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Redacted Brief in Support of Motion for Reconsideration – Appeal from Denial of Petition for Removal from the Georgia Sex Offender Registry

by merlin on December 6th, 2012
  • Sumo

It has been roughly two weeks since I last posted anything at all, and I sincerely apologize for my long absence!  However, I can explain.  I have been diligently involved in a lot of research, writing, and appeals work related to a sex offender removal case (and if this motion doesn’t succeed, then I will seek appeal to the Supreme Court of Georgia, and then to the Supreme Court of the United States, if need be).  I present a redacted version of the brief written in support of a motion for reconsideration, which discusses some interesting Constitutional issues of particular significance in this case.



XXXXX XXXXX,                                                                                                        §


                   Petitioner,                                                                                                 §        CIVIL ACTION


          VS.                                                                                                                          §        APPLICATION NO. XXXXX


XXXXX XXXXX,                                                                                                       §


                   Respondent.                                                                                             §


          This brief supports a Motion for Reconsideration filed by XXXXX XXXXX, addressing the material statutes and guiding principles of law implicated by a wrongly-decided case heard before the Superior Court of XXXXX County, case number XXXXX, which erroneously denied his petition for removal from the Georgia Sex Offender Registry in its judgment of XXXXX, 2012.  The facts and argument presented here support the validity of the appeal sought by XXXXX XXXXX from the judgment of the Court.


       1.     Is a Superior Court refusal to release an otherwise qualified person from the Georgia Sex Offender Registry prohibited as ex post facto punishment?

2.     Can removal from inclusion on the Georgia Sex Offender Registry be arbitrarily denied by a superior court judge as a punitive measure?

         3.     Does the language employed by Section 42-1-19(f) of the Official Code of Georgia stating that “[t]he court may issue an order releasing the individual from registration requirements or residency or employment restrictions” permit absolute discretion regardless of the fulfillment of other statutory conditions for release?


           1.     Inclusion on the Georgia Sex Offender Registry as a punitive measure of indefinite duration even when all measures for release have been met is inherently ex post facto punishment and therefore unconstitutional

         2.     The Georgia Sex Offender Registry is maintained solely as a civil prophylactic against potential danger to the public and is not punitive in nature; if it creates demonstrable harm without any definite standards for punishment that were not available and known when sentence was accepted by Appellant, it is ex post facto in nature and unconstitutional.

           3.     The language employed by Section 42-1-19(f) of the Official Code of Georgia does not grant unfettered discretion to a trial court to deny release from the Georgia Sex Offender Registry sought by an otherwise qualified petitioner.  It contains within it an implied standard of reasonable use of judicial discretion.


Under the Eighth Amendment to the United States Constitution against excessive bail and fines and cruel and unusual punishments, it is inherently unjust to keep a person under sentence when they have established to the satisfaction of the Court that they pose no substantial likelihood of committing any similar offense.  American standards of justice demand better from our legal system, and the Georgia Constitution mandates that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; nor shall any person be abused in being arrested, while under arrest, or in prison.”  The Georgia Sex Offender Registry does not serve as additional punishment, but instead as a necessary public notification device, and it is not intended to serve as a form of indefinite punishment.  Taylor, 304 Ga.App. at 883.  Appellant established his eligibility for release to the Court below, and the arbitrary denial of the relief he seeks without justification for his continued punishment violates his civil rights.

1.     An Uncertain and Unknown Future Date of Possible Removal from the Georgia Sex Offender Registry as a form of continued punishment for a past offense, when conditions for removal have been legally fulfilled, is a Forbidden Ex Post Facto Legal Enactment.

The Georgia Supreme Court has engaged in analysis of sex offender registry statutes in the past for potential violation of the statutory rule against ex post facto law, and the engagement used in evaluating past iterations of the statute will serve to analyze the present situation, as well.  “To determine whether a penal statute is an ex post facto law, we employ a three-step analysis: First, we ask whether the law applies retrospectively…[i]f it does not, our inquiry is at an end…[i]f it does, we look to see if the law is punitive or regulatory… [i]f it is regulatory, we examine the statute’s effect… [i]f the effect of the statute is punitive, the statute is deemed ex post facto — even if the statute was intended to be regulatory.”  Frazier, 284 Ga. at 639.  In the case at bar, the trial court made clear that Appellant met all of the conditions necessary for relief, and no arguments of fact were ever advanced by the State justifying his punishment, but his relief was denied on the basis that he “just shouldn’t be released at this point.”  Order on Defendant’s Petition for Removal from Sex Registry, p. 2.  It is not argued that the statute itself is intended to serve as punishment; it actually tries to provide a mechanism whereby persons that do not present a danger of sexual re-offense won’t be punished unfairly by inclusion on the Georgia Sex Offender Registry.  Rather, the harm that is caused by the statute is what is at issue in this case, when it is poorly-used and misapplied to cause harm to persons who have shown no tendency or inclination to harm.  The language that was used by the trial court indicates that it is treating the Georgia Sex Offender Registry as something punitive in nature beyond the incarceration and probation that are imposed as part of a criminal sentence, and that the law is being used in an ex post facto manner, contrary to the standard clearly set out in cases such as Frazier.

“The record in this case contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords.”  Smith v. Doe, 538 US 84, 100, 123 S.Ct. 1140 (2002)(upholding Alaska sex offender registry scheme against ex post facto challenge).  The situation in the 2002 Doe case  is readily distinguishable from the facts in the case at bar, argued a decade later and therefore presented with a larger body of evidence of the harm of registry statutes such as the one at issue, because there was evidence in this case of exactly the disability described by the Court, and Appellant actually experienced and testified to the very “occupational or housing disadvantages” that the Supreme Court found no evidence of in upholding the Alaska sex offender registry against Constitutional challenge.

A.   An uncertain future date of possible Registry removal is forbidden ex post facto law.

The Due Process clause of the Fifth Amendment to the United States Constitution forbids the government from depriving any citizen of life, liberty, or property without Due Process of law.  The decision of the trial court and the refusal of the Court of Appeals to reverse that wrongful decision reflects exactly that forbidden action.  In Smith, the United States Supreme Court listed the factors that it relies on to determine whether a sex offender registry law violates this scheme.  “The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a non-punitive purpose; or is excessive with respect to this purpose.”  538 US at 97.

As in that case, the law in question is too recently-enacted to permit significant analysis of its historic treatment as a punishment.  In fact, removal from the Georgia Sex Offender Registry under Section 42-1-19 of the Official Code of Georgia only became possible in 2010, but the extant judicial decisions have unquestionably denominated the Georgia Sex Offender Registry itself as a civil mechanism, and no pronouncements have been made to identify it as punitive, instead.  There is no doubt, though, that it can be a punishment to persons subjected to it.  “An individual who falls within the ambit of the registry is subject to lifetime registration and to the public dissemination of his name and other information identifying him as a registered sex offender.  Taylor, 304 Ga.App. at 883-884.  That case remarked that inclusion on the Georgia Sex Offender Registry was not itself “the equivalent of banishment or exile”, but it noted that “there is no denying that registrants face extensive restrictions on where they can live, work, and volunteer.”  Id.; O.C.G.A. § 42-1-15.

Because the trial court has opted to use inclusion on the Georgia Sex Offender Registry not as a civil, non-punitive measure for better ensuring public safety but has instead elected to refer to it specifically in punitive terms of release, as per a sentence of incarceration, and has not provided any evidence of rehabilitative actions or measures being actively pursued, it is inherently excessive with respect to its purpose.  In the Alaska rendition of the Act, the Court made much of the fact that it was created to serve a public notification purpose, and it accomplished that purpose effectively; it was a non-punitive measure entirely and the only negative consequences naturally flowed from the actions of the registrants themselves.  However, the case at bar instead presents a situation where a person is punished beyond what they might otherwise experience only because the trial judge has decided, without any objective justification other than an opinion by a non-expert, that the individual “just shouldn’t be released at this point”.  Order on Defendant’s Petition for Removal from Sex Registry, p. 2.  This is inherently punitive, and defies the apparent purpose of the Georgia Sex Offender Registry as a public notification tool, straying instead into the realm of punishment and retribution.

“[T]he corresponding length of the reporting requirement…[is] reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.”  Smith, 538 US at 102.  However, the use of past crime to create further punishment, used expressly by the trial court in its language denying the relief sought by Appellant, implicates a forbidden standard of law.  “The fact that the Act uses past crimes as the touchstone, probably sweeping a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims, there is room for serious argument that the ultimate purpose is to revisit past crimes, not prevent future ones.”  Id. at 109 (concurrence of Justice Souter).  There is no definite “release date” for Appellant from his perpetual sentence of poverty and ignominy on the Georgia Sex Offender Registry, and the statutory scheme requires that he wait two more years before he is permitted to again petition the court for consideration, during which time he will continue to be subjected to poverty and social ostracism without any efforts at rehabilitation or improvement by the State.

In the case at bar, there was neither evidence of recidivism nor threat of it according to the Tier I rating given Appellant by the Sex Offender Registry Review Board, and the use of the trial court of his continued inclusion on the Sex Offender Registry as a tool of punishment and retribution is hostile to the regulatory and rehabilitative objective sought by the Act.  “The sex offender registry requirement is regulatory and not punitive in nature.”  Wiggins v. State, 288 Ga. 169, 172, 702 S.E.2d 865 (Ga. 2010).

B.   Barring Removal From the Georgia Sex Offender Registry for Unknown, Subjective Reasons Violates Georgia Public Policy.

“In enacting the 2006 version of the statute that sets out the sexual offender registry, the General Assembly declared that registration of sexual offenders was necessary to protect the public, described the sexual offender registry as a “requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public[,]” and observed that “[t]he designation of a person as a sexual offender … [is] simply a regulatory mechanism and status resulting from the conviction of certain crimes.” Ga. L.2006, p. 379, § 1.”  Bradshaw v. State, 671 S.E.2d 485, 490, 284 Ga. 675 (Ga. 2008)(life sentence for recidivist failure to update sex offender register information struck down as disproportionate punishment).  However, nothing in the statutory scheme indicates that sexual offenses are subject to automatic life imprisonment and long-term punishment.  “[A] sentence of life imprisonment is the third most severe penalty permitted by law, exceeded in severity only by capital punishment and life imprisonment without the possibility of parole” Id.  The actions of the trial court in the case at bar subject Appellant to a potentially life-long disadvantage, in which he is possessed of greater liberty than if he were incarcerated, but is subject to victimization not expressed in any of the statutes and not expressly the policy of the State.  A registrant is subject to discrimination in employment, residence, and social interaction for as long as they are included on the Georgia Sex Offender Registry, which punishments are not expressly addressed by the laws, either, and which are certainly not the policy of the State.  “The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism.”  Doe at 99 (emphasis supplied).


II. Inclusion on the Georgia Sex Offender Registry is Intended solely as a Civil Service to the Public and Cannot be Used as Punishment in Addition to That Authorized by Statute.

Mere inclusion on the Georgia Sex Offender Registry, without more, is not a punishment and deprivation of liberty in and of itself, but it is the dissemination of the fact of conviction and the harsh consequences that can arise in society, as well as the substantial danger of punitive measures from a breach of the rules governing the conduct of persons on the Georgia Sex Offender Registry for the duration of their continued punishment, that renders it potentially harmful.  “[T]he fact that a violation of “the registration requirements leads to a harsh penalty is not pertinent to whether the registration requirements are additional punishment for the previously-committed sex offense. [Cits.]””  Frazier, 284 Ga. at 638-639(quoting State v. White, 162 N.C.App. 183590 S.E.2d 448, 457(III)(B)(5)(2004)).  However, the fact remains that the person who is listed on the Georgia Sex Offender Registry walks a fine line at all times, and the punishment that they face is well-documented in the cases addressing this topic.

More notable was the Court’s emphasis on the specific aspect of the punishment that rendered the Act discussed in the Frazier case potentially unconstitutional – the fact that the appellant had no right to be set free, but that instead his freedom depended on a discretionary act by an official tasked with judging whether or not he was rehabilitated.  He might have the right to be considered for release, but the statute was unlawful because he then had no right to be freed.  In much the same way, a potential life sentence as a registrant on the Georgia Sex Offender Registry, and the pariah status it creates for a person suffering under that disability, regardless of the presence of both mitigating and wholesome factors in a person’s favor, is similarly unconstitutional.  “[I]ts objective [is] to provide petitioners a basis for seeking relief from the continuing duty to register as sexual offenders.”  Miller v. State, 291 Ga.App. 478, 481, 662 S.E.2d 261 (Ga. App. 2008)(referring to removal/deviation provisions of O.C.G.A. § 42-1-12, reflected, expanded, and updated in O.C.G.A. § 42-1-19).  However, the public notice that the Sex Offender Registry creates is not without consequence as long as a person remains a registrant, and the trial court has already heard evidence of the substantial economic harm that Appellant has experienced as a consequence of his conviction, having lost the last decent employment available to him over five years ago.  He has served his time, and been punished accordingly, but “[s]election makes a statement, one that affects common reputation and sometime carries harsher consequences, such as exclusion from jobs or housing, harassment, and physical harm.”  Doe at 109 (concurrence of Justice Souter).


III.    The discretion given to a trial court to grant or deny a petition for release from the Georgia Sex Offender Registry under Code Section 42-1-19(f) contains within it an implied standard of reasonable discretionary exercise.

 “ ‘(I)t is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; that they are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts.’ [Cits.].”  Copher v. Mackey, 220 Ga.App. 43, 45 (Ga. Ct. App. 1996)(quoting  Wigley v. Hambrick, 193 Ga.App. 903, 905(4), 389 S.E.2d 763 (1989)).  Interpretation of such a new and unusual provision of law as the recently-enacted release provisions from the Georgia Sex Offender Registry found in Section 42-1-19 of the Uniform Code of Georgia are best informed by reference to similar statutory provisions involving similar judicial exercise of discretion, such as those addressing immigration matters.  In Clark v. Martinez, the Supreme Court of the United States discussed the indefinite detention powers addressed in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001), and the use of the term “may” in a similar context to its usage in Section 42-1-19(f), and it found specifically that “[t]he statute’s use of “may,” … “suggests discretion,” but “not necessarily … unlimited discretion. In that respect the word ‘may’ is ambiguous.’”  543 U.S. 371, 377, 125 S.Ct. 716 (2005).  It characterized the indefinite detention of human beings as a “serious constitutional threat”, and this same “serious constitutional threat” is being presented in the case at bar, and the potentiality of indefinite inclusion on the sex offender registry for persons who, like Appellant, pose no further likelihood of committing any new sexual offense.  Id.  This appeal begs to be heard by this Court on the basis of the findings objectively made by the trial court alone, to the effect that XXXXX XXXXX does not have any substantial likelihood of committing a future sexual offense, and the logical conclusion from this finding is that his continued inclusion on the Georgia Sex Offender Registry cannot be for either a regulatory or rehabilitative purpose, since neither of those goals are necessary in his situation.

Similarly to the Zadvydas case discussed above, the Taylor case, supra, talks about the similarities between immigration law consequences, especially the danger of indefinite detention, and registration as a sex offender.  That case draws the parallel only in terms of the incompetency of counsel in failing to advise their client of the ramifications of entry of a plea of guilty, but the parallel is noted by the Court and can be drawn in the case at bar.  This is a grant of tremendous discretionary power to trial judges.  “A trial court has broad discretion in sentencing to impose conditions reasonably related to the nature and circumstances of the offense and the rehabilitative goals of probation”.  Grovenstein v. State, 282 Ga.App. 109, 111, 637 S.E.2d 821 (Ga. Ct. App. 2006)(declining to place a teenager on the Georgia Sex Offender Registry for receiving oral sex from an underage female companion).

 To ignore the idea that judicial power to remove a person from the ambit of the Georgia Sex Offender Registry will be exercised according to principles of logic, reason, and common sense would be to instead willingly permit an absurdity to result.  “It is well established that, as part of the broad discretion vested in trial judges by the probation and suspension statutes in Georgia, the appellate courts will approve “any reasonable condition imposed for probation” of a sentence by the trial court “[i]n the absence of express authority to the contrary.”  Hollie v. State, 287 Ga. 389, 390, 696 S.E.2d 642 (Ga. 2010)(quoting State v. Collett, 232 Ga. 668, 670, 208 S.E.2d 472 (1974).  However, to quote a pop-culture maxim, “with great power comes great responsibility”.  This is not a grant of carte blanche to the judicial branch, nor are some persons inherently of lesser value in American society simply because they are former sex offenders, and there is a guiding rule of law for this power.  This principle of statutory construction (reading an idea of reasonable exercise of common sense into statutory language) has been used in the context of sexual offenses themselves in the past.

In Chase v. State, 285 Ga. 693, 681 S.E.2d 116 (Ga. 2009)(other statutory provisions maintained the debated statutory defense and an absurd interpretation would result), it was observed that “[it is elementary that “[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly.”  In so doing, “the ordinary signification shall be applied to all words.”  Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly.  Id. at 695 (emphasis supplied).  This means that a Court must interpret a statute to avoid an absurd result, but this is evident, since “the mere letter does not always express the intent”.  Undercofler v. Capital Automobile Co., 111 Ga.App. 709, 716 (Ga. App. 1965)(discussing statutory interpretation in terms of excise tax levying).  In that case, the Court goes on to elucidate this principle, stating that “[t]he construction of language and words used in one part of the statute must be in the light of the legislative intent as found in the statute as a whole.”  Id.

 The Official Code of Georgia specifically addresses this idea, stating that ”[m]ay” ordinarily denotes permission and not command. However, where the word as used concerns the public interest or affects the rights of third persons, it shall be construed to mean “must” or “shall.”  O.C.G.A. § 1-3-3(10).  This is in keeping with the understanding to be given to statutory terms.  “A word in a statute may or may not extend to the outer limits of its definitional possibilities.”  Abeulhawa v. United States, 556 U.S. 816, 820, 129 S.Ct. 2102 (2009)(quoting Dolan v. Postal Service, 546 U.S. 481, 486, 126 S.Ct. 1252 (2006)).  The statutory scheme in question, unarguably addressing the public interest and affecting the rights of third persons, would necessarily be subject to this common-sense filter.

 This is no different than the type of common-sense filter that statutorily-governed sentences of probation are placed under.  In Kellam v. State, 271 Ga.App. 125, 126 (Ga. Ct. App. 2004), the Court expressly pronounced both on the broad discretion of trial judges regarding conditions to be imposed on probationers for the crime of Driving Under the Influence and the implied reasonable relationship such conditions must bear to the offense charged, stating that “[t]he probation and suspension statutes in Georgia vest broad discretion in trial judges. In the absence of express authority to the contrary, 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.”  Again, the existence of an implied standard of reasonableness was described by the Court as the touchstone for conditions of offender sentence to be judged by.  The Sex Offender statute in question is no different.


The conditions for release of Appellant XXXXX XXXXX from the Georgia Sex Offender Registry have been met, and no factual justification has been presented by the State that requires or permits his continued registration, but the Court’s refusal to release him from the Georgia Sex Offender Registry at the present time constitutes an ex post facto condition that is contrary to law.  He was expressly found by a preponderance of the evidence in the trial court not to pose a substantial risk of perpetrating a future sexual offense.  Order on Defendant’s Petition for Removal from Sex Registry, p. 2.  He therefore is without need of rehabilitation and the public has no need to regulate his comings and goings.  He was found to have met all of the necessary prerequisites for release, but the trial court simply felt that he should not be released at this time, without providing any reasoning or documentation or supporting justification.  Id.  The statute implies a condition of logical use of discretion, and that use is plainly absent from this situation.  In the interests of justice, the judgment of the trial court must be reversed.

 Respectfully submitted this Xth day of XXXXX, 2012,

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