36. Young, 216 S.E.2d at 593-94.

37. State v. Osorio, No. S2006CR-843 (Carroll County State Ct., Ga. Jan. 29, 2007).

38. State v. Osorio, No. $2006CR-843, Transcript of Hearing on Defendant's Motion to Suppress at 8 (Carroll County Ct., Ga. Jan. 29, 2007) [hereinafter Osorio Transcript].

39. Id. at 3.

40. Id. at 4.

41. Id. 42. Id. 43. Id.

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one ounce or less of marijuana.44 Osorio filed a motion to suppress the marijuana evidence, alleging that the search was illegal. An evidentiary hearing was held, and the presiding judge granted Osorio's motion to suppress relying on Young and K.L.M.45 The judge ruled that since Jacobs had law enforcement officers present while he conducted the search of Osorio's book-bag, it47was not "free of involvement4 6 by law enforcement personnel., Factually, Osorio is distinguishable from Young and K.L.M. Visually, Young and K.L.M are on opposite ends of the spectrum and Osorio falls somewhere in the middle. In K.L.M., a law enforcement officer actually conducted the search.48 In Osorio, the assistant principal conducted the search without any assistance from the officers present.49 Osorio also differs from Young in that Young involved officers who were not present at the time of the search, whereas in Osorio, officers remained in the room while the assistant principal conducted his search. ° However, like Young, it was the assistant principal who physically conducted the search. 5 1 The officers in Osorio testified that they were merely present for security purposes since there was a possibility that drugs and/or weapons were on

44. Id. at 12.

45. Id.

46. The Judge decided, that because the law enforcement officers were present during the search, they were involved; however, as stated earlier, involve is defined as "to engage as a participant" or to "oblige to take part."

Boim, 127 F. Supp. 2d at 1012. In Osorio, the law enforcement officers did not "engage themselves as participants" they merely stood by as a security measure while the assistant principal conducted the search, nor should the law enforcement officers mere presence during the search qualify as them "taking part" in the search. Osorio, No. S2006CR-843, supra note 37. The phrases "to engage as a participant" or to "oblige to take part" leads one to believe that one must take an active role in the search which the officers did not do here. See Boim, 127 F. Supp. 2d at 1012. Law enforcement officers should not be deemed to be "involved" in the school official's actions merely because they are present. Id. 47. Osorio Transcript,supra note 38, at 12.

48. K.L.M, 628 S.E.2d 651.

49. Osorio Transcript,supra note 38, at 12.

50. Id. 51. Id.

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campus.5 2 In Balancing all of the similarities53and differences, the judge granted Osorio's motion to suppress.

III. CURRENT LEGAL ENVIRONMENT A. Ramifications of Georgia's CurrentLaws

In failing to clarify what it meant by "free of involvement by law enforcement personnel," the Young court put students and school officials in harm's way. 54 School officials who adhere to the laws of our state are forced to search potentially dangerous students without the necessary aid of law enforcement officers.

Currently, law enforcement officers cannot search students at the request of school officials unless the officer has probable cause, and according to the lower court's interpretations of Young and KL.M., law enforcement officers cannot even be present for security purposes without probable cause. 55 This type of law does not promote a secure atmosphere at our public schools. The Wisconsin Supreme Court established precisely why this type of law is not safe, and why school officials should be allowed to seek the assistance of law enforcement officers.

Teachers and school officials are trained to educate children and to provide a proper learning environment. Law enforcement officials, on the other hand, receive specialized training on how best to disarm individuals without subjecting themselves or others to danger. When faced with a potentially dangerous situation beyond their expertise and training, school officials must be allowed "a certain degree of flexibility" to seek the assistance of trained law enforcement officials without losing the protections afforded by the reasonable grounds standard.

52. Id. 53. State v. Osorio, No. S2006CR-843, Order Granting Defendant's Motion to Suppress at 1-3 (Carroll County Ct., Ga. Jan. 29, 2007) [hereinafter Osorio Suppression Order].

54. Young, 216 S.E.2d at 593.

55. OsorioSuppression Order,supra note 53.

56. State v. Angelia D.B., 564 N.W.2d 682, 691 (Wis. 1997) (citing

T.L.O., 469 U.S. at 340). In Angelia D.B., a Neenah High School student informed the assistant principal, David Rouse, that he had observed a knife in another student's backpack, and indicated that the student might also have

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Lower court decisions, like Osorio, while not binding, clearly illustrate how the authority of Young and K.L.M. is being interpreted. If a school official reasonably believes that a student may be armed or have drugs, he or she cannot request that a law enforcement officer assist in the search or be present during the search unless the officer would have probable cause to be there.

The fact that Georgia courts are interpreting Young and K.L.M. in a way that does not allow school officials to have a law enforcement officer present as a safety precaution shows that the law either needs to be changed by the legislature, or the Supreme Court of Georgia needs to properly define "free of involvement by law enforcement personnel.

Thelanguage in Young that the courts should focus on is school officials "must be allowed the latitude to make effective searches. .. ,58 In

other words, if a school official thinks that in order to conduct a access to a gun. Id. at 684. In response to this information Rouse contacted Officer Dan Dringoli, a City of Neenah police officer and school liaison officer on duty at Neenah High School, to assist him. Id. After arriving at Rouse's office, Dringoli interviewed the informant, who repeated what he had observed and identified the other student by her first name, Angelia.

Dringoli then went to Angelia D.B.'s classroom with Dean of Students Mark Duerwaechter, who entered the classroom and escorted Angelia D.B. to the hallway outside. Id. Dringoli identified himself and informed Angelia D.B. that they had received information that she may be carrying a knife or gun.

Id. Dringoli then conducted a brief pat down search of Angelia D.B.'s pants and had her search her backpack while he observed. Id. No weapons were discovered during this brief pat down. Id. Angelia D.B. then accompanied Dringoli to his office, where another police officer was present. Id. While in the office Angelia D.B. denied that she possessed any weapons, however, Dringoli informed her that he was going to check her further. Id. Dringoli first had Angelia D.B. remove her jacket which he searched and found no weapons. Dringoli then lifted up the bottom of Angelia D.B.'s shirt to reveal her waistband. Id. It was there that office Dringoli found a nine-inch knife locked in the open position. Id. Angelia D.B. was then placed under arrest.

Id. The Supreme Court concluded "that an application of the T.L.O. reasonable grounds standard, and not probable cause, to a search conducted by a school liaison officer at the request of and in conjunction with school officials of a student reasonably suspected of carrying a dangerous weapon on school grounds is consistent with both the special needs of public schools recognized in T.L.O. and with decisions by courts in other jurisdictions." Id. at 690-691.

57. Young, 216 S.E.2d. at 593-94.

58. Id. at 592.

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safe and effective search a law enforcement officer needs to be present, he or she should be given that latitude.5 9 The courts should also focus on the sentence in Young that states, "[t]he administrators to whom we accord the right to make such rules and regulations must be allowed to enforce them." 60 Implicit in this particular phrase is that school officials (administrators) must be allowed to enforce the rules they establish in a reasonable manner under the circumstances. As it is now, if a school official enforces a rule with the assistance of a law enforcement officer, he or she cannot do so without running the risk that any evidence found will later be suppressed.

Young also states that searches by school officials "are designed to allow enforcement of multiple rules, regulations, and prohibitions which are imposed to maintain an atmosphere of security and calm necessary to allow education to take place., 61 The ironic part of this is that Young says school official searches "are imposed to maintain an atmosphere of security," but then shortly thereafter states that school searches are to be conducted "free of involvement by law enforcement personnel. 62 Young, as currently interpreted, severely hinders the ability of school officials to create an atmosphere of security by imposing this restraint.

In fact, a close reading of Young would suggest that the lower court's reading of that phrase has been too literal. First, since no law enforcement or peace officer was involved in Young, the statement was dicta. Second, in making that statement the court cited to Corngold v. United States,63 a case decided well before the federal courts started to back-off an overly expansive application of the exclusionary rule. 64 The facts of Corngold indicate that the law enforcement official involved went far 59. As stated previously, "When faced with a potentially dangerous situation beyond their expertise and training, school officials must be allowed "a certain degree of flexibility" to seek the assistance of trained law

enforcement officials without losing the protections afforded by the reasonable grounds standard." Angelia D.B., 564 N.W.2d at 690-91 (citing

T.L.O., 469 U.S. at 340).

60. Young, 216 S.E.2d at 592.

61.

62.

63.

64.

Id. Id. at 593-94.

Comgold v. U.S., 367 F.2d 1 (9th Cir. 1966).

See Young, 216 S.E.2d. at 588-90.

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beyond the passive involvement of the law enforcement officers in K.L.M. and Osorio.65 The Corngold court found that: [T]he customs agents joined actively in the search. They held open the flaps of the large package; removed, opened, and inspected the contents of the small boxes which it contained; and marked the small boxes for future identification.

Thus, at the very least, the search of appellant's package was a joint operation of the customs agents and the TWA employee. When a federal agent participates in such a joint endeavor, 'the effect is the same as though he had 66emerged in the undertaking as one exclusively his own.

By implication, it is the active involvement that implicates both the Fourth Amendment and the exclusionary rule; therefore, the legislature should be free to take action along the limits of the recommendation made herein. 6 7 This is reason to believe that if a case was again taken to the Supreme Court of Georgia, that court would clarify the phrase "free of involvement by law enforcement personnel" consistent with this analysis.

If any of the students in Young would have had a gun and become agitated, the assistant principal would have been virtually defenseless. One can easily imagine a situation like 68 the one in Young resulting in the assistant principal being shot.

In this hypothetical situation, many would inquire as to why the assistant principal did not have a law enforcement officer present while he conducted his search of the student. The assistant principal in Osorio had actually been attacked before while conducting a search of a student and, therefore, he requested that the law enforcement officers at the school be present while he searched Osorio's book-bag. 69 However, since the law enforcement officers were present, the judge said the 65. See, e.g., K.L.M., 628 S.E.2d 651; State v. Osorio,No. S2006CR-843.

66. Corngold,367 F.2d at 5-6.

67. See infra section V. 68. "It could be hazardous to discourage school officials from requesting the assistance of available trained police resources. Even in Terry, the Court recognized that it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." Angelia D.B., 564 N.W.2d at 690 (construing Terry v. Ohio, 392 U.S. 1, 23 (1968)).

69. Osorio Transcript,supra note 38, at 4.

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search was improper and the evidence found was suppressed.7" In hindsight, one could argue that the assistant principal did not need the officers present during the search because the student was nonviolent and nobody was hurt. But again, had the student injured someone, skeptics would have asked why the assistant principal did not have officers present while he conducted the search. In both of these hypothetical situations, the answer to why the assistant principals did not have a law enforcement officer present while he conducted the search would be because Georgia law prevented law enforcement officers from being there. The same hypotheticals could be applied to K.L.M, and the same questions and answers would apply.

The bottom line is that law enforcement officers should be allowed to be present while school officials perform dangerous duties, such as searching a student for drugs or guns, to ensure the safety of all school officials and students present at school.

School needs to be a place where children can go and feel safe. 7 1 Allowing law enforcement officers to be present while a school official conducts a search of a student, or allowing law enforcement officers to assist in a search at the request of a school official would help establish a safer school environment.72 B. Approaches of Other States to Student Searches and Seizures Other states are approaching the issue of law enforcement officer involvement in school searches differently and, as a result, many of these states have established laws that afford school officials and students more protection while conducting a search.7 3 Many of these states are basing their new laws on 70. Osorio Suppression Order,supra note 53.

71. School official searches "are imposed to maintain an atmosphere of security." Young, 216 S.E.2d. at 592.

72. The main reason the Supreme Court in TL.O. "lowered the fourth amendment standard applicable to searches of students at school was to protect and maintain a proper educational environment for all students..."

People v. Dilworth, 661 N.E.2d 310, 319 (Ill. 1996).

73. See, e.g., J.A.R. v. State, 689 So. 2d 1242, 1244 (Fla. App. 1997) (holding "[i]f a school official has a reasonable suspicion that a student is carrying a dangerous weapon on his or her person, that official may request

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their interpretation of a United States Supreme Court case, New 74 Jersey v. T.L. .

In T.L.O., a teacher at a Piscataway High School in New Jersey discovered two girls smoking in a bathroom. 75 One of the girls was T.L.O. Because smoking in the bathroom was a violation of a school rule, the teacher took the two girls to the principal's office. 76 Once in the office, the assistant viceprincipal proceeded to question the girls about what they were

any police officer to perform the pat-down search for weapons without fear that the involvement of the police will somehow violate the student's Fourth Amendment rights or require probable cause for such a search"); Dilworth, 661 N.E.2d at 316-18 (holding that the reasonable suspicion standard, and not probable cause standard, applied to determine whether the search conducted by the officer was permissible); Angelia D.B., 564 N.W.2d 682 (holding that the T.L.O. reasonable grounds standard applies to a search conducted on school grounds by a police officer at the bequest of, and in conjunction with, school officials); In re Josue T., 989 P.2d 431, 439 (N.M. 1999) (holding that the reasonableness standard, rather than the probable cause standard, applied to school resource officer's search of juvenile at request of school official); Cason v. Cook, 810 F.2d 188, 192 (8th Cir. 1987) (applying the reasonableness standard established in T.L.O. applied because the police involvement was minimal); Shade v. City of Farmington, Minn., 309 F.3d 1054, 1060-61 (8th Cir. 2002) (holding reasonableness standard applies to searches of students by school officials in conjunction with police officers, rather than probable cause standard, where school officials initiated the search); In re D.D., 554 S.E.2d 346, 353 (N.C. Ct. App. 2001) (holding that the reasonableness standard applies to school searches where school officials initiate the search and law enforcement involvement is minimal, or in conjunction with school officials); State v. Szymanski, No. CA 2000-1005, 2001 WL 185467, at *1-4 (Ohio App. 12th Dist. Feb. 26, 2001) (holding the reasonable suspicion standard in T.L.O. applies if a law enforcement officer is present while a school official conducts a search); Myers v. State, 839 N.E.2d 1154, 1160 (Ind. 2005) (holding that "where a search is initiated and conducted by school officials, or where school officials initiate a search and police involvement is minimal, the reasonableness standard is applicable"); Rudolph ex. rel. Williams v.

Lowndes County Bd. Of Educ., 242 F. Supp. 2d 1107, 113-14 (M.D. Ala., 2005) (holding that, reasonable suspicion, rather than probable cause, is the appropriate standard for assessing legality of searches conducted by law enforcement officers at the request of school officials).

74. T.L.O., 469 U.S. 325.

75. Id. at 328.

76. Id.

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doing in the bathroom.77 T.L.O.'s companion quickly admitted that she had been smoking, but T.L.O. denied smoking in the bathroom and claimed that she did not smoke at all. 78 The assistant vice-principal then searched T.L.O.'s purse. 79 Upon opening the purse he found a pack of cigarettes. 80 As he removed the cigarettes the assistant vice-principal discovered a package of cigarette rolling papers.

In his previous experiences possession of rolling papers by high school students was closely related with marijuana use. 82 Therefore, the assistant vice-principal proceeded to search the purse more closely and uncovered a small amount of marijuana, a smoking pipe, empty plastic bags, a large number of one-dollars bills, an index card of students names who apparently owed T.L.O. 83 money, and two letters that implicated T.L.O. in drug dealing.

The State brought delinquency charges against T.L.O. in juvenile court. T.L.O. filed a motion to suppress the evidence found in her purse, claiming the search violated the Fourth Amendment. 84 The Juvenile Court denied her motion, and held the Fourth Amendment applied to searches conducted by school officials; however, the Fourth Amendment is not violated if the search is reasonable. 85 On appeal from the final judgment of the Juvenile Court, the New Jersey Superior Court Appellate Division affirmed the trial court's finding that there had been no Fourth Amendment violation. 86 T.L.O. appealed this ruling, and the New Jersey Supreme Court reversed the judgment of the Appellate Division and ordered the suppression of the evidence found in T.L.O.'s purse. 87 The United States Supreme Court then granted the State of New Jersey's petition for certiorari, and reversed the New Jersey Supreme Court's decision.88 The 77.

78.

79.

80.

81.

82.

83.

Id. Id. Id. Id.

Id. Id. Id.

84. Id. at 329.

85. Id. 86. Id. at 330.

87. Id. at 331.

88. Id.

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United States Supreme Court stated the Fourth Amendment's prohibition on unreasonable searches and seizures applies to searches conducted by public school officials, but: Because the search resulting in the discovery of the evidence of marihuana dealing by T.L.O. was reasonable, the New Jersey Supreme Court's decision to exclude that evidence from T.L.O.'s juvenile delinquency proceedings on Fourth Amendment grounds was erroneous. Accordingly, the judgment of the Supreme Court of New Jersey is reversed.8 9 T.L.O. established a two part test to be followed when determining whether a school search is reasonable: (1) whether the search was "justified at its inception," and (2) whether the search was reasonably related in scope to the circumstances that justified the search in the first place. 90 The TL.O. Court held that a search conducted by a school official is justified at its inception if "there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school."9 1 TL.O. then stated the that search would be reasonably related in scope if "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. ,92 However, the Supreme Court of the United States temporized by stating they were only considering searches conducted by school officials acting alone, and that the two questions presented are not to be construed as the "appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement Nonetheless, this was the opportunity that agencies. . .' several of the states were waiting for in order to expand their laws surrounding school searches and law enforcement officer 94 involvement.

Since the ruling in T.L.O., court decisions have placed police officer involvement in school and student searches in three 89. Id. at 347-48 (emphasis added).

90. Id. at 341; see also Myers, 839 N.E.2d at 1160.

91. T.L.O., 469 U.S. at 342.

92. Id. 93. Id.

94. See cases cited and accompanying text supra note 73.

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different categories: (1) searches initiated by school officials or where police involvement is minimal; (2) searches initiated and conducted by the school resource officer; and (3) searches initiated by "outside" police officers for investigative purposes. 95 In categories (1) and (2), the reasonableness and in category (3) the standard set out in T.L.O. is applied, 96 probable cause standard is applied.

In a North Carolina case involving a school resource officer 97 who conducted a search of a student, the Court of Appeals of North Carolina applied the reasonable suspicion standard set out in TL.O. 98 The court stated that the T.L.O. "standard governs conduct by school resource officers working 'in conjunction with' school officials," where these officers are primarily responsible to the school district rather than to the local police department." 99 The facts of In Re S.W.show that the school's resource officer, Deputy Carpenter, was an employee of the to Durham County Sheriffs Department, but he was assigned 100 officer. resource full-time School's High serve as Riverside Deputy Carpenter walked the school hallways during school 0 hours and assisted school officials with discipline matters.'

The court also pointed out that "Deputy Carpenter's employment as a resource officer mandates that he help maintain a drug free environment at school., 10 2 Inthe instant case, Deputy Carpenter smelled a strong odor of marijuana on a student as he walked by. 10 3 He then asked the student to follow him into the hallway, where he located two of the school's assistant principals.1 4 Deputy Carpenter then asked the two assistant principals and the student to accompany him into the 95. Dilworth, 661 N.E.2d at 316-17; see also Myers, 839 N.E.2d at 1160.

96. Myers, 839 N.E.2d at 1160.

97. "A school resource officer is a commissioned police officer assigned

to a public school by the officer's police department." Josue T, 989 P.2d at 431.

98. In re S.W., 614 S.E.2d 424 (N.C. Ct. App. 2005).

99. Id. at 426-27 (citing In Re J.F.M., 607 S.E.2d 304, 309 (N.C. Ct. App. 2005).

100. Id. at 426-27.

101. Id. 102. Id. at 427.

103. Id. at 425.

104. Id.

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school's weight room, where he conducted a search of the student.' °5 The search produced ten small plastic bags of marijuana and the student was arrested.10 6 The student later filed a motion to suppress the evidence, arguing that the search was unlawful.' °7 The trial court denied the student's motion and he appealed. 0 8 The Court of Appeals affirmed the ruling of the trial court. 09 An Ohio case, State v. Szymanski, established that the reasonable suspicion standard set out in T.L.O. applies if a law enforcement officer is present while a school official conducts a In Szymanski, the school's assistant principal had search." reason to believe that a student was carrying guns in his car; however, when the assistant principal received this information, the student was not attending school due to being suspended."'

On February 17, 1999, while still on school suspension, the student was observed in the school hallway by the assistant principal." 2 The assistant principal then approached the principal and asked how to proceed.' 13 The principal instructed the assistant principal to call the police and request a law enforcement officer to be present while a search of the student's car was conducted. 1 4 The assistant principal then asked the student into her office, where she informed him that she was going to search his car for guns." 5 When the assistant principal and the student arrived at the car, Officer Steve Herrick of the 16 Lebanon Police Department was there waiting in uniform."

Officer Herrick then stated that he was merely an observer and that the school was in control. 1 7 The assistant principal then

105.

106.

107.

108.

109.

Id.

Id. Id. Id. Id. at 428.

110. Szymanski, 2001 WL 185467 at 1-4.

111. Id.at *1.

112. Id. 113. Id. 114. Id. at *2.

115. Id. 116. Id. 117. Id.

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asked the student to open his trunk." 8 As the trunk opened, a pistol was found lying on top of some clothes. 19 Upon seeing the gun Officer Herrick asked everyone to step back as he took possession of the pistol.' 2 ° Officer Herrick proceeded to ask the student if there were any more firearms in the car and student answered affirmatively.1' Officer Herrick then observed an end of a rifle in the trunk and took possession of that firearm as well.' 22 The student was charged with conveying a deadly weapon on school property.' 23 The student later filed a motion to suppress the weapons seized from his vehicle, which was denied; the student was later convicted. 24 The student then appealed, stating the trial court erred in overruling his motion to suppress. 125 The Court of Appeals of Ohio affirmed the trial court's ruling and stated that, under the circumstances, the search of the student's car was reasonable and the standard set out in T.L.O. applied even though Officer Herrick was present; "a school must act when necessary to protect the safety and well 126 being of its students from potential outbreaks of violence."'

An Indiana Supreme Court case, Myers v. State, held that "where a search is initiated and conducted by school officials, or where school officials initiate a search and police involvement is minimal, the reasonableness standard is applicable."' 127 In Myers, the school officials of Austin High School decided to sweep the school's grounds for drugs.' 28 The school officials determined the areas to search and actually conducted the searches. 129 However, the police determined the time and date of the sweep and supplied the school with trained narcotics dogs.' 30 During the sweep, the students' cars were 118. Id. 119. Id.

120.

121.

122.

123.

124.

125.

126.

127.

128.

129.

130.

Id. Id.

Id. at *1.

Id. at *2.

Id. Id.

Id. at *5.

Myers, 839 N.E.2d at 1160.

Id. at 1157.

Id. at 1160.

Id.

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subjected to the narcotics dog sniff test. 131 As one of the dogs walked by Myers' car, it alerted the school officials that it had found something. 132 A subsequent search of the vehicle revealed a firearm.' 33 Myers was then charged with possession of a firearm on school property. 134 Myers filed a motion to suppress the firearm seized from his vehicle. 135 The trial court denied Myers' motion and the Indiana Supreme Court affirmed.136 The Court stated it upheld the trial court denial of Myers' motion to suppress because the police only assisted the school officials, "and because the search was predominantly initiated and conducted by the school officials of Austin High School and was reasonable..."137 These three cases address three different scenarios: (1) a search initiated and conducted by a school resource officer; (2) a search conducted in the presence of an outside law enforcement officer; and (3) a search conducted with the assistance of outside law enforcement officers. In each of these scenarios, the presiding court ruled that the searches were reasonable and the courts denied each defendant's motion to suppress. Through these rulings, the courts allow school officials to conduct their required duties in a manner that promotes a safer environment for the students and the investigating school. These states are allowing their school officials to make judgment calls about having a law enforcement officer present or assisting in a search if the school official believes such is necessary for a safe and effective search. Georgia should observe how these states are enforcing and interpreting their laws governing school searches and law enforcement involvement, and should do what it takes to follow 13 8 in their footsteps.

131. Id. at 1157.

132. Id. at 1159.

133. Id. at 1157.

134. Id. 135. Id. 136. Id. 137. Id. at 1161.

138. Georgia should also change how it classifies school resource officers.

Under current Georgia law a school resource officer is not deemed to be a school official (even though they often perform the exact same duties and are often primarily responsible to the school district rather than the local police

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IV. CONCLUSION

To the detriment of school officials and students attending schools throughout our state, Georgia law governing law enforcement officer involvement in school searches 39 is excessively restrictive. If Georgia law is not changed or interpreted in a way which will allow law enforcement officers to assist school officials while conducting school searches, then our state is inviting a dangerous outcome. Georgia needs to follow the path laid down by other states. Law enforcement officers should be allowed to be present while school officials perform dangerous duties, such as school searches, to ensure the safety of all students and school officials. Young started to make this progressive step in 1975 when it stated that school officials "must be allowed the latitude to make effective searches," and "the administrators to whom we accord the right to make such rules and regulations must be allowed to enforce them."' 140 It is now time for Georgia law to give these words meaning, and not qualify them with the phrase "free of involvement by law enforcement personnel."14 ' Georgia should allow school officials to utilize all resources available to them, including law enforcement officers. Accordingly, the answer to department), and must have probable cause to search a student. State v.

Scott, 630 S.E.2d 563 (Ga. Ct. App. 2006); see also Patman, 537 S.E.2d at 118. However, other states have recognized the fouled logic in treating these two individuals differently. Tennessee: In R.S.D. v. State, No. M200500213-5C-RlI-JV, 2008 WL 315568, at *9 (Tenn. Feb. 6, 2008), the Tennessee Supreme Court stated, "we hold that the reasonableness standard is the appropriate standard to apply to searches conducted by a law enforcement officer assigned to a school on a regular basis and assigned duties at the school beyond those of a ordinary law enforcement officer such that he or she may be considered a school official as well as a law enforcement officer, whether labeled an 'SRO' or not." California: In re William V., 4 Cal. Rptr.3d 695, 698-700 (Cal. Ct. App. 2003) (Police officers assigned to high school as a school resource officer is a school official for purposes of Fourth Amendment, and need only have reasonable suspicion to conduct a search of a student).

139. Author's definition of a school search for purposes of this conclusion: A school search is defined as a search of a student, his locker, or his automobile for illegal drugs, weapons, or other illegal or dangerous substances or materials.

140. Young, 216 S.E.2d at 592.

141. Id. at 593-94.

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the two main issues should be: (1) a search conducted by a law enforcement officer, on school grounds, at the request of a school official should not qualify as law enforcement involvement under Young, and should not require probable cause on the side of the law enforcement officer; and (2) the mere presence of a law enforcement officer during a search conducted by a school official should not qualify as law enforcement officer involvement under Young, and should not require probable cause on the side of the law enforcement officer.

V. RECOMMENDATION

Based on the argument herein, the Georgia legislature should consider the following recommendation: Section 1: School officials may request the presence or assistance of an "outside" law enforcement officer for the purpose of conducting a search of a student, his locker, his automobile, or other personal property currently on school premises for illegal drugs, weapons, or other illegal or dangerous substances or materials.

Section 2: Where the type of searches mentioned in Section (1) are conducted by school officials alone, or where "outside" law enforcement officer involvement is minimal, the reasonableness standard shall apply.

Definitions:

School official shall include: 1) the principal; 2) the assistant principal; 3) any other school administrator; 4) teachers; and 5) school resource officers.

School resource officer is defined as a commissioned police officer assigned to a public school.

"Outside" law enforcement officer is defined as a police officer not assigned to a public school.

42 Reasonableness standard: 1

Part I: Whether the search was justified at its inception.

A search conducted by a school official is justified at its 142. T.L.O., 469 U.S. at 342.

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inception if "there are reasonable grounds for suspecting that the search will turn up evidence that the student has is violating either the law or the rules of the violated 1or 43 school."'

Part II: Whether the search was reasonably related in scope to the circumstances that justified the search in the first place. The search will be reasonably related in scope if "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive and sex of the student and the nature in light of the age144 of the infraction."'

DUST1N W. HIGHTOWER*

143. Id. 144. Id.

J.D. Candidate, May 2008, John Marshall Law School. B.B.A., University of West Georgia, cum laude. I would like to thank the Carroll County Solicitor, Mr. Jimmy Tuggle, for inspiring me to write on this topic, and Ashley Meister for all of her helpful research. *

+(,121/,1( Citation: 1 J. Marshall L.J. 275 2008

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SELECTED HOUSE BILLS

HOUSE BILL 37:1 PRE-TRIAL PLACEMENT IN MENTAL HEALTH FACILITY

Amending O.C.G.A. ยง 42-4-6.1 FIRST SIGNATURE:

Rep. Bobby Parham (141st).

SUMMARY: House Bill 37 sought to amend O.C.G.A. ยง 42-46.1 to require that persons receiving mental health care from the Department of Human Resources must be removed from local jails within fifteen days of their being admitted to jail and placed in a DHR mental health facility until trial, or until found competent. Time in the mental health facility would be treated as time served and credited to any sentence.

STATUS:

Not enacted.

TEXT OF HOUSE BILL 37

ยง1.

Chapter 4 of Title 42 of the Official Code of Georgia Annotated, relating to jails, is amended by adding a new Code section to read as follows: "42-4-6.1. (a) When any person in the custody or under the care and supervision for mental health reasons of the Department of Human Resources or one of its mental health facilities is confined in the common jail awaiting trial for any offense against the penal laws of this state, the Department of Human Resources shall provide for the person's delivery to an institution or mental health facility as may be approved and supported by the Department of Human Resources within 15 days of confinement in the common jail. He or she shall be delivered and received in such institution or facility until a competency determination is made pursuant to Part 2 of Article 6 of Chapter 7 of Title 17 or until a trial, as applicable. (b) The period of time a person is confined in a hospital or institution pursuant to subsection (a) of this Code section shall be credited upon any jail sentence being served by him or her, in the same manner as though he or she had remained in jail. Any person committed for any civil or criminal contempt shall remain for all purposes under the orders, jurisdiction, and authority of the court committing him or her for contempt while in the hospital or institution, in the same manner as though he or she had remained in the common jail."

1. H.R. 37, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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ยง2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Bobby Parham, of the 141st, introduced House Bill 37 to ensure mentally ill inmates receive treatment necessary for them to lead productive lives and avoid reincarceration.2 Rep. Parham said he introduced the Bill because it would ensure mentally ill inmates receive the treatment necessary for them to function in society and avoid reincarceration. 3 He said local jails commonly house inmates with mental health problems, and urban jails particularly have large numbers of mentally ill inmates.4 Rep. Parham said the Bill stalled in 2007 because its subject matter fell within the scope of a Senate Resolution that was ultimately vetoed by Governor Sonny Perdue. 5 Senate Resolution 363 sought to create a task force to review and recommend improvements for how the state provides mental health services to citizens, including inmates. 6 Governor Perdue vetoed Senate Resolution 363 because it did not provide for the appointment of task force members by the executive branch.7 Afterwards, Governor Perdue, by executive order, created a similar task force charged with studying the state mental health system. 8 The task force is to report its findings to the Governor and General Assembly before June 2, 2008. 9 Rep. Parham said if any task force recommendation addresses the concerns that led him to propose the Bill, he might drop House Bill 37 and

2. Telephone Interview with Rep. Bobby Parham, H. District No. 141 (Oct. 24, 2007) [hereinafter Parham October Interview].

3.

Id.

4. Id. 5. Id. 6. Ga. Gen. Assem., S. Res. 363, available at http://www.legis.ga.gov/ legis/2007_08/sum/sr 363.htm (last visited Mar. 30, 2008).

7. See Press Release from Gov. Sonny Perdue's office (May 30, 2007) (on file with the John Marshall Law Journal).

8. Parham OctoberInterview, supra note 2.

9. Id.

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support the recommendation.'

277

0

LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on January 10, 2007, and a second reading occurred on January 11, 2007."

The Bill was assigned to the State Institutions and Property 12 Committee, which in turn assigned the Bill to a subcommittee.

The Subcommittee on Inmate Issues considered the Bill on February 22, 2007, but took no action on it. 13 The subcommittee considered the Bill again on February 21, 2008, and forwarded the Bill to the full committee without a recommendation, but no action was taken. 14 PREPARED BY:

Bryan Brooks

10. Id. 11. Id. 12. Id. 13. Id. 14. Telephone Interview with Rep. Bobby Parham, H. District No. 141 (Feb. 23, 2008).

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HOUSE BILL 149:1 RACIAL PROFILING

Amending O.C.G.A. ยง 40-1-8 FIRST SIGNATURE: Rep. Tyrone Brooks ( 6 3rd).

CO-SPONSORS:

Rep. Al Williams ( 1 6 5 th), Rep. Carolyn Hugley

(133 ), Rep.Lucas Calvin Smyre (132 ), Rep. Bob Holmes (61s) & Rep. David ( th).

13 9

House Bill 149 sought to prohibit law enforcement officials from being able to use race or ethnicity as a basis for probable cause while engaged in law enforcement duties. The legislation required officers to document the ethnicity of each person they stop and reasons for any search they conduct.

SUMMARY:

STATUS:

Not enacted.

TEXT OF HOUSE BILL 149 ยงI

Chapter 1 of Title 40 of the Official Code of Georgia Annotated, relating to general provisions relative to motor vehicles and traffic, is amended by inserting at the end thereof a new Code Section 40-1-8 to read as follows: "40-1-8. (a) Law enforcement officers shall not use a person's race or ethnicity to form probable cause or reasonable suspicion to stop a vehicle but may use a person's race or ethnicity to confirm a 40previously obtained description of a suspect. (b)(1) Each state and local law enforcement agency shall adopt a policy and implement an annual training program regarding racial profiling that provides and instructs that a law enforcement officer shall not use a person's race or ethnicity to form probable cause or reasonable suspicion to stop a vehicle but may use a person's race or ethnicity to confirm a previously obtained description of a suspect.

(2) Except in instances where a vehicle is stopped in a fixed road block, each time a state or local law enforcement officer stops a motor vehicle to issue a citation or to make an arrest, that officer shall document the following information in a public record whose format shall be determined by the Department of Motor Vehicle Safety: (A) The gender of the driver; (B) The race or ethnicity of the driver; (C) The suspected violation that led to the stop; (D) Whether the vehicle, personal effects, driver, or any passenger was searched and, if any passenger or his or her effects were searched, the passenger's gender and the passenger's race or ethnicity; (E) Whether a search was conducted pursuant to consent, probable cause, or reasonable suspicion to suspect a crime, including the approximate duration of the search and the basis for the request for consent or the circumstances establishing probable cause or reasonable suspicion; (F) Whether contraband was found, the type and approximate amount of contraband, and

1. H.R. 149, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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whether contraband was seized; (G) Whether any arrest, citation, or any oral or written warning was issued as a result of the stop; (H) Whether the officer making the stop encountered any physical resistance, whether the officer engaged in the use of force, and whether injuries resulted; (I) Whether the circumstances surrounding the stop were the subject of any investigation and the results of that investigation; and (J) The location of the stop.

(3) If a law enforcement officer stops a motor vehicle and no citation or written warning is issued to the motorist, then the officer shall provide the motorist with a card showing the officer's name, badge number, and the name of the officer's law enforcement agency.

(4) Law enforcement agencies shall maintain the data required to be collected under paragraph (2) of this subsection for not less than seven years.

(5) As part of its personnel review or evaluation procedures provisions, each law enforcement agency shall include complaints filed and other information designed to evaluate whether or not each law enforcement officer employed by such agency is complying with the provisions of paragraph (2) of this subsection. Any officer found not to be complying with the provisions of paragraph (2) of this subsection shall be required to undergo further training that meets the requirements of paragraph (1)of this subsection.

(6) Nothing in this Code section shall be construed to alter the requirements for determining probable cause or reasonable suspicion under the Constitution of the United States or the Constitution of the State of Georgia." ยง2 All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Tyrone Brooks, of the 6 3 rd, introduced House Bill 149, a racial profiling Bill, in response to what many perceive as disparate treatment of people of color by law enforcement officers. 2 Rep. Brooks, an African American male, has personally been stopped and harassed by police due to his ethnicity. 3 Additionally, the death of Kenneth Walker in Columbus, Georgia in 2003, played a role in his decision to push the Bill forward.4 Walker was a 39 year-old unarmed African American man who was shot in the head by two white Muscogee County sheriff's deputies for no apparent reason.5 Sen. Gloria Butler, of the 5 5 th, introduced similar legislation in 2000.6 The Bill passed in the Senate but was not voted on in the House of Representatives, as the session ended before the

2. Telephone Interview with Rep. Tyrone Brooks, H. District No. 63 (Sept. 25, 2007) [hereinafter Brooks Interview].

3. Id. 4. Id. 5. Id. 6. Id.

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Bill could be brought to the floor. 7 The following year the terrorist attacks of September 11 occurred and the proponents of the Bill felt as though the timing was not right for a vote on the issue. 8 Rep. Brooks decided in 2004 to reintroduce the Bill. 9 It was co-sponsored by Rep. Warren Massey, of the 24 th, a white male, who gave a passionate speech on the floor of the House urging his fellow Republicans-to adopt the legislation.' 0 The Bill subsequently passed with 167 votes, but the Senate did not act."

Representative Brooks plans to continue 2introducing the legislation each year until it is passed into law.'

LEGISLATIVE GENEALOGY

The Bill was reviewed by the House Judiciary (Non-Civil) Committee on January 26, 2007, but was not favorably reported. 13 The most influential opposition came from the 14 Georgia Sheriffs Association and the Georgia State Patrol.

These agencies feel that racial profiling legislation creates 5 significant legal obstacles for officers in pursuit of criminals.'

Alternatively, the Georgia Association of Chiefs of Police supports the legislation.1 Chief Jim Murray of Peachtree City has been particularly active, voicing his support by testifying in committee meetings. 17 PREPARED

7.

8.

BY: Daniel Stafford

Id. Id.

9. Id. 10. Id. 11. Id. 12.

13.

14.

15.

16.

17.

Id. Ga. H. Judy. Comm., Voting Record, H.R. 149 (Jan. 26, 2007).

Brooks Interview, supra note 2.

Id.

Id. Id.

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281

HOUSE BILL 185:1 DEATH SENTENCE BY NON-UNANIMOUS JURY

Amending O.C.G.A. ยง 17-10-2 FIRST SIGNATURE:

Rep. Barry Fleming (1 1 7 th).

CO-SPONSORS: Rep. Willie Talton (145 h), Rep. Melvin Everson ( 1 0 6th), Rep. Timothy Bearden ( 6 8 th), Rep. Jerry Keen ( 1 7 9 th)

& Rep. Mark Burkhalter (50h).

SUMMARY: House Bill 185 sought to amend O.C.G.A. ยง 17-102 by giving the judge the discretion to impose a sentence of death, life without parole, or life if after finding the existence of at least one aggravating circumstance and at least ten jurors voted to impose a sentence of death.

STATUS: Not enacted.

TEXT OF HOUSE BILL 185 ยง 1.

Article 2 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating to the death penalty generally, is amended by revising Code Section 17-10-31, relating to requirement of a jury finding of aggravating circumstance and recommendation of death penalty, as follows: "17-10-31.

Except as provided in this Code section or Code Section 17-10-31.1, where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. Where a sentence of death is not recommended by the jury, the court shall sentence the defendant t-4 as provided in Code Section 17-10-31.1. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance in its verdict, the court shall not sentence the defendant to death, provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking. This Code section shall not affect a sentence when the case is tried without a jury or when the judge accepts a plea of guilty." ยง2.

Said article is further amended by revising Code Section 17-10-31.1, relating to requirement of a jury finding aggravating circumstances and recommendation of sentence of death or life without parole, as follows: "17-10-31.1. (a) Where, upon a trial by jury, a person is convicted of murder, a sentence of death or life without parole shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating. (b) Where a statutory aggravating circumstance is found and a recommendation of life without

1. H.R. 185, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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parole is made, the shall sentence the defendant to imprisonment for life without parole as provided in Code Section 17-10-16. (c) Where a statutory aggravating circumstance is found and the jury impaneled to determine the sentence is unable to reach a unanimous verdict as to sentence, the judge shall dismiss the jury and shall impose a sentence of life imprisonment, or imprisonment for life without parole_or death. (d)In imposing sentence, if the iury finds beyond a reasonable doubt that the defendant committed at least one statutory aggravating circumstance, the judge may sentence the defendant to: (1) Imprisonment t for life without parole if the iudge has been informed by the jury foreoerson that upon their last vote, a majority of the jurors cast their vote for a sentence of death or for a sentence of life imprisonment without parole; or (2) Death if the iudge has been informed by the iury foreperson that upon their last vote, at least ten of the iurors cast their vote for a sentence of death; provided, however, that the judge may impose a sentence of life imprisonment or imprisonment for life without parole as provided by law. (e)Notwithstanding any other provision of law, during the sentencing phase before a jury, counsel for the state and the accused may present argument and the judge may instruct the jury: (1)That 'life without parole' means that the defendant shall be incarcerated for the remainder of his or her natural life and shall not be eligible for parole unless such person is subsequently adjudicated to be innocent of the offense for which he or she was sentenced; and (2) That 'life imprisonment' means that the defendant will be incarcerated for the remainder of his or her natural life but will be eligible for parole during the term of such sentence." §3.

This Act shall become effective on July 1, 2007, and shall apply to all offenses which occur on or after July 1, 2007. §4.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Barry Fleming, of the 1 1 7th, introduced House Bill 185 as a response to the aberrant juror problem.2 Currently, Georgia law requires a unanimous jury during the penalty phase to impose a death sentence. 3 In many cases, the unanimity requirement resulted in the prosecution's inability to get a verdict imposing the death penalty. In some instances, the holdout juror refused to deliberate on the subject. This Bill would solve this problem by giving the judge the discretion to determine the sentence in certain circumstances. 4 LEGISLATIVE GENEALOGY

The Bill was first read in the House on January 29, 2007, and 2. Telephone Interview with Rep. Doug Collins, H. District No. 27 (Sept.

6, 2007) [hereinafter Collins Interview].

3. Id.; O.C.G.A. §§ 17-10-31, 17-10-31.1 (2007).

4. Collins Interview, supra note 2.

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read for the second time on January 30, 2007.' The Bill received a favorable report from committee on March 19, 2007 and was read for the third time on March 20, 2007.6 After lengthy floor debates, the Bill was passed by the House on March 20, 2007. House Bill 185 was read and referred in the Senate on March 27, 2007. 7 House Bill 185 was vigorously debated in committee.

Proponents of the Bill argued that giving the judge the discretion to impose the death penalty in certain circumstances8 is an adequate solution to the aberrant juror problem.

Currently, one or two votes can override the will of the supermajority to impose a death sentence. 9 Rep. Fleming observed that the proper avenue for those who are opposed to the death penalty is through the legislative process, not through r° their vote while on a jury.

Proponents of this Bill argue that it would help to protect victims' rights. The committee heard Sheila Howell speak about how she felt when the man who brutally killed her daughter and granddaughter was not sentenced to death because two jurors refused to vote for the death penalty. l She felt that two people, not ten or twelve, made the decision to spare Wesley Harris's life. 12 Feeling as if the victims are not on equal footing with the murderers, she urged the representatives to look at the Bill from a victim's point of view.' 3 Opponents of the Bill were concerned that lowering the standard to impose a death sentence will increase already existing problems with how the death penalty is administered.' 4 Another concern was the constitutionality of a non-unanimous 5. H.R. 185; see also Ga. Gen. Assem., H.R. 185, available at http://www.legis.gov/legis/2007_ 08/sum/hb 185.htm.

6. Id. 7. Id. 8. Video Recording of H. Judy. (Non-Civil) Comm. Meeting, Mar. 13, 2007, available at http://www.legis.ga.gov/legis/2007_08/house/Commit tees/judiciaryNonCivil/judyncArchives.htm.

9. Id. 10. Id. 11. Id. 12. Id. 13. Id.

14. Id.

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jury to recommend the death penalty.' 5 Several representatives voiced concerns about the impact of the death penalty on6 minorities and how this Bill would exacerbate those problems.'

Rep. Jack Martin, of the 4 7th , stated that Ring v. Arizona'7 left open the question of jury unanimity, and because of Ring, other states' death penalty statutes may come under attack.'" nd Rep. Kevin Levitas, of the 82 , moved to amend the Bill to require a jury of eleven, instead of nine, to make the recommendation to the judge.' 9 He said that he did not want to 20 recommend a Bill that would not pass constitutional muster.

The motion passed. 2' Rep. Levitas also proposed that the Bill be amended to change the effective date to January 1, 2009 to allow more time to analyze the issue more closely, but the motion was defeated.22 House Bill 185 was forwarded, as amended, with a due pass recommendation.23 House Bill 185 was strongly debated on the House floor.

Rep. Fleming, the sponsor of the Bill, described the mechanics of the Bill and why the Bill was necessary. 24 He explained that the Bill does not change the requirement of unanimity during the guilt/innocence phase, nor does it change the requirement of unanimity with regard to the jury's finding of the existence of aggravating circumstances. 25 It is only after the jury has unanimously found the defendant guilty, unanimously found the existence of at least one aggravating circumstance, and at least ten jurors have recommended the death penalty that the judge In will have an opportunity to impose the sentence.26 addressing the constitutionality concerns, Rep. Fleming 15. Id. 16. Id. 17. 536 U.S. 584 (2002).

18. Committee Video Recording, supra note 8.

19. Id.

20. Id. 21. Id. 22. Id. 23. Id. 24. Multimedia: Session Archives, 2007 H. Sess., available at http://www.georgia.gov/00/article/0,2086, 4 80 2 _6107103_72682804,00.html, (Mar. 20, 2007) (remarks by Rep. Barry Fleming beginning at 1:55).

25. Id. 26. Id.

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observed that Florida's system, which gives the judge more discretion in imposing a death sentence than House Bill 185, 2 7 has not been overturned, despite challenges.

Rep. Levitas voiced his concern that changing to a 9-3 or a 10-2 scheme mijht not pass constitutional muster. 28 Rep. David Ralston, of the 7 , chairman of the House Judiciary (Non-Civil) Committee, also supported the Bill.29 He stated that, in theory, a capital case should move forward with a panel of people who could consider the evidence and who could impose the death penalty.3 ° Many representatives spoke in opposition to the Bill. Rep. Robert Mumford, of the 95 h , argued that the unanimity requirement is of ancient origin and changing that would be contrary to hundreds of years of jurisprudence. 3 1 Other representatives argued that this Bill was not a narrow solution to solve the problem.32 Rep. Mark Hatfield, of the 17 7 th, while agreeing with the death penalty, also opposed this Bill. 33 He said that this Bill is not addressing a pervasive problem in this state and it is really a question of who society trusts to make these decisions. 34 The Bill's effects on minorities were another reason given in opposition of the Bill.35 Rep. Roberta AbdulSalaam, of the 74 , pointed out that everything is relevant, including race. 36 She also voiced concerns that this Bill might lead to getting rid of the jury altogether. 37 She posited that if the prosecutor has done their job, then there should not be the problem of the holdout juror. If prosecutors need more help prosecuting their cases, then this is the area where the problem 39 should be addressed.

27. Id. 28. Id. 29. Id. 30. Id. 31. Id. 32. Id. 33. Id. 34. Id. 35. Id. 36. Id. 37. Id. 38. Id. 39. Id.

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Rep. Jerry Keen, of the 1 7 9 th, which would change the number This amendment was adopted by passed the House with a 106 to 65

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proposed a floor amendment of jurors from 9-3 to 10-2.4o a 100 to 69 vote. 4' The Bill vote.4 2

PREPARED BY:

Diona M. Potter

40. Id.

41. Ga. Gen. Assem., H.R. 185 House Vote #167, available at http://www.legis.ga.gov/legis/2007_08/votes/hv0167.htm (last visited March 22, 2008).

42. Ga. Gen. Assem., H.R. 185 House Vote #168, available at http://www.legis.ga.gov/ilegis/2007_08/votes/hvO168.htm (last visited March 22, 2008). Rep. Fleming attached, as an amendment, the language of House Bill 185 to Senate Bill 145 on March 19, 2008; the amended Senate Bill 145 passed the House, however, the non-unanimous death sentence language was altered by the Senate. Ga. Gen. Assem., S. 145, available at http://www.legis.state. ga.us/legis/2007_08/sum/sb 145.htm.

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HOUSE BILL 197: THREE-JUDGE REVIEW PANELS Amending O.C.G.A. § 17-8-58 and O.C.G.A. § 17-10-6.3 FIRST SIGNATURE: Rep. Barry Fleming (11 7 th).

CO-SPONSORS: Rep. Edward Lindsey ( 5 4 th) & Rep. Mark Hatfield ( 1 2 7 th).

SUMMARY: House Bill 197 repealed the three-judge sentence review panel, formerly codified at O.C.G.A. § 17-10-6. The Bill also incorporated Senate Bill 97, which provides that a party must object to any portion of a jury charge or a failure to charge the jury, by informing the court of the specific objection before the jury retires to deliberate. The failure to do so will preclude appellate review of such portion of the jury charge that the party finds objectionable.

STATUS: Enacted.

TEXT OF HOUSE BILL

197

§1 Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is amended by adding a new Code section to read as follows: "17-8-58. (a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury's hearing and presence. (b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court's attention as provided in subsection (a) of this Code section."

§2 Said title is further amended by repealing and reserving Code Section 17-10-6, relating to review of sentences of imprisonment for a period exceeding 12 years by a three-judge panel.

§3 Said title is further amended by adding a new Code section to read as follows: "17-10-6.3. (a) As used in this Code section, the term 'three-judge panel' means the three-judge panel that was created and existed pursuant to the former provisions of Code Section 17-10-6 as it existed on June 30, 2007, which reviewed certain sentences to determine if a sentence was excessively harsh and what relief, if any, should be given. (b) The right of a defendant to have a sentence reviewed by a three-judge panel shall be terminated for sentences imposed by a trial or appellate court on or after July 1, 2007. No new

1. H.R. 197, 149th Ga. Gen. Assem., Reg. Sess. (Ga. 2007).

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application for review of a sentence shall be transmitted to the three-judge panel on or after July 1, 2007, except for cases in which a sentence was imposed prior to July 1, 2007. (c) No new application for review of a sentence shall be accepted by the three-judge panel unless such application has been received by the three-judge panel on or before Septemberl, 2007. Any sentence that has an application for review with the three-judge panel pending on September 1, 2007, shall have such review completed by the three-judge panel by November 1, 2008. (d) It shall be the duty of the president of The Council of Superior Court Judges of Georgia to cause all administrative measures which may be necessary to conclude the business of the threejudge panel to be completed no later than January 1, 2009. Such administrative, clerical, or secretarial personnel as may be assigned to provide support for the three-judge panel may continue to be employed for the purpose of providing support to the president of The Council of Superior Court Judges of Georgia until January 1, 2009. (e) No later than January 1, 2009, all records and documents relating to the activities of the three-judge panels during the period July 1, 1974, through November 1, 2008, shall be transmitted to the Department of Archives and History for retention in accordance with Article 5 of Chapter 18 of Title 50, the 'Georgia Records Act.' All equipment, supplies, and materials which the president of The Council of Superior Court Judges of Georgia determines are excess or surplus shall be distributed by the president to the judges of the superior courts for use in the performance of their official duties. Any fees or expenses due to any clerk, superior court judge, or other person as a result of the three-judge panel shall be paid out of such funds as are appropriated for the operation of the superior courts during fiscal year 2009." ยง4 Code Section 15-6-77 of the Official Code of Georgia Annotated, relating to superior court fees, is amended by revising paragraph (5) of subsection (h). ยง5 This Act shall become effective on July 1, 2007, and shall apply to all trials which occur on or after July 1, 2007. ยง6 All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Barry Fleming, of the 117 th, introduced House Bill 197 in response to concerns raised by members of the Georgia District Attorneys Association over three-judge sentence review panel.2 The problem with the sentence review panel was that it overturned plea agreements, which were entered into through negotiation and agreement. 3 Furthermore, the sentence review panel is duplicative of other parts of the criminal ustice system, such as the parole board and the appellate courts. Finally, Rep. Fleming explained that the Supreme Court of Georgia has

2. Telephone Interview with Rep. Barry Fleming, H. District No. 117 (Nov. 4, 2007) [hereinafter Fleming Interview].

3. Video Recording of H. Judy. (Non-Civil) Comm. Meeting, Mar. 7, 2007 (remarks by Rep. Barry Fleming), available at http://media.legis. ga.gov/hav/judynon/judynon307O7.wmv [hereinafter Judy NC Video].

4. Id.

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questioned the constitutionality of the sentence review panel.5 LEGISLATIVE GENEALOGY

The first reading occurred on January 30, 2007.6 The House Judiciary (Non-Civil) Committee considered the Bill on March 7, 2007, and reported the Bill favorably on March 19, 2007. 7 The Committee substituted the Bill to modify the time frame for implementation. 8 The substitute allowed the right to apply for sentence review in cases where the sentence was imposed prior to July 1, 2007. 9 The substitute further allowed that any defendant that applied for review by September 1, 2007, should have the review completed by November 1, 2008.10 House Bill 197 was read again in the House and debated on March 27, 2007."

Rep. Fleming presented the Bill and discussed the problems with the three-judge sentence review panel.' 2 Opponents expressed concern about ineffective counsel as well as the fact that no court had found any constitutional issues with the review panel. Rep. Fleming stated that what Rep. Holmes, of the 61', described was an insufficient counsel problem and is available for appeal to the appellate courts. The3 House adopted the Committee Substitute to House Bill 197.1 No amendments were offered, and the House passed House Bill 197 by a vote of 102 to 62.14 The Senate read and referred House Bill 197 to the Senate

5. Fleming Interview, supra note 2; Moseley v. Sentence Review Panel, 631 S.E.2d 704, 707 (Ga. 2006).

6. Ga. Gen. Assem., H.R. 197, http://www.legis.state.ga.us/legis/200708/ sumihb 197.htm [hereinafter H.R. 197 Status].

7. Id. 8. Id. 9. Id. (Defendants with sentences imposed prior to July 1, 2007, had until September 1, 2007 to apply for review.).

1o. Id. 11. Id. 12. Video Recording of H. of Rep. Proceedings, Mar. 27, 2007 (remarks

by Rep. Barry Fleming), available at http://www.georgia.gov/00/article/ 0,2086,4802 6107103_72682804,00.html [hereinafter House Video 3/2 7].

13. H.R. 197 Status, supra note 6.

14. Id.

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Judiciary Committee on March 27, 2007.'5 The Committee favorably reported the Bill and recommended the Bill to pass by substitute.' 6 The Committee Substitute added a section to the7 Bill relating to objections to jury charges in criminal trials.1 The substitute added a new code section, O.C.G.A. ยง 17-8-58, which requires a party to object to any portion of a jury charge, or failure to charge the jury, by making a specific objection and the grounds for such objection before the jury retires to deliberate.' 8 The substitute also provided that failure to object to the jury charge in such fashion would preclude appellate review of the objectionable jury charge, unless the jury charge constitutes plain error.19 The substitute was actually a Bill that the Senate passed earlier in the 2007 legislative session, Senate Bill 97, which did not make it through the subcommittee in the House.20 The Senate adopted the Committee Substitute to House Bill 197 and passed the Bill by a vote of 38 to 13.21 nd Sen. Preston Smith, of the 52' , presented House Bill 197 to the Senate on April 17, 2007, voicing his support for the Bill by stating that the three-judge panel should be abolished because: (1) we now have a statewide indigent defense system to provide all criminal defendants with competent counsel; (2) we have judges that are required to make sentences within a framework prescribed by the legislature; and (3) it is inequitable for an unelected three-judge panel-sitting outside the jurisdiction where the case was heard that did not hear the evidence of the case-to second guess the trial judge and substitute their judgment for either a sentence imposed by the trial judge or through a negotiated plea.2 2 This would also bring Georgia in 15. Id. 16. Video Recording of Sen. Proceedings, April 17, 2007, available at http://www.georgia.gov/00/article/0,2086,4802_6107103_72682316,00.html [hereinafter Senate Video].

17. See H.R. 197 Status, supra note 6.

18. Id. 19. Id. 20. S. 97, 149th Ga. Gen. Assem., Reg. Sess. (Ga. 2007) (Senator

Hamrick introduced the bill to eliminate the problems that arise when

objections to jury charges are made after the jury has left to deliberate).

21. Ga. Gen. Assem., S. 97, http://www.legis.state.ga.us/legis/2007_08/

sum/sb97.htm.

22. See Senate Video, supra note 16.

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line with the Federal Rules of Criminal Procedure, and the majority of States, with regard to objections to jury charges. 23 Sen. Emanuel Jones, of the 1 0 th, offered an amendment to the Bill, which would allow for an exception for those persons convicted prior to July 1, 2006, and after July 1, 2001, under the "Youthful Offender Act," 24 known as the "Romeo and Juliet" provision. 25 This Amendment failed by a vote of 21 to 30.26 On April 19, 2007, Rep. Fleming moved the House to agree to the Senate Committee Substitute to House Bill 197.27 Rep. Fleming explained that the underlying Bill regarding abolition of the sentence review panel was not changed. 8 Rep. Fleming further explained that the Senate's addition would align Georgia with the Federal Rules of Criminal Procedure, and the practice in 45 other states, which require specific objections29 to jury charges to be made before the jury retires to deliberate. th Rep. Randal Mangham, of the 94 , was concerned that the Senate Committee Substitute would shift the burden back onto the defense, in that if the defendant has an incompetent lawyer who fails to object to an incorrect jury charge, the objection is lost forever.3' Rep. Fleming responded that such a case could give rise to an appeal on ineffective counsel grounds. 3' Rep. Fleming further stated that this Bill merely requires the lawyer, when objecting to the judge's jury instruction, to tell the judge why he is objecting, so the judge can have an opportunity to correct it. 32 Rep. Fleming also stated that proponents of the Bill believe that it will lessen the number of appeals that come out of criminal cases.3 3 The House adopted the Senate Committee Substitute by a 23. Id. (remarks by Sen. Bill Hamrick); FED. R. CRIM. P. 30(d).

24. See Senate Video, supra note 16.

25. Id. (remarks by Sen. Emanuel Jones).

26. H.R. 197 Status, supra note 6.

27. Video Recording of H. of Rep. Proceedings, April 19, 2007 (remarks

by Rep. Barry Fleming), available at http://www.georgia.gov/00/article/ 0,2086,4802_6107103_72682804,00.html [hereinafter House Video 4/19].

28. Id. 29. Id.

30. Id. (remarks by Rep. Mangham).

31. Id. (remarks by Rep. Fleming).

32. Id.

33. Id.

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vote of 92 to 68. Rep. Stephanie Benfield, of the 8 5th, moved to have the House reconsider the vote on House Bill 197. 35 The House voted 71 to 96, declining to reconsider their action on House Bill 197.36 The House sent House Bill 197 to the Governor on April 30, 2007."7 PREPARED

34.

35.

36.

37.

H.R. 197 Status, supra note 6.

House Video 4/19, supra note 27.

H.R. 197 Status, supra note 6.

Id.

BY: Nicholas Utley

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HOUSE BILL 226:1 DISTRIBUTING OBSCENE MATERIAL

Amending O.C.G.A. ยง 16-12-80 FIRST SIGNATURE:

Rep. David Ralston (7 th).

Co-SPONSORS: Rep. Burkhalter ( 5 0th).

Wendell Willard

( 4 9 th)

& Rep. Mark

House Bill 226 specifically defined the broad term "dissemination" in the affirmative defense section of O.C.G.A. ยง 16-12-80 to specify that "selling, lending, renting, leasing, giving, advertising, publishing, exhibiting, or otherwise disseminating" material to institutions of higher learning, or a person for whom the material had been medically prescribed shall be an affirmative defense.

SUMMARY:

Status: Not Enacted.

TEXT OF HOUSE BILL 226 ยง1.

Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to crimes involving obscenity in general, is amended by striking in its entirety Code Section 16-12-80, relating to criminal distribution and dissemination of obscene materials, and inserting in its place a new Code Section 16-12-80 to read as follows: "16-12-80. (a) A person commits the offense of distributing obscene material when he or she sells, lends, rents, leases, gives, advertises, publishes, exhibits, or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so, provided that the word 'knowing,' as used in this Code section, shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter; and a person has constructive knowledge of the obscene contents if he or she has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material; provided, however, that the character and reputation of the individual charged with an offense under this law, and, if a commercial dissemination of obscene material is involved, the character and reputation of the business establishment involved may be placed in evidence by the defendant on the question of intent to violate this law.

Undeveloped photographs, molds, printing plates, and the like shall be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it. (b) Material is obscene if: (1) To the average person, applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion; (2) The material taken as a whole lacks serious literary, artistic, political, or scientific value; and (3) The material depicts or describes, in a patently offensive way, sexual conduct specifically

1. H.R. 226, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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defined in subparagraphs (A) through (E) of this paragraph: (A) Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated; (B) Acts of masturbation; (C) Acts involving excretory functions or lewd exhibition of the genitals; (D) Acts of bestiality or the fondling of sex organs of animals; or (E) Sexual acts of flagellation, torture, or other violence indicating a sadomasochistic sexual relationship. (c) Any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this Code section. (d) Material not otherwise obscene may be obscene under this Code section if the distribution thereof, the offer to do so, or the possession with the intent to do so is a commercial exploitation of erotica solely for the sake of their prurient appeal. (e) It is an affirmative defense under this Code section that selling, lending, renting, leasing, advertising, publishing, exhibiting, or otherwise disseminating the material was restricted to: (1)A person associated with an institution of higher learning, either as a member of the faculty or a matriculated student, teaching or pursuing a course of study related to such material; or (2) A person whose receipt of such material was authorized in writing by a licensed medical practitioner or psychiatrist. (f) A person who commits the offense of distributing obscene material shall be guilty of a misdemeanor of a high and aggravated nature." ยง2.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply only with respect to offenses committed on or after that effective date. ยง3.

All laws and parts of laws in conflict with this Act are repealed

FIRST SIGNATURE'S RATIONALE

Rep. David Ralston, of the 7 th, introduced House Bill 226 because the Eleventh Circuit U.S. Court of Appeals in This That 2 And The Other Gift And Tobacco, Inc. v. Cobb County, Ga., found that O.C.G.A. ยง 16-12-80 contained a per se ban on advertising that was more extensive than necessary, thus making the statute unconstitutional. 3 In committee, Rep. Ralston stated that he introduced House Bill 226 because the Federal Court in This That And the Other Gift And Tobacco, Inc., struck down the current obscenity statute, finding that the statute was overbroad in terms of restrictions on advertising the sale of certain merchandise. 4 Rep. Ralston noted that certain 2. This That And The Other Gift And Tobacco, Inc. v. Cobb County, 439 F.3d 1275 (1 lth Cir. 2006).

3. Video Recording of Ga. H. Judy. (Non-Civil) Comm. Meeting, Mar. 14, 2007 (remarks by Rep. David Ralston), available at http://www.legis.state.ga.us/legis/2007-08/house/Committees/judiciaryNonC ivil/judyncArchives.htm. [hereinafter Committee Recording].

4. Ga. Gen. Assem., H.R. 226, http://www.legis.ga.gov/legis/2007_08/

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metro areas wanted to resuscitate Georgia's obscenity statute with a Bill that upholds the traditional family values of our state.5 In addition to defining dissemination, House Bill 226 provides an exemption for employees of higher education, and 6 includes an exemption for employees of public libraries.

LEGISLATIVE GENEALOGY

The first reading occurred on January 31, 2007. A second reading occurred on February 1, 2007, where the House recommitted the Bill to committee on rules.7 On March 14, 2007, the House Judiciary (Non-Civil) Committee reviewed and debated the Bill. 8 The committee heard testimony from representatives from the Georgia Council of Public Libraries regarding concerns that librarians could be punished for material contained in books already shelved in the libraries, such as science books that include pictures of the anatomy of the human body. 9 Additionally, representatives on behalf of the Georgia Council of Public Libraries noted that the current law provides an exemption for higher education and that public libraries contribute to education and, therefore, libraries should 0 have an exemption under the new law.'

Rep. Bobby Franklin, of the 4 3 rd, moved to delete the librarian exemption because librarians are not elected officials and, therefore, are not held accountable for material they select for the library, even though tax dollars are used to purchase these materials." In response to Rep. Franklin, Rep. Robert Mumford, of the 95 , stated that librarians are very selective about the material they choose for the library, and without the exemption, someone who believes a book is obscene could pursue a warrant and have a librarian arrested.' 2 After these discussions, the committee voted and did not pass Rep. sum/hb226.htm (last visited Mar. 23, 2008) [hereinafter H.R. 226 Status].

5. Committee Recording,supra note 3.

6. Id. 7. Id. 8. Id. 9. Id. 1o. Id. 11. Id. 12. Id.

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Franklin's motion to amend the Bill, and the committee favorably reported House Bill 226.'1 On March 27, 2007, the Bill was read in the House. 14 Rep. Ralston explained to the floor that this Bill would reenact Georgia's obscenity statute and get the law back on the books. 15 Rep. Ralston also stated that the exemption for public libraries does not change the oversight of public libraries by local enforcement officials.' 6 Rep. Stephanie Benfield, of the 85 reiterated that librarians from several districts had contacted their Representatives in support of the Bill. 17 Rep. Franklin spoke on the Bill and stated that the court instructed the legislature to define dissemination in the obscenity statute and8 did not mention anything about an exemption for librarians.'

Therefore, Rep. Franklin stated that House Bill 226 should be passed as introduced, without the exemption for public libraries due to multiple concerns including allowing tax dollars to be spent by libraries to purchase obscene material.' 9 Due to these concerns, Rep. Franklin proposed an amendment to the Bill, which struck the exemption for librarians. 20 The House voted on the amendment, resulting in a tie. Rep. Franklin moved to reconsider the Amendment, resulting in its passage. 2' The House passed House Bill 226 without the public library defense.2 Sen. John Wiles, of the 3 7 th, sponsored the Bill in the Senate. 23 On March 27, 2007, the Bill was read and referred.24 On April 13, 2007, the Senate Committee favorably reported

13.

Id.

14. Video Recording of Ga. H. Proceedings, Mar. 27, 2007 (remarks by Rep. David Ralston), available at http://www.georgia.gov/00/article/0,2086, 4802_6107103_72682804,00.html.

15. Id. 16. Id. 17.

Id.

18. Id. 19. Id. 20. Id. 21. Id.

22. Id. 23. H.R. 226 Status, supra note 4.

24. Id.

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and recommended the Bill to pass by substitute. 25 The Senate added back the defense for a person associated with a public library and read the Bill a second time.26 The Bill did not make it to the floor for a vote in the Senate in the 2007 session.

During the 2008 Session, the Senate recommitted House Bill 226.27 PREPARED BY: Jerry B. Thames

25. Id. 26. Id. 27. Id.

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HOUSE BILL 251:1 DISCIPLINE OF PROSECUTORIAL MISCONDUCT

Amending O. C.G.A. ยง 15-18-90 FIRST SIGNATURE: Rep. Austin Scott (15 3 rd).

SUMMARY: House Bill 251 enlarged the authority of the Judicial Qualifications Commission ("JQC") by allowing the Commission to discipline Georgia prosecuting attorneys for

prosecutorial misconduct.

STATUS: Not enacted.

TEXT OF HOUSE BILL 251 ยง 1.

Chapter 18 of Title 15 of the Official Code of Georgia Annotated, relating to prosecuting attorneys, is amended by adding a new Article 5 to read as follows: "ARTICLE 5 15-18-90.

As used in this article, the term: (1) 'Commission' means the Judicial Qualifications Commission created by Article VI, Section VII, Paragraph VI of the Constitution of the State of Georgia.

(2) 'Invidious discrimination' means any action by an organization that characterizes some immutable individual trait such as a person's race, gender, or national origin, as well as religion, as odious or as signifying inferiority, which therefore is used to justify arbitrary exclusion of persons possessing those traits from membership, position, or participation in the organization.

(3) 'Knowingly,' 'knowledge,' 'known,' or 'knows' denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

(4) 'Law' denotes court rules as well as statutes, constitutional provisions, and decisional law.

(5) 'Prosecuting attorney' means the individual responsible for prosecuting cases in superior courts, state courts, probate courts, magistrate courts, municipal courts, and any other court that hears cases involving a violation of the criminal laws of this state or ordinance violations.

(6) 'Third degree of relationship' means the following relatives: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece.

15-18-91. (a) Any prosecuting attorney may be removed, suspended, or otherwise disciplined by the commission for willful misconduct in office, for willful and persistent failure to perform the duties of office, for habitual intemperance, for conviction of a crime involving moral turpitude, or for conduct prejudicial to the administration of justice which brings the office of the prosecuting attorney into disrepute. Any prosecuting attorney may be retired for disability, which constitutes a serious and likely permanent interference with the performance of the duties of office. The commission shall adopt such rules and regulations as necessary for the implementation of this article. (b) No action shall be taken against a prosecuting attorney except after a hearing and in accordance with due process of law. No removal or involuntary retirement shall occur except upon order of the Supreme Court after review.

15-18-92.

1.H.R. 251, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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Prosecuting attorneys shall adhere to the following standards in the conduct of the duties of their office: (1)Prosecuting attorneys shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial system; (2) Prosecuting attorneys shall not allow their family, social, political, or other relationships to influence their conduct or judgment; (3) Prosecuting attorneys shall not hold membership in any organization that practices invidious discrimination; (4) Prosecuting attorneys shall refrain from manifesting, by words and conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status against parties, witnesses, counsel, or others. This does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, or other similar factors, are issues in the proceeding; (5) Prosecuting attorneys shall require their staffs and others subject to their direction and control to observe the standards of fidelity and diligence that apply to the prosecuting attorneys and to refrain from manifesting bias or prejudice in the performance of their official duties; (6) Prosecuting attorneys shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned including, but not limited to, instances where: (A) The prosecuting attorney has a personal bias or prejudice concerning a party or a party's lawyer; (B) The prosecuting attorney served as a lawyer in the matter of controversy, a lawyer with whom the prosecuting attorney previously practiced law served during such association as a lawyer concerning the matter, or the prosecuting attorney has been a material witness concerning it; and (C) The prosecuting attorney or his or her spouse, a person within the third degree of relationship to either of them or the spouse of such a person, or any other member of the prosecuting attorney's family residing in the prosecuting attorney's household: (i) Is a party to the proceeding or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the prosecuting attorney to have a more than de minimis interest that could be substantially affected by the proceeding; or (iv) Is to the prosecuting attorney's knowledge likely to be a material witness in the proceeding or was the victim of the crime alleged in the proceeding; (7) Prosecuting attorneys shall refrain from prosecuting a charge that the prosecuting attorney knows is not supported by probable cause; (8) Prosecuting attorneys shall refrain from making any effort to prevent an accused person from exercising a reasonable effort to obtain counsel; (9) Prosecuting attorneys shall make timely disclosure to the defense of all evidence or information known to the prosecuting attorney that tends to negate the guilt of the accused or that mitigates the offense; (10) Prosecuting attorneys shall exercise reasonable care to prevent persons who are under their direct supervision from making an extrajudicial statement that the prosecuting attorney would be prohibited from making under paragraph (12) of this Code section; (11) Prosecuting attorneys shall not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecuting attorney reasonably believes: (A) The information sought is not protected from disclosure by any applicable privilege; (B) The evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (C) There is no other feasible alternative to obtain the information; and (12) Except for statements that are necessary to inform the public of the nature and extent of the prosecuting attorney's action and that serve a legitimate law enforcement purpose, prosecuting attorneys shall refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused." ยง2.

All laws and parts of laws in conflict with this Act are repealed.

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FIRST SIGNATURE'S RATIONALE

The intent of House Bill 251 was to deal with prosecutorial misconduct, specifically instances of overzealous and harassing indictments.2 Rep. Austin Scott, of the 1 5 3 rd, drafted the Bill in response to the cases of two Albany men.' Each man was indicted three times, but neither was formally charged.4 Rep. Scott believed that the indictments were without merit and that the local prosecutor pursued them because the men were causing publicity problems for the local hospital.5 LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on February 1, 2007.6 The Bill was read for a second time on February 2, 2007. 7 On March 12, 2007, the House Judiciary (Non-Civil) Committee held hearings on House Bill 251.8 Rep. Scott proffered that House Bill 251 was necessary to address the issue of prosecutorial misconduct. 9 He further stated that he believed such misconduct and ethical violations would best be filed with the commission handled by the JQC, as complaints 0 are handled confidentially.'

Rep. Kevin Levitas, of the 8 2 nd, voiced concern as to House In particular, Rep. Levitas Bill 251's constitutionality." the oversight and disciplinary to whether as expressed doubts power could be taken away from the Supreme Court, and suggested submitting the issue to the Attorney General's office

2. Telephone Interview with Rep. Austin Scott, H. District No. 153 (Aug. 5, 2007).

3. Id. 4. Id. 5. Id. 6. Ga. Gen. Assem., H.R. 251, available at http://www.legis.ga.gov/

legis/2007_08/sum /hb 25 l.htm (last visited Mar. 23, 2009).

7. Id. 8. Daily Report, H. Judy. (Non-Civil) Subcommittee One, available at http://www.ciclt.net/aoc/main.asp?PT-n_detail&Client-aoc&NID= 100034.

9. Id.

10. Id. 1l. Id.

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for a determination of constitutionality.' 2 Rep. Levitas further stated that he did not think that prosecutors should hold positions on the JQC; Rep. Scott replied that he was not adamant about any of the language in particular, but that he primarily wanted a non-Bar institution that operates similar to the JQC to act as an oversight committee.1 3 Subsequently, Rep. Tim Bearden, of the 6 8 th, made a motion to table the Bill until the Attorney General approves it or Rep. Scott amends the Bill to cure the potential constitutional defect. 4 Consequently, no action was taken on House Bill 251.

PREPARED

12. Id.

13.

14.

Id. Id.

BY: Paul Sieg

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House Bill 301:1 Dog Fighting Amending O.C.G.A. ยง 16-12-37 FIRST SIGNATURE:

Rep. Bobby Reese

( 9 8th).

Co-SPONSORS: Rep. David Knight ( 1 2 6th), Rep. Jay (Roberts ( 15 4 th), Rep. Al Williams ( 1 6 5th), Rep. Mike Jacobs 8 0 th) & Rep. Gene Maddox ( 1 7 2nd).

SUMMARY: House Bill 301 would substantially strengthen O.C.G.A. ยง 16-12-37 by making it a crime for dog owners, property owners (where dogfighting occurs), and spectators to engage in dogfighting.

STATUS: Passed House and Senate.

TEXT OF HOUSE BILL 301

ยง 1-1.

Part 1 of Article 2 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to gambling offenses, is amended by revising Code Section 16-12-37, relating to dogfighting, as follows: "16-12-37. (a) As used in this Code section. the term 'dog' means any domestic canine. (b)Any person who: (1)Owns, possesses, trains, transports, or sells any dog with the intent that such dog shall be engaged in fighting with another dog: (2) For amusement or gain, causes any dog to fight with another dog or for amusement or gain, causes any dogs to injure each other; (3) Wagers money or anything of value on the result of such dogfighting (4) Knowingly permits any act in violation of paragraph (1)or (2) of this subsection on any premises under the ownership or control of such person or knowingly aids or abets any such act: or (5) Knowingly promotes or advertises an exhibition of fighting with another dog shall be guilty of a felony and, upon the first conviction thereof, shall be punished by imprisonment of not less than one nor more than five years, a fine of not less than $5,000.00, or both such fine and imprisonment. On a second or subsequent conviction, such person shall be punished by imprisonment of not less than one nor more than ten years, a fine of not less than $15,000.00, or both such fine and imprisonment. Each act or omission in violation of this subsection shall constitute a separate offense. (c) Any person who is knowingly present only as a spectator at any place for the fighting of dogs shall, upon a first conviction thereof, be guilty of a misdemeanor of a high and aggravated nature. On a second conviction, such person shall be guilty of a felony and shall be punished by imprisonment of not less than one nor more than five years, a fine of not less than $5,000.00, or both such fine and imprisonment. On a third or subsequent conviction, such person shall be punished by imprisonment of not less than one nor more than ten years, a fine of not less than $15,000.00, or both such fine and imprisonment. Each act in violation of this subsection shall

1. H.R. 301, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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constitute a separate offense. (d) Any dog subject to fighting may be impounded pursuant to the provisions of Code Sections 4-11-9.2 through 4-11-9.6. For purposes of such impoundment of a doe subject to fighting. humane care of such dog while impounded shall include but not be limited to mandatory neutering or spaying if the dog is not sterile. In addition to any punishment imposed under subsection (b) of this Code section, a dog owner convicted of violating any provision of said subsection shall be assessed the costs of neutering or spaying any dog belonging to him or her that has been impounded as a result of such violation. (e) This Code section shall not prohibit, impede, or otherwise interfere with animal husbandry, training techniques, competition, events, shows, or practices not otherwise specifically prohibited by law and shall not apply to the following activities: (1) Owning, using, breeding, training, or equipping any animal to pursue, take, hunt, or recover wildlife or any animal lawfully hunted under Title 27 or participating in hunting or fishing in accordance with the provisions of Title 27 and rules and regulations promulgated pursuant thereto as such rules and regulations existed on the date specified in Code Section 27-1-39: (2) Owning, using, breeding, training, or equipping dogs to work livestock for agricultural purposes in accordance with the rules and regulations of the Commissioner of Agriculture as such rules and regulations existed on January 1, 2008; (3) Owning, using, breeding, training, or equipping dogs for law enforcement purposes; or (4) Owning, using, breeding, training, or equipping any animal to control damage from nuisance or pest species in and around structures or agricultural operations."

ยง 2-1.

Title 4 of the Official Code of Georgia Annotated, relating to animals, is amended by revising paragraph (6) of Code Section 4-8-41, relating to definitions relative to Chapter 8 of said title, as follows: "(6) 'Vicious dog' means any dog that+ Inflicts a severe injury on a human being without provocation after the owner has notice that the dog has previously bitten or attacked or endangered the safety of a human being, Such term shall not include a dog that inflicts an injury upon a person when the dog is being used by a law enforcement officer to carry out the law enforcement officer's official duties. A dog shall not be a vicious dog if the injury inflicted by the dog was sustained by a person who, at the time, was committing a willful trespass or other tort or was tormenting, abusing, or assaulting the dog or had in the past been observed or reported to have tormented, abused, or assaulted the dog or was committing or attempting to commit a crime."

ยง 2-2.

Said title is further amended by revising subsection (c) of Code Section 4-11-9.3, relating to caring for an impounded animal, as follows: "(c) Any person impounding an animal under this article is shall be authorized to return such animal to its owner, upon payment by the owner of all costs of impoundment and care and upon the entry of a consent order, unless such owner, in a prior administrative or legal action in this state or any other state, was found to have failed to provide humane care to an animal, committed cruelty to animals, or committed an act prohibited under Code Section 16-12-37 in violation of the laws of this state or of the United States or any of the several states. Such consent order shall provide conditions relating to the care and treatment of such animal, including, but not limited to, the following, that: (1) Such animal shall be given humane care and adequate and necessary veterinary services; (2) Such animal shall not be subjected to cruelty; and (3) The owner shall comply with this article." ยง 2-3.

Said title is further amended by revising subparagraph (b)(6)(B) of Code Section 4-11-9.5, relating to failure to respond, right to hearing, care, and crime exception, as follows: "(B) Unless, in a prior administrative or legal action in this state or any other state, the owner has been found to have failed to provide humane care to an animal, committed cruelty to animals, or committed an act prohibited under Code Section 16-12-37 in violation of the laws of this state or of the United States or any of the several states, recommend conditions under which the animal may, upon payment by the owner of all costs of impoundment and care, be returned to the owner. Such conditions shall be reduced to writing and served upon the owner and the

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government agency having custody of the animal. Such conditions may include, but are not limited to, the following, that: (i) Such animal shall be given humane care and adequate and necessary veterinary services; (ii) Such animal shall not be subjected to mistreatment; and (iii) The owner shall comply with this article."

ยง 2-4.

Said title is further amended by revising subsection (a) of Code Section 4-11-17, relating to filing a report regarding animal cruelty and immunity, as follows: "(a) Notwithstanding Code Section 24-9-29 or any other provision of law to the contrary, any licensed veterinarian or veterinary technician having reasonable cause to believe that an animal has been subjected to animal cruelty in violation of Code Section 16-12-4 or an act prohibited under Code Section 16-12-37 may make or cause to be made a report of such violation to the Commissioner, his or her designee, an animal control officer, a law enforcement agency, or a prosecuting attorney and may appear and testify in any judicial or administrative proceeding concerning the care of an animal."

ยง 3-1.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

ยง 3-2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Bobby Reese, of the

9 8 th,

introduced House Bill 301.

The intent of the legislation was to strengthen O.C.G.A. ยง 1612-37 by capturing other criminal conduct within the meaning of the statute. Specifically, the proposed bill would include dog owners, property owners (where dogfighting occurs) and spectators that participate in dogfighting, in order to discourage 2 dogfighting in Georgia.

LEGISLATIVE GENEALOGY

The first and second readings of the Bill in the House occurred on February 8, 2007 and February 9, 2007. 3 On March 19, 2007, House Bill 301 was favorably reported by the House Judiciary (Non-Civil) Committee. 4 The version of House Bill 301 that was favorably reported was virtually identical to the original version, except for the modification changing the punishment for spectators to a misdemeanor from

2. Telephone Interview with Rep. Bobby Reese, H. District No. 98 (July 30, 2007) [hereinafter Reese Interview].

3. H.R. 301; (Ga. 2007), bill text, available at http://www.legis.state. ga.us/legis/2007_08/sum/hb3O1 .htm.

4. Id.

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a felony. 5 This change was made because there were differences of opinion as to how the penalty provision for spectators should be structured.6 On April 20, 2007, House Bill 301 was withdrawn and recommitted.7 Rep. Reese reintroduced House Bill 301 early in the 2008 session of the Georgia General Assembly. 8 In January 2008, the Bill was once again favorably reported by the House Judiciary (Non-Civil) Committee and overwhelmingly passed the House with a vote of 165 votes in favor of the bill. Penalty structure issues were resolved by adopting a graduated scheme with respect to spectator offenses.

House Bill 301 passed the Senate on March 12, 2008. 9 Final amendments to the Bill were agreed to by the House and Senate on March 27 and March 28, 2008.10 PREPARED BY:

Paul Donahue

5. Compare Georgia Gen. Assem., Legislative Search, Bill Summary http://www.legis.state.ga.us/legis/2OO7_08/versions/hb3Ol LC 28 3375_a 2.htm (last accessed Dec. 17, 2007) and HB 301, Bill Summary, http://www.legis.state.ga.us/legis/200708/versions/hb301_LC292811 Shs4.ht m (last accessed Dec. 17, 2007).

6. Telephone Interview with Rep. Doug Collins, H. District No. 27 (Dec. 3, 2007).

7. Georgia Gen. Assem., Legislative Search: HB 301, Bill Summary, http://www.legis.state.ga.us/legis/2007_08/sum/hb301.htm (last accessed Apr. 5, 2008).

8. Id. 9. Id.

10. Id.

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HOUSE BILL 308:1 EYEWITNESS IDENTIFICATION

Amending O.C.G.A. ยง 17-9-1 FIRST SIGNATURE:

Rep. Stephanie Benfield (8 5th).

CO-SPONSORS: Rep. Pam Stephenson ( 9 2 nd), Ret. Randal Mangham ( 9 4th), Rep. Roberta Abdul-Salaam (74t) & Rep.

Mabel Thomas (55 h).

The Bill would establish procedures for conducting lineups for the purpose of making eyewitness identifications.

SUMMARY:

STATUS:

Not enacted.

TEXT OF HOUSE BILL 308 ยง 1.

The General Assembly finds and declares that eyewitness error is the leading cause of mistaken convictions, and cases of mistaken convictions in this state due to eyewitness misidentification have a resulted in actual perpetrators remaining free to commit more crimes. The General Assembly further finds that the goal of a police investigation is to identify accurately and apprehend the true perpetrators of crimes, and scientific studies of eyewitness memory have demonstrated that eyewitness evidence is, like trace physical evidence, susceptible to contamination if not handled properly. The General Assembly further finds that well-intentioned witnesses and authorities acting in good faith may sometimes inadvertently undermine the accuracy of an identification procedure unless appropriate safeguards are in place. Accordingly, the General Assembly, acutely aware that extensive scientific research has shown that alternative methods of conducting identification procedures greatly enhance eyewitness identification accuracy, declares that this state has a compelling interest in assuring that appropriate eyewitness identification procedures are utilized in this state.

ยง 2.

This Act shall be known and may be cited as the "Eyewitness Identification Accuracy Enhancement Act."

ยง 3.

Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is amended by adding a new chapter to read as follows: CHAPTER 19 17-19-1.

As used in this chapter, the term: (1) 'Filler' means a person, not a suspect in the crime under investigation, who is made part of a live lineup or a photograph of a person, not a suspect in the crime under investigation, that is made part of a photo lineup and presented to a witness.

(2) 'Live lineup' means a selected group of persons presented to an eyewitness to a crime containing a suspect and several fillers for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.

(3) 'Neutral blind administrator' means a person who conducts photo lineup or live lineup procedures while unaware of which person in the lineup is the suspect and which are fillers.

1. H.R. 308, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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(4) 'Photo lineup' means a selected group of photographs of persons presented to an eyewitness to a crime containing a single suspect and several fillers for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.

(5) 'Suspect' means a person under investigation for participation in a crime.

17-19-2.

Prior to January 1, 2008, the Georgia Peace Officer Standards and Training Council shall develop and disseminate to all law enforcement jurisdictions in this state comprehensive policies and procedures and associated training materials for law enforcement agencies regarding photo lineup and live lineup eyewitness identification procedures that implement the requirements set forth in this chapter.

17-19-3. (a) All photo lineup and live lineup eyewitness identification procedures conducted by law enforcement officers shall be administered pursuant to the procedures developed pursuant to Code Section 17-19-2 and consistent with the requirements of this chapter. (b) Composition of photo lineups and live lineups shall meet the following requirements: (1) At least five fillers shall be included in a photo lineup, in addition to the suspect, and at least four fillers shall be included in a live lineup, in addition to the suspect; (2) Only one member of a photo lineup or live lineup shall be a suspect, and the remainder shall be fillers who are not suspects but who fit the eyewitness' description of the suspect; (3) In photo lineups, the suspect's photo should resemble his or her appearance at the time of the crime and not unduly stand out; (4) If the eyewitness has previously viewed a photo lineup or live lineup in connection with the investigation of the crime, the fillers in any subsequent lineup shall be different from the fillers used in any prior lineup; (5) In a photo lineup, no writings or information concerning any previous arrest, indictment, or conviction of the suspect shall be visible or made known to the eyewitness; (6) In a live lineup, any identifying actions, such as speech, gestures, or other movements, shall be performed by all lineup participants; and (7) In a live lineup, witnesses shall not be exposed to the members of the lineup before the procedure begins. (c)(1) Whenever possible, the administrator of photo lineup or live lineup eyewitness identification procedure shall be a neutral blind administrator, and no person familiar with the identity of the suspect shall be present during the identification procedure.

(2) When it is not feasible to have the procedure administered by a neutral blind administrator, a photo lineup eyewitness identification procedure may be conducted using an alternative method specified and approved pursuant to Code Section 17-19-2. Any alternative method shall be carefully structured to achieve neutral blind administration and prevent the administrator from knowing which photograph is being presented to the eyewitness during the identification procedure. Alternative methods may include: (A) Automated computer programs that can automatically administer the photo lineup directly to an eyewitness and prevent the administrator from seeing which photo the witness is viewing until after the procedure is completed; (B) A procedure in which photographs are placed in folders, randomly numbered, and shuffled and then presented to an eyewitness such that the administrator cannot see or track which photograph is being presented to the witness until after the procedure is completed; or (C) Other procedures which achieve neutral blind administration. (d)(1) Live lineup and photo lineup eyewitness identification procedures shall be presented to eyewitnesses using a sequential method, in which a witness is shown photographs or live lineup participants one at a time and not simultaneously. The eyewitness shall be asked to state for each photograph or person whether the individual shown is the perpetrator of the crime, prior to viewing the next lineup photograph or participant.

(2) The administrator shall not offer any comment or feedback to the eyewitness regarding the witness's responses.

(3) If there are multiple eyewitnesses, witnesses shall be presented with the identification procedure separately, and the suspect shall be placed in a different position in the photo lineup or live lineup for each eyewitness.

(4) Under no circumstances shall a sequential presentation be used unless the procedure

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complies fully with neutral blind administration specified in subsection (c) of this Code section.

17-19-4.

Prior to beginning a photo lineup or live lineup identification procedure, the administrator shall instruct the eyewitness that: (1) The perpetrator may or may not be among those shown, and the witness should not feel compelled to make an identification; (2) The administrator is not aware of which person in the lineup is the suspect; (3) The witness will view individuals one at a time and will be requested to state whether the individual shown is the perpetrator of the crime prior to viewing the next lineup photograph or participant; and (4) The witness will be presented with the complete lineup, even if the witness makes an identification in the middle of the procedure.

17-19-5. (a) Each eyewitness shall be given a written copy of the lineup instructions. Each witness shall sign a form indicating that the witness has received, reviewed, and understands the lineup instructions prior to the administration of the identification procedure, and this form shall be kept as part of the law enforcement file. (b) All eyewitness responses to the lineup participants shall be documented using the witness's own words, either in writing or with audio or video recording. (c) If the eyewitness makes an identification, after the entire lineup has been presented the administrator shall ask the witness to state in his or her own words how confident he or she is that the person identified is the perpetrator of the crime and make the witness's verbatim response part of the record in the law enforcement file. (d) The administrator shall refrain from any comment or feedback to the eyewitness regarding the witness's statements. (e) If no electronic recording is made, the eyewitness will be asked to review and sign the written record of his or her responses to the identification procedure, including any statements regarding an identification, prior to any feedback or comment from the administrator or others involved in the investigation.

17-19-6.

Notwithstanding the directives of this chapter, the failure to strictly comply with the provisions of this chapter shall not, in and of itself, preclude testimony and evidence related to eyewitness identification being admissible into evidence; this matter shall be in the sole discretion of the court. In deciding whether testimony and evidence related to eyewitness identification shall be admissible into evidence, the court shall consider whether the provisions of this chapter were complied with, together with any other relevant circumstance." ยง4.

Title 35 of the Official Code of Georgia Annotated, relating to law enforcement officers and agencies, is amended by adding a new Code section to the end of Chapter 1, relating to general provisions for law enforcement officers and agencies, to read as follows: "35-1-15.

The Georgia Peace Officer Standards and Training Council and the Georgia Public Safety Training Center shall establish guidelines and procedures for the incorporation of training materials and information in methods for enhancing eyewitness identification accuracy pursuant to Chapter 19 of Title 17 in all courses for which they have responsibility and oversight."

ยง 5.

(a) This section and Sections 1, 2, 4, and 6 of this Act shall become effective on July 1,2007. (b) Section 3 of this Act shall become effective on January 1, 2008, and shall apply to all photo lineups and live lineups that occur pursuant to offenses that occur on or after January 1,2008.

ยง 6.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Stephanie Benfield, of the

8 5 th,

introduced House Bill

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308 because six men in Georgia were wrongfully convicted based primarily on false eyewitness identifications.

The Georgia Innocence Project brought this issue to Rep. Benfield's attention after they aided in the exoneration of those six men.

The group's national parent recognized that faulty eyewitness identification is a central factor in the majority of wrongful 3 convictions nationwide.

LEGISLATIVE GENEALOGY

The first reading of the House Bill 308 in the House occurred on February 8, 2007. 4 The Bill was assigned to the House Judiciary (Non-Civil) Committee on February 9, 2007. 5 While in Committee, Rep. Benfield formed a committee to further study the issue of eyewitness identifications. 6 This committee held several public hearings headlined by various national experts in the field of eyewitness identification, which were attended by prominent members of the law enforcement and legal communities.7 Rep. Benfield speculated that a possible outcome of the hearings would be the voluntary adoption of these procedures by the legal8 community, making the passage of any legislation unnecessary.

PREPARED BY:

Michael A. Albino

2. Telephone Interview with Georgia Rep. Stephanie Stuckey Benfield, of the 85th District (Aug., 2008) [hereinafter Benfield Interview]. Rep. Benfield has subsequently sponsored House Bill 997, which also addressed eyewitness identification procedures. Id. That Bill was assigned to the House Judiciary (Non-Civil) Committee, and was favorably reported out of committee on February 6, 2008. Id. 3. Id.

4. State of Ga. Final Composite Status Sheet, H.R. 308, Feb. 8, 2007 (Feb.

20, 2008).

5. Id. 6. Benfield Interview, supra note 2.

7. Id. 8. Id.

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DNA ANALYSIS

Amending O.C.G.A. ยง 24-6-60 FIRST SIGNATURE:

Rep. Jay Neal (lSt).

Co-SPONSORS: Rep. David Ralston ( 7 th), Rep. Burke Day (I 6 3 rd), Rep. Mike Coan (101st), Rep. Barry Fleming (1 1 7 th) & Rep. Billy Mitchell ( 8 8th).

SUMMARY: House Bill 314 amended O.C.G.A. ยง 24-6-60 by requiring DNA analysis of all persons on probation or incarcerated convicted of certain enumerated felonies and sexual offenses.

STATUS: Enacted.

TEXT OF HOUSE BILL 314

ยง1

Code Section 24-4-60 of the Official Code of Georgia Annotated, relating to requirement for DNA analysis of blood of persons convicted of certain sex offenses or convicted of a felony and incarcerated in a state correctional facility, is revised as follows: "24-4-60. (a) As used in subsection (b) of this Code section, the term 'state correctional facility' means a penal institution under the jurisdiction of the Department of Corrections, including inmate work camps and inmate boot camps; provided, however, that such term shall not include a probation detention center, probation diversion center, or probation boot camp under the jurisdiction of the Department of Corrections. (b) Any person convicted of a criminal offense defined in Code Section 16-6-1, relating to the offense of rape; Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-3, relating to the offense of statutory rape; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; Code Section 16-6-5.1, relating to the offense of sexual assault against persons in custody, sexual assault against a person detained or a patient in a hospital or other institution, or sexual assault by a practitioner of psychotherapy against a patient; Code Section 16-6-6, relating to the offense of bestiality; Code Section 16-6-7, relating to the offense of necrophilia; or Code Section 16-6-22, relating to the offense of incest, shall have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. In addition, on and after July 1, 2000, any person convicted of a felony and incarcerated in a state correctional facility shall at the time of entering the prison system have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony prior to July 1, 2000, and who currently is incarcerated in a state correctional facility in this state for such

1. H.R. 314, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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offense. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony in this state on or after July 1, 2000, and who is incarcerated in a private correctional facility in this state for such offense pursuant to a contract with the Department of Corrections upon entering the facility, and for any person convicted of a felony prior to July 1, 2000, and who is incarcerated in a private correctional facility in this state pursuant to contract with the Department of Corrections. The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The division shall be authorized to contract with individuals or organizations for services to perform such analysis.

The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63. (c)(1) On and after July 1,2007, any person who is placed on probation shall have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person if such person is convicted of a felony violation of any of the following: (A) Chapter 5 of Title 16, relating to crimes against persons: (B) Code Section 16-6-1. relating to the offense of rape.

(C) Code Section 16-6-2, relatine to the offense of sodomy or aggravated sodomy, (D) Code Section 16-6-3, relating to the offense of statutory rape: (E) Code Section 16-6-4 relating to the offense of child molestation or aggravated child molestation: (F) Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; (G) Code Section 16-6-5.1. relating to the offense of sexual assault against persons in custody, sexual assault against a person detained or a patient in a hospital or other institution, or sexual assault by a practitioner of psychotherapy against a patient; (H) Code Section 16-6-6, relating to the offense of bestiality () Code Section 16-6-7. relating to the offense of necrophilia, (J)Code Section 16-6-22, relating to the offense of incest; (K) Code Section 16-7-1, relating to the offense of burglary: (L) Code Section 16-8-40, relating to the offense of robbery: (M) Code Section 16-8-41, relating to the offense of armed robbery (N) Code Section 16-10-23, relating to the offense of impersonating an officer; (0) Code Section 16-10-24, relating to the offense of obstruction of an officer, (P) Article 4 of Chapter II of Title 16, relating to dangerous instrumentalities and practices; and (0) Chapter 13 of Title 16, relating to controlled substances.

(2) The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63. The Department of Corrections shall be responsible for collecting such sample."

ยง 2.

This Act shall become effective on July 1, 2007. ยง3 All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

The purpose of House Bill 314 was to better assist the Georgia Bureau of Investigation ("GBI") in solving cold cases.2

2. Video Recording of H. Comm. Meeting, available at http://www.legis.ga.gov/legis2007_08/house/Committees/j udiciaryNonCivil/

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In 1998, the GBI created a crime indexing database which included the DNA of incarcerated felons.

The database provided DNA evidence that assisted in solving 560 cold cases 4 nationwide.

In 2005, more than 40,000 convicted felons received a sentence of probation rather than incarceration. 5 Thus, 40,000 felons were not required to be indexed in the GBI database.6 This Bill was introduced to require mandatory DNA collection and sexual crimes of individuals convicted of certain felonies 7 that O.C.G.A. ยง 24-6-60 did not include.

LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on February 9, 2007, and for a second time on February 10, 2007.8 On March 19, 2007, the House Judiciary (Non-Civil) Committee favorably reported the Bill by substitute.9 On March 27, 2007, a third reading occurred. The House passed House Bill 314 on March 27, 2007 by a vote of 163 to 2.

The Committee Substitute did not provide for a substantive judyncArchives.htm (Mar. 1, 2007) (noting the remarks by Rep. Jay Neal) [hereinafter House Committee Video].

3. Id. 4. Id. 5. Id.

6. Id. 7. The felonies that were added to the newly amended code section are as follows: Code Section 16-7-1, relating to the offense of burglary; Code Section 16-8-40, relating to the offense of robbery; Code Section 16-8-41, relating to the offense of armed robbery; Code Section 16-10-23, relating to the offense of impersonating an officer; Code Section 16-10-24, relating to the offense of obstruction of an officer; Article 4 of Chapter 11 of a Title 16, relating to dangerous instrumentalities and practices; and Chapter 13 of Title 16, relating to controlled substances.

8. State of Ga. Final Composite Status Sheet, H.R. 314, Feb. 10, 2007 (Nov. 7, 2007).

9. State of Ga. Final Composite Status Sheet, H.R. 314, Mar. 19, 2007 (Nov. 7, 2007).

10. Ga. Gen. Assem., H.R. 314, availableat http://www.legis.ga.gov/legis /2007_08/sum/hb3l4 .htm (last visited Mar. 22, 2008); H.R. 314; State of Ga. Final Composite Status Sheet, H.R. 314, Mar. 27, 2007 (Nov. 7, 2007); Ga. H. Voting Record, H.R. 314 (March 27, 2007).

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modification of the Bill because it only modified the order of the wording of the Bill-to make the Bill read more clearly."

Although House Bill 314 was not substantively modified, some Representatives in the Committee expressed concern over language contained in the Bill.' 2 For example, Rep. Ed Setzler, of the 3 5 th, stated that the language contained in subsection (c)(1) of the Bill is prescriptive because it contains the word "shall". Rep. Setzler was also concerned that the Bill was not restrictive because it did not use the term "only if'. Thus, the Bill would not expressly exclude non-enumerated offenses where probation is used. 3 Rep. Stacey Abrams, of the 8 4th, expressed a similar concern.

She also advocated that the term "only" be added to the language of the Bill to limit its application to only the enumerated crimes.1 4 Rep. Abrams stated, "the mandatory collection of DNA invades personal privacy on such a level that it is important and indeed essential that we modify and identify that these are the only circumstances under which this body believes it is appropriate to require a DNA sample to be taken upon conviction of an offense which places an individual on n probation."' 5 Rep. Levitas, of the 8 2nd , disagreed stating that if the term "only" was added to the Bill, the application of any other code section that allowed for the collection of DNA could be in conflict with the language of this Bill because the term "only" would cause the subsection to be read very narrowly.' 6 Rep. Levitas asked the sponsor, Rep. Jay Neal, of the 1st, whether he intended the Bill to apply "only" to persons convicted of the enumerated offenses, or whether the DNA collection was intended to be mandatory with the enumerated offenses.' 7 Rep. Neal replied that the Bill was intended how it was written.

Specifically, the words "if convicted" mean that the DNA

11. See H.R.314.

12. House Committee Video, supra note 1 (note remarks by Reps. Ed

Setzler, Stacey Abrams, and Kevin Levitas).

13. Id.

14. Id. (note remarks by Rep. Stacey Abrams).

15. Id.

16. Id. (note remarks by Rep. Kevin Levitas).

17. Id.

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sample "shall" be taken from a person "if' they are convicted. 8 Rep. Neal further stated that the Bill was intended for the purpose of obtaining DNA samples from violent offenders so that law enforcement could solve cold cases. Rep. Neal believed 9 the term "if' alone is sufficient to achieve that purpose.'

Rep. Levitas raised concerns that the Bill included persons who were previously convicted of an enumerated crime, but who are subsequently placed on probation for a non-enumerated crime. 20 Rep. Levitas put forth a motion to amend the language to read, "has been placed on probation pursuant to a conviction of one of the enumerated offenses." 21 However, Rep. Neal, stated that the aim of this Bill is to target the profile of an offender that would assist in the resolution of cold cases. 22 So long as the individual in question has ever been convicted of one of the enumerated offenses, the Bill would cover that individual despite the fact that the current sentence of probation may be pursuant to some other offense.23 Rep. Levitas took his motion off the table, and the Bill left the House Committee with no substantive modification.24 The House passed the Committee Substitute to House Bill 314 on March 27, 2007.25 There was no floor debate with respect to House Bill 314, and the Bill passed by a vote of 163 to 2.26

The Senate Public Safety and Homeland Security Committee favorably reported House Bill 314 by substitute on April 16, 2007 with no substantive modifications 27 After having no floor debate with regard to House Bill 314, the Senate passed the Bill

18. Id. (note remarks by Rep. Jay Neal).

19. Id. 20. Id. (note remarks by Rep. Kevin Levitas).

21. Id. 22. Id. (note remarks by Rep. Jay Neal).

23. Id. 24. Id.; H.R. 314.

25. State of Ga. Final Composite Status Sheet, H.R. 314, Mar. 27, 2007 (Nov. 7, 2007).

26. Multimedia Sessions Archives, 2007 H. Sess., http://www.ga.gov/

00/article/0,2086,4802_61 07103_72682804,00.html, Mar. 27, 2007 (Ga. H. Voting Record regarding H.R. 314).

27. H.R. 314.

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by substitute on April 19, 2007, by a vote of 48 to 0.28 The following day, on April 20, 2007, the House disagreed with the Senate's Substitute, and on the same day, the Senate receded from the substitute with a vote of 47 to 0.29 The Governor signed House Bill 314 on May 24, 2007.30 PREPARED

BY: Ellis R. Faught, III

28. Multimedia Sessions Archives, 2007 Sen. Sess., http://www.ga.gov/ 00/article/0,2086,4802_6107103_72682316,00.html, Apr. 19, 2007 (Ga. Sen. Voting Record regarding H.R. 314).

29. Id.; State of Ga. Final Composite Status Sheet, H.R. 314, Apr. 20, 2007 (Nov. 7, 2007).

30. Ga. Gen. Assem., H.R. 314, available at http://www.legis.ga.gov/ legis/2007_08/sum/hb 314.htm (last visited Mar. 22, 2008).

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HOUSE BILL 333:1 AGENCY DISPOSAL OF WEAPONS

Amending 0. C. G.A. ยง 17-8-58 FIRST SIGNATURE: Rep. Wade Starr ( 7 8th).

CO-SPONSORS: Rep. Willie Talton (145 h), Rep. John Lunsford (1 1 0 th) & Rep. Mike Glanton ( 7 6 th).

SUMMARY: House Bill 333 sought to expand O.C.G.A. ยง 17-552 by allowing a greater number of law enforcement agencies to dispose of weapons used in the commission of felonies post The bill also allowed the proceeds of these judgment. transactions to go the treasury of the county or municipality disposing of the weapons.

STATUS: Passed House and Senate.

TEXT OF HOUSE BILL 333 ยง 1.

Code Section 17-5-52 of the Official Code of Georgia Annotated, relating to sale or destruction of weapons used in the commission of a crime or delinquent act involving possession, is amended by revising such Code section as follows: "17-5-52. (a) When a final judgment is entered finding a defendant guilty of the commission or attempted commission of a crime against any person or guilty of the commission of a crime or delinquent act involving the illegal possession or carrying of a weapon, any device which was used as a weapon in the commission of the crime or delinquent act shall be turned over by the person having custody of the weapon or device to the sheriff, chief of police, or other executive officer of the law enforcement agency that originally confiscated the weapon or device when the weapon or device is no longer needed for evidentiary purposes. Within 90 days after receiving the weapon or device, the sheriff, chief of police, or other executive officer of the law enforcement agency shall retain the weapon or device for use in law enforcement, destroy the same, or sell the weapon or device pursuant to judicial sale as provided in Article 7 of Chapter 13 of Title 9 or by any commercially feasible means, provided that, if the weapon or device used as a weapon in the crime is not the property of the defendant, there shall be no forfeiture of such weapon or device. (b) The proceeds derived from all sales of such weapons or devices, after deducting the costs of the advertising and the sale, shall be turned in to the treasury of the county, or the municipal corporation that sold the weapon or device. The proceeds derived from the sale of such weapons or devices confiscated by a state law enforcement agency shall be paid into the state treasury. (c) Any law enforcement agency that retains, destroys, or sells any weapon or device pursuant to this Code section shall maintain records that include an accurate description of each weapon or device along with records of whether each weapon or device was retained, sold, or destroyed."

ยง 2.

1. H.R. 333, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

ยง 3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

The Bill was introduced by Rep. Wade Starr, of the

7 8 th,

in

order to facilitate the disposal, by sale or destruction, of weapons used in the commission of crimes and to specify where the proceeds of such sales are to be directed.2 House Bill 333 is intended to give more law enforcement agencies the power to dispose of weapons used in the commission of a crime, after the expiration of their evidentiary value, and to direct the proceeds to the jurisdiction disposing of the weapons. 3 House Bill 333 also provided for instances where state agencies dispose of weapons and direct those proceeds to the state treasury.4 LEGISLATIVE GENEALOGY

The first reading of the bill in the House occurred on February 9, 2007 and a second reading occurred on February 10, 2007. However, by the close of the Legislative Session on April 20, 2007, House Bill 333 did not have enough support to get to a floor vote and was withdrawn and recommitted.6 On January 30, 2008, House Bill 333 was favorably reported by the House Judiciary (Non-Civil) Committee.7 The House passed the Bill on February 7, 2008 by a vote of 167 to 1.8 The first reading of the Bill in the Senate occurred on February 8, 2008. 9

2. Telephone Interview with Rep. Wade Starr, House District 78 (July 30, 2007) 3. Ga. Gen. Assem.7-2009 Legislative Session, Bill Summary, http://www.legis.state.ga.us/legis/2007_08/fulltext/hb333.htm (last visited Apr. 5, 2008) 4.

Id.

5. Id. 6. Id. 7.

Id.

8. Id. 9. Id.

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The bill passed the Senate by vote on April 1, 2008.1 Sen. Fort of the 3 9 th, then offered an amendment to include language restricting the use of search warrants authorizing unannounced entry ("no knock" search warrants) by law enforcement.2 PREPARED

1. Id. 2. Id.

BY: Paul Donahue

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HOUSE BILL 395:1 FIRST OFFENDERS PROBATION

Amending O.C.G.A. ยง 35-3-4 and O.C.G.A. ยง 16-11-131 First Signature: Rep. Jay Shaw ( 1 7 6th).

Co-Sponsors:

Rep. Edward Lindsey ( 5 4 th), Mumford ( 9 5 th) & Rep. David Lucas ( 1 3 9 1h).

Rep. Robert

Summary: House Bill 395 sought to clarify first offender status relating to the probation of first offenders and provide duties, obligations and responsibilities for the Clerk of Court, probation department, and the Department of Corrections. The Probation Officers would be responsible for notifying the Clerk of Court when the offenders have completed their term; the Clerk of Court would then be responsible for updating the offenders' records. Additionally, House Bill 395 sought to give the courts more control over dissemination of criminal records.

Status: Not enacted.

TEXT OF HOUSE BILL

395

ยง1.

Article 3 of Chapter 8 of Title 42 of the Official Code of Georgia Annotated, relating to probation of first offenders, is amending by revising Code Section 42-8-60, relating to probation prior to adjudication of guilt, violation of probation, and judicial review of a defendant's criminal record, as follows: "42-8-60. (a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceeding and: (I Place the defendant on probation as provided by law; or (2) Sentence the defendant to a term of confinement as provided by law. (t)The court shall not sentence a defendant under the provisions of this unless the court has reviewed the defendant's criminal record as it is on file with the Georgia Crime Information Center. (c)Upon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law. (d) Upon completion by the defendant of the terms of probation which shall include the expiration of the sentence by virtue of the time frame of the sentence passing, upon the release of the defendant by the court prior to the termination of the period of probation, or upon the defendant's release from confinement provided the defendant is not serving a split sentence, the

1. H.R. 395, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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defendant shall be discharged without court adjudication of guilt. (e) It shall be the duty of the probation department that is responsible for supervising a first offender probationer to notify the clerk of court for the jurisdiction of the court which imposed the sentence pursuant subsection (a) of this Code section that the first offender probationer has completed the term of probation or that he or she has been released by the court prior to the termination of the period of probation. It shall be the duty of the Department of Corrections to notify the clerk of court for the iurisdiction of the court which imposed the sentence pursuant subsection (a) of this Code section that a defendant has been released from confinement. (f) If the probation department or the Department of Corrections fails to notify the clerk of court as provided in subsection (e) of this Code section or if the probation department does not seek to have a first offender probationer adjudicated guilty due to a violation of the terms of probation during the term of the first offender probation, then the first offender may petition the court for discharge by notifying the clerk of court in writing of such request. Such writing shall contain the first offender's name, date of birth, case number, return address, and a copy of his or her sentence. If the court is satisfied with such petition it shall enter an order discharging the first offender provided, however, that if the court is not satisfied with the information provided the court shall provide notice to the first offender and state and conduct a hearing to determine if discharge should be granted. () When the clerk of court is notified by the probation department or the Department of Corrections that a defendant has completed his or her first offender sentence, or if the defendant shall stand discharged pursuant to subsection (f) of this Code section. it shall be the duty of the clerk of court to enter on the criminal docket and all other records of the court pertaining thereto the following: 'Discharge filed completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties, except for registration requirements under the state sexual offender registry and except with regard to employment providing care for minor children or elderly persons as specified in Code Section 42-8-63.1; and the defendant shall not be considered to have a criminal conviction. O.C.G.A. 42-8-60.'

Such entry shall be written or stamped in red ink, dated, and signed by the person making such entry or, if the docket or record is maintained using computer printouts, microfilm, or similar means, such entry shall be underscored, boldface, or made in a similar conspicuous manner and shall be dated and include the name of the person making such entry. The criminal file, docket books, criminal minutes and final record, and all other records of the court relating to the offense of a defendant who has been discharged without court adjudication of guilt pursuant to this article shall not be altered as a result of that discharge, except for the entry of discharge thereon required by this subsection, nor shall the contents thereof be expunged or destroyed as a result of that discharge. (h) Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8-63.1. the first offender discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties: and the defendant shall not be considered to have a criminal conviction. (j) No person may avail himself or herself of this article on more than one occasion.

(D)The court shall not sentence a defendant under the provisions of this article who has been found guilty of or entered a plea of guilty or a plea of nolo contendere for: (1) A serious violent felony as such term is defined in Code Section 17-10-6.1; (2) A sexual offense as such term is defined in Code Section 17-10-6.2; (3) Sexual exploitation of a minor as defined in Code Section 16-12-100; (4) Electronically furnishing obscene material to a minor as defined in Code Section 16-12100.1; or (5) Computer pornography and child exploitation, as defined in Code Section 16-12-100.2." ยง2.

Said article is further amended by revising Code Section 42-8-62, relating to the discharge of a defendant without adjudication of guilt, as follows: "42-8-62.

Should a person be placed on probation or in confinement under this article, a record of the first offender status shall be forwarded by the clerk of court to the Georgia Crime Information Center, and, if the sentence orders confinement within the Department of Corrections, to that

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department. A record of discharge and exoneration, as provided in Code Section 42-8-60, shall in every case be forwarded by the clerk of court to the Georgia Crime Information Center. In every case in which the record of probation or confinement shall have been previously forwarded to the Department of Corrections, to the Georgia Crime Information Center, and to the Identification Division of the Federal Bureau of Investigation and a record of a subsequent discharge and exoneration of the defendant has not been forwarded as provided in this Code section, upon the request of the defendant or his or her attorney or representative, the record of the discharge and exoneration shall be forwarded by the clerk of court to the Georgia Crime Information Center so as to reflect the discharge and exoneration." ยง3.

Said article is further amended in Code Section 42-8-65, relating to the use of prior finding of guilt in subsequent prosecutions, the release of records of discharge, the modification of records to reflect conviction, and the effect of confinement sentences where guilt is not adjudicated, by revising subsection (b) as follows: "(b) The records of the Georgia Crime Information Center showing treatment as a first offender shall be modified only when a court of competent iurisdiction enters an adjudication of guilt for the offense for which the offender has been sentenced as a first offender. Records of first offender disposition shall not be disseminated by the Georgia Crime Information Center, except to law enforcement or court officials or as authorized by paragraph (2) of subsection (a) of Code Section 35-3-34 and subsection (b)of Code Section 35-3-37, and shall not be available to prospective employers or any other person. If,however, a court of competent iurisdiction adjudicates the defendant guilty while such defendant is on first offender probation, such records may be disseminated by the Georgia Crime Information Center in the same manner and subject to the same restrictions as any other records of convictions." ยง 4.

Code Section 35-3-34 of the Official Code of Georgia Annotated, relating to disclosure and dissemination of criminal records to private persons and businesses, is amended by revising subparagraph (a)(I)(B) as follows: "(B) The center may not provide records of arrests, charges, and sentences for crimes relating to first offenders when an offender has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 and has been exonerated and discharged without court adiudication of guilt, except as specifically authorized by Code Section 42-8-63.1; and" ยง 5.

Code Section 16-11-131 of the Official Code of Georgia Annotated, relating to possession of firearms by convicted felons and first offender probationers, is amended by revising subsection (f) and inserting in lieu thereof the following: "(f) Any person placed on probation as a first offender pursuant to Article 3 of Chapter 8 of Title 42 and subsequently discharged without court adjudication of guilt pursuant to Code Section 42-8-60 shall, upon such discharge, be relieved from the disabilities imposed by this Code section." ยง6.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Jay Shaw, of the 1 7 6 th, introduced House Bill 3952 with the ultimate intention of allowing judges more discretion when a person's first offender status is in question.3 Currently, the decision to revoke first offender status from subsequent 2. Id.

3. Interview with Rep. Robert Mumford, H. District No. 95 (Nov. 15, 2007) [hereinafter Mumford Interview].

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offenders is made by computer.4 The Bill, if enacted, would allow an opportunity for judicial review.5 The Bill represents an attempt to combat a clash between the judicial and executive branches of the Georgia state government.6 LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on February 13, 2007 and the Bill was read for a second time on February 14, 2007. 7 The House Committee favorably reported the Bill on March 19, 2007, however House Bill 395 was withdrawn on April 20, 2007.8 This Bill was withdrawn because it failed to make it through the rules committee and was 9 not scheduled on the calendar for House vote.

PREPARED BY:

4. Id.

5. Id. 6. Id. 7. H.R. 395.

8. Id. 9. See Mumford Interview, supra note 2.

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HOUSE BILL 525:1 JUVENILE CUSTODIAL INTERROGATIONS "Creating O.C.G.A. ยง 17-19-1 et seq. and O.C.G.A. ยง 35-1-15 FIRST SIGNATURE:

Rep. Timothy Bearden ( 6 8th).

SUMMARY: House Bill 525 required the electronic recording of certain custodial interrogations, including the advisement of Miranda warnings, of accused persons under the age of seventeen, and allowed the admission of the recordings as evidence at trial with parameters. The Bill also required the establishment of guidelines and procedures for the training of law enforcement in methods of electronic recording.

STATUS:

Not enacted.

TEXT OF HOUSE BILL 525

ยง1.

Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is amended by adding a new chapter to read as follows: "CHAPTER 19 - 17-19-1. As used in this chapter, the term: (I) 'Accused' means a person less than 17 years of age.

(2) 'Custodial authority' means a warden, sheriff, jailer, deputy sheriff, police officer, correctional officer, officer or employee of the Department of Corrections or the Department of Juvenile Justice, or any other law enforcement officer having actual custody of the accused.

(3) 'Custodial interrogation' means any interrogation regarding an alleged crime or delinquent act which is conducted in a place of detention by a custodial authority.

(4) 'Delinquent act' shall have the same meaning as set forth in paragraph (6) of Code Section 15-11-2.

(5) 'Electronic recording' means an audiotape, videotape, or digital recording.

(6) 'Place of detention' means a police station, correctional facility, holding facility for prisoners, Department of Juvenile Justice facility, or other government facility where persons are held in detention in connection with criminal charges or delinquent acts which have been or may be filed against the accused. Such term shall not include a motor vehicle.

(7) 'Serious violent felony' shall have the same meaning as set forth in Code Section 17-10-6.1.

"CHAPTER 19- 17-19-2. (a) All custodial interrogations of an accused shall be electronically recorded in their entirety and shall include the accused being advised of Mirandawarnings. (b) During the prosecution of a crime or delinquent act, an oral, written, or sign language statement of an accused made during a custodial interrogation shall be inadmissible as evidence against the accused unless the electronic recording is made available to the accused ten days prior to any court proceeding. (c) If the court finds that the accused was subjected to a custodial interrogation in violation of subsection (b) of this Code section, any statement made by the accused during and following such custodial interrogation, even if otherwise in compliance with this Code section, shall be inadmissible as evidence against the accused.

"CHAPTER 19 - 17-19-3.

1. H.R. 525, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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A custodial interrogation of an accused shall be inadmissible as evidence against the accused unless electronically recorded and: (1) The accused parent, legal guardian, or attorney is present at the time the custodial interrogation occurs; or (2) In the case of exigent circumstances involving the accused being a suspect in a serious violent felony, an adult to be designated by either the accused, the accused parent, legal guardian, or a child advocate is present at the time of the custodial interrogation.

"CHAPTER 19- 17-19-4.

Notwithstanding the requirement to electronically record an accused custodial interrogation, nothing contained in this chapter shall preclude the admission into evidence against the accused of: (1)An interrogation conducted in a location other than a place of detention which lacks readily available electronic recording equipment; (2) A custodial interrogation in which the accused refuses to have his or her custodial interrogation electronically recorded and such refusal is electronically recorded; (3) A custodial interrogation which is incomplete due to equipment failure, which failure is unknown to the custodial authority; (4) A custodial interrogation which is incomplete due to equipment failure, which failure is known to the custodial authority, but replacement equipment was not readily available; (5) An accused spontaneous statement which is not made in response to a custodial interrogation; or (6) An accused statement made during his or her processing or booking.

"CHAPTER 19 - 17-19-5.

The state shall not destroy or alter any electronic recording made of a custodial interrogation until such time a conviction for any offense relating to the interrogation becomes final and all direct and habeas corpus appeals are exhausted, or the prosecution of the offense is barred by law." ยง 2.

Title 35 of the Official Code of Georgia Annotated, relating to law enforcement officers and agencies, is amended by adding a new Code section to the end of Chapter 1, relating to general provisions for law enforcement officers and agencies, to read as follows: "35-1-15.

The Georgia Peace Officer Standards and Training Council and the Georgia Public Safety Training Center shall establish guidelines and procedures for the incorporation of training materials and information in methods for electronically recording a suspect's statement pursuant to Chapter 19 of Title 17 in all relevant courses for which they have responsibility and oversight." ยง 3.

This Act shall become effective on July 1, 2007. ยง 4.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Timothy Bearden, of the 6 8 th, introduced House Bill 525 because he wanted the justice system to be fair for the accused, but he also sought to help law enforcement catch and prosecute offenders. 2 As a former law enforcement officer, he had seen many cases "slip through the cracks" due to technicalities.

2. Telephone Interview with Georgia Rep. Timothy Bearden, H. District No. 68 (Oct. 9, 2007) [hereinafter Bearden Interview].

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During his time as a police officer, Rep. Bearden often voluntarily recorded his interrogations to protect himself and to provide an accurate record of what was said and in what manner it was said. 3 He calls this a "common sense Bill" that 4"would protect youthful offenders and would protect the police."

Rep. Bearden stated that this Bill "takes out much of the guesswork" during the investigation and prosecution of various offenses.5 It sought to prevent false accusations, made by some defendants, of coercion and overreaching by the police just to secure delays or reasonable doubt. 6 The Bill would require recording of the interrogation, including reading of Miranda and any waivers. 7 In some cases, tactics by defense counsel shift the focus from the actions and guilt of the accused to the supposed acts by the police during the investigation.8 Many times the focus is on what happens during custodial interrogation. By ensuring that interrogations of persons under the age of 17 would be recorded, this Bill "would likely cut down on the costs of trial because time would not be wasted on determining what was said by which party and in what way." 9 Furthermore, the recorded interrogations may cause many accused persons to accept a plea bargain, saving any costs of trial.'0 Rep. Bearden stated that another reason he proposed House Bill 525 was the Amy Yates murder that occurred in Carrolton, Georgia, located in his district." In April of 2004, eight-yearold Amy Yates was found murdered in her Carrollton neighborhood. 12 Within hours, a twelve year old neighborhood 3. Id. 4. Id.

5. Id. 6. Id.

7. Ga. Gen. Assem., H.R. 525, available at http://www.legis.ga.gov/legis/ 2007_08/fulltext/hb525 .htm (last visited Mar. 26, 2008) [hereinafter H.R. 525 Status].

8. Bearden Interview, supra note 2.

9. Id. 10. Id. 11. Id. 12. Rob Stafford, Correspondent, MSNBC, DATELINE, A killing in Carrolton, May 2, 2007, available at http://www.msnbc.msn.com/id/ 18428335. (last visited Oct. 13, 2007).

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During his boy, Johnathon Adams, was arrested.' 3 interrogation, which occurred without counsel or his parents, the boy confessed to murdering Amy.' 4 He was convicted and15 sentenced to two years in a juvenile treatment center.

However, in February of 2006, a mentally challenged, eighteen year old, Chris Gossett, turned himself in to authorities and confessed to the murder of Amy Yates.' 6 Gossett's statements to police were electronically recorded; however he later recanted his confession and it is still not clear who killed Amy. 17 Johnathon Adams's statements to police were not electronically recorded and much doubt now overshadows8 whether there ever was a true confession to Amy's murder.'

House Bill 525 would have required that Johnathon Adams's statements be recorded, possibly removing the doubt that now persists.' 9 Potential protests may come from some law enforcement organizations that already have countless procedures to follow during any investigation. 20 Rep. Bearden stated that he will consult law enforcement organizations to make sure he passes a reasonable Bill.21 In striving to author a Bill that would not impose more procedural requirements on law enforcement officers, Rep. Bearden included exceptions where statements do not have to be recorded. Often, accused persons voluntarily confess to police, without prompting, while in a police car on their way to a station. 22 Other times, the accused person may confess on the scene as soon as law enforcement officers arrive. This is especially true with some minor persons when their parents arrive on the scene.23 The above mentioned and many other exigencies typically occur and make electronic recording 13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

Id. Id. Id.

Id. Id. Id. Bearden Interview, supra note 2.

Id. Id.

Id. Id.

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practically impossible. As such, Rep. Bearden excepted those situations from the recoding requirement.24 Other pieces of the Bill have already been included upon consideration of various groups; one part was proposed which would allow an accused minor to refuse to have his statements recorded.25 Another allowed parents to refuse to have their child's statements recorded. These provisions were included at the prompting of defense attorney groups.26 LEGISLATIVE GENEALOGY

The first reading of the Bill occurred on February 22, 2007.

The Speaker assigned the Bill to the House Judiciary (NonCivil) Committee. A second reading occurred on February 27, 2007.27 House Bill 525 was not addressed in committee hearings, nor debated on the floor during the 2007-2008 Session.28 PREPARED BY: Amanda K. Kee

24.

25.

26.

27.

28.

Id. Id.

Id. H.R. 525 Status, supra note 7.

Id.

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HOUSE BILL 586:1 PUBLIC DEFENSE

Amending O.C.G.A. § 15-6-24 FIRST SIGNATURE:

Rep. David Ralston ( 7 th).

CO-SPONSOR: Rep. Barry Fleming

(1 1 7 th).

Bill 586 amended O.C.G.A. § 15-6-24 by limiting the state's responsibility to pay for a maximum of two attorneys for indigent defendants.

The county governing authorities may provide supplemental compensation, and the judge may appoint additional attorneys at the county's expense.

SUMMARY: House

STATUS:

Enacted.

TEXT OF HOUSE BILL

586

§ 1.

Article I of Chapter 6 of Title 15 of the Official Code of Georgia Annotated, relating to the general provisions of superior courts, is amended by revising Code Section 15-6-24 as follows: "15-6-24. (a) Any contingent expenses incurred in holding any session of the superior court, including lights, fuel, stationery, rent, publication of grand jury presentments when ordered published, and similar items, such as taking down testimony in felony cases, etc., shall be paid out of the county treasury of such county upon the certificate of the judge of the superior court and without further order. (b) Any costs incurred in providing defense services pursuant to Chapter 12 of Title 17, the 'Georgia Indigent Defense Act of 2003,' for persons accused of crimes shall not be considered contingent expenses of the superior court for purposes of this Code section."

§ 2.

Code Section 17-112-127 of the Official Code of Georgia Annotated, relating to representation and appointment of alternative attorneys, is amended by revising subsection (b) as follows: "(b) If for any reason the office is unable to defend any indigent person accused of a capital felony for which the death penalty is sought, the presiding judge of the superior court in which the case is pending shall appoint counsel to represent the defendant. A maximum of two attorneys shall be paid by the council at an hourly rate established by the council with state funds appropriated to the council for use by the office. The council with the assistance of the office shall establish guidelines for attorney's fees and expense requests. A county governing authority may provide supplemental compensation to appointed counsel. The presiding judge may appoint not more than one additional attorney to represent the defendant, provided, however, that such attorney shall be paid by the county governing authority with county funds at a rate established by the council."

§ 3.

This Act shall become effective on July 1, 2007, and shall apply to all costs and fees incurred or counsel appointed on or after July 1, 2007.

§ 4.

All laws and parts of law in conflict with this Act are repealed.

1. H.R. 586, Ga. Gen. Assem., Reg. Sess. (Ga. 2007).

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FIRST SIGNATURE'S RATIONALE

Rep. David Ralston, of the 7 th , introduced House Bill 5862 as a response to the problems presented by the Brian Nichols multiple murder case. 3 This Bill sought to limit a judge's discretion in granting the amount of state and county funds expended in death penalty case. 4 As a result of the Brian Nichols multiple murder case, the budget of the Georgia Public Defender Standards Council, which manages the public defender system, was drained.5 The case has cost the public defender system millions of dollars, and the Council can no longer pay the three private lawyers on Mr. Nichols's defense team. 6 The judge in the Nichols' case appointed four lawyers to defend Nichols.7 The attorneys are paid $175.00, $125.00 and $95.00 an hour respectively.' The th fourth attorney is a state employee. 9 Sen. Wiles, of the 37 h , noted that the Constitution does not require an indigent defendant to receive a three million dollar defense; rather, the Constitution only requires a competent, quality defense.' 0 The Bill addressed the costs of indigent defense in Georgia."

House Bill 586 only applied in conflict cases, where the public2 defender's office was unable to represent an accused person.'

Additionally, House Bill 586 limited the number of attorneys

2. Id..

3. Brenda Goodman, Georgia Murder Case's Cost Saps Public Defense System, N.Y. TIMES, July 31, 2007, available at http://www.nytimes.com/

2007/03/22/us/22atlanta.html.

4. Id. 5. Id. 6. Id. 7. Id. 8.Id. 9. Id.

10. Video Recording of Sen. http://www.georgia.gov/00/article/

Proceedings

(Apr.

19,

2007),

0,2086,4802_6107103_72682316,00.html [hereinafter Senate FloorDebate].

11. Video

Recording

of

H.

Proceedings

(Mar.

27,

2007),

http://www.georgia.gov/00/article/0,2086,4802-6107103_72682804,00.html

[hereinafter House FloorDebate].

12. Id.

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that may be appointed by the court to two.1 3 Finally, House Bill 586 limited the hourly rate to $95.00 per hour for attorneys.' 4 LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on February 27, 2007, and the Bill was assigned to the House Judiciary (Non-Civil) Committee. 15 On February 28, 2007, the Bill was read for the second time.' 6 The House Judiciary (NonCivil) Committee favorably reported House Bill 586 by committee on March 19, 2007.17 On March 27, 2007, Rep. Ralston presented the Bill and a third reading of House Bill 586 occurred.' 8 Rep. Carolyn Hugley, of the 133 d, questioned how Rep. Ralston and his fellow sponsors determined that two attorneys is the appropriate number and asked how the amount of compensation for attorneys was calculated.' 9 Rep. Ralston responded that the Public Defenders Standards Council determined the amount of compensation and that the proposed number of attorneys was a compromise between the Public Defenders Standards Council and the County Commissioner's Association.2 ° The House passed and adopted House Bill 586 on March 27, 2007 by a vote of 167 to 0.21 The first reading of the Bill in the Senate occurred on March 27, 2007, and the Bill was referred to the Senate Judiciary Committee. 22 On April 16, 2007, House Bill 586 was read for the second time and the Senate Judiciary Committee favorably reported the Bill, recommending a substitute or amendment that would define "contingent expense., 23 On April 19, 2007, Sen. 13. Id. 14. Id.

15. State of Ga. Final Composite Status Sheet, H.R. 586, 149th Gen. Assem. Reg. Sess. (Ga. 2007) [hereinafter Status Sheet].

16. Id. 17. Id. 18. Id. 19. House Floor Debate, supra note 11.

20. Id.

21. Status Sheet, supra note 15.

22. Id.

23. Senate FloorDebate, supra note 10.

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John Wiles presented the Bill for the third time.2 4 Sen. Regina Thomas, of the 2 nd, asked how much the supplemental compensation to the county governing authority would be.25 Sen. Wiles responded by noting that Georgia and its counties spend about $100 million each year in indigent defense, with the state funding about $35 million and the counties funding about $65 million.2 6 Sen. Wiles stressed that as the law stood, a judge could order six to eight lawyers, and that this was breaking the state and county budgets. 2 House Bill 586 strikes a balance, providing people with competent, quality counsel without breaking the state and county budgets.2 8 Sen. Wiles believes that two attorneys should be sufficient in death2 enalty cases, and if necessary, the judge may appoint a third. 9 Sen. David Adelman, of the 42 , questioned Sen. Wiles on the importance of judicial discretion. 30 Sen. Wiles explained that he believes that judicial discretion is important, however, a judge does not need to have unlimited discretion because judges do not raise taxes and judges are not responsible for balancing the state and county budgets. 3 1 Sen. Adelman questioned whether Sen. Wiles believed that one size fits all when it comes to the effectiveness of counsel and whether Sen. Wiles considered a provision that would address special circumstances that one could not contemplate where a case might be so complex as to justify more than even three lawyers. 32 Sen. Wiles responded that he feels the limitation on the number of attorneys was sensible and pointed out that federal courts have the same limitation. 33 Sen. Wiles further noted that House Bill 586 is not the solution to the indigent defense problem and that a study needs to be conducted to address special circumstances

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

Id. Id.

Id. Id. Id. Id. Id. Id. Id.

Id.

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that may arise.34 The Senate passed and adopted House Bill 586 on April 19, 2007, by a vote of 43 to 7.

On April 20, 2007, the House agreed to the Senate's substitute by a vote of 144 to 1.36 Governor Perdue signed House Bill 586 into law on May 16, 2007.

PREPARED

34. Id. 35. Status Sheet, supra note 15.

36. Id.

BY: Anne Marie Braham

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HOUSE BILL 653:1 HOAX EXPLOSIVE DEVICES

Amending O.C.G.A. ยง 16-7-85 FIRST SIGNATURE:

Rep. David Ralston (7 th).

House Bill 653 sought to amend O.C.G.A. ยง 16-785 by increasing the allowable penalties for persons convicted of using or planting hoax destructive devices. The Bill increased the maximum imprisonment time from one to five years, and permitted courts to order defendants to pay additional restitution for any financial loss suffered by local, county, or state public safety agencies that provide emergency assistance during an incident or investigation resulting from a violation of the legislation.

SUMMARY:

STATUS:

Not enacted.

TEXT OF HOUSE BILL 653 ยง 1.

Article 4 of Chapter 7 of Title 16 of the Official Code of Georgia Annotated, relating to bombs, explosives, and chemical and biological weapons, is amended by revising Code Section 16-785, relating to hoax devices, as follows: "16-7-85. (a) It shall be unlawful for any person to manufacture, possess, transport, distribute, place or use a hoax device or replica of a destructive device or detonator with the intent to cause another to believe that such hoax device or replica is or contains a destructive device or detonator. (b) Any person convicted of a violation of this Code section shall be punished by imprisonment for not less than one nor more than five years or by a fine of not more than $10,000.00 or both or, if the defendant is a corporation, a fine of not less than $1,000.00 or not fewer than 500 hours of community service or both for each such hoax device or replica; provided, however, that if such person communicates or transmits to another that such hoax device or replica is a destructive device or detonator with the intent to obtain the property of another person or to interfere with the ability of another person to conduct or carry on the ordinary course of business, trade, education, or government, such violation shall be punished by imprisonment for not less than one year nor more than five years or by a fine of not more than $25,000.00 or both or, if the defendant is a corporation, a fine of not less than $50,000.00 or not fewer than 1,000 nor more than 10,000 hours of community service or both for each such hoax device or replica. (c) For purposes of imposing restitution pursuant to Chapter 14 of Title 17 when a person is convicted pursuant to this Code section, the court shall consider damages to include any reasonable cost incurred or financial loss suffered by local, county, or state public safety agencies, and profit or nonprofit entities, that provide emergency assistance to an incident or investigation resulting from a violation of this Code section. Such damages shall include but not be limited to the provision of police, fire-fighting, rescue, and emergency medical services and the salaries of such persons who respond to such incident." ยง2.

All laws and parts of laws in conflict with this Act are repealed.

1. H.R. 653, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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FIRST SIGNATURE'S RATIONALE

Rep. David Ralston, of the 7 th, introduced House Bill 653 to increase penalties for persons convicted of perpetrating hoax destructive devices and to establish a restitution condition relating to the use of such devices. 2 The Bill was introduced in response to the January 31, 2007 Boston Mooninite Scare, in which Boston Police officers mistakenly identified small battery-powered LED placards planted throughout Boston and surrounding areas as improvised explosive devices. 3 The discovery of the suspicious devices, featuring a lighted image of a "mooninite" cartoon character, resulted in a massive emergency and media response, leading to temporary closure of three main bridges connecting Cambridge, Mass., to Boston, as well as sections of Boston's Storrow Drive, 1-93, and the Massachusetts Turnpike.4 During the subsequent investigation, The Cartoon Network acknowledged placing the small electronic devices throughout Boston, as well as New York, Los Angeles, Chicago, San Francisco, Philadelphia, Seattle, Portland, Austin, and Atlanta, as part of a national promotional campaign for Cartoon Network's animated show, Aqua Teen Hunger Force.5 The Cartoon Network's parent company, Turner Broadcasting System, eventually paid $1 million to both the city 6of Boston and Homeland Security in an effort to make amends.

LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on March 1, 2007. 7 Rep. Ralston presented the Bill to the House Judiciary 2. Id. 3. Jeremy Redmon, Bomb Scare Inspires New Bill, ATLANTA J. CONST., Mar. 12, 2007, at 18.

4. Val Brickates Kennedy, Cartoon Network Promo Tied to Boston Bomb Scare, Market Watch.com Financial News, http://www.marketwatch.com/

news/story/cartoon-network-promo-tied-boston/story.aspx.

5. Jacqui Cheng, Mooninites, meet the TerroristHoax Improvements Act, ARs TECHNICA, May 8, 2007.

6. Id. 7. Video Recording of Ga. H. Judy. (Non-Civil) Subcommittee Two

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(Non-Civil) Subcommittee Two on March 13, 2007.8 Rep. Ralston stated that the Bill was not only introduced in response to the Boston Mooninite Scare, but also because the current definition of O.C.G.A. ยง 16-7-85 needed to be expanded. 9 In the House Judiciary (Non-Civil) Subcommittee Two meeting, held on March 13, 2007, Rep. Ralston justified the additional provisions set forth in House Bill 653 that would amend the Georgia Code to increase maximum prison terms from one to five years.'0 Such additional provisions would also allow for civil suits so that local, county, or state agencies could obtain restitution for expenses incurred during incidents similar to the Boston Mooninite Scare and Covington Bomb incident."'

In support of the Bill, Rep. Ralston cited the fact that the City of Boston incurred expenses upwards of $2 million as a result of the Mooninite Scare, and asserted that it is "wrong for anyone to capitalize on people's fear after 9/11.,,12 Rep. Ralston also referred to the Covington bomb scare in which the perpetrator had to be convicted on federal charges because the state statutes were not sufficient.' 3 In the subcommittee, House Bill 653 received a do-pass by Committee Substitute, meaning that the committee approved the Bill following several minimal 14 changes.

On March 14, 2007, Rep. Ralston presented House Bill 653 to the House Judiciary (Non-Civil) full Committee. 5 In the full committee, Chairman Ralston reemphasized that the Boston Mooninite Scare, coupled with the recent "hoax" in Covington served as motivation for the proposal.' 6 Rep. Ralston thus Meeting (Mar. 13, 2007), http://www.legis.ga.gov/legis/2007_08/house/ Committees/judiciaryNonCivil/judyncArchives.htm [hereinafter Meeting Video].

8. Id. 9. Id.

10. Id. 11. Id. 12. Id. 13. Id. 14. Telephone Interview with Dianne Hardin, Administrative Assistant

for the Judiciary Non-Civil Committee, Georgia House of Representatives (Oct. 30, 2007) [hereinafter Hardin Interview].

15. Meeting Video, supra note 7.

16. Id.

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suggested calling the legislation the Covington Pipeline Bill. 17 In the full committee, House Bill 653 also received a do-pass by Committee Substitute.' 8 House Bill 653 was officially reported out of committee March 19, 2007.'9 On March 19, 2007, the Bill was given a second reading, and subsequently reported out of the House Judiciary (Non-Civil) Committee. 20 After House Bill 653 was favorably reported out of the Committee, it went to the Rules Committee for further 21 consideration.

On April 20, 2007, the Georgia House of Representatives withdrew and recommitted House Bill 653.22 The Bill did not advance to the House floor because it was introduced too late in the 2007 legislative session.23 Subsequently, House Bill 653 received24 no consideration during the 2008 Georgia legislative session.

PREPARED

BY: Charles Snyder III

17. Id.

18. Id. 19. Ga. Gen. Assem., H.R. 653, available at www.legis.ga.gov/legis2007

_08/sum/ hb653.htm (last visited Mar. 26, 2008) [hereinafter H.R. 653 Status].

20. Id. 21. Hardin Interview, supra note 14.

22. H.R. 653 Status, supra note 19.

23. Hardin Interview, supra note 14.

24. Id.

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SELECTED SENATE BILLS

SENATE BILL 1:1 SEXUAL OFFENDERS

Amending O.C.G.A. ยง 16-12-100.4 FIRST SIGNATURE:

Sen. Eric Johnson (Ist).

Sen. Tommie Williams (19th), Sen. William Hamrick (301h) & Sen. John Wiles (37'h).

Co-SPONSORS:

Senate Bill 1 sought to amend O.C.G.A. ยง 16-12100.4 to criminalize the photographing of a minor by registered sex offenders under certain circumstances.

SUMMARY:

STATUS:

Not enacted.

TEXT OF SENATE BILL

1

ยง 1.

Part 2 of Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to offenses related to minors generally, is amended by adding a new Code section to the end of the part to read as follows: "16-12-100.4 (a) As used in this Code section, the term: (1) 'Minor' means any individual who is under 18 years of age.

(2) 'Photograph' means to take any picture, film or digital photograph, motion picture film, videotape, or similar visual representation or image of a person. (b) It shall be unlawful for any person who is required to register as a sexual offender pursuant to Code Section 42-1-12 to intentionally photograph a minor for indecent purposes. (c) Any person who violates this Code section shall be guilty of a misdemeanor of a high and aggravated nature."

ยง 2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Eric Johnson, of the Ist, introduced Senate Bill 1 in 1. S. 1, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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response to an incident in his district.2 While a high school girl was working in a coffee shop, a male customer photographed her with his cell phone camera and made harassing comments that frightened her. 3 The girl contacted her mother, who came to the shop. 4 As the man left, the mother wrote down his license plate number.5 The man was registered as a sex offender in Massachusetts, however, law enforcement officers reported they could do nothing because taking the girl's photo was not illegal.6 The mother contacted Sen. Johnson.7 Sen. Johnson said the Bill would help stop registered sex offenders from taking what could be the first step in stalking a victim, or could prevent the sex offender from posting the photos on the Internet. 8 LEGISLATIVE GENEALOGY

The first reading of the Bill occurred on January 22, 2007,9 and the Bill was referred to the Senate Judiciary Committee.

As originally proposed, the Bill would have made it illegal for anyone required to register as a sex offender in Georgia to photograph any minor, including their own child, either intentionally or accidentally.' 0 The Senate Judiciary Committee amended the Bill to require that the minor be photographed intentionally and without consent from the minor's parent or guardian." The Judiciary Committee favorably reported the Bill to the Senate by substitute on February 2, 2007, and the 2. Video Recording of Sen. Proceedings (Feb. 12, 2007), available at http://www.georgia.gov/0/article/0,2086,4802_6107103_72682316,00.html.

3. Id. 4.

Id.

5. Id. 6. Id. 7. Id. 8. Id.

9. Georgia General Assembly, S. 1, available at http://www.legis. state.ga.us/legis/2007_08/sum/sbl.htm. (last visited Mar. 3, 2008) [hereinafter S. I Status].

10. Video of Ga. H. Judy. (Non-Civil) Comm., available at http://www.legis.state.ga.us/legis/2007 08/house/Committees/judiciaryNon Civil/ Archives.htm. April 17, 2007).

11. S 1 Status, supra note 9.

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Senate approved the substitute Bill 54-0 on February 12, 2007.12 The Bill was read for the first time in the House on February 13, 2007, and for a second time on February 14, 2007.13 The Bill was then assigned to the House Judiciary (Non-Civil) Committee. 14 The Committee amended the Bill to require that the photographing be done intentionally and for indecent5 purposes, instead of without the parent or guardian's consent.'

The Committee favorably reported the Bill on April 17, 2007.16 The Bill was withdrawn from the House and recommitted to the Senate Judiciary Committee on April 20, 2007, because Sen. Johnson disagreed with the changes and there was insufficient time to address them before the session ended.' 7 Sen. Johnson is working this session to get the Committee to switch back to the Senate version of the Bill,8 after which the Bill would be forwarded again to the House.'

PREPARED

12.

13.

14.

15.

16.

BY: Bryan Brooks

Id. Id. Id.

Id.

Id. 17. Telephone Interview with Melanie Stockwell, Chief of Staff for Sen. Johnson (Feb. 26, 2008).

18. Id. Senate Bill 1 underwent significant change in the last few days of the 2007-2008 Legislative Session. The text of the Bill was altered; however, the rationale for its implementation remains.

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Senate Bill 20:1 Sexual Offenses

Creating O. C.G.A. ยง 16-6-26 FIRST SIGNATURE: Sen. Judson Hill ( 3 2 nd).

Co-SPONSOR: Sen. Steve Thompson ( 3 3rd).

Senate Bill 20 sought to create O.C.G.A. ยง 16-6-26 which would make it unlawful to have carnal knowledge with a disabled person who is incapable of granting consent.

SUMMARY:

STATUS:

Not enacted.

TEXT OF SENATE BILL 20 ยง 1.

Chapter 6 of Title 16 of the Official Code of Georgia Annotated, relating to sexual offenses, is amended by adding a new Code section to read as follows:" 16-6-26. (a) As used in this Code section, the term 'disabled person' means any person with a mental or emotional illness, developmental disability, or addictive disease. (b) It shall be unlawful for any person to have carnal knowledge with a disabled person of the age of majority whom he or she knows or reasonably should know is incapable of giving consent to such activity. (c) A person convicted of violating the provisions of this Code section shall be punished by imprisonment for not less than ten nor more than 20 years."

ยง 2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Judson Hill, of the 3 2 nd , introduced Senate Bill 20 because sexual abuse of disabled persons is on the rise in Georgia. Sen. Hill believed legislation was needed to address the growing threat to the disabled population of Georgia.2 Sen. Hill presumed that this is the type of Bill that no legislator wants to vote against.3 However, the science surrounding the mental capacity of disabled individuals is a "soft science" in that the mental thoughts and processes of disabled individuals

1. S. 20, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

2. Telephone Interview with Sen. Judson Hill, Sen. District No. 32 (January 4, 2008) [hereinafter Hill Interview].

3. Id.

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cannot be determined with certainty. 4 Therefore, even though the Bill is one that no legislator wants to vote against, there may be problems passing the Bill because whether a specific disabled person is capable of consenting to sexual activity cannot be determined with certainty. 5 LEGISLATIVE GENEALOGY

The first reading of the Bill in the Senate occurred on January 10, 2007.6 Subsequently, the Bill went before the Senate Judiciary Committee. 7 The Committee's main concern was that the language of the Bill was overly ambiguous in that there were no guideposts with respect to determining whether a potential victim was capable of granting consent.8 The Bill remained in the Senate Judiciary Committee at the close of the 2007 Session, and no action was taken in 2008. 9 PREPARED BY:

Ellis R. Faught, III

4. Id. 5. Id.

6. State of Ga. Final Composite Status Sheet, S. 20, Jan. 10, 2007 (Dec. 10, 2007).

7. Id. 8. Hill Interview, supra note 2.

9. Id.

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48: 1 CUSTODY OF CONVICTED PERSONS Amending O.C.G.A. ยง 42-5-50

SENATE BILL

FIRST SIGNATURE: Sen. Co-SPONSOR: SUMMARY:

Joseph Carter (1 3th).

Sen. Jim Whitehead (24 h).

The Bill sought to amend O.C.G.A. ยง 42-5-50 by

removing the provision under which a convicted person may currently, upon written request by his defense attorney, remain in the custody of the local jail during the pendency of an appeal.

The Bill also required department or county correctional

institutions to provide a state issued personal identification card to inmates upon their discharge.

STATUS:

Not enacted.

TEXT OF SENATE BILL 48 ยง1.

Article 3 of Chapter 5 of Title 42 of the Official Code of Georgia Annotated, relating to conditions of detention generally, is amended by revising Code Section 42-5-50, relating to transmittal of information on convicted persons and place of detention, as follows: "42-5-50. (a) The clerk of the court shall notify the commissioner of a sentence within 30 working days following the receipt of the sentence and send other documents set forth in this Code section.

Such notice shall be mailed within such time period by first-class mail and shall be accompanied by two complete and certified sentence packages containing the following documents: (1)A certified copy of the sentence; (2) A complete history of the convicted person, including a certified copy of the indictment, accusation, or.both and such other information as the commissioner may require; (3) An affidavit of the custodian of such person indicating the total number of days the convicted person was incarcerated prior to the imposition of the sentence. It shall be the duty of the custodian of such person to transmit the affidavit provided for in this paragraph to the clerk of the superior court within ten days following the date on which the sentence is imposed; (4) Order of probation revocation or tolling of probation; and (5) A copy of the sentencing information report is required in all jurisdictions with an options system day reporting center certified by the Department of Corrections. The failure to provide the sentencing information report shall not cause an increase in the 15 day time period for the department to assign the inmate to a correctional institution as set forth in subsection (b) of this Code section.

Such documents shall be submitted on forms provided by the commissioner. The commissioner shall file one copy of each such document with the State Board of Pardons and Paroles within 30 working days of receipt of such documents from the clerk of the court. Except where the clerk is on a salary, the clerk shall receive from funds of the county the fee prescribed in Code Section 15-6-77 for such service.

1. S. 48, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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(b) Within 15 days after the receipt of the information provided for in subsection (a) of this Code section, the commissioner shall assign the convicted person to a correctional institution designated by the commissioner in accordance with subsection (b) of Code Section 42-5-51. It shall be the financial responsibility of the correctional institution to provide for the picking up and transportation, under guard, of the inmate to the inmate's assigned place of detention. If the inmate is assigned to a county correctional institution or other county facility, the county shall assume such duty and responsibility. (c) The state shall pay for each such inmate not transferred to the custody of the department from a county facility the per diem rate specified by subsection (c) of Code Section 42-5-51 for each day the inmate remains in the custody of the county after the department receives the notice provided by subsection (a) of this Code section. (d)In the event that the convicted person is free on bond pending the appeal of his or her conviction, the notice provided for in subsection (a) of this Code section shall not be transmitted to the commissioner until all appeals of such conviction have been disposed of or until the bond shall be revoked." ยง 2.

Said article is further amended by revising subsection (a) of Code Section 42-5-61, relating to services and benefits to be furnished inmates discharged by department or county correctional institutions, as follows: "(a) Except as otherwise provided in this Code section, whenever an inmate is discharged upon pardon or completion of his sentence or is conditionally released or paroled from any place of detention to which he has been assigned under the authority of the department, the department shall provide the inmate the following: (1) Transportation to the inmate's home within the United States or to a place chosen by the inmate and authorized by regulations of the board; (2) An amount of money of not less than $25.00 and not more than $150.00, as determined according to regulations of the board; (3) A travel kit, when appropriate, and suitable clothing, each as provided by regulation of the board; and (4) A personal identification card, at no charge to the inmate, similar to the identification card authorized under Code Section 40-5-100." ยง3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Joseph Carter, of the 13 th, introduced Senate Bill 48 because a convicted person may, upon written request by his defense attorney, remain in the custody of the local jail during the pendency of an appeal-which could take up to a year or longer. 2 Sen. Carter believed there is generally no need for the convicted person to be involved in the appeals process because, on appeal, errors of the trial court will likely be at issue and not evidentiary matters. 3 Therefore, Sen. Carter believes it is not 2. Video Recording of State Institutions & Property (SI&P) H. Comm.

Meeting, April 11, 2007 (remarks by Sen. Joseph Carter), available at http://www.legis.state.ga.us/legis/2O07_08/house/Committees/statelnstitutio ns/sipArchives.htm.

3. Id.

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necessary for the convicted person to remain in the custody of the local jail because defense counsel usually has no need to communicate with his client during the appeal.4 Moreover, local jails face potential liability when they are required to house convicted persons unnecessarily for extended periods of time during their appeal.5 Additionally, local jails generally 6 institutions. state than available space bed less have Senate Bill 48 removed language from the current law and removed the discretion of housing, as it relates to the place of detention, of convicted persons from the defense counsel and returned it to the courts. 7 Under the amendment, if defense counsel petitions the court to allow his or her client to remain in the custody of the local jail during the pendency of the appeal, the trial court may have a hearing on the matter to determine the necessity of the stay.8 Finally, Senate Bill 48 also required department or county correctional institutions to provide a state issued personal identification card to inmates upon their discharge, because such identification is necessary for seeking employment. Most inmates do not have the required documentation to get an 9 official state identification on their own.

Senate Bill 48 received support from the Sheriffs Association and no opposition from the Georgia Department of Corrections.' 0 Deputy General Counsel for the Georgia Sheriffs Association, Oliver Hunter, urged Sen. Carter's support of Senate Bill 48 and pointed out that there have been situations when the law currently in effect has been abused by attorneys who have kept defendants in the county jail when there was no real need or legitimate reason for the defendants to remain there.' 1

4. Id. 5. Id.

6. Id. 7. Id. 8. Id.

9. Id. (remarks by Rep. Austin Scott).

10. Id. (remarks by Misty Holcomb, Georgia Department of Corrections).

11. Id. (remarks by Oliver Hunter, Deputy General Counsel for the Georgia Sheriff's Association).

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LEGISLATIVE GENEALOGY

The Senate first read the Bill on January 25, 2007. The Public Safety and Homeland Security (PS&HS) Committee favorably reported the Bill on February 2, 2007. 1 The Senate Committee Substitute modified the original Bill.' 3 It removed4 the language which was added to the Bill as introduced.'

However, the Committee then essentially accomplished the same objective by returning to the language of the original statute, O.C.G.A. ยง 42-5-50, and simply deleting section (c) in its entirety which permits the attorney of a convicted person to file the written request for the convicted person's stay at the local jail in the first place.' 5 On February 14, 62007, the Senate passed the Bill by substitute by a 52 to 0 vote.'

Senate Bill 48 was first read by the House on February 15, 2007, where the Bill was assigned to the State Institutions & Property (SI&P) Committee.' 7 The committee gave the Bill a favorable report on April 13, 2007.18 The House Committee did not modify the Bill as passed by the Senate but added sections to the Bill which revised subsection (a) of ยง 42-5-61 relating to services and benefits to be furnished to inmates19 discharged by department or county correctional institutions.

12. Ga. Gen. Assem., S. 48, available at http://www.legis.state.ga.us/ legis/2007_08/sum /sb48.htm [hereinafter S. 48 Status].

13. Id. 14. Id. 15. Id. 16. Ga. Sen. Voting Record, S. 48 (Feb. 14, 2007).

17. S. 48 Status, supra note 12.

18. Id. 19. O.C.G.A. ยง 42-5-61(a) ("(a) Except as otherwise provided in this Code section, whenever an inmate is discharged upon pardon or completion of his sentence or is conditionally released or paroled from any place of detention to which he has been assigned under the authority of the department, the department shall provide the inmate the following.(1)

Transportation to the inmate's home within the United States or to a place chosen by the inmate and authorized by regulations of the board;(2) An

amount of money of not less than $25.00 and not more than $150.00, as determined according to regulations of the board; and (3) A travel kit, when appropriate, and suitable clothing, each as provided by regulation of the

boardand (4) A personal identification card, at no charge to the inmate,

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Specifically, the House Substitute would revise Code Section 42-5-61(a) by adding subsection (4) which provides for the issuance of a personal identification card to inmates upon their 20 discharge from department or county correctional institutions.

On April 20, 2007, Senate Bill 48 was withdrawn by the House to be recommitted. 1 On March 5, 2008, the House Committee 22 reconsidered the Bill and again reported on it favorably.

PREPARED BY:

Randa Hafez

similar to the identification card authorized under Code Section 40-5-100.")

20. Id. 21. S. 48 Status, supra note 12.

22. Id.

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SENATE BILL 98:' ACCESS TO ELECTRONIC COMMUNICATIONS

Amending O.C.G.A. ยง 16-9-109 FIRST SIGNATURE:

Sen. William Hamrick ( 3 0 th).

Co-SPONSORS: Sen. Jeff Mullis ( 5 3rd), Sen. Don Thomas ( 5 4 th), Sen. Bill Heath (31st), Sen. Cecil Staton ( 18th) & Sen. Seth Harp

(29th).

Senate Bill 98 authorized the Attorney General, law enforcement agencies, and district attorneys to obtain communication records of those under investigation for criminal activity pursuant to a court order, subpoena, or consent of the person being investigated. The Bill also revised "The Computer or Electronic Pornography and Child Exploitation Prevention SUMMARY:

Act of 1999," which provided for prevention and punishment of those engaged in child pornography and internet predatory acts.

The Bill defined the specific conduct that is prohibited, the ages of persons who fall in the protected class, and set forth sentencing guidelines for offenders.

STATUS:

Enacted.

TEXT OF SENATE BILL 98

ยง1.

Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is amended by revising Code Section 16-9-109, relating to disclosure by service providers pursuant to investigations, as follows: "16-9-109. (a) Any law enforcement unit, the Attomey General, or any district attorney who is conducting an investigation of a violation of this article or an investigation of a violation of Code Section 16-12-100, 16-12-100.1, 16-12-100.2, or 16-5-90 or Article 8 of this chapter involving the use of a computer, cellular telephone, or any other electronic device used in furtherance of the act may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that is in electronic storage in an electronic communications system for 180 days or less pursuant to a search warrant issued under the provisions of Article 2 of Chapter 5 of Title 17 by a court with jurisdiction over the offense under investigation. Such court may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than 180 days as set forth in subsection (b) of this Code section.

1. S. 98, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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(b)(1) Any law enforcement unit, the Attorney General, or any district attorney may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service, exclusive of the contents of communications, only when any law enforcement unit, the Attorney General, or any district attorney: (A) Obtains a search warrant as provided in Article 2 of Chapter 5 of Title 17; (B) Obtains a court order for such disclosure under subsection (c) of this Code section; or (C) Has the consent of the subscriber or customer to such disclosure.

(2) A provider of electronic communication service or remote computing service shall disclose to any law enforcement unit, the Attorney General, or any district attorney the: (A) Name; (B) Address; (C) Local and long distance telephone connection records, or records of session times and durations; (D) Length of service, including the start date, and types of service utilized; (E) Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) Means and source of payment for such service, including any credit card or bank account number of a subscriber to or customer of such service when any law enforcement unit, the Attorney General, or any district attorney uses a subpoena authorized by Code Section 16-9108, 35-3-4.1, or 45-15-17 or a grand jury or trial subpoena when any law enforcement unit, the Attorney General, or any district attorney complies with paragraph (1) of this subsection.

(3) Any law enforcement unit, the Attorney General, or any district attorney receiving records or information under this subsection shall not be required to provide notice to a subscriber or customer. A provider of electronic communication service or remote computing service shall not disclose to a subscriber or customer the existence of any search warrant or subpoena issued pursuant to this article nor shall a provider of electronic communication service or remote computing service disclose to a subscriber or customer that any records have been requested by or disclosed to any law enforcement unit, the Attorney General, or any district attorney pursuant to this article. (c) A court order for disclosure issued pursuant to subsection (b) of this Code section may be issued by any superior court with jurisdiction over the offense under investigation and shall only issue such court order for disclosure if any law enforcement unit, the Attorney General, or any district attorney offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of an electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. A court issuing an order pursuant to this Code section, on a motion made promptly by a provider of electronic communication service or remote computing service, may quash or modify such order, if compliance with such order would be unduly burdensome or oppressive on such provider. (d)(1) Any records supplied pursuant to this part shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following: (A) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records; (B) The copy is a true copy of all the records described in the subpoena, court order, or search warrant and the records were delivered to the attorney, the attorney's representative, or the director of the Georgia Bureau of Investigation or the director's designee; (C) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event; (D) The sources of information and method and time of preparation were such as to indicate its trustworthiness; (E) The identity of the records; and (F) A description of the mode of preparation of the records.

(2) If the business has none or only part of the records described, the custodian or other qualified witness shall so state in the affidavit.

(3) If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, the copy of the records shall be admissible in evidence. When more than one person has knowledge of the facts,

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more than one affidavit shall be attached to the records produced.

(4) No later than 30 days prior to trial, a party intending to offer such evidence produced in compliance with this subsection shall provide written notice of such intentions to the opposing party or parties. A motion opposing the admission of such evidence shall be filed within ten days of the filing of such notice, and the court shall hold a hearing and rule on such motion no later than ten days prior to trial. Failure of a party to file such motion opposing admission prior to trial shall constitute a waiver of objection to such records and affidavit. However, the court, for good cause shown, may grant relief from such waiver." ยง2.

Said title is further amended by revising Code Section 16-12-100.2, relating to computer pornography and child exploitation prevention, as follows: "16-12-100.2. (a) This Code section shall be known and may be cited as the 'Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007.' (b) As used in this Code section, the term: (1) 'Child' means any person under the age of 16 years.

(2) 'Electronic device' means any device used for the purpose of communicating with a child for sexual purposes or any device used to visually depict a child engaged in sexually explicit conduct, store any image or audio of a child engaged in sexually explicit conduct, or transmit any audio or visual image of a child for sexual purposes. Such term may include, but shall not be limited to, a computer, cellular phone, thumb drive, video game system, or any other electronic device that can be used in furtherance of exploiting a child for sexual purposes; (3) 'Identifiable child' means a person: (A) Who was a child at the time the visual depiction was created, adapted, or modified or whose image as a child was used in creating, adapting, or modifying the visual depiction; and (B) Who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature or by electronic or scientific means as may be available.

The term shall not be construed to require proof of the actual identity of the child.

(4) 'Sadomasochistic abuse' has the same meaning as provided in Code Section 16-12-100.1.

(5) 'Sexual conduct' has the same meaning as provided in Code Section 16-12-100. 1.

(6) 'Sexual excitement' has the same meaning as provided in Code Section 16-12-100.1.

(7) 'Sexually explicit nudity' has the same meaning as provided in Code Section 16-12-102.

(8) 'Visual depiction' means any image and includes undeveloped film and video tape and data stored on computer disk or by electronic means which is capable of conversion into a visual image or which has been created, adapted, or modified to show an identifiable child engaged in sexually explicit conduct. (c)(1) A person commits the offense of computer or electronic pornography if such person intentionally or willfully: (A) Compiles, enters into, or transmits by computer or other electronic device; (B) Makes, prints, publishes, or reproduces by other computer or other electronic device; (C) Causes or allows to be entered into or transmitted by computer or other electronic device; or (D) Buys, sells, receives, exchanges, or disseminates any notice, statement, or advertisement, or any child's name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for the purpose of offering or soliciting sexual conduct of or with an identifiable child or the visual depiction of such conduct.

(2) Any person convicted of violating paragraph (1) of this subsection shall be punished by a fine of not more than $10,000.00 and by imprisonment for not less than one nor more than 20 years. (d)(1) It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of

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enticing a child for indecent purposes; or Code Section 16-6-8, relating to the offense of public indecency or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

(2) Any person who violates paragraph (1)of this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years and by a fine of not more than $25,000.00; provided, however, that, if at the time of the offense the victim was 14 or 15 years of age and the defendant was no more than three years older than the victim, then the defendant shall be guilty of a misdemeanor of a high and aggravated nature. (e)(l) A person commits the offense of obscene Internet contact with a child if he or she has contact with someone he or she knows to be a child or with someone he or she believes to be a child via a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, or on-line messaging service, and the contact involves any matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that is intended to arouse or satisfy the sexual desire of either the child or the person, provided that no conviction shall be had for a violation of this subsection on the unsupported testimony of a child.

(2) Any person who violates paragraph (1)of this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years or by a fine of not more than $10,000.00; provided, however, that, if at the time of the offense the victim was 14 or 15 years of age and the defendant was no more than three years older than the victim, then the defendant shall be guilty of a misdemeanor of a high and aggravated nature. (f)(1) It shall be unlawful for any owner or operator of a computer on-line service, Internet service, local bulletin board service, or other electronic device that is in the business of providing a service that may be used to sexually exploit a child to intentionally or willfully to permit a subscriber to utilize the service to commit a violation of this Code section, knowing that such person intended to utilize such service to violate this Code section. No owner or operator of a public computer on-line service, Internet service, local bulletin board service, or other electronic device that is in the business of providing a service that may be used to sexually exploit a child shall be held liable on account of any action taken in good faith in providing the aforementioned services.

(2) Any person who violates paragraph (I) of this subsection shall be guilty of a misdemeanor of a high and aggravated nature. (g) The sole fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this Code section shall not constitute a defense to prosecution under this Code section. (h) A person is subject to prosecution in this state pursuant to Code Section 17-2-1, relating to jurisdiction over crimes and persons charged with commission of crimes generally, for any conduct made unlawful by this Code section which the person engages in while: (1)Either within or outside of this state if, by such conduct, the person commits a violation of this Code section which involves a child who resides in this state or another person believed by such person to be a child residing in this state; or (2) Within this state if, by such conduct, the person commits a violation of this Code section which involves a child who resides within or outside this state or another person believed by such person to be a child residing within or outside this state. (i) Any violation of this Code section shall constitute a separate offense." ยง3.

Title 35 of the Official Code of Georgia Annotated, relating to law enforcement officers and agencies, is amended in subsection (a) of Code Section 35-3-4, relating to powers and duties of the Georgia Bureau of Investigation, by striking "and" at the end of paragraph (8), by replacing the period with "; or" at the end of paragraph (9), and by adding a new paragraph to read as follows: "(10) Identify and investigate violations of Part 2 of Article 3 of Chapter 12 of Title 16, relating to offenses related to minors." ยง4.

Said title is further amended by revising Article I of Chapter 3, relating to general provisions

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relating to the Georgia Bureau of Investigation, by adding a new Code section to read as follows: "35-3-4.1. (a)(1) In any investigation of a violation of Code Section 16-12-100, 16-12-100.1, or 16-12100.2 involving the use of a computer or an electronic device in furtherance of an act related to a minor, the director, assistant director, or deputy director for investigations shall be authorized to issue a subpoena, with the consent of the Attorney General, to compel the production of electronic communication service or remote communication service records or other information pertaining to a subscriber or customer of such service, exclusive of contents of communications.

(2) A provider of electronic communication service or remote computing service shall disclose to the bureau the: (A) Name; (B) Address; (C) Local and long distance telephone connection records, or records of session times and durations; (D) Length of service, including the start date, and types of service utilized; (E) Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) Means and source of payment for such service, including any credit card or bank account number of a subscriber to or customer of such service. (b) Upon failure of a person without lawful excuse to obey a subpoena, the director, assistant director, or the deputy director for investigations, through the Attorney General or district attorney, may apply to a superior court having jurisdiction for an order compelling compliance.

Such person may object to the subpoena on grounds that it fails to comply with this Code section or upon any constitutional or other legal right or privilege of such person. The court may issue an order modifying or setting aside such subpoena or directing compliance with the original subpoena. (c) The Attorney General may request that a natural person who refuses to produce relevant matter on the ground that the production of records may incriminate such person be ordered by the court to provide such records. With the exception of a prosecution for pejury, a natural person who complies with the court order to provide such records asserting a privilege against self-incrimination to which he or she is entitled by law shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he or she may testify or produce evidence, documentary or otherwise. (d)(1) Information obtained pursuant to a subpoena enforced by this Code section shall not be made public or, except as authorized in paragraph (2) of this subsection, disclosed by the director, assistant director, deputy director for investigations, or the director's employees beyond the extent necessary for the enforcement of this Code section.

(2) The director, assistant director, deputy director for investigations, or the director's employees shall be authorized to provide to any federal, state, or local law enforcement agency any information acquired under this Code section in furtherance of a criminal investigation in violation of Code Section 16-12-100, 16-12-100.1, or 16-12-100.2. (e) As used in this Code section, the terms 'electronic communication service' and 'remote communication service' shall have the same meaning as set forth in Code Section 16-9-92." ยง 5.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. ยง 6.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. William Hamrick, of the 3 0 th , introduced Senate Bill 98 in response to growing concerns from citizens wishing to deter

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predatory conduct that has become prevalent in virtual localities2 such as chat rooms and networking forums on the internet.

The Bill provided for more efficient access to communication records, thereby allowing law enforcement officials to quickly and assuredly pursue and apprehend those engaged in criminal conduct.3 Similar legislation has recently been the subject of impassioned debate in the United States Congress due to unconventional methods of obtaining suspected terrorists' communication records.4 While Congress has approved of such intelligence gathering methods, including granting the executive branch authority to obtain such records without initial judicial oversight, the Georgia General Assembly has preserved the requirement to obtain a search warrant prior to extracting the desired information.5 The legislation principally applies to counter-terrorism on the federal level, but has been integrated with the "'Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007" on the state level to facilitate the monitoring and capture of those engaged in sexual predatory acts over the internet or otherwise.6 LEGISLATIVE GENEALOGY

Senate Bill 98 was first read and referred to the Senate Judiciary Committee on February 1, 2007. 7 According to Sen. Hamrick, no significant opposition to the Bill was presented in Committee. 8 Major proponents included law enforcement groups such as the Georgia Bureau of Investigations and the Georgia Sheriffs Association. 9 The Committee reported favorably and sent the Bill back to the Senate, where it passed 2. Telephone Interview with Sen. Bill Hamrick, Senate Dist. No. 30 (Oct. 23, 2007) [hereinafter HamrickInterview].

3. Id. 4. Id. 5. FOREIGN INTELLIGENCE SURVEILLANCE ACT, 50 U.S.C. ยง 1802 (2008); O.C.G.A. ยง 16-9-109 (2007).

6. Id. 7. Ga. Gen. Assem., S. 98, available at http://www.legis.state.ga.us/legis/ 2007_08/sum/sb98.htm [hereinafter S. 48 Status].

8. HamrickInterview, supra note 2.

9. Id.

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and was adopted on March 1, 2007.10 The House of Representatives then received the Bill and subsequently referred it to the House Judiciary (Non-Civil) Committee, where several minor amendments were made."

The House adopted its Committee's version of the Bill on April 17, 2007, which was adopted by the Senate two days later.' 2 Notably, the Senate unanimously passed the Bill, with only one vote in opposition in the House.' 3 PREPARED BY:

10. S. 48 Status, supra note 7.

11. Id. 12. S. 48 Status, supra note 7.

13. Id.

Daniel C. Stafford

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139:1 GEORGIA PUBLIC DEFENDER STANDARD COUNCIL

Amending O.C.G.A. ยง 17-12-1 First Signature: Sen. John Wiles ( 3 7th).

Co-Sponsor: Sen. Preston Smith ( 5 2nd).

Summary: Senate Bill 139 transferred the Georgia Public Defender Standards Counsel from the judicial branch of government to the executive branch of government as an independent agency.

Status: Enacted.

TEXT OF SENATE BILL

139

ยง 1.

Chapter 12 of Title 17 of the Official Code of Georgia Annotated, relating to legal defense for indigents, is amended by revising Code Section 17-12-1, relating to the Georgia Public Defender Standards Council, as follows: "17-12-1. (a) This chapter shall be known and may be cited as the 'Georgia Indigent Defense Act of 2003.' (b) The Georgia Public Defender Standards Council shall be an independent agency within the executive branch of state government. (c) The council shall be responsible for assuring that adequate and effective legal representation is provided, independently of political considerations or private interests, to indigent persons who are entitled to representation under this chapter."

ยง 2.

Said chapter is further amended by revising subsection (e) of Code Section 17-12-10.1, relating to the general oversight committee, as follows: "(e) The council shall submit its budget estimate to the director of the Office of Planning and Budget in accordance with subsection (a) of Code Section 45-12-78. ยง3.

Said chapter is further amended by revising subsection (a) of Code Section 17-12-26, relating to the budget of the council, as follows: "(a) The council shall prepare and submit to the Office of Planning and Budget an annual proposed budget necessary for fulfilling the purposes of this article in accordance with Code Section 45-12-78. The budget request shall be based on the previous year's expenditures and budget requests submitted by each circuit public defender, the Office of the Georgia Capital Defender, and the office of the mental health advocate. The council's total budget request for funding for the operations of the circuit public defender offices and the council's programs shall not exceed the amount of funds collected for indigent defense pursuant to Code Sections 15-21 73 and 15-21A-6; provided, however, that the General Assembly shall not be obligated to appropriate such amount for indigent defense. The council is also authorized to seek, solicit, apply for, and utilize funds from any public or private source to use in fulfilling the purposes of this article."

1. S. 139,

14 9 th

Gen. Assem., Reg. Sess. (Ga. 2007).

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ยง4.

Said chapter is further amended by revising Code Section 17-12-30, relating to classification of personnel, responsibilities, compensation, and local supplements, as follows: "17-12-30. (a) All state paid personnel employed by the circuit public defenders pursuant to this article shall be employees of the executive branch of state government and shall be in the unclassified service of the State Merit System of Personnel Administration. (b) Personnel employed by the circuit public defenders pursuant to this article shall have the authority, duties, powers, and responsibilities as are authorized by law or as assigned by the circuit public defender and shall serve at the pleasure of the circuit public defender.(c)(1) The council shall establish salary ranges for each state paid position authorized by this article or any other provision of law. Salary ranges shall be similar to the state-wide and senior executive ranges adopted by the State Merit System of Personnel Administration and shall provide for minimum, midpoint, and maximum salaries not to exceed the maximum allowable salary. In establishing the salary ranges, all amounts will be rounded off to the nearest whole dollar. The council may, from time to time, revise the salary ranges to include across-the-board increases which the General Assembly may from time to time authorize in the General Appropriations Act. (2) The circuit public defender shall fix the compensation of each state paid employee appointed pursuant to this article in accordance with the job to which the person is appointed and the appropriate salary range. (3) All salary advancements shall be based on quality of work, training, and performance. The salary of state paid personnel appointed pursuant to this article may be increased at the first of the calendar month following the annual anniversary of the person's appointment. No employee's salary shall be advanced beyond the maximum established in the applicable pay range. (4) Any reduction in salary shall be made in accordance with the salary range for the position and the policies, rules, or regulations adopted by the council. (5) The compensation of state paid personnel appointed pursuant to this article shall be paid in equal installments by the council as provided by this subsection from funds appropriated for such purpose. The council may authorize employees compensated pursuant to this Code section to participate in voluntary salary deductions as provided by Article 3 of Chapter 7 of Title 45. (6) The governing authority of the county or counties comprising a judicial circuit may supplement the salary or fringe benefits of any state paid position appointed pursuant to this article. (7) The governing authority of any municipality within the judicial circuit may, with the approval of the circuit public defender, supplement the salary or fringe benefits of any state paid position appointed pursuant to this article." ยง 5.

This Act shall become effective on July 1, 2007. ยง 6.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

The purpose of the Senate Bill 139 was to provide Freater review over the budget for the indigent defense system. Sen. Wiles, of the 3 7 th, introduced the Bill in light of the problems the Indigent Defense Council is currently experiencing with its budget.3 Presently there is no oversight over the Council's budget and once the budget is sent to the Governor he is unable 2. Video Recording of Sen. Proceedings, Mar. 20, 2007 (remarks by Rep. John Wiles), available at http://www.ga.gov/00/article/0,2086,4802_610710 3_72682316,00.html.

3. Id.

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to change it. 4 The legislation will enable the Governor to make 5 amendments to the Council's budget.

LEGISLATIVE GENEALOGY

The first reading occurred on February 10, 2007.6 The Senate Judiciary Committee favorably reported the Bill by substitute on February 27, 2007. 7 The Committee Substitute modified the Bill slightly.8 The Substitute allows the Council to authorize employees to participate in voluntary salary deductions as provided by Article 3 of Chapter 7 of Title 45.9 In Committee, Sen. Steve Henson, of the 4 1st, expressed concerns of a conflict of interest when an officer of the executive branch decides to prosecute a case and the same branch cuts off funds for the defense for the same case. 10 Sen. Wiles answered that this conflict always exists in a divided government. 11 Moreover, Sen. Wiles emphasized that the Georgia Constitution and the Constitution of the United States are clear in mandating that indigent defendants are entitled to a constitutionally sufficient defense.' 2 Sen. Wiles also added that the Council supported the move to the executive branch. 13 The Committee Substitute was adopted by a vote of 33 to 0."4 Senate Bill 139 passed the Senate by substitute by a vote of 40 to 7.15 4. Id. 5. Id.

6. Ga. Gen. Assem., S. 139, available at http://www.legis.ga.gov/legis/ 2007_08/ sum/sb 139.htm (last visited Mar. 29, 2008).

7.

Id.

8. Id. (The substitute provides, "compensation of state paid personnel appointed pursuant to this article shall be paid in equal installments by the council as provided by this subsection from funds appropriated for such purpose.").

9. S. 139.

10. Video Recording of Sen. Proceedings, Mar. 20, 2007, available at http://www.ga.gov/00/ article/0,2086,4802_6107103_72682316,00.html.

11. Id. 12.

13.

14.

15.

Id. Id. Id. Ga. Gen. Assem., S. 139, available at http://www.legis.ga.gov/legis/

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The first reading in the House occurred on March 27, 2007.16 The Bill was assigned to the House Judiciary (Non-Civil)8 Committee.' 7 A second reading occurred the following day.'

OnAril 10, 2007, the House Committee favorably reported the Bill. The Bill was read a third time on April 17, 2007.20 Rep. David Ralston, of the 7 th, presented the Bill. He reaffirmed that the Bill was introduced to improve the public defender's system by adding flexibility to the budget review process. 2' Rep. DuBose Porter, of the 14 3 rd, spoke against the Bill stating that there are two major problems with transferring the Council to the executive branch.2 2 First, the separation of powers is eroded, and second, the move will weaken the authority of the legislature because the Governor, not the legislature, will be the first to see the budget.23 Rep. Porter stated that although the Council is not objecting to the move, they are fearful about the budget.24 Rep. Porter also noted that the credibility of the Council will be lessened by the move to the executive branch because it will be subject to political whims in high profile cases. 25 The Bill passed the House the same day by a vote of 98 to 58.26 The Governor received the Bill from the Senate on April 26, 2007.27 Senate Bill 139 was signed by the Governor on May 11,2007.28 PREPARED

BY: Quiana Riche

2007_08/votes/sv 0150.htm (last visited Mar. 29, 2008).

16. Id. 17. Id. 18. Id. 19. Id. 20. Id. 21. Video Recording of Sen. Proceedings, Apr. 17, 2007, available at

http://www.ga.gov/00/ article/ 0,2086,4802_6107103_72682804,00.html.

22. Id. 23. Id. 24. Id. 25. Id.

26. Ga. Gen. Assem., S. 139, available at http://www.legis.ga.gov/legis/ 2007_08/sum/sb 139.htm (last visited Mar. 29, 2008).

27. Id. 28. Id.

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190:' INSANITY/MENTAL INCOMPETENCY Amending O.C.G.A. ยง 17-7-30

SENATE BILL

FIRST SIGNATURE: Sen.

Seth Harp

Co-SPONSORS: Sen. Michael Dan Moody ( 5 6 th), Sen. Greg

(2

9 th).

Myer von Bremen (12th), Sen. Goggans ( 7 th), Sen. Don Thomas

(5 4 th) & Sen. Bill Cowsert (4 6th).

Senate Bill 190 provided definitions for violent acts and gave the committing court the discretion to allow outpatient evaluations of non-violent defendants.

SUMMARY:

STATUS:

Enacted.

TEXT OF SENATE BILL

190

ยง 1.

Part 2 of Article 6 of Chapter 7 of Title 17 of the Official Code of Georgia Annotated, relating to issues of insanity and mental incompetency in pretrial proceedings, is amended by revising Code Section 17-7-130, relating to proceedings upon a plea of mental incompetency to stand trial, as follows: '17-7-130. (a) As used in this Code section, the term: (1) 'Committing court' means the court which has jurisdiction over the criminal charges against the defendant.

(2) 'Inpatient' shall have the same meaning as in paragraph (9. 1) of Code Section 37-3-1.

(3) 'Nonviolent offense' means any offense other than: (A)(i) Murder; (ii) Rape; (iii) Aggravated sodomy; (iv) Armed robbery; (v) Aggravated assault; (vi) Hiiacking of a motor vehicle or an aircraft: (vii) Aggravated battery; (viii) Agravated sexual battery: (ix) Aggravated child molestation, or (x) Aggravated stalking; (xi) Arson in the first degree and in the second degree: (xii) Stalking: (xiii) Fleeing and attempting to elude a police officer: (xiv) Any sexual offense against a minor; or (xv) Any offense which involves the use of a deadly weapon or destructive device: and (B) Those felony offenses deemed by the committing court to involve an allegation of actual or potential physical harm to another person.

(4) 'Outpatient' shall have the same meaning as in paragraph (12.1) of Code Section 37-3-1, provided that the court determines that the defendant meets the criteria for release on bail or other pre-trial release pursuant to Code Section 17-6-1.

1. S. 190, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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(b) Whenever a plea is filed that a defendant in a criminal case is mentally incompetent to stand trial, it shall be the duty of the court to cause the issue of the defendant's mental competency to stand trial to be tried first by a special jury. If the special jury finds the defendant mentally incompetent to stand trial, the court shall retain jurisdiction over the defendant but shall transfer the defendant to the Department of Human Resources; provided, however, that if the defendant is charged with a misdemeanor offense other than as included in subparagraph (A) of paragraph (3) of subsection (a) of this Code section or a nonviolent offense, the court may, in its discretion, retain iurisdiction over the defendant, and may allow evaluation to be done on an outpatient basis by the Department of Human Resources. If the court allows outpatient evaluation and the defendant is in custody, the court may release the defendant in accordance with the provisions of Code Section 17-6-1, et. seq. (c) Within 90 days after the Department of Human Resources has received actual custody of a defendant or, in the case of an outpatient, a court order requiring evaluation of a defendant pursuant to subsection (b) of this Code section, the defendant shall be evaluated and a diagnosis made as to whether the defendant is presently mentally incompetent to stand trial and, if so, whether there is a substantial probability that the defendant will attain mental competency to stand trial in the foreseeable future. If the defendant is found to be mentally competent to stand trial, the department shall immediately report that finding and the reasons therefor to the committing court; and the defendant shall be returned to the court as provided for in subsection (D of this Code section. (d) If the defendant is found to be mentally incompetent to stand trial by the Department of Human Resources and there is not a substantial probability that the person will attain competency in the foreseeable future, the department shall return the physical custody of the defendant to a law enforcement officer of the jurisdiction of the court which committed the defendant unless in the opinion of the department's attending physician, and with concurrence of the court, such detention by law enforcement would be detrimental to the well-being of the defendant, in which case the defendant may be held by the department until the date of the defendant's hearing. The department shall report to the committing court the finding regarding competency, the reasons therefor, and its opinion as to whether the defendant currently meets criteria for commitment as an inpatient or as an outpatient pursuant to Chapters 3 or 4 of Title 37. The law enforcement officer of the jurisdiction of the court which committed the defendant shall retain custody of the defendant and the committing court may order an independent evaluation of the defendant by a court appointed licensed clinical psychologist or psychiatrist, who shall report to the court in writing as to the current mental and emotional condition of the defendant. Based on consideration of all evidence and all reports, the committing court may: (1) Refer the case to the probate court for commitment proceedings pursuant to Chapter 3 or 4 of Title 37, if appropriate and if the charges are dismissed for any reason; or (2) Retain jurisdiction of the defendant and conduct a hearing at which it shall hear evidence and consider all psychiatric and psychological reports submitted to the court and determine whether the state has proved by clear and convincing evidence that the defendant meets the criteria for involuntary civil commitment as an inpatient or as an outpatient pursuant to Chapter 3 or 4 of Title 37. whichever is applicable. The burden of proof in such hearings shall be upon the state.

(A) If the defendant does not meet the criteria for inpatient or outpatient civil commitment, the defendant shall be released in accordance with the provisions of Code Section 17-6-1 et. seq.

(B) If the defendant is found to meet the criteria for involuntary civil commitment as an inpatient or outpatient, the judge may issue an order committing the defendant. (i) If the defendant so committed is charged with a misdemeanor offense, the committing court may civilly commit the defendant for a period not to exceed one year. Following the commitment period, the charges against the defendant shall be dismissed by operation of law. (ii) A defendant who is so committed and is charged with a felony may only be released from that inpatient or outpatient commitment by order of the committing court in accordance with the procedures specified in paragraphs (1) through (3) of subsection (f) of Code Section 17-7-131 except that the burden of proof in such release hearing shall be on the state and if the committed person cannot afford a physician or licensed clinical psychologist of the defendant's choice, the person may petition the court and the court may order such cost to be paid by the county. The Department of Human Resources shall report annually to the committing court on whether the civilly committed defendant continues to meet criteria for involuntary commitment as an

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inpatient or an outpatient pursuant to Chapter 3 or 4 of Title 37. The committing court shall review the case and enter an appropriate order, either to renew the inpatient or outpatient civil commitment, to change the commitment either from inpatient to outpatient or from outpatient to inpatient, or in the event charges are dismissed, transfer the iurisdiction of the case to the probate court for further proceedings pursuant to Title 37, if appropriate. (e) If the defendant is found to be mentally incompetent to stand trial but there is a substantial probability that the person will attain competency in the foreseeable future, by the end of the 90 day period, or at any prior time, the department shall report that finding and the reasons therefor to the committing court and shall retain custody over the defendant for the purpose of continued treatment for an additional period not to exceed nine months; provided, however, that if the defendant is charged with a misdemeanor offense or a nonviolent offense, the court shall retain jurisdiction over the defendant, but may. in its discretion, allow continued treatment to be done on an outpatient basis by the Department of Human Resources. The department shall monitor the defendant's outpatient treatment for an additional period not to exceed nine months. If, by the end of the nine-month period or at any prior time if the defendant's condition warrants, the defendant is still found not to be competent to stand trial, irrespective of the probability of recovery in the foreseeable future, the department shall report that finding and the reasons therefor to the committing court. The committing court shall then follow the procedures in subsection (d) of this Code section for further commitment or release. (f)(I) If the defendant found to be mentally incompetent to stand trial is at any time found by the Department of Human Resources to be mentally competent to stand trial, the committing court shall be notified. A defendant who is an inpatient and is found by the Department of Human Resources to be mentally competent to stand trial shall be discharged into the custody of a law enforcement officer of the jurisdiction of the court which committed the defendant to the department unless the charges which led to the commitment have been dismissed, in which case the defendant shall be discharged. In the event a law enforcement officer does not appear and take custody of the defendant within 20 days after notice to the appropriate law enforcement official in the jurisdiction of the committing court, the presiding judge of the committing court, and the prosecuting attorney for the court, the department shall itself return the defendant to one of the committing court's detention facilities; and the cost of returning the defendant shall be paid by the county in which the committing court is located. All notifications shall be sent by certified mail or statutory overnight delivery, return receipt requested. With the concurrence of the appropriate court and upon the recommendation of the department's attending physician, any defendant discharged as competent to stand trial may be held by the department instead of at the court's detention facilities whenever, in the attending physician's opinion, such detention in the court's facilities would be detrimental to the well-being of the defendant so committed.

Such alternative detention shall continue only until the date of the defendant's trial.

(2)A defendant who is an outpatient and is found by the Department of Human Resources to be mentally competent to stand trial may remain in the community under conditions of bond or other conditions ordered by the committing court, if any, until the date of the person's trial. (g) Any person found by the Department of Human Resources to be mentally competent to stand trial returned to the court as provided in subsection (f) of this Code section shall again be entitled to file a special plea as provided for in this Code section. (h) If a defendant is found to be mentally incompetent to stand trial, whether or not committed pursuant to this Code section, the state may file at any time a motion for rehearing on the issue of the defendant's mental competency. The court shall grant said motion upon a showing by the state that there are reasonable grounds to believe that the defendant's mental condition has changed. If this motion is granted, the case shall proceed as provided in subsection (b) of this Code section.'

ยง 2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Seth Harp, of the

2 9

th ,

believed the maximum security

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over aggressive mentally ill defendants is more adequately provided in the State's mental health facility rather than in a penal institutional setting.2 Senate Bill 190 was a cooperative effort among the Georgia Public Defender's Standards Council, the Prosecuting Attorney's Council of Georgia, the Mental Health Network, the Mental Health 3Advocate, and various Superior Court Judges around the State.

The State's mental health agency maintained an eleven million dollar deficit for the past eight years and has been operating at more than 100% capacity since March of 2005.'

As a result of bed-shortage at the State's mental facility, the "Hannibal Lecter Type" of defendants were not being admitted to the facility for the purposes of long term treatment.5 Instead, the violent and mentally ill defendants were being held in the county jails, which were not equipped to treat them.6 The purpose of Senate Bill 190 was to free up bed space at the mental health facilities and to allow committing courts the discretion to order offenders of non-violent offenses to be examined in an outpatient setting that will be more cost efficient for the mental health agencies. 7 LEGISLATIVE GENEALOGY

The Senate passed the Bill by a unanimous vote on March 27, 2007 without question, comment, or amendment.8 The House Committee reported favorably on the passage of the Bill. The Bill was discussed on the House floor and was passed without

2. Video Recording of Senate Proceedings, Mar. 27, 2007 (remarks by Sen. Seth Harp), available at http://www.georgia.gov/00/article/0,2086,4802 6107103_72682316,00.html [hereinafter Senate Video].

3. Id. 4. Alan Judd & Andy Miller, State mental agency says it has $11 million

deficit, ATLANTA J. CONST., Oct. 31, 2007.

5. See Senate Video, supra note 2 (remarks by Sen. Seth Harp).

6. Id.

7. See Georgia Public Defender Standards Council, Legislative Update Changes

in

17-7-130

Incompetent

to

http://www.gpdsc.com/omha-article-legupdate_07.htm 2007).

8. Senate Video, supra note 2.

Stand

Trial

(IST)

(last visited Oct.

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9 question, comment, or amendment in a 129 to 3 vote.

PREPARED

9. Id.

BY: Julie Tidmore

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Legislative Initiatives with Sponsor Rationale SENATE BILL

363

211:' HATE CRIMES

Amending O.C.G.A. ยง 17-10-17 FIRST SIGNATURE:

Sen. Vincent Fort ( 3 9 th).

Co-SPONSORS: Sen. Robert Brown ( 2 6 th), Sen. Kasim Reed (35th), Sen. Nan Orrock ( th), Sen. Regina Thomas (2 rd) & Sen. Gail Davenport ( 4 4 th). 3 6

Senate Bill 211 provided increased periods of incarceration for defendants found guilty of crimes that target a victim due to age, religion, gender, national origin, or sexual orientation.

SUMMARY:

STATUS:

Not enacted.

TEXT OF SENATE BILL 211

ยง 1.

Article I of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating to procedure for sentencing and imposition of punishment, is amended by repealing in its entirety Code Section 17-10-17, relating to sentencing of defendants guilty of crimes involving bias or prejudice, circumstances, and parole.

ยง 2.

Said article is further amended by adding a new Code Section 17-10-17 to read as follows: "17-10-17. (a) Subject to the notice requirement provided in Code Section 17-10-18 and in enhancement of the penalty imposed, if the trier of fact determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property of the victim as the object of the offense because of the victim's race, religion, gender, gender identity, sexual orientation, or national origin, the judge imposing sentence shall: (1)If the offense for which the defendant was convicted is a misdemeanor, increase the sentence and the fine normally imposed by the court through court policy or voluntary sentencing guidelines by 50 percent up to the maximum authorized by law; (2) If the offense for which the defendant was convicted is a misdemeanor of a high and aggravated nature, increase the sentence and fine normally imposed by the court through court policy or voluntary sentencing guidelines by 50 percent up to the maximum authorized by law; or (3) If the offense for which the defendant was convicted is a felony, increase the sentence normally imposed by the court through court policy or voluntary sentencing guidelines by up to five years, not to exceed the maximum authorized by law; provided, however, that if the defendant was less than 18 years of age at the time of the offense, the judge shall have the discretion to reduce the enhanced penalty provided for in this subsection. (b) When the judge imposes the sentence, the judge shall state the amount of the increase of the sentence based on the application of subsection (a) of this Code section. (c) Any person convicted of a felony and given an enhanced sentence under this Code section shall not be eligible for any form of parole or early release until such person has served at least

1. S. 211, 149th Ga. Gen. Assem., Reg. Sess. (Ga. 2007).

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[Vol. I

90 percent of the sentence imposed by the sentencing court."

ยง 3.

This Act shall not apply to any offense committed before July 1, 2007.

ยง 4.

This Act shall become effective on July 1, 2007.

ยง 5.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Vincent Fort, of the 39th , introduced Senate Bill 211 in response to the increasing number of violent crimes targeting victims due to race, religion, gender, national origin, or sexual orientation. 2 In particular, a gay-friendly nightclub was bombed in the Senator's district in 1999. 3 The Bill is an amendment to restore enhanced criminal sentencing guidelines set forth in O.C.G.A. ยง 17-10-17, which was held to be unconstitutionally vague by the Georgia Supreme Court in 2004. 4 The act, labeled "The Anti-Domestic Terror Act," defined a hate crime as one committed as a result of "bias or prejudice."5 The Court ruled that these terms did not give a person of ordinary intelligence adequate warning of the proscribed conduct. 6 The new Bill was modeled after Wisconsin's hate crime law, which has already passed constitutional muster in the United States Supreme Court.7 The addition of specific classes of people was the modification that Sen. Fort inserted to cure the defect. 8 Sen. Bill Cowsert, of the 46 th , chairman of the Study Committee, commented on the interesting coalition of organizations supporting the Bill, which includes the AntiDefamation League, the NAACP, GLAD, and the Georgia Bureau of Investigation.9 Support from such diverse groups has 2. Telephone Interview with Sen. Vincent Fort, Sen. Dist. No. 39 (Sept.

20, 2007) [hereinafter FortInterview].

3. Id. 4. ANTI-DOMESTIC TERROR ACT of

2000, O.C.G.A. ยง 17-10-17 (2000), invalidatedby Botts v. State, 604 S.E.2d 512 (Ga. 2004).

5. Id. 6. Botts, 604 S.E.2d at 513.

7. Fort Interview, supra note 2; Wisconsin v. Mitchell, 508 U.S. 476

(1993).

8. FortInterview, supra note 2.

9. Telephone Interview with Sen. Bill Cowsert, Sen. Dist. No. 46 (Sept.

21, 2007).

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365

put Republicans in a delicate position, as they have traditionally voted for regulations supported by law enforcement agencies, but against the interests of groups representing homosexuals 1° and other minority interest groups.

LEGISLATIVE GENEALOGY

The first reading of the Bill in the Senate occurred on February 22, 2007; it was subsequently referred to the Judiciary Committee." On March 19, 2007, the Committee favorably reported the Bill with 6 to 2 bipartisan approval vote.12 On March 20, 2007, the Bill was read for a second time. 13 It has since been reviewed by the Rules4 Committee and is now in the Study Committee for evaluation.'

PREPARED BY:

Daniel Stafford

10. Id. 11. Ga. Gen. Assem., S. 211, available at http://www.legis.state.ga.us /legis/2007_08/sum/sb2l 1.htm.

12. Id. 13. Id. 14. FortInterview, supra note 2.

SELECTED HOUSE BILLS

HOUSE BILL 37:1 PRE-TRIAL PLACEMENT IN MENTAL HEALTH FACILITY

Amending O.C.G.A. ยง 42-4-6.1 FIRST SIGNATURE:

Rep. Bobby Parham (141st).

SUMMARY: House Bill 37 sought to amend O.C.G.A. ยง 42-46.1 to require that persons receiving mental health care from the Department of Human Resources must be removed from local jails within fifteen days of their being admitted to jail and placed in a DHR mental health facility until trial, or until found competent. Time in the mental health facility would be treated as time served and credited to any sentence.

STATUS:

Not enacted.

TEXT OF HOUSE BILL 37

ยง1.

Chapter 4 of Title 42 of the Official Code of Georgia Annotated, relating to jails, is amended by adding a new Code section to read as follows: "42-4-6.1. (a) When any person in the custody or under the care and supervision for mental health reasons of the Department of Human Resources or one of its mental health facilities is confined in the common jail awaiting trial for any offense against the penal laws of this state, the Department of Human Resources shall provide for the person's delivery to an institution or mental health facility as may be approved and supported by the Department of Human Resources within 15 days of confinement in the common jail. He or she shall be delivered and received in such institution or facility until a competency determination is made pursuant to Part 2 of Article 6 of Chapter 7 of Title 17 or until a trial, as applicable. (b) The period of time a person is confined in a hospital or institution pursuant to subsection (a) of this Code section shall be credited upon any jail sentence being served by him or her, in the same manner as though he or she had remained in jail. Any person committed for any civil or criminal contempt shall remain for all purposes under the orders, jurisdiction, and authority of the court committing him or her for contempt while in the hospital or institution, in the same manner as though he or she had remained in the common jail."

1. H.R. 37, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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ยง2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Bobby Parham, of the 141st, introduced House Bill 37 to ensure mentally ill inmates receive treatment necessary for them to lead productive lives and avoid reincarceration.2 Rep. Parham said he introduced the Bill because it would ensure mentally ill inmates receive the treatment necessary for them to function in society and avoid reincarceration. 3 He said local jails commonly house inmates with mental health problems, and urban jails particularly have large numbers of mentally ill inmates.4 Rep. Parham said the Bill stalled in 2007 because its subject matter fell within the scope of a Senate Resolution that was ultimately vetoed by Governor Sonny Perdue. 5 Senate Resolution 363 sought to create a task force to review and recommend improvements for how the state provides mental health services to citizens, including inmates. 6 Governor Perdue vetoed Senate Resolution 363 because it did not provide for the appointment of task force members by the executive branch.7 Afterwards, Governor Perdue, by executive order, created a similar task force charged with studying the state mental health system. 8 The task force is to report its findings to the Governor and General Assembly before June 2, 2008. 9 Rep. Parham said if any task force recommendation addresses the concerns that led him to propose the Bill, he might drop House Bill 37 and

2. Telephone Interview with Rep. Bobby Parham, H. District No. 141 (Oct. 24, 2007) [hereinafter Parham October Interview].

3.

Id.

4. Id. 5. Id. 6. Ga. Gen. Assem., S. Res. 363, available at http://www.legis.ga.gov/ legis/2007_08/sum/sr 363.htm (last visited Mar. 30, 2008).

7. See Press Release from Gov. Sonny Perdue's office (May 30, 2007) (on file with the John Marshall Law Journal).

8. Parham OctoberInterview, supra note 2.

9. Id.

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277

0

LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on January 10, 2007, and a second reading occurred on January 11, 2007."

The Bill was assigned to the State Institutions and Property 12 Committee, which in turn assigned the Bill to a subcommittee.

The Subcommittee on Inmate Issues considered the Bill on February 22, 2007, but took no action on it. 13 The subcommittee considered the Bill again on February 21, 2008, and forwarded the Bill to the full committee without a recommendation, but no action was taken. 14 PREPARED BY:

Bryan Brooks

10. Id. 11. Id. 12. Id. 13. Id. 14. Telephone Interview with Rep. Bobby Parham, H. District No. 141 (Feb. 23, 2008).

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HOUSE BILL 149:1 RACIAL PROFILING

Amending O.C.G.A. ยง 40-1-8 FIRST SIGNATURE: Rep. Tyrone Brooks ( 6 3rd).

CO-SPONSORS:

Rep. Al Williams ( 1 6 5 th), Rep. Carolyn Hugley

(133 ), Rep.Lucas Calvin Smyre (132 ), Rep. Bob Holmes (61s) & Rep. David ( th).

13 9

House Bill 149 sought to prohibit law enforcement officials from being able to use race or ethnicity as a basis for probable cause while engaged in law enforcement duties. The legislation required officers to document the ethnicity of each person they stop and reasons for any search they conduct.

SUMMARY:

STATUS:

Not enacted.

TEXT OF HOUSE BILL 149 ยงI

Chapter 1 of Title 40 of the Official Code of Georgia Annotated, relating to general provisions relative to motor vehicles and traffic, is amended by inserting at the end thereof a new Code Section 40-1-8 to read as follows: "40-1-8. (a) Law enforcement officers shall not use a person's race or ethnicity to form probable cause or reasonable suspicion to stop a vehicle but may use a person's race or ethnicity to confirm a 40previously obtained description of a suspect. (b)(1) Each state and local law enforcement agency shall adopt a policy and implement an annual training program regarding racial profiling that provides and instructs that a law enforcement officer shall not use a person's race or ethnicity to form probable cause or reasonable suspicion to stop a vehicle but may use a person's race or ethnicity to confirm a previously obtained description of a suspect.

(2) Except in instances where a vehicle is stopped in a fixed road block, each time a state or local law enforcement officer stops a motor vehicle to issue a citation or to make an arrest, that officer shall document the following information in a public record whose format shall be determined by the Department of Motor Vehicle Safety: (A) The gender of the driver; (B) The race or ethnicity of the driver; (C) The suspected violation that led to the stop; (D) Whether the vehicle, personal effects, driver, or any passenger was searched and, if any passenger or his or her effects were searched, the passenger's gender and the passenger's race or ethnicity; (E) Whether a search was conducted pursuant to consent, probable cause, or reasonable suspicion to suspect a crime, including the approximate duration of the search and the basis for the request for consent or the circumstances establishing probable cause or reasonable suspicion; (F) Whether contraband was found, the type and approximate amount of contraband, and

1. H.R. 149, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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whether contraband was seized; (G) Whether any arrest, citation, or any oral or written warning was issued as a result of the stop; (H) Whether the officer making the stop encountered any physical resistance, whether the officer engaged in the use of force, and whether injuries resulted; (I) Whether the circumstances surrounding the stop were the subject of any investigation and the results of that investigation; and (J) The location of the stop.

(3) If a law enforcement officer stops a motor vehicle and no citation or written warning is issued to the motorist, then the officer shall provide the motorist with a card showing the officer's name, badge number, and the name of the officer's law enforcement agency.

(4) Law enforcement agencies shall maintain the data required to be collected under paragraph (2) of this subsection for not less than seven years.

(5) As part of its personnel review or evaluation procedures provisions, each law enforcement agency shall include complaints filed and other information designed to evaluate whether or not each law enforcement officer employed by such agency is complying with the provisions of paragraph (2) of this subsection. Any officer found not to be complying with the provisions of paragraph (2) of this subsection shall be required to undergo further training that meets the requirements of paragraph (1)of this subsection.

(6) Nothing in this Code section shall be construed to alter the requirements for determining probable cause or reasonable suspicion under the Constitution of the United States or the Constitution of the State of Georgia." ยง2 All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Tyrone Brooks, of the 6 3 rd, introduced House Bill 149, a racial profiling Bill, in response to what many perceive as disparate treatment of people of color by law enforcement officers. 2 Rep. Brooks, an African American male, has personally been stopped and harassed by police due to his ethnicity. 3 Additionally, the death of Kenneth Walker in Columbus, Georgia in 2003, played a role in his decision to push the Bill forward.4 Walker was a 39 year-old unarmed African American man who was shot in the head by two white Muscogee County sheriff's deputies for no apparent reason.5 Sen. Gloria Butler, of the 5 5 th, introduced similar legislation in 2000.6 The Bill passed in the Senate but was not voted on in the House of Representatives, as the session ended before the

2. Telephone Interview with Rep. Tyrone Brooks, H. District No. 63 (Sept. 25, 2007) [hereinafter Brooks Interview].

3. Id. 4. Id. 5. Id. 6. Id.

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Bill could be brought to the floor. 7 The following year the terrorist attacks of September 11 occurred and the proponents of the Bill felt as though the timing was not right for a vote on the issue. 8 Rep. Brooks decided in 2004 to reintroduce the Bill. 9 It was co-sponsored by Rep. Warren Massey, of the 24 th, a white male, who gave a passionate speech on the floor of the House urging his fellow Republicans-to adopt the legislation.' 0 The Bill subsequently passed with 167 votes, but the Senate did not act."

Representative Brooks plans to continue 2introducing the legislation each year until it is passed into law.'

LEGISLATIVE GENEALOGY

The Bill was reviewed by the House Judiciary (Non-Civil) Committee on January 26, 2007, but was not favorably reported. 13 The most influential opposition came from the 14 Georgia Sheriffs Association and the Georgia State Patrol.

These agencies feel that racial profiling legislation creates 5 significant legal obstacles for officers in pursuit of criminals.'

Alternatively, the Georgia Association of Chiefs of Police supports the legislation.1 Chief Jim Murray of Peachtree City has been particularly active, voicing his support by testifying in committee meetings. 17 PREPARED

7.

8.

BY: Daniel Stafford

Id. Id.

9. Id. 10. Id. 11. Id. 12.

13.

14.

15.

16.

17.

Id. Ga. H. Judy. Comm., Voting Record, H.R. 149 (Jan. 26, 2007).

Brooks Interview, supra note 2.

Id.

Id. Id.

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HOUSE BILL 185:1 DEATH SENTENCE BY NON-UNANIMOUS JURY

Amending O.C.G.A. ยง 17-10-2 FIRST SIGNATURE:

Rep. Barry Fleming (1 1 7 th).

CO-SPONSORS: Rep. Willie Talton (145 h), Rep. Melvin Everson ( 1 0 6th), Rep. Timothy Bearden ( 6 8 th), Rep. Jerry Keen ( 1 7 9 th)

& Rep. Mark Burkhalter (50h).

SUMMARY: House Bill 185 sought to amend O.C.G.A. ยง 17-102 by giving the judge the discretion to impose a sentence of death, life without parole, or life if after finding the existence of at least one aggravating circumstance and at least ten jurors voted to impose a sentence of death.

STATUS: Not enacted.

TEXT OF HOUSE BILL 185 ยง 1.

Article 2 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating to the death penalty generally, is amended by revising Code Section 17-10-31, relating to requirement of a jury finding of aggravating circumstance and recommendation of death penalty, as follows: "17-10-31.

Except as provided in this Code section or Code Section 17-10-31.1, where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. Where a sentence of death is not recommended by the jury, the court shall sentence the defendant t-4 as provided in Code Section 17-10-31.1. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance in its verdict, the court shall not sentence the defendant to death, provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking. This Code section shall not affect a sentence when the case is tried without a jury or when the judge accepts a plea of guilty." ยง2.

Said article is further amended by revising Code Section 17-10-31.1, relating to requirement of a jury finding aggravating circumstances and recommendation of sentence of death or life without parole, as follows: "17-10-31.1. (a) Where, upon a trial by jury, a person is convicted of murder, a sentence of death or life without parole shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating. (b) Where a statutory aggravating circumstance is found and a recommendation of life without

1. H.R. 185, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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parole is made, the shall sentence the defendant to imprisonment for life without parole as provided in Code Section 17-10-16. (c) Where a statutory aggravating circumstance is found and the jury impaneled to determine the sentence is unable to reach a unanimous verdict as to sentence, the judge shall dismiss the jury and shall impose a sentence of life imprisonment, or imprisonment for life without parole_or death. (d)In imposing sentence, if the iury finds beyond a reasonable doubt that the defendant committed at least one statutory aggravating circumstance, the judge may sentence the defendant to: (1) Imprisonment t for life without parole if the iudge has been informed by the jury foreoerson that upon their last vote, a majority of the jurors cast their vote for a sentence of death or for a sentence of life imprisonment without parole; or (2) Death if the iudge has been informed by the iury foreperson that upon their last vote, at least ten of the iurors cast their vote for a sentence of death; provided, however, that the judge may impose a sentence of life imprisonment or imprisonment for life without parole as provided by law. (e)Notwithstanding any other provision of law, during the sentencing phase before a jury, counsel for the state and the accused may present argument and the judge may instruct the jury: (1)That 'life without parole' means that the defendant shall be incarcerated for the remainder of his or her natural life and shall not be eligible for parole unless such person is subsequently adjudicated to be innocent of the offense for which he or she was sentenced; and (2) That 'life imprisonment' means that the defendant will be incarcerated for the remainder of his or her natural life but will be eligible for parole during the term of such sentence." §3.

This Act shall become effective on July 1, 2007, and shall apply to all offenses which occur on or after July 1, 2007. §4.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Barry Fleming, of the 1 1 7th, introduced House Bill 185 as a response to the aberrant juror problem.2 Currently, Georgia law requires a unanimous jury during the penalty phase to impose a death sentence. 3 In many cases, the unanimity requirement resulted in the prosecution's inability to get a verdict imposing the death penalty. In some instances, the holdout juror refused to deliberate on the subject. This Bill would solve this problem by giving the judge the discretion to determine the sentence in certain circumstances. 4 LEGISLATIVE GENEALOGY

The Bill was first read in the House on January 29, 2007, and 2. Telephone Interview with Rep. Doug Collins, H. District No. 27 (Sept.

6, 2007) [hereinafter Collins Interview].

3. Id.; O.C.G.A. §§ 17-10-31, 17-10-31.1 (2007).

4. Collins Interview, supra note 2.

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read for the second time on January 30, 2007.' The Bill received a favorable report from committee on March 19, 2007 and was read for the third time on March 20, 2007.6 After lengthy floor debates, the Bill was passed by the House on March 20, 2007. House Bill 185 was read and referred in the Senate on March 27, 2007. 7 House Bill 185 was vigorously debated in committee.

Proponents of the Bill argued that giving the judge the discretion to impose the death penalty in certain circumstances8 is an adequate solution to the aberrant juror problem.

Currently, one or two votes can override the will of the supermajority to impose a death sentence. 9 Rep. Fleming observed that the proper avenue for those who are opposed to the death penalty is through the legislative process, not through r° their vote while on a jury.

Proponents of this Bill argue that it would help to protect victims' rights. The committee heard Sheila Howell speak about how she felt when the man who brutally killed her daughter and granddaughter was not sentenced to death because two jurors refused to vote for the death penalty. l She felt that two people, not ten or twelve, made the decision to spare Wesley Harris's life. 12 Feeling as if the victims are not on equal footing with the murderers, she urged the representatives to look at the Bill from a victim's point of view.' 3 Opponents of the Bill were concerned that lowering the standard to impose a death sentence will increase already existing problems with how the death penalty is administered.' 4 Another concern was the constitutionality of a non-unanimous 5. H.R. 185; see also Ga. Gen. Assem., H.R. 185, available at http://www.legis.gov/legis/2007_ 08/sum/hb 185.htm.

6. Id. 7. Id. 8. Video Recording of H. Judy. (Non-Civil) Comm. Meeting, Mar. 13, 2007, available at http://www.legis.ga.gov/legis/2007_08/house/Commit tees/judiciaryNonCivil/judyncArchives.htm.

9. Id. 10. Id. 11. Id. 12. Id. 13. Id.

14. Id.

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jury to recommend the death penalty.' 5 Several representatives voiced concerns about the impact of the death penalty on6 minorities and how this Bill would exacerbate those problems.'

Rep. Jack Martin, of the 4 7th , stated that Ring v. Arizona'7 left open the question of jury unanimity, and because of Ring, other states' death penalty statutes may come under attack.'" nd Rep. Kevin Levitas, of the 82 , moved to amend the Bill to require a jury of eleven, instead of nine, to make the recommendation to the judge.' 9 He said that he did not want to 20 recommend a Bill that would not pass constitutional muster.

The motion passed. 2' Rep. Levitas also proposed that the Bill be amended to change the effective date to January 1, 2009 to allow more time to analyze the issue more closely, but the motion was defeated.22 House Bill 185 was forwarded, as amended, with a due pass recommendation.23 House Bill 185 was strongly debated on the House floor.

Rep. Fleming, the sponsor of the Bill, described the mechanics of the Bill and why the Bill was necessary. 24 He explained that the Bill does not change the requirement of unanimity during the guilt/innocence phase, nor does it change the requirement of unanimity with regard to the jury's finding of the existence of aggravating circumstances. 25 It is only after the jury has unanimously found the defendant guilty, unanimously found the existence of at least one aggravating circumstance, and at least ten jurors have recommended the death penalty that the judge In will have an opportunity to impose the sentence.26 addressing the constitutionality concerns, Rep. Fleming 15. Id. 16. Id. 17. 536 U.S. 584 (2002).

18. Committee Video Recording, supra note 8.

19. Id.

20. Id. 21. Id. 22. Id. 23. Id. 24. Multimedia: Session Archives, 2007 H. Sess., available at http://www.georgia.gov/00/article/0,2086, 4 80 2 _6107103_72682804,00.html, (Mar. 20, 2007) (remarks by Rep. Barry Fleming beginning at 1:55).

25. Id. 26. Id.

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observed that Florida's system, which gives the judge more discretion in imposing a death sentence than House Bill 185, 2 7 has not been overturned, despite challenges.

Rep. Levitas voiced his concern that changing to a 9-3 or a 10-2 scheme mijht not pass constitutional muster. 28 Rep. David Ralston, of the 7 , chairman of the House Judiciary (Non-Civil) Committee, also supported the Bill.29 He stated that, in theory, a capital case should move forward with a panel of people who could consider the evidence and who could impose the death penalty.3 ° Many representatives spoke in opposition to the Bill. Rep. Robert Mumford, of the 95 h , argued that the unanimity requirement is of ancient origin and changing that would be contrary to hundreds of years of jurisprudence. 3 1 Other representatives argued that this Bill was not a narrow solution to solve the problem.32 Rep. Mark Hatfield, of the 17 7 th, while agreeing with the death penalty, also opposed this Bill. 33 He said that this Bill is not addressing a pervasive problem in this state and it is really a question of who society trusts to make these decisions. 34 The Bill's effects on minorities were another reason given in opposition of the Bill.35 Rep. Roberta AbdulSalaam, of the 74 , pointed out that everything is relevant, including race. 36 She also voiced concerns that this Bill might lead to getting rid of the jury altogether. 37 She posited that if the prosecutor has done their job, then there should not be the problem of the holdout juror. If prosecutors need more help prosecuting their cases, then this is the area where the problem 39 should be addressed.

27. Id. 28. Id. 29. Id. 30. Id. 31. Id. 32. Id. 33. Id. 34. Id. 35. Id. 36. Id. 37. Id. 38. Id. 39. Id.

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Rep. Jerry Keen, of the 1 7 9 th, which would change the number This amendment was adopted by passed the House with a 106 to 65

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proposed a floor amendment of jurors from 9-3 to 10-2.4o a 100 to 69 vote. 4' The Bill vote.4 2

PREPARED BY:

Diona M. Potter

40. Id.

41. Ga. Gen. Assem., H.R. 185 House Vote #167, available at http://www.legis.ga.gov/legis/2007_08/votes/hv0167.htm (last visited March 22, 2008).

42. Ga. Gen. Assem., H.R. 185 House Vote #168, available at http://www.legis.ga.gov/ilegis/2007_08/votes/hvO168.htm (last visited March 22, 2008). Rep. Fleming attached, as an amendment, the language of House Bill 185 to Senate Bill 145 on March 19, 2008; the amended Senate Bill 145 passed the House, however, the non-unanimous death sentence language was altered by the Senate. Ga. Gen. Assem., S. 145, available at http://www.legis.state. ga.us/legis/2007_08/sum/sb 145.htm.

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HOUSE BILL 197: THREE-JUDGE REVIEW PANELS Amending O.C.G.A. § 17-8-58 and O.C.G.A. § 17-10-6.3 FIRST SIGNATURE: Rep. Barry Fleming (11 7 th).

CO-SPONSORS: Rep. Edward Lindsey ( 5 4 th) & Rep. Mark Hatfield ( 1 2 7 th).

SUMMARY: House Bill 197 repealed the three-judge sentence review panel, formerly codified at O.C.G.A. § 17-10-6. The Bill also incorporated Senate Bill 97, which provides that a party must object to any portion of a jury charge or a failure to charge the jury, by informing the court of the specific objection before the jury retires to deliberate. The failure to do so will preclude appellate review of such portion of the jury charge that the party finds objectionable.

STATUS: Enacted.

TEXT OF HOUSE BILL

197

§1 Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is amended by adding a new Code section to read as follows: "17-8-58. (a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury's hearing and presence. (b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court's attention as provided in subsection (a) of this Code section."

§2 Said title is further amended by repealing and reserving Code Section 17-10-6, relating to review of sentences of imprisonment for a period exceeding 12 years by a three-judge panel.

§3 Said title is further amended by adding a new Code section to read as follows: "17-10-6.3. (a) As used in this Code section, the term 'three-judge panel' means the three-judge panel that was created and existed pursuant to the former provisions of Code Section 17-10-6 as it existed on June 30, 2007, which reviewed certain sentences to determine if a sentence was excessively harsh and what relief, if any, should be given. (b) The right of a defendant to have a sentence reviewed by a three-judge panel shall be terminated for sentences imposed by a trial or appellate court on or after July 1, 2007. No new

1. H.R. 197, 149th Ga. Gen. Assem., Reg. Sess. (Ga. 2007).

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application for review of a sentence shall be transmitted to the three-judge panel on or after July 1, 2007, except for cases in which a sentence was imposed prior to July 1, 2007. (c) No new application for review of a sentence shall be accepted by the three-judge panel unless such application has been received by the three-judge panel on or before Septemberl, 2007. Any sentence that has an application for review with the three-judge panel pending on September 1, 2007, shall have such review completed by the three-judge panel by November 1, 2008. (d) It shall be the duty of the president of The Council of Superior Court Judges of Georgia to cause all administrative measures which may be necessary to conclude the business of the threejudge panel to be completed no later than January 1, 2009. Such administrative, clerical, or secretarial personnel as may be assigned to provide support for the three-judge panel may continue to be employed for the purpose of providing support to the president of The Council of Superior Court Judges of Georgia until January 1, 2009. (e) No later than January 1, 2009, all records and documents relating to the activities of the three-judge panels during the period July 1, 1974, through November 1, 2008, shall be transmitted to the Department of Archives and History for retention in accordance with Article 5 of Chapter 18 of Title 50, the 'Georgia Records Act.' All equipment, supplies, and materials which the president of The Council of Superior Court Judges of Georgia determines are excess or surplus shall be distributed by the president to the judges of the superior courts for use in the performance of their official duties. Any fees or expenses due to any clerk, superior court judge, or other person as a result of the three-judge panel shall be paid out of such funds as are appropriated for the operation of the superior courts during fiscal year 2009." ยง4 Code Section 15-6-77 of the Official Code of Georgia Annotated, relating to superior court fees, is amended by revising paragraph (5) of subsection (h). ยง5 This Act shall become effective on July 1, 2007, and shall apply to all trials which occur on or after July 1, 2007. ยง6 All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Barry Fleming, of the 117 th, introduced House Bill 197 in response to concerns raised by members of the Georgia District Attorneys Association over three-judge sentence review panel.2 The problem with the sentence review panel was that it overturned plea agreements, which were entered into through negotiation and agreement. 3 Furthermore, the sentence review panel is duplicative of other parts of the criminal ustice system, such as the parole board and the appellate courts. Finally, Rep. Fleming explained that the Supreme Court of Georgia has

2. Telephone Interview with Rep. Barry Fleming, H. District No. 117 (Nov. 4, 2007) [hereinafter Fleming Interview].

3. Video Recording of H. Judy. (Non-Civil) Comm. Meeting, Mar. 7, 2007 (remarks by Rep. Barry Fleming), available at http://media.legis. ga.gov/hav/judynon/judynon307O7.wmv [hereinafter Judy NC Video].

4. Id.

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questioned the constitutionality of the sentence review panel.5 LEGISLATIVE GENEALOGY

The first reading occurred on January 30, 2007.6 The House Judiciary (Non-Civil) Committee considered the Bill on March 7, 2007, and reported the Bill favorably on March 19, 2007. 7 The Committee substituted the Bill to modify the time frame for implementation. 8 The substitute allowed the right to apply for sentence review in cases where the sentence was imposed prior to July 1, 2007. 9 The substitute further allowed that any defendant that applied for review by September 1, 2007, should have the review completed by November 1, 2008.10 House Bill 197 was read again in the House and debated on March 27, 2007."

Rep. Fleming presented the Bill and discussed the problems with the three-judge sentence review panel.' 2 Opponents expressed concern about ineffective counsel as well as the fact that no court had found any constitutional issues with the review panel. Rep. Fleming stated that what Rep. Holmes, of the 61', described was an insufficient counsel problem and is available for appeal to the appellate courts. The3 House adopted the Committee Substitute to House Bill 197.1 No amendments were offered, and the House passed House Bill 197 by a vote of 102 to 62.14 The Senate read and referred House Bill 197 to the Senate

5. Fleming Interview, supra note 2; Moseley v. Sentence Review Panel, 631 S.E.2d 704, 707 (Ga. 2006).

6. Ga. Gen. Assem., H.R. 197, http://www.legis.state.ga.us/legis/200708/ sumihb 197.htm [hereinafter H.R. 197 Status].

7. Id. 8. Id. 9. Id. (Defendants with sentences imposed prior to July 1, 2007, had until September 1, 2007 to apply for review.).

1o. Id. 11. Id. 12. Video Recording of H. of Rep. Proceedings, Mar. 27, 2007 (remarks

by Rep. Barry Fleming), available at http://www.georgia.gov/00/article/ 0,2086,4802 6107103_72682804,00.html [hereinafter House Video 3/2 7].

13. H.R. 197 Status, supra note 6.

14. Id.

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Judiciary Committee on March 27, 2007.'5 The Committee favorably reported the Bill and recommended the Bill to pass by substitute.' 6 The Committee Substitute added a section to the7 Bill relating to objections to jury charges in criminal trials.1 The substitute added a new code section, O.C.G.A. ยง 17-8-58, which requires a party to object to any portion of a jury charge, or failure to charge the jury, by making a specific objection and the grounds for such objection before the jury retires to deliberate.' 8 The substitute also provided that failure to object to the jury charge in such fashion would preclude appellate review of the objectionable jury charge, unless the jury charge constitutes plain error.19 The substitute was actually a Bill that the Senate passed earlier in the 2007 legislative session, Senate Bill 97, which did not make it through the subcommittee in the House.20 The Senate adopted the Committee Substitute to House Bill 197 and passed the Bill by a vote of 38 to 13.21 nd Sen. Preston Smith, of the 52' , presented House Bill 197 to the Senate on April 17, 2007, voicing his support for the Bill by stating that the three-judge panel should be abolished because: (1) we now have a statewide indigent defense system to provide all criminal defendants with competent counsel; (2) we have judges that are required to make sentences within a framework prescribed by the legislature; and (3) it is inequitable for an unelected three-judge panel-sitting outside the jurisdiction where the case was heard that did not hear the evidence of the case-to second guess the trial judge and substitute their judgment for either a sentence imposed by the trial judge or through a negotiated plea.2 2 This would also bring Georgia in 15. Id. 16. Video Recording of Sen. Proceedings, April 17, 2007, available at http://www.georgia.gov/00/article/0,2086,4802_6107103_72682316,00.html [hereinafter Senate Video].

17. See H.R. 197 Status, supra note 6.

18. Id. 19. Id. 20. S. 97, 149th Ga. Gen. Assem., Reg. Sess. (Ga. 2007) (Senator

Hamrick introduced the bill to eliminate the problems that arise when

objections to jury charges are made after the jury has left to deliberate).

21. Ga. Gen. Assem., S. 97, http://www.legis.state.ga.us/legis/2007_08/

sum/sb97.htm.

22. See Senate Video, supra note 16.

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line with the Federal Rules of Criminal Procedure, and the majority of States, with regard to objections to jury charges. 23 Sen. Emanuel Jones, of the 1 0 th, offered an amendment to the Bill, which would allow for an exception for those persons convicted prior to July 1, 2006, and after July 1, 2001, under the "Youthful Offender Act," 24 known as the "Romeo and Juliet" provision. 25 This Amendment failed by a vote of 21 to 30.26 On April 19, 2007, Rep. Fleming moved the House to agree to the Senate Committee Substitute to House Bill 197.27 Rep. Fleming explained that the underlying Bill regarding abolition of the sentence review panel was not changed. 8 Rep. Fleming further explained that the Senate's addition would align Georgia with the Federal Rules of Criminal Procedure, and the practice in 45 other states, which require specific objections29 to jury charges to be made before the jury retires to deliberate. th Rep. Randal Mangham, of the 94 , was concerned that the Senate Committee Substitute would shift the burden back onto the defense, in that if the defendant has an incompetent lawyer who fails to object to an incorrect jury charge, the objection is lost forever.3' Rep. Fleming responded that such a case could give rise to an appeal on ineffective counsel grounds. 3' Rep. Fleming further stated that this Bill merely requires the lawyer, when objecting to the judge's jury instruction, to tell the judge why he is objecting, so the judge can have an opportunity to correct it. 32 Rep. Fleming also stated that proponents of the Bill believe that it will lessen the number of appeals that come out of criminal cases.3 3 The House adopted the Senate Committee Substitute by a 23. Id. (remarks by Sen. Bill Hamrick); FED. R. CRIM. P. 30(d).

24. See Senate Video, supra note 16.

25. Id. (remarks by Sen. Emanuel Jones).

26. H.R. 197 Status, supra note 6.

27. Video Recording of H. of Rep. Proceedings, April 19, 2007 (remarks

by Rep. Barry Fleming), available at http://www.georgia.gov/00/article/ 0,2086,4802_6107103_72682804,00.html [hereinafter House Video 4/19].

28. Id. 29. Id.

30. Id. (remarks by Rep. Mangham).

31. Id. (remarks by Rep. Fleming).

32. Id.

33. Id.

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vote of 92 to 68. Rep. Stephanie Benfield, of the 8 5th, moved to have the House reconsider the vote on House Bill 197. 35 The House voted 71 to 96, declining to reconsider their action on House Bill 197.36 The House sent House Bill 197 to the Governor on April 30, 2007."7 PREPARED

34.

35.

36.

37.

H.R. 197 Status, supra note 6.

House Video 4/19, supra note 27.

H.R. 197 Status, supra note 6.

Id.

BY: Nicholas Utley

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HOUSE BILL 226:1 DISTRIBUTING OBSCENE MATERIAL

Amending O.C.G.A. ยง 16-12-80 FIRST SIGNATURE:

Rep. David Ralston (7 th).

Co-SPONSORS: Rep. Burkhalter ( 5 0th).

Wendell Willard

( 4 9 th)

& Rep. Mark

House Bill 226 specifically defined the broad term "dissemination" in the affirmative defense section of O.C.G.A. ยง 16-12-80 to specify that "selling, lending, renting, leasing, giving, advertising, publishing, exhibiting, or otherwise disseminating" material to institutions of higher learning, or a person for whom the material had been medically prescribed shall be an affirmative defense.

SUMMARY:

Status: Not Enacted.

TEXT OF HOUSE BILL 226 ยง1.

Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to crimes involving obscenity in general, is amended by striking in its entirety Code Section 16-12-80, relating to criminal distribution and dissemination of obscene materials, and inserting in its place a new Code Section 16-12-80 to read as follows: "16-12-80. (a) A person commits the offense of distributing obscene material when he or she sells, lends, rents, leases, gives, advertises, publishes, exhibits, or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so, provided that the word 'knowing,' as used in this Code section, shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter; and a person has constructive knowledge of the obscene contents if he or she has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material; provided, however, that the character and reputation of the individual charged with an offense under this law, and, if a commercial dissemination of obscene material is involved, the character and reputation of the business establishment involved may be placed in evidence by the defendant on the question of intent to violate this law.

Undeveloped photographs, molds, printing plates, and the like shall be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it. (b) Material is obscene if: (1) To the average person, applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion; (2) The material taken as a whole lacks serious literary, artistic, political, or scientific value; and (3) The material depicts or describes, in a patently offensive way, sexual conduct specifically

1. H.R. 226, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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defined in subparagraphs (A) through (E) of this paragraph: (A) Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated; (B) Acts of masturbation; (C) Acts involving excretory functions or lewd exhibition of the genitals; (D) Acts of bestiality or the fondling of sex organs of animals; or (E) Sexual acts of flagellation, torture, or other violence indicating a sadomasochistic sexual relationship. (c) Any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this Code section. (d) Material not otherwise obscene may be obscene under this Code section if the distribution thereof, the offer to do so, or the possession with the intent to do so is a commercial exploitation of erotica solely for the sake of their prurient appeal. (e) It is an affirmative defense under this Code section that selling, lending, renting, leasing, advertising, publishing, exhibiting, or otherwise disseminating the material was restricted to: (1)A person associated with an institution of higher learning, either as a member of the faculty or a matriculated student, teaching or pursuing a course of study related to such material; or (2) A person whose receipt of such material was authorized in writing by a licensed medical practitioner or psychiatrist. (f) A person who commits the offense of distributing obscene material shall be guilty of a misdemeanor of a high and aggravated nature." ยง2.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply only with respect to offenses committed on or after that effective date. ยง3.

All laws and parts of laws in conflict with this Act are repealed

FIRST SIGNATURE'S RATIONALE

Rep. David Ralston, of the 7 th, introduced House Bill 226 because the Eleventh Circuit U.S. Court of Appeals in This That 2 And The Other Gift And Tobacco, Inc. v. Cobb County, Ga., found that O.C.G.A. ยง 16-12-80 contained a per se ban on advertising that was more extensive than necessary, thus making the statute unconstitutional. 3 In committee, Rep. Ralston stated that he introduced House Bill 226 because the Federal Court in This That And the Other Gift And Tobacco, Inc., struck down the current obscenity statute, finding that the statute was overbroad in terms of restrictions on advertising the sale of certain merchandise. 4 Rep. Ralston noted that certain 2. This That And The Other Gift And Tobacco, Inc. v. Cobb County, 439 F.3d 1275 (1 lth Cir. 2006).

3. Video Recording of Ga. H. Judy. (Non-Civil) Comm. Meeting, Mar. 14, 2007 (remarks by Rep. David Ralston), available at http://www.legis.state.ga.us/legis/2007-08/house/Committees/judiciaryNonC ivil/judyncArchives.htm. [hereinafter Committee Recording].

4. Ga. Gen. Assem., H.R. 226, http://www.legis.ga.gov/legis/2007_08/

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metro areas wanted to resuscitate Georgia's obscenity statute with a Bill that upholds the traditional family values of our state.5 In addition to defining dissemination, House Bill 226 provides an exemption for employees of higher education, and 6 includes an exemption for employees of public libraries.

LEGISLATIVE GENEALOGY

The first reading occurred on January 31, 2007. A second reading occurred on February 1, 2007, where the House recommitted the Bill to committee on rules.7 On March 14, 2007, the House Judiciary (Non-Civil) Committee reviewed and debated the Bill. 8 The committee heard testimony from representatives from the Georgia Council of Public Libraries regarding concerns that librarians could be punished for material contained in books already shelved in the libraries, such as science books that include pictures of the anatomy of the human body. 9 Additionally, representatives on behalf of the Georgia Council of Public Libraries noted that the current law provides an exemption for higher education and that public libraries contribute to education and, therefore, libraries should 0 have an exemption under the new law.'

Rep. Bobby Franklin, of the 4 3 rd, moved to delete the librarian exemption because librarians are not elected officials and, therefore, are not held accountable for material they select for the library, even though tax dollars are used to purchase these materials." In response to Rep. Franklin, Rep. Robert Mumford, of the 95 , stated that librarians are very selective about the material they choose for the library, and without the exemption, someone who believes a book is obscene could pursue a warrant and have a librarian arrested.' 2 After these discussions, the committee voted and did not pass Rep. sum/hb226.htm (last visited Mar. 23, 2008) [hereinafter H.R. 226 Status].

5. Committee Recording,supra note 3.

6. Id. 7. Id. 8. Id. 9. Id. 1o. Id. 11. Id. 12. Id.

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Franklin's motion to amend the Bill, and the committee favorably reported House Bill 226.'1 On March 27, 2007, the Bill was read in the House. 14 Rep. Ralston explained to the floor that this Bill would reenact Georgia's obscenity statute and get the law back on the books. 15 Rep. Ralston also stated that the exemption for public libraries does not change the oversight of public libraries by local enforcement officials.' 6 Rep. Stephanie Benfield, of the 85 reiterated that librarians from several districts had contacted their Representatives in support of the Bill. 17 Rep. Franklin spoke on the Bill and stated that the court instructed the legislature to define dissemination in the obscenity statute and8 did not mention anything about an exemption for librarians.'

Therefore, Rep. Franklin stated that House Bill 226 should be passed as introduced, without the exemption for public libraries due to multiple concerns including allowing tax dollars to be spent by libraries to purchase obscene material.' 9 Due to these concerns, Rep. Franklin proposed an amendment to the Bill, which struck the exemption for librarians. 20 The House voted on the amendment, resulting in a tie. Rep. Franklin moved to reconsider the Amendment, resulting in its passage. 2' The House passed House Bill 226 without the public library defense.2 Sen. John Wiles, of the 3 7 th, sponsored the Bill in the Senate. 23 On March 27, 2007, the Bill was read and referred.24 On April 13, 2007, the Senate Committee favorably reported

13.

Id.

14. Video Recording of Ga. H. Proceedings, Mar. 27, 2007 (remarks by Rep. David Ralston), available at http://www.georgia.gov/00/article/0,2086, 4802_6107103_72682804,00.html.

15. Id. 16. Id. 17.

Id.

18. Id. 19. Id. 20. Id. 21. Id.

22. Id. 23. H.R. 226 Status, supra note 4.

24. Id.

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and recommended the Bill to pass by substitute. 25 The Senate added back the defense for a person associated with a public library and read the Bill a second time.26 The Bill did not make it to the floor for a vote in the Senate in the 2007 session.

During the 2008 Session, the Senate recommitted House Bill 226.27 PREPARED BY: Jerry B. Thames

25. Id. 26. Id. 27. Id.

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HOUSE BILL 251:1 DISCIPLINE OF PROSECUTORIAL MISCONDUCT

Amending O. C.G.A. ยง 15-18-90 FIRST SIGNATURE: Rep. Austin Scott (15 3 rd).

SUMMARY: House Bill 251 enlarged the authority of the Judicial Qualifications Commission ("JQC") by allowing the Commission to discipline Georgia prosecuting attorneys for

prosecutorial misconduct.

STATUS: Not enacted.

TEXT OF HOUSE BILL 251 ยง 1.

Chapter 18 of Title 15 of the Official Code of Georgia Annotated, relating to prosecuting attorneys, is amended by adding a new Article 5 to read as follows: "ARTICLE 5 15-18-90.

As used in this article, the term: (1) 'Commission' means the Judicial Qualifications Commission created by Article VI, Section VII, Paragraph VI of the Constitution of the State of Georgia.

(2) 'Invidious discrimination' means any action by an organization that characterizes some immutable individual trait such as a person's race, gender, or national origin, as well as religion, as odious or as signifying inferiority, which therefore is used to justify arbitrary exclusion of persons possessing those traits from membership, position, or participation in the organization.

(3) 'Knowingly,' 'knowledge,' 'known,' or 'knows' denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

(4) 'Law' denotes court rules as well as statutes, constitutional provisions, and decisional law.

(5) 'Prosecuting attorney' means the individual responsible for prosecuting cases in superior courts, state courts, probate courts, magistrate courts, municipal courts, and any other court that hears cases involving a violation of the criminal laws of this state or ordinance violations.

(6) 'Third degree of relationship' means the following relatives: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece.

15-18-91. (a) Any prosecuting attorney may be removed, suspended, or otherwise disciplined by the commission for willful misconduct in office, for willful and persistent failure to perform the duties of office, for habitual intemperance, for conviction of a crime involving moral turpitude, or for conduct prejudicial to the administration of justice which brings the office of the prosecuting attorney into disrepute. Any prosecuting attorney may be retired for disability, which constitutes a serious and likely permanent interference with the performance of the duties of office. The commission shall adopt such rules and regulations as necessary for the implementation of this article. (b) No action shall be taken against a prosecuting attorney except after a hearing and in accordance with due process of law. No removal or involuntary retirement shall occur except upon order of the Supreme Court after review.

15-18-92.

1.H.R. 251, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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Prosecuting attorneys shall adhere to the following standards in the conduct of the duties of their office: (1)Prosecuting attorneys shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial system; (2) Prosecuting attorneys shall not allow their family, social, political, or other relationships to influence their conduct or judgment; (3) Prosecuting attorneys shall not hold membership in any organization that practices invidious discrimination; (4) Prosecuting attorneys shall refrain from manifesting, by words and conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status against parties, witnesses, counsel, or others. This does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, or other similar factors, are issues in the proceeding; (5) Prosecuting attorneys shall require their staffs and others subject to their direction and control to observe the standards of fidelity and diligence that apply to the prosecuting attorneys and to refrain from manifesting bias or prejudice in the performance of their official duties; (6) Prosecuting attorneys shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned including, but not limited to, instances where: (A) The prosecuting attorney has a personal bias or prejudice concerning a party or a party's lawyer; (B) The prosecuting attorney served as a lawyer in the matter of controversy, a lawyer with whom the prosecuting attorney previously practiced law served during such association as a lawyer concerning the matter, or the prosecuting attorney has been a material witness concerning it; and (C) The prosecuting attorney or his or her spouse, a person within the third degree of relationship to either of them or the spouse of such a person, or any other member of the prosecuting attorney's family residing in the prosecuting attorney's household: (i) Is a party to the proceeding or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the prosecuting attorney to have a more than de minimis interest that could be substantially affected by the proceeding; or (iv) Is to the prosecuting attorney's knowledge likely to be a material witness in the proceeding or was the victim of the crime alleged in the proceeding; (7) Prosecuting attorneys shall refrain from prosecuting a charge that the prosecuting attorney knows is not supported by probable cause; (8) Prosecuting attorneys shall refrain from making any effort to prevent an accused person from exercising a reasonable effort to obtain counsel; (9) Prosecuting attorneys shall make timely disclosure to the defense of all evidence or information known to the prosecuting attorney that tends to negate the guilt of the accused or that mitigates the offense; (10) Prosecuting attorneys shall exercise reasonable care to prevent persons who are under their direct supervision from making an extrajudicial statement that the prosecuting attorney would be prohibited from making under paragraph (12) of this Code section; (11) Prosecuting attorneys shall not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecuting attorney reasonably believes: (A) The information sought is not protected from disclosure by any applicable privilege; (B) The evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (C) There is no other feasible alternative to obtain the information; and (12) Except for statements that are necessary to inform the public of the nature and extent of the prosecuting attorney's action and that serve a legitimate law enforcement purpose, prosecuting attorneys shall refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused." ยง2.

All laws and parts of laws in conflict with this Act are repealed.

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FIRST SIGNATURE'S RATIONALE

The intent of House Bill 251 was to deal with prosecutorial misconduct, specifically instances of overzealous and harassing indictments.2 Rep. Austin Scott, of the 1 5 3 rd, drafted the Bill in response to the cases of two Albany men.' Each man was indicted three times, but neither was formally charged.4 Rep. Scott believed that the indictments were without merit and that the local prosecutor pursued them because the men were causing publicity problems for the local hospital.5 LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on February 1, 2007.6 The Bill was read for a second time on February 2, 2007. 7 On March 12, 2007, the House Judiciary (Non-Civil) Committee held hearings on House Bill 251.8 Rep. Scott proffered that House Bill 251 was necessary to address the issue of prosecutorial misconduct. 9 He further stated that he believed such misconduct and ethical violations would best be filed with the commission handled by the JQC, as complaints 0 are handled confidentially.'

Rep. Kevin Levitas, of the 8 2 nd, voiced concern as to House In particular, Rep. Levitas Bill 251's constitutionality." the oversight and disciplinary to whether as expressed doubts power could be taken away from the Supreme Court, and suggested submitting the issue to the Attorney General's office

2. Telephone Interview with Rep. Austin Scott, H. District No. 153 (Aug. 5, 2007).

3. Id. 4. Id. 5. Id. 6. Ga. Gen. Assem., H.R. 251, available at http://www.legis.ga.gov/

legis/2007_08/sum /hb 25 l.htm (last visited Mar. 23, 2009).

7. Id. 8. Daily Report, H. Judy. (Non-Civil) Subcommittee One, available at http://www.ciclt.net/aoc/main.asp?PT-n_detail&Client-aoc&NID= 100034.

9. Id.

10. Id. 1l. Id.

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for a determination of constitutionality.' 2 Rep. Levitas further stated that he did not think that prosecutors should hold positions on the JQC; Rep. Scott replied that he was not adamant about any of the language in particular, but that he primarily wanted a non-Bar institution that operates similar to the JQC to act as an oversight committee.1 3 Subsequently, Rep. Tim Bearden, of the 6 8 th, made a motion to table the Bill until the Attorney General approves it or Rep. Scott amends the Bill to cure the potential constitutional defect. 4 Consequently, no action was taken on House Bill 251.

PREPARED

12. Id.

13.

14.

Id. Id.

BY: Paul Sieg

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House Bill 301:1 Dog Fighting Amending O.C.G.A. ยง 16-12-37 FIRST SIGNATURE:

Rep. Bobby Reese

( 9 8th).

Co-SPONSORS: Rep. David Knight ( 1 2 6th), Rep. Jay (Roberts ( 15 4 th), Rep. Al Williams ( 1 6 5th), Rep. Mike Jacobs 8 0 th) & Rep. Gene Maddox ( 1 7 2nd).

SUMMARY: House Bill 301 would substantially strengthen O.C.G.A. ยง 16-12-37 by making it a crime for dog owners, property owners (where dogfighting occurs), and spectators to engage in dogfighting.

STATUS: Passed House and Senate.

TEXT OF HOUSE BILL 301

ยง 1-1.

Part 1 of Article 2 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to gambling offenses, is amended by revising Code Section 16-12-37, relating to dogfighting, as follows: "16-12-37. (a) As used in this Code section. the term 'dog' means any domestic canine. (b)Any person who: (1)Owns, possesses, trains, transports, or sells any dog with the intent that such dog shall be engaged in fighting with another dog: (2) For amusement or gain, causes any dog to fight with another dog or for amusement or gain, causes any dogs to injure each other; (3) Wagers money or anything of value on the result of such dogfighting (4) Knowingly permits any act in violation of paragraph (1)or (2) of this subsection on any premises under the ownership or control of such person or knowingly aids or abets any such act: or (5) Knowingly promotes or advertises an exhibition of fighting with another dog shall be guilty of a felony and, upon the first conviction thereof, shall be punished by imprisonment of not less than one nor more than five years, a fine of not less than $5,000.00, or both such fine and imprisonment. On a second or subsequent conviction, such person shall be punished by imprisonment of not less than one nor more than ten years, a fine of not less than $15,000.00, or both such fine and imprisonment. Each act or omission in violation of this subsection shall constitute a separate offense. (c) Any person who is knowingly present only as a spectator at any place for the fighting of dogs shall, upon a first conviction thereof, be guilty of a misdemeanor of a high and aggravated nature. On a second conviction, such person shall be guilty of a felony and shall be punished by imprisonment of not less than one nor more than five years, a fine of not less than $5,000.00, or both such fine and imprisonment. On a third or subsequent conviction, such person shall be punished by imprisonment of not less than one nor more than ten years, a fine of not less than $15,000.00, or both such fine and imprisonment. Each act in violation of this subsection shall

1. H.R. 301, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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constitute a separate offense. (d) Any dog subject to fighting may be impounded pursuant to the provisions of Code Sections 4-11-9.2 through 4-11-9.6. For purposes of such impoundment of a doe subject to fighting. humane care of such dog while impounded shall include but not be limited to mandatory neutering or spaying if the dog is not sterile. In addition to any punishment imposed under subsection (b) of this Code section, a dog owner convicted of violating any provision of said subsection shall be assessed the costs of neutering or spaying any dog belonging to him or her that has been impounded as a result of such violation. (e) This Code section shall not prohibit, impede, or otherwise interfere with animal husbandry, training techniques, competition, events, shows, or practices not otherwise specifically prohibited by law and shall not apply to the following activities: (1) Owning, using, breeding, training, or equipping any animal to pursue, take, hunt, or recover wildlife or any animal lawfully hunted under Title 27 or participating in hunting or fishing in accordance with the provisions of Title 27 and rules and regulations promulgated pursuant thereto as such rules and regulations existed on the date specified in Code Section 27-1-39: (2) Owning, using, breeding, training, or equipping dogs to work livestock for agricultural purposes in accordance with the rules and regulations of the Commissioner of Agriculture as such rules and regulations existed on January 1, 2008; (3) Owning, using, breeding, training, or equipping dogs for law enforcement purposes; or (4) Owning, using, breeding, training, or equipping any animal to control damage from nuisance or pest species in and around structures or agricultural operations."

ยง 2-1.

Title 4 of the Official Code of Georgia Annotated, relating to animals, is amended by revising paragraph (6) of Code Section 4-8-41, relating to definitions relative to Chapter 8 of said title, as follows: "(6) 'Vicious dog' means any dog that+ Inflicts a severe injury on a human being without provocation after the owner has notice that the dog has previously bitten or attacked or endangered the safety of a human being, Such term shall not include a dog that inflicts an injury upon a person when the dog is being used by a law enforcement officer to carry out the law enforcement officer's official duties. A dog shall not be a vicious dog if the injury inflicted by the dog was sustained by a person who, at the time, was committing a willful trespass or other tort or was tormenting, abusing, or assaulting the dog or had in the past been observed or reported to have tormented, abused, or assaulted the dog or was committing or attempting to commit a crime."

ยง 2-2.

Said title is further amended by revising subsection (c) of Code Section 4-11-9.3, relating to caring for an impounded animal, as follows: "(c) Any person impounding an animal under this article is shall be authorized to return such animal to its owner, upon payment by the owner of all costs of impoundment and care and upon the entry of a consent order, unless such owner, in a prior administrative or legal action in this state or any other state, was found to have failed to provide humane care to an animal, committed cruelty to animals, or committed an act prohibited under Code Section 16-12-37 in violation of the laws of this state or of the United States or any of the several states. Such consent order shall provide conditions relating to the care and treatment of such animal, including, but not limited to, the following, that: (1) Such animal shall be given humane care and adequate and necessary veterinary services; (2) Such animal shall not be subjected to cruelty; and (3) The owner shall comply with this article." ยง 2-3.

Said title is further amended by revising subparagraph (b)(6)(B) of Code Section 4-11-9.5, relating to failure to respond, right to hearing, care, and crime exception, as follows: "(B) Unless, in a prior administrative or legal action in this state or any other state, the owner has been found to have failed to provide humane care to an animal, committed cruelty to animals, or committed an act prohibited under Code Section 16-12-37 in violation of the laws of this state or of the United States or any of the several states, recommend conditions under which the animal may, upon payment by the owner of all costs of impoundment and care, be returned to the owner. Such conditions shall be reduced to writing and served upon the owner and the

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government agency having custody of the animal. Such conditions may include, but are not limited to, the following, that: (i) Such animal shall be given humane care and adequate and necessary veterinary services; (ii) Such animal shall not be subjected to mistreatment; and (iii) The owner shall comply with this article."

ยง 2-4.

Said title is further amended by revising subsection (a) of Code Section 4-11-17, relating to filing a report regarding animal cruelty and immunity, as follows: "(a) Notwithstanding Code Section 24-9-29 or any other provision of law to the contrary, any licensed veterinarian or veterinary technician having reasonable cause to believe that an animal has been subjected to animal cruelty in violation of Code Section 16-12-4 or an act prohibited under Code Section 16-12-37 may make or cause to be made a report of such violation to the Commissioner, his or her designee, an animal control officer, a law enforcement agency, or a prosecuting attorney and may appear and testify in any judicial or administrative proceeding concerning the care of an animal."

ยง 3-1.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

ยง 3-2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Bobby Reese, of the

9 8 th,

introduced House Bill 301.

The intent of the legislation was to strengthen O.C.G.A. ยง 1612-37 by capturing other criminal conduct within the meaning of the statute. Specifically, the proposed bill would include dog owners, property owners (where dogfighting occurs) and spectators that participate in dogfighting, in order to discourage 2 dogfighting in Georgia.

LEGISLATIVE GENEALOGY

The first and second readings of the Bill in the House occurred on February 8, 2007 and February 9, 2007. 3 On March 19, 2007, House Bill 301 was favorably reported by the House Judiciary (Non-Civil) Committee. 4 The version of House Bill 301 that was favorably reported was virtually identical to the original version, except for the modification changing the punishment for spectators to a misdemeanor from

2. Telephone Interview with Rep. Bobby Reese, H. District No. 98 (July 30, 2007) [hereinafter Reese Interview].

3. H.R. 301; (Ga. 2007), bill text, available at http://www.legis.state. ga.us/legis/2007_08/sum/hb3O1 .htm.

4. Id.

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a felony. 5 This change was made because there were differences of opinion as to how the penalty provision for spectators should be structured.6 On April 20, 2007, House Bill 301 was withdrawn and recommitted.7 Rep. Reese reintroduced House Bill 301 early in the 2008 session of the Georgia General Assembly. 8 In January 2008, the Bill was once again favorably reported by the House Judiciary (Non-Civil) Committee and overwhelmingly passed the House with a vote of 165 votes in favor of the bill. Penalty structure issues were resolved by adopting a graduated scheme with respect to spectator offenses.

House Bill 301 passed the Senate on March 12, 2008. 9 Final amendments to the Bill were agreed to by the House and Senate on March 27 and March 28, 2008.10 PREPARED BY:

Paul Donahue

5. Compare Georgia Gen. Assem., Legislative Search, Bill Summary http://www.legis.state.ga.us/legis/2OO7_08/versions/hb3Ol LC 28 3375_a 2.htm (last accessed Dec. 17, 2007) and HB 301, Bill Summary, http://www.legis.state.ga.us/legis/200708/versions/hb301_LC292811 Shs4.ht m (last accessed Dec. 17, 2007).

6. Telephone Interview with Rep. Doug Collins, H. District No. 27 (Dec. 3, 2007).

7. Georgia Gen. Assem., Legislative Search: HB 301, Bill Summary, http://www.legis.state.ga.us/legis/2007_08/sum/hb301.htm (last accessed Apr. 5, 2008).

8. Id. 9. Id.

10. Id.

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HOUSE BILL 308:1 EYEWITNESS IDENTIFICATION

Amending O.C.G.A. ยง 17-9-1 FIRST SIGNATURE:

Rep. Stephanie Benfield (8 5th).

CO-SPONSORS: Rep. Pam Stephenson ( 9 2 nd), Ret. Randal Mangham ( 9 4th), Rep. Roberta Abdul-Salaam (74t) & Rep.

Mabel Thomas (55 h).

The Bill would establish procedures for conducting lineups for the purpose of making eyewitness identifications.

SUMMARY:

STATUS:

Not enacted.

TEXT OF HOUSE BILL 308 ยง 1.

The General Assembly finds and declares that eyewitness error is the leading cause of mistaken convictions, and cases of mistaken convictions in this state due to eyewitness misidentification have a resulted in actual perpetrators remaining free to commit more crimes. The General Assembly further finds that the goal of a police investigation is to identify accurately and apprehend the true perpetrators of crimes, and scientific studies of eyewitness memory have demonstrated that eyewitness evidence is, like trace physical evidence, susceptible to contamination if not handled properly. The General Assembly further finds that well-intentioned witnesses and authorities acting in good faith may sometimes inadvertently undermine the accuracy of an identification procedure unless appropriate safeguards are in place. Accordingly, the General Assembly, acutely aware that extensive scientific research has shown that alternative methods of conducting identification procedures greatly enhance eyewitness identification accuracy, declares that this state has a compelling interest in assuring that appropriate eyewitness identification procedures are utilized in this state.

ยง 2.

This Act shall be known and may be cited as the "Eyewitness Identification Accuracy Enhancement Act."

ยง 3.

Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is amended by adding a new chapter to read as follows: CHAPTER 19 17-19-1.

As used in this chapter, the term: (1) 'Filler' means a person, not a suspect in the crime under investigation, who is made part of a live lineup or a photograph of a person, not a suspect in the crime under investigation, that is made part of a photo lineup and presented to a witness.

(2) 'Live lineup' means a selected group of persons presented to an eyewitness to a crime containing a suspect and several fillers for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.

(3) 'Neutral blind administrator' means a person who conducts photo lineup or live lineup procedures while unaware of which person in the lineup is the suspect and which are fillers.

1. H.R. 308, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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(4) 'Photo lineup' means a selected group of photographs of persons presented to an eyewitness to a crime containing a single suspect and several fillers for the purpose of determining whether the eyewitness is able to identify the suspect as the perpetrator.

(5) 'Suspect' means a person under investigation for participation in a crime.

17-19-2.

Prior to January 1, 2008, the Georgia Peace Officer Standards and Training Council shall develop and disseminate to all law enforcement jurisdictions in this state comprehensive policies and procedures and associated training materials for law enforcement agencies regarding photo lineup and live lineup eyewitness identification procedures that implement the requirements set forth in this chapter.

17-19-3. (a) All photo lineup and live lineup eyewitness identification procedures conducted by law enforcement officers shall be administered pursuant to the procedures developed pursuant to Code Section 17-19-2 and consistent with the requirements of this chapter. (b) Composition of photo lineups and live lineups shall meet the following requirements: (1) At least five fillers shall be included in a photo lineup, in addition to the suspect, and at least four fillers shall be included in a live lineup, in addition to the suspect; (2) Only one member of a photo lineup or live lineup shall be a suspect, and the remainder shall be fillers who are not suspects but who fit the eyewitness' description of the suspect; (3) In photo lineups, the suspect's photo should resemble his or her appearance at the time of the crime and not unduly stand out; (4) If the eyewitness has previously viewed a photo lineup or live lineup in connection with the investigation of the crime, the fillers in any subsequent lineup shall be different from the fillers used in any prior lineup; (5) In a photo lineup, no writings or information concerning any previous arrest, indictment, or conviction of the suspect shall be visible or made known to the eyewitness; (6) In a live lineup, any identifying actions, such as speech, gestures, or other movements, shall be performed by all lineup participants; and (7) In a live lineup, witnesses shall not be exposed to the members of the lineup before the procedure begins. (c)(1) Whenever possible, the administrator of photo lineup or live lineup eyewitness identification procedure shall be a neutral blind administrator, and no person familiar with the identity of the suspect shall be present during the identification procedure.

(2) When it is not feasible to have the procedure administered by a neutral blind administrator, a photo lineup eyewitness identification procedure may be conducted using an alternative method specified and approved pursuant to Code Section 17-19-2. Any alternative method shall be carefully structured to achieve neutral blind administration and prevent the administrator from knowing which photograph is being presented to the eyewitness during the identification procedure. Alternative methods may include: (A) Automated computer programs that can automatically administer the photo lineup directly to an eyewitness and prevent the administrator from seeing which photo the witness is viewing until after the procedure is completed; (B) A procedure in which photographs are placed in folders, randomly numbered, and shuffled and then presented to an eyewitness such that the administrator cannot see or track which photograph is being presented to the witness until after the procedure is completed; or (C) Other procedures which achieve neutral blind administration. (d)(1) Live lineup and photo lineup eyewitness identification procedures shall be presented to eyewitnesses using a sequential method, in which a witness is shown photographs or live lineup participants one at a time and not simultaneously. The eyewitness shall be asked to state for each photograph or person whether the individual shown is the perpetrator of the crime, prior to viewing the next lineup photograph or participant.

(2) The administrator shall not offer any comment or feedback to the eyewitness regarding the witness's responses.

(3) If there are multiple eyewitnesses, witnesses shall be presented with the identification procedure separately, and the suspect shall be placed in a different position in the photo lineup or live lineup for each eyewitness.

(4) Under no circumstances shall a sequential presentation be used unless the procedure

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complies fully with neutral blind administration specified in subsection (c) of this Code section.

17-19-4.

Prior to beginning a photo lineup or live lineup identification procedure, the administrator shall instruct the eyewitness that: (1) The perpetrator may or may not be among those shown, and the witness should not feel compelled to make an identification; (2) The administrator is not aware of which person in the lineup is the suspect; (3) The witness will view individuals one at a time and will be requested to state whether the individual shown is the perpetrator of the crime prior to viewing the next lineup photograph or participant; and (4) The witness will be presented with the complete lineup, even if the witness makes an identification in the middle of the procedure.

17-19-5. (a) Each eyewitness shall be given a written copy of the lineup instructions. Each witness shall sign a form indicating that the witness has received, reviewed, and understands the lineup instructions prior to the administration of the identification procedure, and this form shall be kept as part of the law enforcement file. (b) All eyewitness responses to the lineup participants shall be documented using the witness's own words, either in writing or with audio or video recording. (c) If the eyewitness makes an identification, after the entire lineup has been presented the administrator shall ask the witness to state in his or her own words how confident he or she is that the person identified is the perpetrator of the crime and make the witness's verbatim response part of the record in the law enforcement file. (d) The administrator shall refrain from any comment or feedback to the eyewitness regarding the witness's statements. (e) If no electronic recording is made, the eyewitness will be asked to review and sign the written record of his or her responses to the identification procedure, including any statements regarding an identification, prior to any feedback or comment from the administrator or others involved in the investigation.

17-19-6.

Notwithstanding the directives of this chapter, the failure to strictly comply with the provisions of this chapter shall not, in and of itself, preclude testimony and evidence related to eyewitness identification being admissible into evidence; this matter shall be in the sole discretion of the court. In deciding whether testimony and evidence related to eyewitness identification shall be admissible into evidence, the court shall consider whether the provisions of this chapter were complied with, together with any other relevant circumstance." ยง4.

Title 35 of the Official Code of Georgia Annotated, relating to law enforcement officers and agencies, is amended by adding a new Code section to the end of Chapter 1, relating to general provisions for law enforcement officers and agencies, to read as follows: "35-1-15.

The Georgia Peace Officer Standards and Training Council and the Georgia Public Safety Training Center shall establish guidelines and procedures for the incorporation of training materials and information in methods for enhancing eyewitness identification accuracy pursuant to Chapter 19 of Title 17 in all courses for which they have responsibility and oversight."

ยง 5.

(a) This section and Sections 1, 2, 4, and 6 of this Act shall become effective on July 1,2007. (b) Section 3 of this Act shall become effective on January 1, 2008, and shall apply to all photo lineups and live lineups that occur pursuant to offenses that occur on or after January 1,2008.

ยง 6.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Stephanie Benfield, of the

8 5 th,

introduced House Bill

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308 because six men in Georgia were wrongfully convicted based primarily on false eyewitness identifications.

The Georgia Innocence Project brought this issue to Rep. Benfield's attention after they aided in the exoneration of those six men.

The group's national parent recognized that faulty eyewitness identification is a central factor in the majority of wrongful 3 convictions nationwide.

LEGISLATIVE GENEALOGY

The first reading of the House Bill 308 in the House occurred on February 8, 2007. 4 The Bill was assigned to the House Judiciary (Non-Civil) Committee on February 9, 2007. 5 While in Committee, Rep. Benfield formed a committee to further study the issue of eyewitness identifications. 6 This committee held several public hearings headlined by various national experts in the field of eyewitness identification, which were attended by prominent members of the law enforcement and legal communities.7 Rep. Benfield speculated that a possible outcome of the hearings would be the voluntary adoption of these procedures by the legal8 community, making the passage of any legislation unnecessary.

PREPARED BY:

Michael A. Albino

2. Telephone Interview with Georgia Rep. Stephanie Stuckey Benfield, of the 85th District (Aug., 2008) [hereinafter Benfield Interview]. Rep. Benfield has subsequently sponsored House Bill 997, which also addressed eyewitness identification procedures. Id. That Bill was assigned to the House Judiciary (Non-Civil) Committee, and was favorably reported out of committee on February 6, 2008. Id. 3. Id.

4. State of Ga. Final Composite Status Sheet, H.R. 308, Feb. 8, 2007 (Feb.

20, 2008).

5. Id. 6. Benfield Interview, supra note 2.

7. Id. 8. Id.

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DNA ANALYSIS

Amending O.C.G.A. ยง 24-6-60 FIRST SIGNATURE:

Rep. Jay Neal (lSt).

Co-SPONSORS: Rep. David Ralston ( 7 th), Rep. Burke Day (I 6 3 rd), Rep. Mike Coan (101st), Rep. Barry Fleming (1 1 7 th) & Rep. Billy Mitchell ( 8 8th).

SUMMARY: House Bill 314 amended O.C.G.A. ยง 24-6-60 by requiring DNA analysis of all persons on probation or incarcerated convicted of certain enumerated felonies and sexual offenses.

STATUS: Enacted.

TEXT OF HOUSE BILL 314

ยง1

Code Section 24-4-60 of the Official Code of Georgia Annotated, relating to requirement for DNA analysis of blood of persons convicted of certain sex offenses or convicted of a felony and incarcerated in a state correctional facility, is revised as follows: "24-4-60. (a) As used in subsection (b) of this Code section, the term 'state correctional facility' means a penal institution under the jurisdiction of the Department of Corrections, including inmate work camps and inmate boot camps; provided, however, that such term shall not include a probation detention center, probation diversion center, or probation boot camp under the jurisdiction of the Department of Corrections. (b) Any person convicted of a criminal offense defined in Code Section 16-6-1, relating to the offense of rape; Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-3, relating to the offense of statutory rape; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; Code Section 16-6-5.1, relating to the offense of sexual assault against persons in custody, sexual assault against a person detained or a patient in a hospital or other institution, or sexual assault by a practitioner of psychotherapy against a patient; Code Section 16-6-6, relating to the offense of bestiality; Code Section 16-6-7, relating to the offense of necrophilia; or Code Section 16-6-22, relating to the offense of incest, shall have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. In addition, on and after July 1, 2000, any person convicted of a felony and incarcerated in a state correctional facility shall at the time of entering the prison system have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony prior to July 1, 2000, and who currently is incarcerated in a state correctional facility in this state for such

1. H.R. 314, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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offense. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony in this state on or after July 1, 2000, and who is incarcerated in a private correctional facility in this state for such offense pursuant to a contract with the Department of Corrections upon entering the facility, and for any person convicted of a felony prior to July 1, 2000, and who is incarcerated in a private correctional facility in this state pursuant to contract with the Department of Corrections. The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The division shall be authorized to contract with individuals or organizations for services to perform such analysis.

The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63. (c)(1) On and after July 1,2007, any person who is placed on probation shall have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person if such person is convicted of a felony violation of any of the following: (A) Chapter 5 of Title 16, relating to crimes against persons: (B) Code Section 16-6-1. relating to the offense of rape.

(C) Code Section 16-6-2, relatine to the offense of sodomy or aggravated sodomy, (D) Code Section 16-6-3, relating to the offense of statutory rape: (E) Code Section 16-6-4 relating to the offense of child molestation or aggravated child molestation: (F) Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; (G) Code Section 16-6-5.1. relating to the offense of sexual assault against persons in custody, sexual assault against a person detained or a patient in a hospital or other institution, or sexual assault by a practitioner of psychotherapy against a patient; (H) Code Section 16-6-6, relating to the offense of bestiality () Code Section 16-6-7. relating to the offense of necrophilia, (J)Code Section 16-6-22, relating to the offense of incest; (K) Code Section 16-7-1, relating to the offense of burglary: (L) Code Section 16-8-40, relating to the offense of robbery: (M) Code Section 16-8-41, relating to the offense of armed robbery (N) Code Section 16-10-23, relating to the offense of impersonating an officer; (0) Code Section 16-10-24, relating to the offense of obstruction of an officer, (P) Article 4 of Chapter II of Title 16, relating to dangerous instrumentalities and practices; and (0) Chapter 13 of Title 16, relating to controlled substances.

(2) The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63. The Department of Corrections shall be responsible for collecting such sample."

ยง 2.

This Act shall become effective on July 1, 2007. ยง3 All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

The purpose of House Bill 314 was to better assist the Georgia Bureau of Investigation ("GBI") in solving cold cases.2

2. Video Recording of H. Comm. Meeting, available at http://www.legis.ga.gov/legis2007_08/house/Committees/j udiciaryNonCivil/

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In 1998, the GBI created a crime indexing database which included the DNA of incarcerated felons.

The database provided DNA evidence that assisted in solving 560 cold cases 4 nationwide.

In 2005, more than 40,000 convicted felons received a sentence of probation rather than incarceration. 5 Thus, 40,000 felons were not required to be indexed in the GBI database.6 This Bill was introduced to require mandatory DNA collection and sexual crimes of individuals convicted of certain felonies 7 that O.C.G.A. ยง 24-6-60 did not include.

LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on February 9, 2007, and for a second time on February 10, 2007.8 On March 19, 2007, the House Judiciary (Non-Civil) Committee favorably reported the Bill by substitute.9 On March 27, 2007, a third reading occurred. The House passed House Bill 314 on March 27, 2007 by a vote of 163 to 2.

The Committee Substitute did not provide for a substantive judyncArchives.htm (Mar. 1, 2007) (noting the remarks by Rep. Jay Neal) [hereinafter House Committee Video].

3. Id. 4. Id. 5. Id.

6. Id. 7. The felonies that were added to the newly amended code section are as follows: Code Section 16-7-1, relating to the offense of burglary; Code Section 16-8-40, relating to the offense of robbery; Code Section 16-8-41, relating to the offense of armed robbery; Code Section 16-10-23, relating to the offense of impersonating an officer; Code Section 16-10-24, relating to the offense of obstruction of an officer; Article 4 of Chapter 11 of a Title 16, relating to dangerous instrumentalities and practices; and Chapter 13 of Title 16, relating to controlled substances.

8. State of Ga. Final Composite Status Sheet, H.R. 314, Feb. 10, 2007 (Nov. 7, 2007).

9. State of Ga. Final Composite Status Sheet, H.R. 314, Mar. 19, 2007 (Nov. 7, 2007).

10. Ga. Gen. Assem., H.R. 314, availableat http://www.legis.ga.gov/legis /2007_08/sum/hb3l4 .htm (last visited Mar. 22, 2008); H.R. 314; State of Ga. Final Composite Status Sheet, H.R. 314, Mar. 27, 2007 (Nov. 7, 2007); Ga. H. Voting Record, H.R. 314 (March 27, 2007).

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modification of the Bill because it only modified the order of the wording of the Bill-to make the Bill read more clearly."

Although House Bill 314 was not substantively modified, some Representatives in the Committee expressed concern over language contained in the Bill.' 2 For example, Rep. Ed Setzler, of the 3 5 th, stated that the language contained in subsection (c)(1) of the Bill is prescriptive because it contains the word "shall". Rep. Setzler was also concerned that the Bill was not restrictive because it did not use the term "only if'. Thus, the Bill would not expressly exclude non-enumerated offenses where probation is used. 3 Rep. Stacey Abrams, of the 8 4th, expressed a similar concern.

She also advocated that the term "only" be added to the language of the Bill to limit its application to only the enumerated crimes.1 4 Rep. Abrams stated, "the mandatory collection of DNA invades personal privacy on such a level that it is important and indeed essential that we modify and identify that these are the only circumstances under which this body believes it is appropriate to require a DNA sample to be taken upon conviction of an offense which places an individual on n probation."' 5 Rep. Levitas, of the 8 2nd , disagreed stating that if the term "only" was added to the Bill, the application of any other code section that allowed for the collection of DNA could be in conflict with the language of this Bill because the term "only" would cause the subsection to be read very narrowly.' 6 Rep. Levitas asked the sponsor, Rep. Jay Neal, of the 1st, whether he intended the Bill to apply "only" to persons convicted of the enumerated offenses, or whether the DNA collection was intended to be mandatory with the enumerated offenses.' 7 Rep. Neal replied that the Bill was intended how it was written.

Specifically, the words "if convicted" mean that the DNA

11. See H.R.314.

12. House Committee Video, supra note 1 (note remarks by Reps. Ed

Setzler, Stacey Abrams, and Kevin Levitas).

13. Id.

14. Id. (note remarks by Rep. Stacey Abrams).

15. Id.

16. Id. (note remarks by Rep. Kevin Levitas).

17. Id.

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sample "shall" be taken from a person "if' they are convicted. 8 Rep. Neal further stated that the Bill was intended for the purpose of obtaining DNA samples from violent offenders so that law enforcement could solve cold cases. Rep. Neal believed 9 the term "if' alone is sufficient to achieve that purpose.'

Rep. Levitas raised concerns that the Bill included persons who were previously convicted of an enumerated crime, but who are subsequently placed on probation for a non-enumerated crime. 20 Rep. Levitas put forth a motion to amend the language to read, "has been placed on probation pursuant to a conviction of one of the enumerated offenses." 21 However, Rep. Neal, stated that the aim of this Bill is to target the profile of an offender that would assist in the resolution of cold cases. 22 So long as the individual in question has ever been convicted of one of the enumerated offenses, the Bill would cover that individual despite the fact that the current sentence of probation may be pursuant to some other offense.23 Rep. Levitas took his motion off the table, and the Bill left the House Committee with no substantive modification.24 The House passed the Committee Substitute to House Bill 314 on March 27, 2007.25 There was no floor debate with respect to House Bill 314, and the Bill passed by a vote of 163 to 2.26

The Senate Public Safety and Homeland Security Committee favorably reported House Bill 314 by substitute on April 16, 2007 with no substantive modifications 27 After having no floor debate with regard to House Bill 314, the Senate passed the Bill

18. Id. (note remarks by Rep. Jay Neal).

19. Id. 20. Id. (note remarks by Rep. Kevin Levitas).

21. Id. 22. Id. (note remarks by Rep. Jay Neal).

23. Id. 24. Id.; H.R. 314.

25. State of Ga. Final Composite Status Sheet, H.R. 314, Mar. 27, 2007 (Nov. 7, 2007).

26. Multimedia Sessions Archives, 2007 H. Sess., http://www.ga.gov/

00/article/0,2086,4802_61 07103_72682804,00.html, Mar. 27, 2007 (Ga. H. Voting Record regarding H.R. 314).

27. H.R. 314.

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by substitute on April 19, 2007, by a vote of 48 to 0.28 The following day, on April 20, 2007, the House disagreed with the Senate's Substitute, and on the same day, the Senate receded from the substitute with a vote of 47 to 0.29 The Governor signed House Bill 314 on May 24, 2007.30 PREPARED

BY: Ellis R. Faught, III

28. Multimedia Sessions Archives, 2007 Sen. Sess., http://www.ga.gov/ 00/article/0,2086,4802_6107103_72682316,00.html, Apr. 19, 2007 (Ga. Sen. Voting Record regarding H.R. 314).

29. Id.; State of Ga. Final Composite Status Sheet, H.R. 314, Apr. 20, 2007 (Nov. 7, 2007).

30. Ga. Gen. Assem., H.R. 314, available at http://www.legis.ga.gov/ legis/2007_08/sum/hb 314.htm (last visited Mar. 22, 2008).

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HOUSE BILL 333:1 AGENCY DISPOSAL OF WEAPONS

Amending 0. C. G.A. ยง 17-8-58 FIRST SIGNATURE: Rep. Wade Starr ( 7 8th).

CO-SPONSORS: Rep. Willie Talton (145 h), Rep. John Lunsford (1 1 0 th) & Rep. Mike Glanton ( 7 6 th).

SUMMARY: House Bill 333 sought to expand O.C.G.A. ยง 17-552 by allowing a greater number of law enforcement agencies to dispose of weapons used in the commission of felonies post The bill also allowed the proceeds of these judgment. transactions to go the treasury of the county or municipality disposing of the weapons.

STATUS: Passed House and Senate.

TEXT OF HOUSE BILL 333 ยง 1.

Code Section 17-5-52 of the Official Code of Georgia Annotated, relating to sale or destruction of weapons used in the commission of a crime or delinquent act involving possession, is amended by revising such Code section as follows: "17-5-52. (a) When a final judgment is entered finding a defendant guilty of the commission or attempted commission of a crime against any person or guilty of the commission of a crime or delinquent act involving the illegal possession or carrying of a weapon, any device which was used as a weapon in the commission of the crime or delinquent act shall be turned over by the person having custody of the weapon or device to the sheriff, chief of police, or other executive officer of the law enforcement agency that originally confiscated the weapon or device when the weapon or device is no longer needed for evidentiary purposes. Within 90 days after receiving the weapon or device, the sheriff, chief of police, or other executive officer of the law enforcement agency shall retain the weapon or device for use in law enforcement, destroy the same, or sell the weapon or device pursuant to judicial sale as provided in Article 7 of Chapter 13 of Title 9 or by any commercially feasible means, provided that, if the weapon or device used as a weapon in the crime is not the property of the defendant, there shall be no forfeiture of such weapon or device. (b) The proceeds derived from all sales of such weapons or devices, after deducting the costs of the advertising and the sale, shall be turned in to the treasury of the county, or the municipal corporation that sold the weapon or device. The proceeds derived from the sale of such weapons or devices confiscated by a state law enforcement agency shall be paid into the state treasury. (c) Any law enforcement agency that retains, destroys, or sells any weapon or device pursuant to this Code section shall maintain records that include an accurate description of each weapon or device along with records of whether each weapon or device was retained, sold, or destroyed."

ยง 2.

1. H.R. 333, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

ยง 3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

The Bill was introduced by Rep. Wade Starr, of the

7 8 th,

in

order to facilitate the disposal, by sale or destruction, of weapons used in the commission of crimes and to specify where the proceeds of such sales are to be directed.2 House Bill 333 is intended to give more law enforcement agencies the power to dispose of weapons used in the commission of a crime, after the expiration of their evidentiary value, and to direct the proceeds to the jurisdiction disposing of the weapons. 3 House Bill 333 also provided for instances where state agencies dispose of weapons and direct those proceeds to the state treasury.4 LEGISLATIVE GENEALOGY

The first reading of the bill in the House occurred on February 9, 2007 and a second reading occurred on February 10, 2007. However, by the close of the Legislative Session on April 20, 2007, House Bill 333 did not have enough support to get to a floor vote and was withdrawn and recommitted.6 On January 30, 2008, House Bill 333 was favorably reported by the House Judiciary (Non-Civil) Committee.7 The House passed the Bill on February 7, 2008 by a vote of 167 to 1.8 The first reading of the Bill in the Senate occurred on February 8, 2008. 9

2. Telephone Interview with Rep. Wade Starr, House District 78 (July 30, 2007) 3. Ga. Gen. Assem.7-2009 Legislative Session, Bill Summary, http://www.legis.state.ga.us/legis/2007_08/fulltext/hb333.htm (last visited Apr. 5, 2008) 4.

Id.

5. Id. 6. Id. 7.

Id.

8. Id. 9. Id.

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The bill passed the Senate by vote on April 1, 2008.1 Sen. Fort of the 3 9 th, then offered an amendment to include language restricting the use of search warrants authorizing unannounced entry ("no knock" search warrants) by law enforcement.2 PREPARED

1. Id. 2. Id.

BY: Paul Donahue

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HOUSE BILL 395:1 FIRST OFFENDERS PROBATION

Amending O.C.G.A. ยง 35-3-4 and O.C.G.A. ยง 16-11-131 First Signature: Rep. Jay Shaw ( 1 7 6th).

Co-Sponsors:

Rep. Edward Lindsey ( 5 4 th), Mumford ( 9 5 th) & Rep. David Lucas ( 1 3 9 1h).

Rep. Robert

Summary: House Bill 395 sought to clarify first offender status relating to the probation of first offenders and provide duties, obligations and responsibilities for the Clerk of Court, probation department, and the Department of Corrections. The Probation Officers would be responsible for notifying the Clerk of Court when the offenders have completed their term; the Clerk of Court would then be responsible for updating the offenders' records. Additionally, House Bill 395 sought to give the courts more control over dissemination of criminal records.

Status: Not enacted.

TEXT OF HOUSE BILL

395

ยง1.

Article 3 of Chapter 8 of Title 42 of the Official Code of Georgia Annotated, relating to probation of first offenders, is amending by revising Code Section 42-8-60, relating to probation prior to adjudication of guilt, violation of probation, and judicial review of a defendant's criminal record, as follows: "42-8-60. (a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceeding and: (I Place the defendant on probation as provided by law; or (2) Sentence the defendant to a term of confinement as provided by law. (t)The court shall not sentence a defendant under the provisions of this unless the court has reviewed the defendant's criminal record as it is on file with the Georgia Crime Information Center. (c)Upon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law. (d) Upon completion by the defendant of the terms of probation which shall include the expiration of the sentence by virtue of the time frame of the sentence passing, upon the release of the defendant by the court prior to the termination of the period of probation, or upon the defendant's release from confinement provided the defendant is not serving a split sentence, the

1. H.R. 395, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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defendant shall be discharged without court adjudication of guilt. (e) It shall be the duty of the probation department that is responsible for supervising a first offender probationer to notify the clerk of court for the jurisdiction of the court which imposed the sentence pursuant subsection (a) of this Code section that the first offender probationer has completed the term of probation or that he or she has been released by the court prior to the termination of the period of probation. It shall be the duty of the Department of Corrections to notify the clerk of court for the iurisdiction of the court which imposed the sentence pursuant subsection (a) of this Code section that a defendant has been released from confinement. (f) If the probation department or the Department of Corrections fails to notify the clerk of court as provided in subsection (e) of this Code section or if the probation department does not seek to have a first offender probationer adjudicated guilty due to a violation of the terms of probation during the term of the first offender probation, then the first offender may petition the court for discharge by notifying the clerk of court in writing of such request. Such writing shall contain the first offender's name, date of birth, case number, return address, and a copy of his or her sentence. If the court is satisfied with such petition it shall enter an order discharging the first offender provided, however, that if the court is not satisfied with the information provided the court shall provide notice to the first offender and state and conduct a hearing to determine if discharge should be granted. () When the clerk of court is notified by the probation department or the Department of Corrections that a defendant has completed his or her first offender sentence, or if the defendant shall stand discharged pursuant to subsection (f) of this Code section. it shall be the duty of the clerk of court to enter on the criminal docket and all other records of the court pertaining thereto the following: 'Discharge filed completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties, except for registration requirements under the state sexual offender registry and except with regard to employment providing care for minor children or elderly persons as specified in Code Section 42-8-63.1; and the defendant shall not be considered to have a criminal conviction. O.C.G.A. 42-8-60.'

Such entry shall be written or stamped in red ink, dated, and signed by the person making such entry or, if the docket or record is maintained using computer printouts, microfilm, or similar means, such entry shall be underscored, boldface, or made in a similar conspicuous manner and shall be dated and include the name of the person making such entry. The criminal file, docket books, criminal minutes and final record, and all other records of the court relating to the offense of a defendant who has been discharged without court adjudication of guilt pursuant to this article shall not be altered as a result of that discharge, except for the entry of discharge thereon required by this subsection, nor shall the contents thereof be expunged or destroyed as a result of that discharge. (h) Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8-63.1. the first offender discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties: and the defendant shall not be considered to have a criminal conviction. (j) No person may avail himself or herself of this article on more than one occasion.

(D)The court shall not sentence a defendant under the provisions of this article who has been found guilty of or entered a plea of guilty or a plea of nolo contendere for: (1) A serious violent felony as such term is defined in Code Section 17-10-6.1; (2) A sexual offense as such term is defined in Code Section 17-10-6.2; (3) Sexual exploitation of a minor as defined in Code Section 16-12-100; (4) Electronically furnishing obscene material to a minor as defined in Code Section 16-12100.1; or (5) Computer pornography and child exploitation, as defined in Code Section 16-12-100.2." ยง2.

Said article is further amended by revising Code Section 42-8-62, relating to the discharge of a defendant without adjudication of guilt, as follows: "42-8-62.

Should a person be placed on probation or in confinement under this article, a record of the first offender status shall be forwarded by the clerk of court to the Georgia Crime Information Center, and, if the sentence orders confinement within the Department of Corrections, to that

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department. A record of discharge and exoneration, as provided in Code Section 42-8-60, shall in every case be forwarded by the clerk of court to the Georgia Crime Information Center. In every case in which the record of probation or confinement shall have been previously forwarded to the Department of Corrections, to the Georgia Crime Information Center, and to the Identification Division of the Federal Bureau of Investigation and a record of a subsequent discharge and exoneration of the defendant has not been forwarded as provided in this Code section, upon the request of the defendant or his or her attorney or representative, the record of the discharge and exoneration shall be forwarded by the clerk of court to the Georgia Crime Information Center so as to reflect the discharge and exoneration." ยง3.

Said article is further amended in Code Section 42-8-65, relating to the use of prior finding of guilt in subsequent prosecutions, the release of records of discharge, the modification of records to reflect conviction, and the effect of confinement sentences where guilt is not adjudicated, by revising subsection (b) as follows: "(b) The records of the Georgia Crime Information Center showing treatment as a first offender shall be modified only when a court of competent iurisdiction enters an adjudication of guilt for the offense for which the offender has been sentenced as a first offender. Records of first offender disposition shall not be disseminated by the Georgia Crime Information Center, except to law enforcement or court officials or as authorized by paragraph (2) of subsection (a) of Code Section 35-3-34 and subsection (b)of Code Section 35-3-37, and shall not be available to prospective employers or any other person. If,however, a court of competent iurisdiction adjudicates the defendant guilty while such defendant is on first offender probation, such records may be disseminated by the Georgia Crime Information Center in the same manner and subject to the same restrictions as any other records of convictions." ยง 4.

Code Section 35-3-34 of the Official Code of Georgia Annotated, relating to disclosure and dissemination of criminal records to private persons and businesses, is amended by revising subparagraph (a)(I)(B) as follows: "(B) The center may not provide records of arrests, charges, and sentences for crimes relating to first offenders when an offender has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 and has been exonerated and discharged without court adiudication of guilt, except as specifically authorized by Code Section 42-8-63.1; and" ยง 5.

Code Section 16-11-131 of the Official Code of Georgia Annotated, relating to possession of firearms by convicted felons and first offender probationers, is amended by revising subsection (f) and inserting in lieu thereof the following: "(f) Any person placed on probation as a first offender pursuant to Article 3 of Chapter 8 of Title 42 and subsequently discharged without court adjudication of guilt pursuant to Code Section 42-8-60 shall, upon such discharge, be relieved from the disabilities imposed by this Code section." ยง6.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Jay Shaw, of the 1 7 6 th, introduced House Bill 3952 with the ultimate intention of allowing judges more discretion when a person's first offender status is in question.3 Currently, the decision to revoke first offender status from subsequent 2. Id.

3. Interview with Rep. Robert Mumford, H. District No. 95 (Nov. 15, 2007) [hereinafter Mumford Interview].

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offenders is made by computer.4 The Bill, if enacted, would allow an opportunity for judicial review.5 The Bill represents an attempt to combat a clash between the judicial and executive branches of the Georgia state government.6 LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on February 13, 2007 and the Bill was read for a second time on February 14, 2007. 7 The House Committee favorably reported the Bill on March 19, 2007, however House Bill 395 was withdrawn on April 20, 2007.8 This Bill was withdrawn because it failed to make it through the rules committee and was 9 not scheduled on the calendar for House vote.

PREPARED BY:

4. Id.

5. Id. 6. Id. 7. H.R. 395.

8. Id. 9. See Mumford Interview, supra note 2.

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HOUSE BILL 525:1 JUVENILE CUSTODIAL INTERROGATIONS "Creating O.C.G.A. ยง 17-19-1 et seq. and O.C.G.A. ยง 35-1-15 FIRST SIGNATURE:

Rep. Timothy Bearden ( 6 8th).

SUMMARY: House Bill 525 required the electronic recording of certain custodial interrogations, including the advisement of Miranda warnings, of accused persons under the age of seventeen, and allowed the admission of the recordings as evidence at trial with parameters. The Bill also required the establishment of guidelines and procedures for the training of law enforcement in methods of electronic recording.

STATUS:

Not enacted.

TEXT OF HOUSE BILL 525

ยง1.

Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is amended by adding a new chapter to read as follows: "CHAPTER 19 - 17-19-1. As used in this chapter, the term: (I) 'Accused' means a person less than 17 years of age.

(2) 'Custodial authority' means a warden, sheriff, jailer, deputy sheriff, police officer, correctional officer, officer or employee of the Department of Corrections or the Department of Juvenile Justice, or any other law enforcement officer having actual custody of the accused.

(3) 'Custodial interrogation' means any interrogation regarding an alleged crime or delinquent act which is conducted in a place of detention by a custodial authority.

(4) 'Delinquent act' shall have the same meaning as set forth in paragraph (6) of Code Section 15-11-2.

(5) 'Electronic recording' means an audiotape, videotape, or digital recording.

(6) 'Place of detention' means a police station, correctional facility, holding facility for prisoners, Department of Juvenile Justice facility, or other government facility where persons are held in detention in connection with criminal charges or delinquent acts which have been or may be filed against the accused. Such term shall not include a motor vehicle.

(7) 'Serious violent felony' shall have the same meaning as set forth in Code Section 17-10-6.1.

"CHAPTER 19- 17-19-2. (a) All custodial interrogations of an accused shall be electronically recorded in their entirety and shall include the accused being advised of Mirandawarnings. (b) During the prosecution of a crime or delinquent act, an oral, written, or sign language statement of an accused made during a custodial interrogation shall be inadmissible as evidence against the accused unless the electronic recording is made available to the accused ten days prior to any court proceeding. (c) If the court finds that the accused was subjected to a custodial interrogation in violation of subsection (b) of this Code section, any statement made by the accused during and following such custodial interrogation, even if otherwise in compliance with this Code section, shall be inadmissible as evidence against the accused.

"CHAPTER 19 - 17-19-3.

1. H.R. 525, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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A custodial interrogation of an accused shall be inadmissible as evidence against the accused unless electronically recorded and: (1) The accused parent, legal guardian, or attorney is present at the time the custodial interrogation occurs; or (2) In the case of exigent circumstances involving the accused being a suspect in a serious violent felony, an adult to be designated by either the accused, the accused parent, legal guardian, or a child advocate is present at the time of the custodial interrogation.

"CHAPTER 19- 17-19-4.

Notwithstanding the requirement to electronically record an accused custodial interrogation, nothing contained in this chapter shall preclude the admission into evidence against the accused of: (1)An interrogation conducted in a location other than a place of detention which lacks readily available electronic recording equipment; (2) A custodial interrogation in which the accused refuses to have his or her custodial interrogation electronically recorded and such refusal is electronically recorded; (3) A custodial interrogation which is incomplete due to equipment failure, which failure is unknown to the custodial authority; (4) A custodial interrogation which is incomplete due to equipment failure, which failure is known to the custodial authority, but replacement equipment was not readily available; (5) An accused spontaneous statement which is not made in response to a custodial interrogation; or (6) An accused statement made during his or her processing or booking.

"CHAPTER 19 - 17-19-5.

The state shall not destroy or alter any electronic recording made of a custodial interrogation until such time a conviction for any offense relating to the interrogation becomes final and all direct and habeas corpus appeals are exhausted, or the prosecution of the offense is barred by law." ยง 2.

Title 35 of the Official Code of Georgia Annotated, relating to law enforcement officers and agencies, is amended by adding a new Code section to the end of Chapter 1, relating to general provisions for law enforcement officers and agencies, to read as follows: "35-1-15.

The Georgia Peace Officer Standards and Training Council and the Georgia Public Safety Training Center shall establish guidelines and procedures for the incorporation of training materials and information in methods for electronically recording a suspect's statement pursuant to Chapter 19 of Title 17 in all relevant courses for which they have responsibility and oversight." ยง 3.

This Act shall become effective on July 1, 2007. ยง 4.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Rep. Timothy Bearden, of the 6 8 th, introduced House Bill 525 because he wanted the justice system to be fair for the accused, but he also sought to help law enforcement catch and prosecute offenders. 2 As a former law enforcement officer, he had seen many cases "slip through the cracks" due to technicalities.

2. Telephone Interview with Georgia Rep. Timothy Bearden, H. District No. 68 (Oct. 9, 2007) [hereinafter Bearden Interview].

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During his time as a police officer, Rep. Bearden often voluntarily recorded his interrogations to protect himself and to provide an accurate record of what was said and in what manner it was said. 3 He calls this a "common sense Bill" that 4"would protect youthful offenders and would protect the police."

Rep. Bearden stated that this Bill "takes out much of the guesswork" during the investigation and prosecution of various offenses.5 It sought to prevent false accusations, made by some defendants, of coercion and overreaching by the police just to secure delays or reasonable doubt. 6 The Bill would require recording of the interrogation, including reading of Miranda and any waivers. 7 In some cases, tactics by defense counsel shift the focus from the actions and guilt of the accused to the supposed acts by the police during the investigation.8 Many times the focus is on what happens during custodial interrogation. By ensuring that interrogations of persons under the age of 17 would be recorded, this Bill "would likely cut down on the costs of trial because time would not be wasted on determining what was said by which party and in what way." 9 Furthermore, the recorded interrogations may cause many accused persons to accept a plea bargain, saving any costs of trial.'0 Rep. Bearden stated that another reason he proposed House Bill 525 was the Amy Yates murder that occurred in Carrolton, Georgia, located in his district." In April of 2004, eight-yearold Amy Yates was found murdered in her Carrollton neighborhood. 12 Within hours, a twelve year old neighborhood 3. Id. 4. Id.

5. Id. 6. Id.

7. Ga. Gen. Assem., H.R. 525, available at http://www.legis.ga.gov/legis/ 2007_08/fulltext/hb525 .htm (last visited Mar. 26, 2008) [hereinafter H.R. 525 Status].

8. Bearden Interview, supra note 2.

9. Id. 10. Id. 11. Id. 12. Rob Stafford, Correspondent, MSNBC, DATELINE, A killing in Carrolton, May 2, 2007, available at http://www.msnbc.msn.com/id/ 18428335. (last visited Oct. 13, 2007).

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During his boy, Johnathon Adams, was arrested.' 3 interrogation, which occurred without counsel or his parents, the boy confessed to murdering Amy.' 4 He was convicted and15 sentenced to two years in a juvenile treatment center.

However, in February of 2006, a mentally challenged, eighteen year old, Chris Gossett, turned himself in to authorities and confessed to the murder of Amy Yates.' 6 Gossett's statements to police were electronically recorded; however he later recanted his confession and it is still not clear who killed Amy. 17 Johnathon Adams's statements to police were not electronically recorded and much doubt now overshadows8 whether there ever was a true confession to Amy's murder.'

House Bill 525 would have required that Johnathon Adams's statements be recorded, possibly removing the doubt that now persists.' 9 Potential protests may come from some law enforcement organizations that already have countless procedures to follow during any investigation. 20 Rep. Bearden stated that he will consult law enforcement organizations to make sure he passes a reasonable Bill.21 In striving to author a Bill that would not impose more procedural requirements on law enforcement officers, Rep. Bearden included exceptions where statements do not have to be recorded. Often, accused persons voluntarily confess to police, without prompting, while in a police car on their way to a station. 22 Other times, the accused person may confess on the scene as soon as law enforcement officers arrive. This is especially true with some minor persons when their parents arrive on the scene.23 The above mentioned and many other exigencies typically occur and make electronic recording 13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

Id. Id. Id.

Id. Id. Id. Bearden Interview, supra note 2.

Id. Id.

Id. Id.

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practically impossible. As such, Rep. Bearden excepted those situations from the recoding requirement.24 Other pieces of the Bill have already been included upon consideration of various groups; one part was proposed which would allow an accused minor to refuse to have his statements recorded.25 Another allowed parents to refuse to have their child's statements recorded. These provisions were included at the prompting of defense attorney groups.26 LEGISLATIVE GENEALOGY

The first reading of the Bill occurred on February 22, 2007.

The Speaker assigned the Bill to the House Judiciary (NonCivil) Committee. A second reading occurred on February 27, 2007.27 House Bill 525 was not addressed in committee hearings, nor debated on the floor during the 2007-2008 Session.28 PREPARED BY: Amanda K. Kee

24.

25.

26.

27.

28.

Id. Id.

Id. H.R. 525 Status, supra note 7.

Id.

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HOUSE BILL 586:1 PUBLIC DEFENSE

Amending O.C.G.A. § 15-6-24 FIRST SIGNATURE:

Rep. David Ralston ( 7 th).

CO-SPONSOR: Rep. Barry Fleming

(1 1 7 th).

Bill 586 amended O.C.G.A. § 15-6-24 by limiting the state's responsibility to pay for a maximum of two attorneys for indigent defendants.

The county governing authorities may provide supplemental compensation, and the judge may appoint additional attorneys at the county's expense.

SUMMARY: House

STATUS:

Enacted.

TEXT OF HOUSE BILL

586

§ 1.

Article I of Chapter 6 of Title 15 of the Official Code of Georgia Annotated, relating to the general provisions of superior courts, is amended by revising Code Section 15-6-24 as follows: "15-6-24. (a) Any contingent expenses incurred in holding any session of the superior court, including lights, fuel, stationery, rent, publication of grand jury presentments when ordered published, and similar items, such as taking down testimony in felony cases, etc., shall be paid out of the county treasury of such county upon the certificate of the judge of the superior court and without further order. (b) Any costs incurred in providing defense services pursuant to Chapter 12 of Title 17, the 'Georgia Indigent Defense Act of 2003,' for persons accused of crimes shall not be considered contingent expenses of the superior court for purposes of this Code section."

§ 2.

Code Section 17-112-127 of the Official Code of Georgia Annotated, relating to representation and appointment of alternative attorneys, is amended by revising subsection (b) as follows: "(b) If for any reason the office is unable to defend any indigent person accused of a capital felony for which the death penalty is sought, the presiding judge of the superior court in which the case is pending shall appoint counsel to represent the defendant. A maximum of two attorneys shall be paid by the council at an hourly rate established by the council with state funds appropriated to the council for use by the office. The council with the assistance of the office shall establish guidelines for attorney's fees and expense requests. A county governing authority may provide supplemental compensation to appointed counsel. The presiding judge may appoint not more than one additional attorney to represent the defendant, provided, however, that such attorney shall be paid by the county governing authority with county funds at a rate established by the council."

§ 3.

This Act shall become effective on July 1, 2007, and shall apply to all costs and fees incurred or counsel appointed on or after July 1, 2007.

§ 4.

All laws and parts of law in conflict with this Act are repealed.

1. H.R. 586, Ga. Gen. Assem., Reg. Sess. (Ga. 2007).

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FIRST SIGNATURE'S RATIONALE

Rep. David Ralston, of the 7 th , introduced House Bill 5862 as a response to the problems presented by the Brian Nichols multiple murder case. 3 This Bill sought to limit a judge's discretion in granting the amount of state and county funds expended in death penalty case. 4 As a result of the Brian Nichols multiple murder case, the budget of the Georgia Public Defender Standards Council, which manages the public defender system, was drained.5 The case has cost the public defender system millions of dollars, and the Council can no longer pay the three private lawyers on Mr. Nichols's defense team. 6 The judge in the Nichols' case appointed four lawyers to defend Nichols.7 The attorneys are paid $175.00, $125.00 and $95.00 an hour respectively.' The th fourth attorney is a state employee. 9 Sen. Wiles, of the 37 h , noted that the Constitution does not require an indigent defendant to receive a three million dollar defense; rather, the Constitution only requires a competent, quality defense.' 0 The Bill addressed the costs of indigent defense in Georgia."

House Bill 586 only applied in conflict cases, where the public2 defender's office was unable to represent an accused person.'

Additionally, House Bill 586 limited the number of attorneys

2. Id..

3. Brenda Goodman, Georgia Murder Case's Cost Saps Public Defense System, N.Y. TIMES, July 31, 2007, available at http://www.nytimes.com/

2007/03/22/us/22atlanta.html.

4. Id. 5. Id. 6. Id. 7. Id. 8.Id. 9. Id.

10. Video Recording of Sen. http://www.georgia.gov/00/article/

Proceedings

(Apr.

19,

2007),

0,2086,4802_6107103_72682316,00.html [hereinafter Senate FloorDebate].

11. Video

Recording

of

H.

Proceedings

(Mar.

27,

2007),

http://www.georgia.gov/00/article/0,2086,4802-6107103_72682804,00.html

[hereinafter House FloorDebate].

12. Id.

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that may be appointed by the court to two.1 3 Finally, House Bill 586 limited the hourly rate to $95.00 per hour for attorneys.' 4 LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on February 27, 2007, and the Bill was assigned to the House Judiciary (Non-Civil) Committee. 15 On February 28, 2007, the Bill was read for the second time.' 6 The House Judiciary (NonCivil) Committee favorably reported House Bill 586 by committee on March 19, 2007.17 On March 27, 2007, Rep. Ralston presented the Bill and a third reading of House Bill 586 occurred.' 8 Rep. Carolyn Hugley, of the 133 d, questioned how Rep. Ralston and his fellow sponsors determined that two attorneys is the appropriate number and asked how the amount of compensation for attorneys was calculated.' 9 Rep. Ralston responded that the Public Defenders Standards Council determined the amount of compensation and that the proposed number of attorneys was a compromise between the Public Defenders Standards Council and the County Commissioner's Association.2 ° The House passed and adopted House Bill 586 on March 27, 2007 by a vote of 167 to 0.21 The first reading of the Bill in the Senate occurred on March 27, 2007, and the Bill was referred to the Senate Judiciary Committee. 22 On April 16, 2007, House Bill 586 was read for the second time and the Senate Judiciary Committee favorably reported the Bill, recommending a substitute or amendment that would define "contingent expense., 23 On April 19, 2007, Sen. 13. Id. 14. Id.

15. State of Ga. Final Composite Status Sheet, H.R. 586, 149th Gen. Assem. Reg. Sess. (Ga. 2007) [hereinafter Status Sheet].

16. Id. 17. Id. 18. Id. 19. House Floor Debate, supra note 11.

20. Id.

21. Status Sheet, supra note 15.

22. Id.

23. Senate FloorDebate, supra note 10.

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John Wiles presented the Bill for the third time.2 4 Sen. Regina Thomas, of the 2 nd, asked how much the supplemental compensation to the county governing authority would be.25 Sen. Wiles responded by noting that Georgia and its counties spend about $100 million each year in indigent defense, with the state funding about $35 million and the counties funding about $65 million.2 6 Sen. Wiles stressed that as the law stood, a judge could order six to eight lawyers, and that this was breaking the state and county budgets. 2 House Bill 586 strikes a balance, providing people with competent, quality counsel without breaking the state and county budgets.2 8 Sen. Wiles believes that two attorneys should be sufficient in death2 enalty cases, and if necessary, the judge may appoint a third. 9 Sen. David Adelman, of the 42 , questioned Sen. Wiles on the importance of judicial discretion. 30 Sen. Wiles explained that he believes that judicial discretion is important, however, a judge does not need to have unlimited discretion because judges do not raise taxes and judges are not responsible for balancing the state and county budgets. 3 1 Sen. Adelman questioned whether Sen. Wiles believed that one size fits all when it comes to the effectiveness of counsel and whether Sen. Wiles considered a provision that would address special circumstances that one could not contemplate where a case might be so complex as to justify more than even three lawyers. 32 Sen. Wiles responded that he feels the limitation on the number of attorneys was sensible and pointed out that federal courts have the same limitation. 33 Sen. Wiles further noted that House Bill 586 is not the solution to the indigent defense problem and that a study needs to be conducted to address special circumstances

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

Id. Id.

Id. Id. Id. Id. Id. Id. Id.

Id.

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that may arise.34 The Senate passed and adopted House Bill 586 on April 19, 2007, by a vote of 43 to 7.

On April 20, 2007, the House agreed to the Senate's substitute by a vote of 144 to 1.36 Governor Perdue signed House Bill 586 into law on May 16, 2007.

PREPARED

34. Id. 35. Status Sheet, supra note 15.

36. Id.

BY: Anne Marie Braham

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HOUSE BILL 653:1 HOAX EXPLOSIVE DEVICES

Amending O.C.G.A. ยง 16-7-85 FIRST SIGNATURE:

Rep. David Ralston (7 th).

House Bill 653 sought to amend O.C.G.A. ยง 16-785 by increasing the allowable penalties for persons convicted of using or planting hoax destructive devices. The Bill increased the maximum imprisonment time from one to five years, and permitted courts to order defendants to pay additional restitution for any financial loss suffered by local, county, or state public safety agencies that provide emergency assistance during an incident or investigation resulting from a violation of the legislation.

SUMMARY:

STATUS:

Not enacted.

TEXT OF HOUSE BILL 653 ยง 1.

Article 4 of Chapter 7 of Title 16 of the Official Code of Georgia Annotated, relating to bombs, explosives, and chemical and biological weapons, is amended by revising Code Section 16-785, relating to hoax devices, as follows: "16-7-85. (a) It shall be unlawful for any person to manufacture, possess, transport, distribute, place or use a hoax device or replica of a destructive device or detonator with the intent to cause another to believe that such hoax device or replica is or contains a destructive device or detonator. (b) Any person convicted of a violation of this Code section shall be punished by imprisonment for not less than one nor more than five years or by a fine of not more than $10,000.00 or both or, if the defendant is a corporation, a fine of not less than $1,000.00 or not fewer than 500 hours of community service or both for each such hoax device or replica; provided, however, that if such person communicates or transmits to another that such hoax device or replica is a destructive device or detonator with the intent to obtain the property of another person or to interfere with the ability of another person to conduct or carry on the ordinary course of business, trade, education, or government, such violation shall be punished by imprisonment for not less than one year nor more than five years or by a fine of not more than $25,000.00 or both or, if the defendant is a corporation, a fine of not less than $50,000.00 or not fewer than 1,000 nor more than 10,000 hours of community service or both for each such hoax device or replica. (c) For purposes of imposing restitution pursuant to Chapter 14 of Title 17 when a person is convicted pursuant to this Code section, the court shall consider damages to include any reasonable cost incurred or financial loss suffered by local, county, or state public safety agencies, and profit or nonprofit entities, that provide emergency assistance to an incident or investigation resulting from a violation of this Code section. Such damages shall include but not be limited to the provision of police, fire-fighting, rescue, and emergency medical services and the salaries of such persons who respond to such incident." ยง2.

All laws and parts of laws in conflict with this Act are repealed.

1. H.R. 653, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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FIRST SIGNATURE'S RATIONALE

Rep. David Ralston, of the 7 th, introduced House Bill 653 to increase penalties for persons convicted of perpetrating hoax destructive devices and to establish a restitution condition relating to the use of such devices. 2 The Bill was introduced in response to the January 31, 2007 Boston Mooninite Scare, in which Boston Police officers mistakenly identified small battery-powered LED placards planted throughout Boston and surrounding areas as improvised explosive devices. 3 The discovery of the suspicious devices, featuring a lighted image of a "mooninite" cartoon character, resulted in a massive emergency and media response, leading to temporary closure of three main bridges connecting Cambridge, Mass., to Boston, as well as sections of Boston's Storrow Drive, 1-93, and the Massachusetts Turnpike.4 During the subsequent investigation, The Cartoon Network acknowledged placing the small electronic devices throughout Boston, as well as New York, Los Angeles, Chicago, San Francisco, Philadelphia, Seattle, Portland, Austin, and Atlanta, as part of a national promotional campaign for Cartoon Network's animated show, Aqua Teen Hunger Force.5 The Cartoon Network's parent company, Turner Broadcasting System, eventually paid $1 million to both the city 6of Boston and Homeland Security in an effort to make amends.

LEGISLATIVE GENEALOGY

The first reading of the Bill in the House occurred on March 1, 2007. 7 Rep. Ralston presented the Bill to the House Judiciary 2. Id. 3. Jeremy Redmon, Bomb Scare Inspires New Bill, ATLANTA J. CONST., Mar. 12, 2007, at 18.

4. Val Brickates Kennedy, Cartoon Network Promo Tied to Boston Bomb Scare, Market Watch.com Financial News, http://www.marketwatch.com/

news/story/cartoon-network-promo-tied-boston/story.aspx.

5. Jacqui Cheng, Mooninites, meet the TerroristHoax Improvements Act, ARs TECHNICA, May 8, 2007.

6. Id. 7. Video Recording of Ga. H. Judy. (Non-Civil) Subcommittee Two

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(Non-Civil) Subcommittee Two on March 13, 2007.8 Rep. Ralston stated that the Bill was not only introduced in response to the Boston Mooninite Scare, but also because the current definition of O.C.G.A. ยง 16-7-85 needed to be expanded. 9 In the House Judiciary (Non-Civil) Subcommittee Two meeting, held on March 13, 2007, Rep. Ralston justified the additional provisions set forth in House Bill 653 that would amend the Georgia Code to increase maximum prison terms from one to five years.'0 Such additional provisions would also allow for civil suits so that local, county, or state agencies could obtain restitution for expenses incurred during incidents similar to the Boston Mooninite Scare and Covington Bomb incident."'

In support of the Bill, Rep. Ralston cited the fact that the City of Boston incurred expenses upwards of $2 million as a result of the Mooninite Scare, and asserted that it is "wrong for anyone to capitalize on people's fear after 9/11.,,12 Rep. Ralston also referred to the Covington bomb scare in which the perpetrator had to be convicted on federal charges because the state statutes were not sufficient.' 3 In the subcommittee, House Bill 653 received a do-pass by Committee Substitute, meaning that the committee approved the Bill following several minimal 14 changes.

On March 14, 2007, Rep. Ralston presented House Bill 653 to the House Judiciary (Non-Civil) full Committee. 5 In the full committee, Chairman Ralston reemphasized that the Boston Mooninite Scare, coupled with the recent "hoax" in Covington served as motivation for the proposal.' 6 Rep. Ralston thus Meeting (Mar. 13, 2007), http://www.legis.ga.gov/legis/2007_08/house/ Committees/judiciaryNonCivil/judyncArchives.htm [hereinafter Meeting Video].

8. Id. 9. Id.

10. Id. 11. Id. 12. Id. 13. Id. 14. Telephone Interview with Dianne Hardin, Administrative Assistant

for the Judiciary Non-Civil Committee, Georgia House of Representatives (Oct. 30, 2007) [hereinafter Hardin Interview].

15. Meeting Video, supra note 7.

16. Id.

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suggested calling the legislation the Covington Pipeline Bill. 17 In the full committee, House Bill 653 also received a do-pass by Committee Substitute.' 8 House Bill 653 was officially reported out of committee March 19, 2007.'9 On March 19, 2007, the Bill was given a second reading, and subsequently reported out of the House Judiciary (Non-Civil) Committee. 20 After House Bill 653 was favorably reported out of the Committee, it went to the Rules Committee for further 21 consideration.

On April 20, 2007, the Georgia House of Representatives withdrew and recommitted House Bill 653.22 The Bill did not advance to the House floor because it was introduced too late in the 2007 legislative session.23 Subsequently, House Bill 653 received24 no consideration during the 2008 Georgia legislative session.

PREPARED

BY: Charles Snyder III

17. Id.

18. Id. 19. Ga. Gen. Assem., H.R. 653, available at www.legis.ga.gov/legis2007

_08/sum/ hb653.htm (last visited Mar. 26, 2008) [hereinafter H.R. 653 Status].

20. Id. 21. Hardin Interview, supra note 14.

22. H.R. 653 Status, supra note 19.

23. Hardin Interview, supra note 14.

24. Id.

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SELECTED SENATE BILLS

SENATE BILL 1:1 SEXUAL OFFENDERS

Amending O.C.G.A. ยง 16-12-100.4 FIRST SIGNATURE:

Sen. Eric Johnson (Ist).

Sen. Tommie Williams (19th), Sen. William Hamrick (301h) & Sen. John Wiles (37'h).

Co-SPONSORS:

Senate Bill 1 sought to amend O.C.G.A. ยง 16-12100.4 to criminalize the photographing of a minor by registered sex offenders under certain circumstances.

SUMMARY:

STATUS:

Not enacted.

TEXT OF SENATE BILL

1

ยง 1.

Part 2 of Article 3 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to offenses related to minors generally, is amended by adding a new Code section to the end of the part to read as follows: "16-12-100.4 (a) As used in this Code section, the term: (1) 'Minor' means any individual who is under 18 years of age.

(2) 'Photograph' means to take any picture, film or digital photograph, motion picture film, videotape, or similar visual representation or image of a person. (b) It shall be unlawful for any person who is required to register as a sexual offender pursuant to Code Section 42-1-12 to intentionally photograph a minor for indecent purposes. (c) Any person who violates this Code section shall be guilty of a misdemeanor of a high and aggravated nature."

ยง 2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Eric Johnson, of the Ist, introduced Senate Bill 1 in 1. S. 1, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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response to an incident in his district.2 While a high school girl was working in a coffee shop, a male customer photographed her with his cell phone camera and made harassing comments that frightened her. 3 The girl contacted her mother, who came to the shop. 4 As the man left, the mother wrote down his license plate number.5 The man was registered as a sex offender in Massachusetts, however, law enforcement officers reported they could do nothing because taking the girl's photo was not illegal.6 The mother contacted Sen. Johnson.7 Sen. Johnson said the Bill would help stop registered sex offenders from taking what could be the first step in stalking a victim, or could prevent the sex offender from posting the photos on the Internet. 8 LEGISLATIVE GENEALOGY

The first reading of the Bill occurred on January 22, 2007,9 and the Bill was referred to the Senate Judiciary Committee.

As originally proposed, the Bill would have made it illegal for anyone required to register as a sex offender in Georgia to photograph any minor, including their own child, either intentionally or accidentally.' 0 The Senate Judiciary Committee amended the Bill to require that the minor be photographed intentionally and without consent from the minor's parent or guardian." The Judiciary Committee favorably reported the Bill to the Senate by substitute on February 2, 2007, and the 2. Video Recording of Sen. Proceedings (Feb. 12, 2007), available at http://www.georgia.gov/0/article/0,2086,4802_6107103_72682316,00.html.

3. Id. 4.

Id.

5. Id. 6. Id. 7. Id. 8. Id.

9. Georgia General Assembly, S. 1, available at http://www.legis. state.ga.us/legis/2007_08/sum/sbl.htm. (last visited Mar. 3, 2008) [hereinafter S. I Status].

10. Video of Ga. H. Judy. (Non-Civil) Comm., available at http://www.legis.state.ga.us/legis/2007 08/house/Committees/judiciaryNon Civil/ Archives.htm. April 17, 2007).

11. S 1 Status, supra note 9.

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Senate approved the substitute Bill 54-0 on February 12, 2007.12 The Bill was read for the first time in the House on February 13, 2007, and for a second time on February 14, 2007.13 The Bill was then assigned to the House Judiciary (Non-Civil) Committee. 14 The Committee amended the Bill to require that the photographing be done intentionally and for indecent5 purposes, instead of without the parent or guardian's consent.'

The Committee favorably reported the Bill on April 17, 2007.16 The Bill was withdrawn from the House and recommitted to the Senate Judiciary Committee on April 20, 2007, because Sen. Johnson disagreed with the changes and there was insufficient time to address them before the session ended.' 7 Sen. Johnson is working this session to get the Committee to switch back to the Senate version of the Bill,8 after which the Bill would be forwarded again to the House.'

PREPARED

12.

13.

14.

15.

16.

BY: Bryan Brooks

Id. Id. Id.

Id.

Id. 17. Telephone Interview with Melanie Stockwell, Chief of Staff for Sen. Johnson (Feb. 26, 2008).

18. Id. Senate Bill 1 underwent significant change in the last few days of the 2007-2008 Legislative Session. The text of the Bill was altered; however, the rationale for its implementation remains.

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Senate Bill 20:1 Sexual Offenses

Creating O. C.G.A. ยง 16-6-26 FIRST SIGNATURE: Sen. Judson Hill ( 3 2 nd).

Co-SPONSOR: Sen. Steve Thompson ( 3 3rd).

Senate Bill 20 sought to create O.C.G.A. ยง 16-6-26 which would make it unlawful to have carnal knowledge with a disabled person who is incapable of granting consent.

SUMMARY:

STATUS:

Not enacted.

TEXT OF SENATE BILL 20 ยง 1.

Chapter 6 of Title 16 of the Official Code of Georgia Annotated, relating to sexual offenses, is amended by adding a new Code section to read as follows:" 16-6-26. (a) As used in this Code section, the term 'disabled person' means any person with a mental or emotional illness, developmental disability, or addictive disease. (b) It shall be unlawful for any person to have carnal knowledge with a disabled person of the age of majority whom he or she knows or reasonably should know is incapable of giving consent to such activity. (c) A person convicted of violating the provisions of this Code section shall be punished by imprisonment for not less than ten nor more than 20 years."

ยง 2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Judson Hill, of the 3 2 nd , introduced Senate Bill 20 because sexual abuse of disabled persons is on the rise in Georgia. Sen. Hill believed legislation was needed to address the growing threat to the disabled population of Georgia.2 Sen. Hill presumed that this is the type of Bill that no legislator wants to vote against.3 However, the science surrounding the mental capacity of disabled individuals is a "soft science" in that the mental thoughts and processes of disabled individuals

1. S. 20, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

2. Telephone Interview with Sen. Judson Hill, Sen. District No. 32 (January 4, 2008) [hereinafter Hill Interview].

3. Id.

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cannot be determined with certainty. 4 Therefore, even though the Bill is one that no legislator wants to vote against, there may be problems passing the Bill because whether a specific disabled person is capable of consenting to sexual activity cannot be determined with certainty. 5 LEGISLATIVE GENEALOGY

The first reading of the Bill in the Senate occurred on January 10, 2007.6 Subsequently, the Bill went before the Senate Judiciary Committee. 7 The Committee's main concern was that the language of the Bill was overly ambiguous in that there were no guideposts with respect to determining whether a potential victim was capable of granting consent.8 The Bill remained in the Senate Judiciary Committee at the close of the 2007 Session, and no action was taken in 2008. 9 PREPARED BY:

Ellis R. Faught, III

4. Id. 5. Id.

6. State of Ga. Final Composite Status Sheet, S. 20, Jan. 10, 2007 (Dec. 10, 2007).

7. Id. 8. Hill Interview, supra note 2.

9. Id.

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48: 1 CUSTODY OF CONVICTED PERSONS Amending O.C.G.A. ยง 42-5-50

SENATE BILL

FIRST SIGNATURE: Sen. Co-SPONSOR: SUMMARY:

Joseph Carter (1 3th).

Sen. Jim Whitehead (24 h).

The Bill sought to amend O.C.G.A. ยง 42-5-50 by

removing the provision under which a convicted person may currently, upon written request by his defense attorney, remain in the custody of the local jail during the pendency of an appeal.

The Bill also required department or county correctional

institutions to provide a state issued personal identification card to inmates upon their discharge.

STATUS:

Not enacted.

TEXT OF SENATE BILL 48 ยง1.

Article 3 of Chapter 5 of Title 42 of the Official Code of Georgia Annotated, relating to conditions of detention generally, is amended by revising Code Section 42-5-50, relating to transmittal of information on convicted persons and place of detention, as follows: "42-5-50. (a) The clerk of the court shall notify the commissioner of a sentence within 30 working days following the receipt of the sentence and send other documents set forth in this Code section.

Such notice shall be mailed within such time period by first-class mail and shall be accompanied by two complete and certified sentence packages containing the following documents: (1)A certified copy of the sentence; (2) A complete history of the convicted person, including a certified copy of the indictment, accusation, or.both and such other information as the commissioner may require; (3) An affidavit of the custodian of such person indicating the total number of days the convicted person was incarcerated prior to the imposition of the sentence. It shall be the duty of the custodian of such person to transmit the affidavit provided for in this paragraph to the clerk of the superior court within ten days following the date on which the sentence is imposed; (4) Order of probation revocation or tolling of probation; and (5) A copy of the sentencing information report is required in all jurisdictions with an options system day reporting center certified by the Department of Corrections. The failure to provide the sentencing information report shall not cause an increase in the 15 day time period for the department to assign the inmate to a correctional institution as set forth in subsection (b) of this Code section.

Such documents shall be submitted on forms provided by the commissioner. The commissioner shall file one copy of each such document with the State Board of Pardons and Paroles within 30 working days of receipt of such documents from the clerk of the court. Except where the clerk is on a salary, the clerk shall receive from funds of the county the fee prescribed in Code Section 15-6-77 for such service.

1. S. 48, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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(b) Within 15 days after the receipt of the information provided for in subsection (a) of this Code section, the commissioner shall assign the convicted person to a correctional institution designated by the commissioner in accordance with subsection (b) of Code Section 42-5-51. It shall be the financial responsibility of the correctional institution to provide for the picking up and transportation, under guard, of the inmate to the inmate's assigned place of detention. If the inmate is assigned to a county correctional institution or other county facility, the county shall assume such duty and responsibility. (c) The state shall pay for each such inmate not transferred to the custody of the department from a county facility the per diem rate specified by subsection (c) of Code Section 42-5-51 for each day the inmate remains in the custody of the county after the department receives the notice provided by subsection (a) of this Code section. (d)In the event that the convicted person is free on bond pending the appeal of his or her conviction, the notice provided for in subsection (a) of this Code section shall not be transmitted to the commissioner until all appeals of such conviction have been disposed of or until the bond shall be revoked." ยง 2.

Said article is further amended by revising subsection (a) of Code Section 42-5-61, relating to services and benefits to be furnished inmates discharged by department or county correctional institutions, as follows: "(a) Except as otherwise provided in this Code section, whenever an inmate is discharged upon pardon or completion of his sentence or is conditionally released or paroled from any place of detention to which he has been assigned under the authority of the department, the department shall provide the inmate the following: (1) Transportation to the inmate's home within the United States or to a place chosen by the inmate and authorized by regulations of the board; (2) An amount of money of not less than $25.00 and not more than $150.00, as determined according to regulations of the board; (3) A travel kit, when appropriate, and suitable clothing, each as provided by regulation of the board; and (4) A personal identification card, at no charge to the inmate, similar to the identification card authorized under Code Section 40-5-100." ยง3.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Joseph Carter, of the 13 th, introduced Senate Bill 48 because a convicted person may, upon written request by his defense attorney, remain in the custody of the local jail during the pendency of an appeal-which could take up to a year or longer. 2 Sen. Carter believed there is generally no need for the convicted person to be involved in the appeals process because, on appeal, errors of the trial court will likely be at issue and not evidentiary matters. 3 Therefore, Sen. Carter believes it is not 2. Video Recording of State Institutions & Property (SI&P) H. Comm.

Meeting, April 11, 2007 (remarks by Sen. Joseph Carter), available at http://www.legis.state.ga.us/legis/2O07_08/house/Committees/statelnstitutio ns/sipArchives.htm.

3. Id.

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necessary for the convicted person to remain in the custody of the local jail because defense counsel usually has no need to communicate with his client during the appeal.4 Moreover, local jails face potential liability when they are required to house convicted persons unnecessarily for extended periods of time during their appeal.5 Additionally, local jails generally 6 institutions. state than available space bed less have Senate Bill 48 removed language from the current law and removed the discretion of housing, as it relates to the place of detention, of convicted persons from the defense counsel and returned it to the courts. 7 Under the amendment, if defense counsel petitions the court to allow his or her client to remain in the custody of the local jail during the pendency of the appeal, the trial court may have a hearing on the matter to determine the necessity of the stay.8 Finally, Senate Bill 48 also required department or county correctional institutions to provide a state issued personal identification card to inmates upon their discharge, because such identification is necessary for seeking employment. Most inmates do not have the required documentation to get an 9 official state identification on their own.

Senate Bill 48 received support from the Sheriffs Association and no opposition from the Georgia Department of Corrections.' 0 Deputy General Counsel for the Georgia Sheriffs Association, Oliver Hunter, urged Sen. Carter's support of Senate Bill 48 and pointed out that there have been situations when the law currently in effect has been abused by attorneys who have kept defendants in the county jail when there was no real need or legitimate reason for the defendants to remain there.' 1

4. Id. 5. Id.

6. Id. 7. Id. 8. Id.

9. Id. (remarks by Rep. Austin Scott).

10. Id. (remarks by Misty Holcomb, Georgia Department of Corrections).

11. Id. (remarks by Oliver Hunter, Deputy General Counsel for the Georgia Sheriff's Association).

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LEGISLATIVE GENEALOGY

The Senate first read the Bill on January 25, 2007. The Public Safety and Homeland Security (PS&HS) Committee favorably reported the Bill on February 2, 2007. 1 The Senate Committee Substitute modified the original Bill.' 3 It removed4 the language which was added to the Bill as introduced.'

However, the Committee then essentially accomplished the same objective by returning to the language of the original statute, O.C.G.A. ยง 42-5-50, and simply deleting section (c) in its entirety which permits the attorney of a convicted person to file the written request for the convicted person's stay at the local jail in the first place.' 5 On February 14, 62007, the Senate passed the Bill by substitute by a 52 to 0 vote.'

Senate Bill 48 was first read by the House on February 15, 2007, where the Bill was assigned to the State Institutions & Property (SI&P) Committee.' 7 The committee gave the Bill a favorable report on April 13, 2007.18 The House Committee did not modify the Bill as passed by the Senate but added sections to the Bill which revised subsection (a) of ยง 42-5-61 relating to services and benefits to be furnished to inmates19 discharged by department or county correctional institutions.

12. Ga. Gen. Assem., S. 48, available at http://www.legis.state.ga.us/ legis/2007_08/sum /sb48.htm [hereinafter S. 48 Status].

13. Id. 14. Id. 15. Id. 16. Ga. Sen. Voting Record, S. 48 (Feb. 14, 2007).

17. S. 48 Status, supra note 12.

18. Id. 19. O.C.G.A. ยง 42-5-61(a) ("(a) Except as otherwise provided in this Code section, whenever an inmate is discharged upon pardon or completion of his sentence or is conditionally released or paroled from any place of detention to which he has been assigned under the authority of the department, the department shall provide the inmate the following.(1)

Transportation to the inmate's home within the United States or to a place chosen by the inmate and authorized by regulations of the board;(2) An

amount of money of not less than $25.00 and not more than $150.00, as determined according to regulations of the board; and (3) A travel kit, when appropriate, and suitable clothing, each as provided by regulation of the

boardand (4) A personal identification card, at no charge to the inmate,

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Specifically, the House Substitute would revise Code Section 42-5-61(a) by adding subsection (4) which provides for the issuance of a personal identification card to inmates upon their 20 discharge from department or county correctional institutions.

On April 20, 2007, Senate Bill 48 was withdrawn by the House to be recommitted. 1 On March 5, 2008, the House Committee 22 reconsidered the Bill and again reported on it favorably.

PREPARED BY:

Randa Hafez

similar to the identification card authorized under Code Section 40-5-100.")

20. Id. 21. S. 48 Status, supra note 12.

22. Id.

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SENATE BILL 98:' ACCESS TO ELECTRONIC COMMUNICATIONS

Amending O.C.G.A. ยง 16-9-109 FIRST SIGNATURE:

Sen. William Hamrick ( 3 0 th).

Co-SPONSORS: Sen. Jeff Mullis ( 5 3rd), Sen. Don Thomas ( 5 4 th), Sen. Bill Heath (31st), Sen. Cecil Staton ( 18th) & Sen. Seth Harp

(29th).

Senate Bill 98 authorized the Attorney General, law enforcement agencies, and district attorneys to obtain communication records of those under investigation for criminal activity pursuant to a court order, subpoena, or consent of the person being investigated. The Bill also revised "The Computer or Electronic Pornography and Child Exploitation Prevention SUMMARY:

Act of 1999," which provided for prevention and punishment of those engaged in child pornography and internet predatory acts.

The Bill defined the specific conduct that is prohibited, the ages of persons who fall in the protected class, and set forth sentencing guidelines for offenders.

STATUS:

Enacted.

TEXT OF SENATE BILL 98

ยง1.

Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is amended by revising Code Section 16-9-109, relating to disclosure by service providers pursuant to investigations, as follows: "16-9-109. (a) Any law enforcement unit, the Attomey General, or any district attorney who is conducting an investigation of a violation of this article or an investigation of a violation of Code Section 16-12-100, 16-12-100.1, 16-12-100.2, or 16-5-90 or Article 8 of this chapter involving the use of a computer, cellular telephone, or any other electronic device used in furtherance of the act may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that is in electronic storage in an electronic communications system for 180 days or less pursuant to a search warrant issued under the provisions of Article 2 of Chapter 5 of Title 17 by a court with jurisdiction over the offense under investigation. Such court may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than 180 days as set forth in subsection (b) of this Code section.

1. S. 98, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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(b)(1) Any law enforcement unit, the Attorney General, or any district attorney may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service, exclusive of the contents of communications, only when any law enforcement unit, the Attorney General, or any district attorney: (A) Obtains a search warrant as provided in Article 2 of Chapter 5 of Title 17; (B) Obtains a court order for such disclosure under subsection (c) of this Code section; or (C) Has the consent of the subscriber or customer to such disclosure.

(2) A provider of electronic communication service or remote computing service shall disclose to any law enforcement unit, the Attorney General, or any district attorney the: (A) Name; (B) Address; (C) Local and long distance telephone connection records, or records of session times and durations; (D) Length of service, including the start date, and types of service utilized; (E) Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) Means and source of payment for such service, including any credit card or bank account number of a subscriber to or customer of such service when any law enforcement unit, the Attorney General, or any district attorney uses a subpoena authorized by Code Section 16-9108, 35-3-4.1, or 45-15-17 or a grand jury or trial subpoena when any law enforcement unit, the Attorney General, or any district attorney complies with paragraph (1) of this subsection.

(3) Any law enforcement unit, the Attorney General, or any district attorney receiving records or information under this subsection shall not be required to provide notice to a subscriber or customer. A provider of electronic communication service or remote computing service shall not disclose to a subscriber or customer the existence of any search warrant or subpoena issued pursuant to this article nor shall a provider of electronic communication service or remote computing service disclose to a subscriber or customer that any records have been requested by or disclosed to any law enforcement unit, the Attorney General, or any district attorney pursuant to this article. (c) A court order for disclosure issued pursuant to subsection (b) of this Code section may be issued by any superior court with jurisdiction over the offense under investigation and shall only issue such court order for disclosure if any law enforcement unit, the Attorney General, or any district attorney offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of an electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. A court issuing an order pursuant to this Code section, on a motion made promptly by a provider of electronic communication service or remote computing service, may quash or modify such order, if compliance with such order would be unduly burdensome or oppressive on such provider. (d)(1) Any records supplied pursuant to this part shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following: (A) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records; (B) The copy is a true copy of all the records described in the subpoena, court order, or search warrant and the records were delivered to the attorney, the attorney's representative, or the director of the Georgia Bureau of Investigation or the director's designee; (C) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event; (D) The sources of information and method and time of preparation were such as to indicate its trustworthiness; (E) The identity of the records; and (F) A description of the mode of preparation of the records.

(2) If the business has none or only part of the records described, the custodian or other qualified witness shall so state in the affidavit.

(3) If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, the copy of the records shall be admissible in evidence. When more than one person has knowledge of the facts,

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more than one affidavit shall be attached to the records produced.

(4) No later than 30 days prior to trial, a party intending to offer such evidence produced in compliance with this subsection shall provide written notice of such intentions to the opposing party or parties. A motion opposing the admission of such evidence shall be filed within ten days of the filing of such notice, and the court shall hold a hearing and rule on such motion no later than ten days prior to trial. Failure of a party to file such motion opposing admission prior to trial shall constitute a waiver of objection to such records and affidavit. However, the court, for good cause shown, may grant relief from such waiver." ยง2.

Said title is further amended by revising Code Section 16-12-100.2, relating to computer pornography and child exploitation prevention, as follows: "16-12-100.2. (a) This Code section shall be known and may be cited as the 'Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007.' (b) As used in this Code section, the term: (1) 'Child' means any person under the age of 16 years.

(2) 'Electronic device' means any device used for the purpose of communicating with a child for sexual purposes or any device used to visually depict a child engaged in sexually explicit conduct, store any image or audio of a child engaged in sexually explicit conduct, or transmit any audio or visual image of a child for sexual purposes. Such term may include, but shall not be limited to, a computer, cellular phone, thumb drive, video game system, or any other electronic device that can be used in furtherance of exploiting a child for sexual purposes; (3) 'Identifiable child' means a person: (A) Who was a child at the time the visual depiction was created, adapted, or modified or whose image as a child was used in creating, adapting, or modifying the visual depiction; and (B) Who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature or by electronic or scientific means as may be available.

The term shall not be construed to require proof of the actual identity of the child.

(4) 'Sadomasochistic abuse' has the same meaning as provided in Code Section 16-12-100.1.

(5) 'Sexual conduct' has the same meaning as provided in Code Section 16-12-100. 1.

(6) 'Sexual excitement' has the same meaning as provided in Code Section 16-12-100.1.

(7) 'Sexually explicit nudity' has the same meaning as provided in Code Section 16-12-102.

(8) 'Visual depiction' means any image and includes undeveloped film and video tape and data stored on computer disk or by electronic means which is capable of conversion into a visual image or which has been created, adapted, or modified to show an identifiable child engaged in sexually explicit conduct. (c)(1) A person commits the offense of computer or electronic pornography if such person intentionally or willfully: (A) Compiles, enters into, or transmits by computer or other electronic device; (B) Makes, prints, publishes, or reproduces by other computer or other electronic device; (C) Causes or allows to be entered into or transmitted by computer or other electronic device; or (D) Buys, sells, receives, exchanges, or disseminates any notice, statement, or advertisement, or any child's name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for the purpose of offering or soliciting sexual conduct of or with an identifiable child or the visual depiction of such conduct.

(2) Any person convicted of violating paragraph (1) of this subsection shall be punished by a fine of not more than $10,000.00 and by imprisonment for not less than one nor more than 20 years. (d)(1) It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in Code Section 16-6-2, relating to the offense of sodomy or aggravated sodomy; Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of

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enticing a child for indecent purposes; or Code Section 16-6-8, relating to the offense of public indecency or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

(2) Any person who violates paragraph (1)of this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years and by a fine of not more than $25,000.00; provided, however, that, if at the time of the offense the victim was 14 or 15 years of age and the defendant was no more than three years older than the victim, then the defendant shall be guilty of a misdemeanor of a high and aggravated nature. (e)(l) A person commits the offense of obscene Internet contact with a child if he or she has contact with someone he or she knows to be a child or with someone he or she believes to be a child via a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, or on-line messaging service, and the contact involves any matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that is intended to arouse or satisfy the sexual desire of either the child or the person, provided that no conviction shall be had for a violation of this subsection on the unsupported testimony of a child.

(2) Any person who violates paragraph (1)of this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years or by a fine of not more than $10,000.00; provided, however, that, if at the time of the offense the victim was 14 or 15 years of age and the defendant was no more than three years older than the victim, then the defendant shall be guilty of a misdemeanor of a high and aggravated nature. (f)(1) It shall be unlawful for any owner or operator of a computer on-line service, Internet service, local bulletin board service, or other electronic device that is in the business of providing a service that may be used to sexually exploit a child to intentionally or willfully to permit a subscriber to utilize the service to commit a violation of this Code section, knowing that such person intended to utilize such service to violate this Code section. No owner or operator of a public computer on-line service, Internet service, local bulletin board service, or other electronic device that is in the business of providing a service that may be used to sexually exploit a child shall be held liable on account of any action taken in good faith in providing the aforementioned services.

(2) Any person who violates paragraph (I) of this subsection shall be guilty of a misdemeanor of a high and aggravated nature. (g) The sole fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this Code section shall not constitute a defense to prosecution under this Code section. (h) A person is subject to prosecution in this state pursuant to Code Section 17-2-1, relating to jurisdiction over crimes and persons charged with commission of crimes generally, for any conduct made unlawful by this Code section which the person engages in while: (1)Either within or outside of this state if, by such conduct, the person commits a violation of this Code section which involves a child who resides in this state or another person believed by such person to be a child residing in this state; or (2) Within this state if, by such conduct, the person commits a violation of this Code section which involves a child who resides within or outside this state or another person believed by such person to be a child residing within or outside this state. (i) Any violation of this Code section shall constitute a separate offense." ยง3.

Title 35 of the Official Code of Georgia Annotated, relating to law enforcement officers and agencies, is amended in subsection (a) of Code Section 35-3-4, relating to powers and duties of the Georgia Bureau of Investigation, by striking "and" at the end of paragraph (8), by replacing the period with "; or" at the end of paragraph (9), and by adding a new paragraph to read as follows: "(10) Identify and investigate violations of Part 2 of Article 3 of Chapter 12 of Title 16, relating to offenses related to minors." ยง4.

Said title is further amended by revising Article I of Chapter 3, relating to general provisions

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relating to the Georgia Bureau of Investigation, by adding a new Code section to read as follows: "35-3-4.1. (a)(1) In any investigation of a violation of Code Section 16-12-100, 16-12-100.1, or 16-12100.2 involving the use of a computer or an electronic device in furtherance of an act related to a minor, the director, assistant director, or deputy director for investigations shall be authorized to issue a subpoena, with the consent of the Attorney General, to compel the production of electronic communication service or remote communication service records or other information pertaining to a subscriber or customer of such service, exclusive of contents of communications.

(2) A provider of electronic communication service or remote computing service shall disclose to the bureau the: (A) Name; (B) Address; (C) Local and long distance telephone connection records, or records of session times and durations; (D) Length of service, including the start date, and types of service utilized; (E) Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) Means and source of payment for such service, including any credit card or bank account number of a subscriber to or customer of such service. (b) Upon failure of a person without lawful excuse to obey a subpoena, the director, assistant director, or the deputy director for investigations, through the Attorney General or district attorney, may apply to a superior court having jurisdiction for an order compelling compliance.

Such person may object to the subpoena on grounds that it fails to comply with this Code section or upon any constitutional or other legal right or privilege of such person. The court may issue an order modifying or setting aside such subpoena or directing compliance with the original subpoena. (c) The Attorney General may request that a natural person who refuses to produce relevant matter on the ground that the production of records may incriminate such person be ordered by the court to provide such records. With the exception of a prosecution for pejury, a natural person who complies with the court order to provide such records asserting a privilege against self-incrimination to which he or she is entitled by law shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he or she may testify or produce evidence, documentary or otherwise. (d)(1) Information obtained pursuant to a subpoena enforced by this Code section shall not be made public or, except as authorized in paragraph (2) of this subsection, disclosed by the director, assistant director, deputy director for investigations, or the director's employees beyond the extent necessary for the enforcement of this Code section.

(2) The director, assistant director, deputy director for investigations, or the director's employees shall be authorized to provide to any federal, state, or local law enforcement agency any information acquired under this Code section in furtherance of a criminal investigation in violation of Code Section 16-12-100, 16-12-100.1, or 16-12-100.2. (e) As used in this Code section, the terms 'electronic communication service' and 'remote communication service' shall have the same meaning as set forth in Code Section 16-9-92." ยง 5.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. ยง 6.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. William Hamrick, of the 3 0 th , introduced Senate Bill 98 in response to growing concerns from citizens wishing to deter

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predatory conduct that has become prevalent in virtual localities2 such as chat rooms and networking forums on the internet.

The Bill provided for more efficient access to communication records, thereby allowing law enforcement officials to quickly and assuredly pursue and apprehend those engaged in criminal conduct.3 Similar legislation has recently been the subject of impassioned debate in the United States Congress due to unconventional methods of obtaining suspected terrorists' communication records.4 While Congress has approved of such intelligence gathering methods, including granting the executive branch authority to obtain such records without initial judicial oversight, the Georgia General Assembly has preserved the requirement to obtain a search warrant prior to extracting the desired information.5 The legislation principally applies to counter-terrorism on the federal level, but has been integrated with the "'Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007" on the state level to facilitate the monitoring and capture of those engaged in sexual predatory acts over the internet or otherwise.6 LEGISLATIVE GENEALOGY

Senate Bill 98 was first read and referred to the Senate Judiciary Committee on February 1, 2007. 7 According to Sen. Hamrick, no significant opposition to the Bill was presented in Committee. 8 Major proponents included law enforcement groups such as the Georgia Bureau of Investigations and the Georgia Sheriffs Association. 9 The Committee reported favorably and sent the Bill back to the Senate, where it passed 2. Telephone Interview with Sen. Bill Hamrick, Senate Dist. No. 30 (Oct. 23, 2007) [hereinafter HamrickInterview].

3. Id. 4. Id. 5. FOREIGN INTELLIGENCE SURVEILLANCE ACT, 50 U.S.C. ยง 1802 (2008); O.C.G.A. ยง 16-9-109 (2007).

6. Id. 7. Ga. Gen. Assem., S. 98, available at http://www.legis.state.ga.us/legis/ 2007_08/sum/sb98.htm [hereinafter S. 48 Status].

8. HamrickInterview, supra note 2.

9. Id.

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and was adopted on March 1, 2007.10 The House of Representatives then received the Bill and subsequently referred it to the House Judiciary (Non-Civil) Committee, where several minor amendments were made."

The House adopted its Committee's version of the Bill on April 17, 2007, which was adopted by the Senate two days later.' 2 Notably, the Senate unanimously passed the Bill, with only one vote in opposition in the House.' 3 PREPARED BY:

10. S. 48 Status, supra note 7.

11. Id. 12. S. 48 Status, supra note 7.

13. Id.

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139:1 GEORGIA PUBLIC DEFENDER STANDARD COUNCIL

Amending O.C.G.A. ยง 17-12-1 First Signature: Sen. John Wiles ( 3 7th).

Co-Sponsor: Sen. Preston Smith ( 5 2nd).

Summary: Senate Bill 139 transferred the Georgia Public Defender Standards Counsel from the judicial branch of government to the executive branch of government as an independent agency.

Status: Enacted.

TEXT OF SENATE BILL

139

ยง 1.

Chapter 12 of Title 17 of the Official Code of Georgia Annotated, relating to legal defense for indigents, is amended by revising Code Section 17-12-1, relating to the Georgia Public Defender Standards Council, as follows: "17-12-1. (a) This chapter shall be known and may be cited as the 'Georgia Indigent Defense Act of 2003.' (b) The Georgia Public Defender Standards Council shall be an independent agency within the executive branch of state government. (c) The council shall be responsible for assuring that adequate and effective legal representation is provided, independently of political considerations or private interests, to indigent persons who are entitled to representation under this chapter."

ยง 2.

Said chapter is further amended by revising subsection (e) of Code Section 17-12-10.1, relating to the general oversight committee, as follows: "(e) The council shall submit its budget estimate to the director of the Office of Planning and Budget in accordance with subsection (a) of Code Section 45-12-78. ยง3.

Said chapter is further amended by revising subsection (a) of Code Section 17-12-26, relating to the budget of the council, as follows: "(a) The council shall prepare and submit to the Office of Planning and Budget an annual proposed budget necessary for fulfilling the purposes of this article in accordance with Code Section 45-12-78. The budget request shall be based on the previous year's expenditures and budget requests submitted by each circuit public defender, the Office of the Georgia Capital Defender, and the office of the mental health advocate. The council's total budget request for funding for the operations of the circuit public defender offices and the council's programs shall not exceed the amount of funds collected for indigent defense pursuant to Code Sections 15-21 73 and 15-21A-6; provided, however, that the General Assembly shall not be obligated to appropriate such amount for indigent defense. The council is also authorized to seek, solicit, apply for, and utilize funds from any public or private source to use in fulfilling the purposes of this article."

1. S. 139,

14 9 th

Gen. Assem., Reg. Sess. (Ga. 2007).

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ยง4.

Said chapter is further amended by revising Code Section 17-12-30, relating to classification of personnel, responsibilities, compensation, and local supplements, as follows: "17-12-30. (a) All state paid personnel employed by the circuit public defenders pursuant to this article shall be employees of the executive branch of state government and shall be in the unclassified service of the State Merit System of Personnel Administration. (b) Personnel employed by the circuit public defenders pursuant to this article shall have the authority, duties, powers, and responsibilities as are authorized by law or as assigned by the circuit public defender and shall serve at the pleasure of the circuit public defender.(c)(1) The council shall establish salary ranges for each state paid position authorized by this article or any other provision of law. Salary ranges shall be similar to the state-wide and senior executive ranges adopted by the State Merit System of Personnel Administration and shall provide for minimum, midpoint, and maximum salaries not to exceed the maximum allowable salary. In establishing the salary ranges, all amounts will be rounded off to the nearest whole dollar. The council may, from time to time, revise the salary ranges to include across-the-board increases which the General Assembly may from time to time authorize in the General Appropriations Act. (2) The circuit public defender shall fix the compensation of each state paid employee appointed pursuant to this article in accordance with the job to which the person is appointed and the appropriate salary range. (3) All salary advancements shall be based on quality of work, training, and performance. The salary of state paid personnel appointed pursuant to this article may be increased at the first of the calendar month following the annual anniversary of the person's appointment. No employee's salary shall be advanced beyond the maximum established in the applicable pay range. (4) Any reduction in salary shall be made in accordance with the salary range for the position and the policies, rules, or regulations adopted by the council. (5) The compensation of state paid personnel appointed pursuant to this article shall be paid in equal installments by the council as provided by this subsection from funds appropriated for such purpose. The council may authorize employees compensated pursuant to this Code section to participate in voluntary salary deductions as provided by Article 3 of Chapter 7 of Title 45. (6) The governing authority of the county or counties comprising a judicial circuit may supplement the salary or fringe benefits of any state paid position appointed pursuant to this article. (7) The governing authority of any municipality within the judicial circuit may, with the approval of the circuit public defender, supplement the salary or fringe benefits of any state paid position appointed pursuant to this article." ยง 5.

This Act shall become effective on July 1, 2007. ยง 6.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

The purpose of the Senate Bill 139 was to provide Freater review over the budget for the indigent defense system. Sen. Wiles, of the 3 7 th, introduced the Bill in light of the problems the Indigent Defense Council is currently experiencing with its budget.3 Presently there is no oversight over the Council's budget and once the budget is sent to the Governor he is unable 2. Video Recording of Sen. Proceedings, Mar. 20, 2007 (remarks by Rep. John Wiles), available at http://www.ga.gov/00/article/0,2086,4802_610710 3_72682316,00.html.

3. Id.

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to change it. 4 The legislation will enable the Governor to make 5 amendments to the Council's budget.

LEGISLATIVE GENEALOGY

The first reading occurred on February 10, 2007.6 The Senate Judiciary Committee favorably reported the Bill by substitute on February 27, 2007. 7 The Committee Substitute modified the Bill slightly.8 The Substitute allows the Council to authorize employees to participate in voluntary salary deductions as provided by Article 3 of Chapter 7 of Title 45.9 In Committee, Sen. Steve Henson, of the 4 1st, expressed concerns of a conflict of interest when an officer of the executive branch decides to prosecute a case and the same branch cuts off funds for the defense for the same case. 10 Sen. Wiles answered that this conflict always exists in a divided government. 11 Moreover, Sen. Wiles emphasized that the Georgia Constitution and the Constitution of the United States are clear in mandating that indigent defendants are entitled to a constitutionally sufficient defense.' 2 Sen. Wiles also added that the Council supported the move to the executive branch. 13 The Committee Substitute was adopted by a vote of 33 to 0."4 Senate Bill 139 passed the Senate by substitute by a vote of 40 to 7.15 4. Id. 5. Id.

6. Ga. Gen. Assem., S. 139, available at http://www.legis.ga.gov/legis/ 2007_08/ sum/sb 139.htm (last visited Mar. 29, 2008).

7.

Id.

8. Id. (The substitute provides, "compensation of state paid personnel appointed pursuant to this article shall be paid in equal installments by the council as provided by this subsection from funds appropriated for such purpose.").

9. S. 139.

10. Video Recording of Sen. Proceedings, Mar. 20, 2007, available at http://www.ga.gov/00/ article/0,2086,4802_6107103_72682316,00.html.

11. Id. 12.

13.

14.

15.

Id. Id. Id. Ga. Gen. Assem., S. 139, available at http://www.legis.ga.gov/legis/

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The first reading in the House occurred on March 27, 2007.16 The Bill was assigned to the House Judiciary (Non-Civil)8 Committee.' 7 A second reading occurred the following day.'

OnAril 10, 2007, the House Committee favorably reported the Bill. The Bill was read a third time on April 17, 2007.20 Rep. David Ralston, of the 7 th, presented the Bill. He reaffirmed that the Bill was introduced to improve the public defender's system by adding flexibility to the budget review process. 2' Rep. DuBose Porter, of the 14 3 rd, spoke against the Bill stating that there are two major problems with transferring the Council to the executive branch.2 2 First, the separation of powers is eroded, and second, the move will weaken the authority of the legislature because the Governor, not the legislature, will be the first to see the budget.23 Rep. Porter stated that although the Council is not objecting to the move, they are fearful about the budget.24 Rep. Porter also noted that the credibility of the Council will be lessened by the move to the executive branch because it will be subject to political whims in high profile cases. 25 The Bill passed the House the same day by a vote of 98 to 58.26 The Governor received the Bill from the Senate on April 26, 2007.27 Senate Bill 139 was signed by the Governor on May 11,2007.28 PREPARED

BY: Quiana Riche

2007_08/votes/sv 0150.htm (last visited Mar. 29, 2008).

16. Id. 17. Id. 18. Id. 19. Id. 20. Id. 21. Video Recording of Sen. Proceedings, Apr. 17, 2007, available at

http://www.ga.gov/00/ article/ 0,2086,4802_6107103_72682804,00.html.

22. Id. 23. Id. 24. Id. 25. Id.

26. Ga. Gen. Assem., S. 139, available at http://www.legis.ga.gov/legis/ 2007_08/sum/sb 139.htm (last visited Mar. 29, 2008).

27. Id. 28. Id.

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190:' INSANITY/MENTAL INCOMPETENCY Amending O.C.G.A. ยง 17-7-30

SENATE BILL

FIRST SIGNATURE: Sen.

Seth Harp

Co-SPONSORS: Sen. Michael Dan Moody ( 5 6 th), Sen. Greg

(2

9 th).

Myer von Bremen (12th), Sen. Goggans ( 7 th), Sen. Don Thomas

(5 4 th) & Sen. Bill Cowsert (4 6th).

Senate Bill 190 provided definitions for violent acts and gave the committing court the discretion to allow outpatient evaluations of non-violent defendants.

SUMMARY:

STATUS:

Enacted.

TEXT OF SENATE BILL

190

ยง 1.

Part 2 of Article 6 of Chapter 7 of Title 17 of the Official Code of Georgia Annotated, relating to issues of insanity and mental incompetency in pretrial proceedings, is amended by revising Code Section 17-7-130, relating to proceedings upon a plea of mental incompetency to stand trial, as follows: '17-7-130. (a) As used in this Code section, the term: (1) 'Committing court' means the court which has jurisdiction over the criminal charges against the defendant.

(2) 'Inpatient' shall have the same meaning as in paragraph (9. 1) of Code Section 37-3-1.

(3) 'Nonviolent offense' means any offense other than: (A)(i) Murder; (ii) Rape; (iii) Aggravated sodomy; (iv) Armed robbery; (v) Aggravated assault; (vi) Hiiacking of a motor vehicle or an aircraft: (vii) Aggravated battery; (viii) Agravated sexual battery: (ix) Aggravated child molestation, or (x) Aggravated stalking; (xi) Arson in the first degree and in the second degree: (xii) Stalking: (xiii) Fleeing and attempting to elude a police officer: (xiv) Any sexual offense against a minor; or (xv) Any offense which involves the use of a deadly weapon or destructive device: and (B) Those felony offenses deemed by the committing court to involve an allegation of actual or potential physical harm to another person.

(4) 'Outpatient' shall have the same meaning as in paragraph (12.1) of Code Section 37-3-1, provided that the court determines that the defendant meets the criteria for release on bail or other pre-trial release pursuant to Code Section 17-6-1.

1. S. 190, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

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(b) Whenever a plea is filed that a defendant in a criminal case is mentally incompetent to stand trial, it shall be the duty of the court to cause the issue of the defendant's mental competency to stand trial to be tried first by a special jury. If the special jury finds the defendant mentally incompetent to stand trial, the court shall retain jurisdiction over the defendant but shall transfer the defendant to the Department of Human Resources; provided, however, that if the defendant is charged with a misdemeanor offense other than as included in subparagraph (A) of paragraph (3) of subsection (a) of this Code section or a nonviolent offense, the court may, in its discretion, retain iurisdiction over the defendant, and may allow evaluation to be done on an outpatient basis by the Department of Human Resources. If the court allows outpatient evaluation and the defendant is in custody, the court may release the defendant in accordance with the provisions of Code Section 17-6-1, et. seq. (c) Within 90 days after the Department of Human Resources has received actual custody of a defendant or, in the case of an outpatient, a court order requiring evaluation of a defendant pursuant to subsection (b) of this Code section, the defendant shall be evaluated and a diagnosis made as to whether the defendant is presently mentally incompetent to stand trial and, if so, whether there is a substantial probability that the defendant will attain mental competency to stand trial in the foreseeable future. If the defendant is found to be mentally competent to stand trial, the department shall immediately report that finding and the reasons therefor to the committing court; and the defendant shall be returned to the court as provided for in subsection (D of this Code section. (d) If the defendant is found to be mentally incompetent to stand trial by the Department of Human Resources and there is not a substantial probability that the person will attain competency in the foreseeable future, the department shall return the physical custody of the defendant to a law enforcement officer of the jurisdiction of the court which committed the defendant unless in the opinion of the department's attending physician, and with concurrence of the court, such detention by law enforcement would be detrimental to the well-being of the defendant, in which case the defendant may be held by the department until the date of the defendant's hearing. The department shall report to the committing court the finding regarding competency, the reasons therefor, and its opinion as to whether the defendant currently meets criteria for commitment as an inpatient or as an outpatient pursuant to Chapters 3 or 4 of Title 37. The law enforcement officer of the jurisdiction of the court which committed the defendant shall retain custody of the defendant and the committing court may order an independent evaluation of the defendant by a court appointed licensed clinical psychologist or psychiatrist, who shall report to the court in writing as to the current mental and emotional condition of the defendant. Based on consideration of all evidence and all reports, the committing court may: (1) Refer the case to the probate court for commitment proceedings pursuant to Chapter 3 or 4 of Title 37, if appropriate and if the charges are dismissed for any reason; or (2) Retain jurisdiction of the defendant and conduct a hearing at which it shall hear evidence and consider all psychiatric and psychological reports submitted to the court and determine whether the state has proved by clear and convincing evidence that the defendant meets the criteria for involuntary civil commitment as an inpatient or as an outpatient pursuant to Chapter 3 or 4 of Title 37. whichever is applicable. The burden of proof in such hearings shall be upon the state.

(A) If the defendant does not meet the criteria for inpatient or outpatient civil commitment, the defendant shall be released in accordance with the provisions of Code Section 17-6-1 et. seq.

(B) If the defendant is found to meet the criteria for involuntary civil commitment as an inpatient or outpatient, the judge may issue an order committing the defendant. (i) If the defendant so committed is charged with a misdemeanor offense, the committing court may civilly commit the defendant for a period not to exceed one year. Following the commitment period, the charges against the defendant shall be dismissed by operation of law. (ii) A defendant who is so committed and is charged with a felony may only be released from that inpatient or outpatient commitment by order of the committing court in accordance with the procedures specified in paragraphs (1) through (3) of subsection (f) of Code Section 17-7-131 except that the burden of proof in such release hearing shall be on the state and if the committed person cannot afford a physician or licensed clinical psychologist of the defendant's choice, the person may petition the court and the court may order such cost to be paid by the county. The Department of Human Resources shall report annually to the committing court on whether the civilly committed defendant continues to meet criteria for involuntary commitment as an

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inpatient or an outpatient pursuant to Chapter 3 or 4 of Title 37. The committing court shall review the case and enter an appropriate order, either to renew the inpatient or outpatient civil commitment, to change the commitment either from inpatient to outpatient or from outpatient to inpatient, or in the event charges are dismissed, transfer the iurisdiction of the case to the probate court for further proceedings pursuant to Title 37, if appropriate. (e) If the defendant is found to be mentally incompetent to stand trial but there is a substantial probability that the person will attain competency in the foreseeable future, by the end of the 90 day period, or at any prior time, the department shall report that finding and the reasons therefor to the committing court and shall retain custody over the defendant for the purpose of continued treatment for an additional period not to exceed nine months; provided, however, that if the defendant is charged with a misdemeanor offense or a nonviolent offense, the court shall retain jurisdiction over the defendant, but may. in its discretion, allow continued treatment to be done on an outpatient basis by the Department of Human Resources. The department shall monitor the defendant's outpatient treatment for an additional period not to exceed nine months. If, by the end of the nine-month period or at any prior time if the defendant's condition warrants, the defendant is still found not to be competent to stand trial, irrespective of the probability of recovery in the foreseeable future, the department shall report that finding and the reasons therefor to the committing court. The committing court shall then follow the procedures in subsection (d) of this Code section for further commitment or release. (f)(I) If the defendant found to be mentally incompetent to stand trial is at any time found by the Department of Human Resources to be mentally competent to stand trial, the committing court shall be notified. A defendant who is an inpatient and is found by the Department of Human Resources to be mentally competent to stand trial shall be discharged into the custody of a law enforcement officer of the jurisdiction of the court which committed the defendant to the department unless the charges which led to the commitment have been dismissed, in which case the defendant shall be discharged. In the event a law enforcement officer does not appear and take custody of the defendant within 20 days after notice to the appropriate law enforcement official in the jurisdiction of the committing court, the presiding judge of the committing court, and the prosecuting attorney for the court, the department shall itself return the defendant to one of the committing court's detention facilities; and the cost of returning the defendant shall be paid by the county in which the committing court is located. All notifications shall be sent by certified mail or statutory overnight delivery, return receipt requested. With the concurrence of the appropriate court and upon the recommendation of the department's attending physician, any defendant discharged as competent to stand trial may be held by the department instead of at the court's detention facilities whenever, in the attending physician's opinion, such detention in the court's facilities would be detrimental to the well-being of the defendant so committed.

Such alternative detention shall continue only until the date of the defendant's trial.

(2)A defendant who is an outpatient and is found by the Department of Human Resources to be mentally competent to stand trial may remain in the community under conditions of bond or other conditions ordered by the committing court, if any, until the date of the person's trial. (g) Any person found by the Department of Human Resources to be mentally competent to stand trial returned to the court as provided in subsection (f) of this Code section shall again be entitled to file a special plea as provided for in this Code section. (h) If a defendant is found to be mentally incompetent to stand trial, whether or not committed pursuant to this Code section, the state may file at any time a motion for rehearing on the issue of the defendant's mental competency. The court shall grant said motion upon a showing by the state that there are reasonable grounds to believe that the defendant's mental condition has changed. If this motion is granted, the case shall proceed as provided in subsection (b) of this Code section.'

ยง 2.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Seth Harp, of the

2 9

th ,

believed the maximum security

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361

over aggressive mentally ill defendants is more adequately provided in the State's mental health facility rather than in a penal institutional setting.2 Senate Bill 190 was a cooperative effort among the Georgia Public Defender's Standards Council, the Prosecuting Attorney's Council of Georgia, the Mental Health Network, the Mental Health 3Advocate, and various Superior Court Judges around the State.

The State's mental health agency maintained an eleven million dollar deficit for the past eight years and has been operating at more than 100% capacity since March of 2005.'

As a result of bed-shortage at the State's mental facility, the "Hannibal Lecter Type" of defendants were not being admitted to the facility for the purposes of long term treatment.5 Instead, the violent and mentally ill defendants were being held in the county jails, which were not equipped to treat them.6 The purpose of Senate Bill 190 was to free up bed space at the mental health facilities and to allow committing courts the discretion to order offenders of non-violent offenses to be examined in an outpatient setting that will be more cost efficient for the mental health agencies. 7 LEGISLATIVE GENEALOGY

The Senate passed the Bill by a unanimous vote on March 27, 2007 without question, comment, or amendment.8 The House Committee reported favorably on the passage of the Bill. The Bill was discussed on the House floor and was passed without

2. Video Recording of Senate Proceedings, Mar. 27, 2007 (remarks by Sen. Seth Harp), available at http://www.georgia.gov/00/article/0,2086,4802 6107103_72682316,00.html [hereinafter Senate Video].

3. Id. 4. Alan Judd & Andy Miller, State mental agency says it has $11 million

deficit, ATLANTA J. CONST., Oct. 31, 2007.

5. See Senate Video, supra note 2 (remarks by Sen. Seth Harp).

6. Id.

7. See Georgia Public Defender Standards Council, Legislative Update Changes

in

17-7-130

Incompetent

to

http://www.gpdsc.com/omha-article-legupdate_07.htm 2007).

8. Senate Video, supra note 2.

Stand

Trial

(IST)

(last visited Oct.

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[Vol. I

9 question, comment, or amendment in a 129 to 3 vote.

PREPARED

9. Id.

BY: Julie Tidmore

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Legislative Initiatives with Sponsor Rationale SENATE BILL

363

211:' HATE CRIMES

Amending O.C.G.A. ยง 17-10-17 FIRST SIGNATURE:

Sen. Vincent Fort ( 3 9 th).

Co-SPONSORS: Sen. Robert Brown ( 2 6 th), Sen. Kasim Reed (35th), Sen. Nan Orrock ( th), Sen. Regina Thomas (2 rd) & Sen. Gail Davenport ( 4 4 th). 3 6

Senate Bill 211 provided increased periods of incarceration for defendants found guilty of crimes that target a victim due to age, religion, gender, national origin, or sexual orientation.

SUMMARY:

STATUS:

Not enacted.

TEXT OF SENATE BILL 211

ยง 1.

Article I of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating to procedure for sentencing and imposition of punishment, is amended by repealing in its entirety Code Section 17-10-17, relating to sentencing of defendants guilty of crimes involving bias or prejudice, circumstances, and parole.

ยง 2.

Said article is further amended by adding a new Code Section 17-10-17 to read as follows: "17-10-17. (a) Subject to the notice requirement provided in Code Section 17-10-18 and in enhancement of the penalty imposed, if the trier of fact determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property of the victim as the object of the offense because of the victim's race, religion, gender, gender identity, sexual orientation, or national origin, the judge imposing sentence shall: (1)If the offense for which the defendant was convicted is a misdemeanor, increase the sentence and the fine normally imposed by the court through court policy or voluntary sentencing guidelines by 50 percent up to the maximum authorized by law; (2) If the offense for which the defendant was convicted is a misdemeanor of a high and aggravated nature, increase the sentence and fine normally imposed by the court through court policy or voluntary sentencing guidelines by 50 percent up to the maximum authorized by law; or (3) If the offense for which the defendant was convicted is a felony, increase the sentence normally imposed by the court through court policy or voluntary sentencing guidelines by up to five years, not to exceed the maximum authorized by law; provided, however, that if the defendant was less than 18 years of age at the time of the offense, the judge shall have the discretion to reduce the enhanced penalty provided for in this subsection. (b) When the judge imposes the sentence, the judge shall state the amount of the increase of the sentence based on the application of subsection (a) of this Code section. (c) Any person convicted of a felony and given an enhanced sentence under this Code section shall not be eligible for any form of parole or early release until such person has served at least

1. S. 211, 149th Ga. Gen. Assem., Reg. Sess. (Ga. 2007).

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[Vol. I

90 percent of the sentence imposed by the sentencing court."

ยง 3.

This Act shall not apply to any offense committed before July 1, 2007.

ยง 4.

This Act shall become effective on July 1, 2007.

ยง 5.

All laws and parts of laws in conflict with this Act are repealed.

FIRST SIGNATURE'S RATIONALE

Sen. Vincent Fort, of the 39th , introduced Senate Bill 211 in response to the increasing number of violent crimes targeting victims due to race, religion, gender, national origin, or sexual orientation. 2 In particular, a gay-friendly nightclub was bombed in the Senator's district in 1999. 3 The Bill is an amendment to restore enhanced criminal sentencing guidelines set forth in O.C.G.A. ยง 17-10-17, which was held to be unconstitutionally vague by the Georgia Supreme Court in 2004. 4 The act, labeled "The Anti-Domestic Terror Act," defined a hate crime as one committed as a result of "bias or prejudice."5 The Court ruled that these terms did not give a person of ordinary intelligence adequate warning of the proscribed conduct. 6 The new Bill was modeled after Wisconsin's hate crime law, which has already passed constitutional muster in the United States Supreme Court.7 The addition of specific classes of people was the modification that Sen. Fort inserted to cure the defect. 8 Sen. Bill Cowsert, of the 46 th , chairman of the Study Committee, commented on the interesting coalition of organizations supporting the Bill, which includes the AntiDefamation League, the NAACP, GLAD, and the Georgia Bureau of Investigation.9 Support from such diverse groups has 2. Telephone Interview with Sen. Vincent Fort, Sen. Dist. No. 39 (Sept.

20, 2007) [hereinafter FortInterview].

3. Id. 4. ANTI-DOMESTIC TERROR ACT of

2000, O.C.G.A. ยง 17-10-17 (2000), invalidatedby Botts v. State, 604 S.E.2d 512 (Ga. 2004).

5. Id. 6. Botts, 604 S.E.2d at 513.

7. Fort Interview, supra note 2; Wisconsin v. Mitchell, 508 U.S. 476

(1993).

8. FortInterview, supra note 2.

9. Telephone Interview with Sen. Bill Cowsert, Sen. Dist. No. 46 (Sept.

21, 2007).

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365

put Republicans in a delicate position, as they have traditionally voted for regulations supported by law enforcement agencies, but against the interests of groups representing homosexuals 1° and other minority interest groups.

LEGISLATIVE GENEALOGY

The first reading of the Bill in the Senate occurred on February 22, 2007; it was subsequently referred to the Judiciary Committee." On March 19, 2007, the Committee favorably reported the Bill with 6 to 2 bipartisan approval vote.12 On March 20, 2007, the Bill was read for a second time. 13 It has since been reviewed by the Rules4 Committee and is now in the Study Committee for evaluation.'

PREPARED BY:

Daniel Stafford

10. Id. 11. Ga. Gen. Assem., S. 211, available at http://www.legis.state.ga.us /legis/2007_08/sum/sb2l 1.htm.

12. Id. 13. Id. 14. FortInterview, supra note 2.