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Re-Post (1/12/13)

by merlin on January 24th, 2013
  • Sumo

Because I am examining and writing about legal standards for judicial discretion, this post is relevant, and I therefore re-post it for the betterment of society at large.

BRIEF IN SUPPORT OF PETITION FOR CERTIORARI

This appeal is brought by Appellant XXXXX XXXXX against the State of Georgia following its refusal to remove him from the Georgia Sex Offender Registry without objective evidence justifying his continued punishment and after the conclusion of all formal punishment entered against him in the underlying criminal conviction which resulted in his registration.

Jurisdiction of Court

Jurisdiction is proper in this Court because Section VI, Paragraph V of the 1983 Constitution of the State of Georgia states that “[t]he Supreme Court may review by certiorari cases in the Court of Appeals which are of gravity or great public importance” and this case, involving a remedy that is only recently-enacted and has been misapplied by many different jurisdictions but has not been judicially-refined is of tremendous gravity and substantial public importance.  It involves a matter of statutory interpretation for the newly-implemented method of release from the Georgia Sex Offender Registry, a problem facing many Georgians, and it qualifies for consideration by the Supreme Court of Georgia.

Judgment Appealed From

This appeal is brought from the denial of XXXXX XXXXX’ Petition to the Georgia Court of Appeals in Application Number XXXXX, which denial was made final following their decision against his Motion to Reconsider, dated XXXXX, and which affirmed the judgment of the Superior Court of XXXXX County denying the Petition of XXXXX XXXXX for release from the residency and employment restrictions of and inclusion on the Georgia Sex Offender Registry, stated in open Court orally on XXXXX, and issued in written form on XXXXX, in case number XXXXX.

Material Facts

On XXXXX, 2012, the Superior Court of XXXXX County orally denied Appellant XXXXX XXXXX’ Petition Seeking Removal from the Sex Offender Registry, finding that Appellant had proven all of the requisite allegations entitling him to removal from the Georgia Sex Offender Registry (hereinafter referred to as the “Registry”) by a preponderance of the evidence, there was not a substantial danger of him committing a future dangerous sexual offense, but his Petition for release from the registration, residency, and employment restrictions of the Registry would stand denied, nonetheless.  This denial was memorialized in written form by an Order dated XXXXX.  The facts that gave rise to the findings of the Court and his fitness for relief are relevant to this appeal.

Appellant XXXXX XXXXX pled guilty under a negotiated plea to two counts of Child Molestation on XXXXX, in case number XXXXX before the Superior Court of XXXXX County.  These pleas were made under the decision of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1969), with the express understanding that Petitioner would not admit to the charges, but would plead guilty and accept the negotiated sentence nonetheless, and were made following a jury trial of Petitioner which resulted in a hung jury (ed. – this should be MISTRIAL).  This disposition was a logical decision for him, given that he had spent approximately one year in jail without a sentence, and the reduced charges and a guilty plea represented his only plain option for freedom.  Though his case was argued before a jury, no jury has ever found him guilty of any crime.  The sole witness called by the State during the hearing on his Petition for release from the Registry testified that her reason for being opposed to his release from the registration provisions was that “he has never accepted responsibility for” the crimes to which he pled guilty.  However, as the Court is well aware, that is the entire basis for a plea under the provisions of Alford.  As part of the negotiated disposition of these charges, the State entered a disposition of nolle prosequi to two counts of Aggravated Child Molestation.  Unfortunately, the guilty plea entered into by him to these charges required that he be included for all purposes on the Sex Offender Registry maintained by the Board, on behalf of the State, and this has greatly impacted his ability to move to a different area or to maintain gainful employment despite his ability and his willingness to function as a full member of society.

As a condition of the sentence to which he pled, Petitioner was required to serve 8 years and 6 months on probation, following a period of incarceration.  He finished his incarceration, his probation, and all special conditions of his probated sentence for the Child Molestation charges which required his registration pursuant to OCGA § 42-1-12.  He also met the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of Section 17-10-6.2 of the Official Code of Georgia.  He has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor any prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16.  He did not use a deadly weapon, nor did he offensively use any object, device, or instrument during the alleged commission of the offense.  The court found no evidence of a relevant similar transaction.   The alleged victims did not suffer any intentional physical harm during the alleged commission of the offense.  The alleged offense did not involve the transportation of the victims.  Lastly, the victims were never physically restrained in any way during the alleged offense. All of these matters were accepted as proven by the Court below.

Petitioner was classified by the Sex Offender Registration Board (hereinafter referred to as the “Board”), having never been classified initially, to ensure that his rating was accurate.  This resulted in a classification by the Board “as a Level I risk assessment classification”.  The witness called by the State in the trial court, a member of the three-person Board, noted that she had been recused from this vote due to a conflict of interest, and that she personally would have voted against this classification.  She did not point to any specific bases for her opinion, and the fact remains that a majority of the Board felt that he should be classified as a Level I offender.

Following the denial of his appeal, the Georgia Court of Appeals denied his Motion to Reconsider in Application Number XXXXX, dated XXXXX.

Enumeration of Errors

I.       The Sex Offender Registry as applied is acting as ex post facto law.

The Sex Offender Registry is meant as a public safety measure, but the unintentional scorn it causes to registrants has been used as a method of criminal punishment beyond incarceration or reasonable conditions of probation.

II.      Section 42-1-19 implies a good faith standard for the exercise of judicial power.

Argument and Citation to Legal Authority

Rule 34 of the Rules of the Supreme Court of Georgia states that an application for leave to appeal a final judgment in cases subject to appeal under OCGA § 5-6-35 shall be granted when “[r]eversible error appears to exist” or “[t]he establishment of a precedent is desirable”, among other situations.  Both of these conditions are met by the issues presented in the case at bar, and Appellant genuinely needs the intervention of the Court to gain the lawful relief he seeks.

I.       The Sex Offender Registry as applied is acting as ex post facto law.

In Smith v. Doe, 538 U.S. 84123 S.Ct. 1140155 L.Ed.2d 164 (2003), the Supreme Court of the United States held that a statutory requirement for retroactive registration of sex offenders was nonpunitive and did not itself constitute an unconstitutionally ex post facto law.  Frazier v. State, 284 Ga. 638, 668 S.E.2d 646 (Ga. 2008).  However, “[t]he publicity [from inclusion on the Sex Offender Registry] may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism.”  (concurrence of Thomas, J., Smith at 99 (concurrence of Thomas, J.)(emphasis supplied).  “A penal statute is retrospective if it alters the consequences for crimes committed prior to its enactment.” [Cit.] U.S. v. Shill, Slip Copy, 2012 WL 529964 (D.Or.)(February 17, 2012).

 A.   The Sex Offender Registry is meant as a public safety measure, but the unintentional scorn it causes to registrants has been used as a method of criminal punishment beyond incarceration and reasonable conditions of probation.

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.  However, this case presents a different result from that analysis.  “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 at 639 (emphasis supplied).  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, only unsupported opinion, were ever advanced by any representative of the State to justify his registration, and the punishment it caused that he testified to.  His relief was denied by the trial court 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 punish persons who have shown no tendency or inclination to sexually harm other people.  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 the law is being applied in an ex post facto manner, contrary to the standard clearly set out in cases such as Frazier.

When the idea of a registry for Sex Offenders was discussed by the Supreme Court of the United States in Smith v. Doe, they found that its application in that situation was not punitive.  “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 presenting 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.

 B.   The Sex Offender Registry is not intended as a criminal punishment, but it inflicts punishment as applied.

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 of a sexual crime, no matter how minor or obscure, 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.  The evaluation of the Court in that case bears a remarkable similarity to the facts of the case at bar.  The offender might have the right to be considered for release, but the statute there 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 and the actions taken against him by members of the community, 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.”  Smith at 109 (concurrence of Justice Souter).

“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 registry information struck down as disproportionate punishment).  There is nothing in the statutory scheme of Section 42-1-19 that indicates that sexual offenses subject a registrant to either automatic life imprisonment or long-term punishment, but the practical effect of ignoring a valid petition for removal from the Registry has both of these effects.  “[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 a different kind of victimization not expressed in any of the statutes and certainly not 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.  As has been noted, “[t]he publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism.”  Doe at 99 (emphasis supplied).

C.   The potential lifelong “punishment” of inclusion on the Sex Offender Registry can violate the ex post facto clause.

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.”  Smith at 97.  However, the evaluation has been elaborated upon further by the Courts, and the evaluation used by them illustrates the ability of the legislature to render a statute punitive without so naming it, necessarily violating the fundamental principles against ex post facto laws.  According to Frazier v. State, 284 Ga. 638, 668 S.E.2d 646 (Ga. 2008), “[t]o 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. [Cit.] If it does not, our inquiry is at an end. [Cit.] If it does, we look to see if the law is punitive or regulatory. [Cit.] If it is punitive, the statute is an ex post facto law. [Cit.] If it is regulatory, we examine the statute’s effect. [Cit.] If the effect of the statute is punitive, the statute is deemed ex post facto — even if the statute was intended to be regulatory. [Cit.] But, again, if the statute is not retrospective we need not determine whether it is punitive…. A penal statute is retrospective if it alters the consequences for crimes committed prior to its enactment. [Cit.]”

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.  Experience with this de facto restriction was actually testified to by Appellant before the trial court.

Because the trial court opted to use inclusion on the Georgia Sex Offender Registry not as a civil, non-punitive measure for better ensuring public safety but instead elected to refer to it specifically in punitive terms of release, as per a sentence of incarceration, and did not provide any evidence of rehabilitative actions or measures being actively pursued, nor could it do so, and their lack was actually testified to on the stand, the law 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 after this denial 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.  No efforts at rehabilitation or his improvement will be made by the State, and the few efforts they made ended long ago.

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.  He has completed all of the Ordered terms of his sentence, and neither the State nor the alleged victim(s) have anything to gain from his continued punishment.  The use of the trial court of his prolonged inclusion on the Sex Offender Registry as a tool of vengeance and retribution is hostile to the informative and rehabilitative objectives 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).  This Court must make its effect match its intent.

 II.               Section 42-1-19 implies a good faith standard for the exercise of judicial power.

“ ‘(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.

 A.   Other schemes of criminal “punishment” and their associated remedies include an implied promise of good faith.

”The cardinal rule in construing a legislative act is “to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.”  Cavalier Convenience, Inc. v. Sarvis, 305 Ga.App. 141, 142, 699 S.E.2d 104 (Ga. Ct. App. 2011)(quoting  RadioShack Corp. v. Cascade Crossing II, LLC, 282 Ga. 841, 843, 653 S.E.2d 680 (2007)).  This has been the rule in this State since at least 1965, when the Court of Appeals stated plainly in Undercofler  v. Capital Automobile Co.,109Ga.App. 711, that ‘[t]he cardinal canon of construction of a legislative act is that the intention, when ascertained, governs, and all other rules of interpretation are subordinate”.  In the case at bar, the Court explicitly affirmed that the legislative intent was to permit registered sex offenders a way to be removed from the Registry when they were found by the Court by a preponderance of the evidence to not pose a substantial risk of future dangerous sexual offenses.  This context matters, and the Court has discussed use of the context of statutes as a way of finding insight into their proper application.    “Context” in this inquiry does not extend to legislative history, but refers to the statutory context in which the language at issue appears.  U.S. v. Shill, Slip Copy, 2012 WL 529964 (D.Or. 2012).  The “context” is crucial to fair application of this statutory remedy.

Similar legislative schemes involving quasi-criminal remedies like the Sex Offender Registry, such as immigration detention, include an implied promise of good faith in determinations, found to exist by the cases that interpreted them.  In Clark v. Martinez, the Supreme Court of the United States discussed the indefinite detention powers over immigrants of unlawful status, addressed in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001), and the use of the term “may” in a remarkably similar context to its usage in Section 42-1-19(f) for release from the Georgia Sex Offender Registry.  The Court 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 a parallel “serious constitutional threat” is being presented in the case at bar.  Id.  The potentiality of indefinite inclusion on the sex offender registry is a serious threat for persons who, like Appellant, pose no further likelihood of committing any new sexual offense.  This appeal begs to be heard by this Court on the basis of the logically-inconsistent findings made by the trial court on their own merits, to the effect that XXXXX XXXXX does not have any substantial likelihood of committing a future sexual offense but must remain on the Registry in the absence of any rehabilitative need or efforts.  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, and the ruling of the trial court is completely contrary to its findings as prohibited ex post facto law.

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).  However, that power was used in the case at bar solely as a form of punishment, and the only affirmative evidence presented to the Court was that there was no rehabilitation efforts needed or being made.

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; 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, and the precedent for this attitude exists.

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 at 716.  In that case, even though they pointed out that objective language is the touchstone of statutory interpretation, the Court goes on to elucidate the principle of an implied standard of reasonableness, 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, the Code states that it “shall be construed to mean “must” or “shall.””  O.C.G.A. § 1-3-3(10)(emphasis supplied).  This is consistent 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 the common-sense filter contained in the Georgia Code.

This is similar to the common-sense filter that statutorily-governed sentences of probation are placed under.  In Kellam v. State, 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.”  271 Ga.App. 125, 126 (Ga. Ct. App. 2004)(emphasis supplied).  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, but the free reign given to Courts to deny merited relief deprives the statute of that logical consistency of application, and its abuse produces absurd results.

CONCLUSION

XXXXX XXXXX qualified for relief from registration on the Georgia Sex Offender Registry but was arbitrarily denied that relief by the trial Court.  That denial was illogical punishment, and it abuses the discretion the legislature tried to give courts to relieve a problem facing many Georgians.  More importantly, the established punitive effect of the Registry in the life of Appellant violates its ostensibly non-punitive purposes and it is being used as ex post facto law, though there is an implied condition of reasonable exercise of power built into the statutory scheme.  The implied condition of reasonable use of power is expressly recognized in similar pseudo-criminal situations, such as immigration law provisions, and there is precedent for interpretation of statutes in this manner.  This Court is presented with a meritorious and reasonable opportunity to remedy an injustice that can easily be repeated, because the Georgia Sex Offender Registry in fact imposes harmful and discriminatory punishment on registrants beyond any imposed sentence for relevant criminal convictions, has no definite termination or rehabilitation included in it, and offers only false hope to persons convicted of qualifying crimes.  However, the absurd result of the literalist interpretation taken by the Court in this case results in an injustice that defies the legislative purpose and demands reversal of the judgment of the Superior Court of XXXXX County by the Supreme Court of Georgia.

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