Skip to content

(Heavily) Redacted, Abbreviated Petition for Certiorari – Supreme Court of the United States

by merlin on September 1st, 2013
  • Sumo

By the way – telephone service was only temporarily disrupted at my office (if I post a notice, it is generally remedied by no later than the next morning).

The following is both heavily revised and heavily abbreviated (it skips necessary formalities, like the list of cited authorities, the factual summary, table of contents, word count, etc.).  However, this is the meat-and-potatoes of a petition for the writ of certiorari to the Supreme Court of the United States, submitted by FedEx yesterday.  I hope it succeeds, but the arguments below may serve to assist others in their struggles against the generally imperfect but vexing and necessary registration laws for convicted sex offenders.  Also, note that the formatting is heavily informal as presented here.  The actual, finalized version was grammatically correct and complied (I hope) with the precise and specific standards established by the Rules of the Supreme Court of Georgia (less than 9,000 words, in booklet form meeting size requirements, etc.).


Questions Presented

  1. Whether the provisions of O.C.G.A. Section 42-1-19 providing for release from the Georgia Sex Offender Registry upon meeting certain statutory exceptions but leaving the release entirely in the discretion of the presiding Superior Court judge are an unconstitutionally vague violation of the substantive aspect of the Due Process Clause of the United States Constitution as applied to the State of Georgia by the Fourteenth Amendment, and reflected in the State Constitution; and
  2. Whether the provisions of O.C.G.A. Section 42-1-12 establishing a registration requirement and public notification without a definite method of release upon completion of conditions constitutes punishment that is ex post facto law forbidden by the Due Process Clause of the United States Constitution as applied to the State of Georgia by the Fourteenth Amendment and reflected in the State Constitution.



Supreme Court of the United States

No. _______________








XXXXX XXXXX, Petitioner, prays that a Writ of Certiorari issue to review the judgment of the Supreme Court of Georgia entered in this case on June 3, 2013, regarding purely legal grounds of substantive due process and vagueness.

Opinions Below

On November 19, 1998, XXXXX XXXXX pled guilty before the Superior Court of XXXXX County to two counts of child molestation, reduced from Aggravated Child Molestation, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970)(hereinafter referred to simply as “Alford”).  That conviction is not implicated by this appeal except as a marker for the date of his eligibility for relief.  On June 22, XXXX, the Court denied his Petition Seeking Removal from the Sex Offender Registry, finding that he had proven his entitlement to removal from the Georgia Sex Offender Registry (hereinafter referred to as the “Registry”) by a preponderance of the evidence and there was no substantial danger of him committing another sex crime at any point, but nonetheless denying his Petition for release from registration.  The arbitrary standard relied on by the Court, shown by the findings that it made, are implicated by this appeal.

XXXXX XXXXX was released from probation in 2008, following service of his sentence in case number 97CR595C before the Superior Court of XXXXX County.  Order on Defendant’s Petition for Removal From Sex Registry.  The plea required that he be included for all purposes on the Registry maintained by the Sex Offender Review Board (hereinafter referred to as “Board”), on behalf of the State.  The Court acknowledged that he met the necessary criteria for release, which meant he also met the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of OCGA § 17-10-6.2.  He has no prior conviction of a violent or sexual offense, nor any prior conviction for a similarly grievous offense; he used no object offensively during the alleged offense; the court found no evidence of any past similar transaction; the alleged victims suffered no physical harm; the alleged offense did not involve their transportation; and the victims were never physically restrained in any way. All of these matters were accepted as proven by the Court below.  Order on Defendant’s Motion for Reconsideration, p. 1.  However, the Court simply “felt that, while [D]efendant does not pose a substantial risk of perpetrating a dangerous sexual offense, the level of risk posed at this point…is unacceptable.”  Id. at p. 2 (emphasis supplied).  It is impossible to imagine when he would be considered for relief, given that the Court also found no substantial risk of his future sexual misbehavior at “this point”.  Id.

On the 24th day of August, XXXX, the court rendered a written opinion in conformity with its oral pronouncement from the bench.  The Georgia Court of Appeals declined to hear his application for discretionary review on November 26, XXXX.  On June 3, XXXX, the Supreme Court of Georgia also rejected his appeal after determining that his Motion for Reconsideration to the Georgia Court of Appeals was untimely and that the Petition for Certiorari was therefore, also, untimely.  Arguments of ex post facto law and substantive due process are presented here for the first time on appeal, but these issues arose as a consequence of the Order of the Court itself and there was no opportunity to present them below.  Because they arose from the final Order in that case, these subjects are ripe for determination.


The Supreme Court of Georgia denied the Petition for Certiorari of XXXXX XXXXX on June 3, XXXX.  He filed his Notice of Intent to Apply to the Supreme Court of the United States for the Writ of Certiorari shortly thereafter, on June 13, XXXX.  This Petition For a Writ of Certiorari is therefore filed within ninety (90) days of the date on which his initial Petition was denied for discretionary review by the court of last review in Georgia, and is timely under Rule 13(1) of the Rules of the Supreme Court of the United States, which states that it must be “filed with the Clerk within 90 days after entry of the order denying discretionary review..”  Jurisdiction is invoked under 28 U.S.C. § 1257(a) as a challenge to the law of the State of Georgia here concerned that is legally repugnant to the Constitution, treaties, or laws of the United States and contrary to the legal traditions of this Court.

Constitutional and Statutory Provisions Involved

The pertinent provisions of the Fifth Amendment to the Constitution of the United States regarding due process of law and the Fourteenth Amendment applying these provisions to State law, as well as the provisions of Sections 9-2-3, 42-1-12, and 42-1-19 of the Official Code of Georgia are set forth in Appendix “C” hereto.  The due process provisions of the United States Constitution are reflected in Article I, Section 1, Paragraph 1 of the Georgia Constitution, and said provision is also included in Appendix “C”.  Article I of the United States Constitution, Sections 9 and 10, as well as Article I, Section 1, Paragraph X of the Georgia Constitution prohibits ex post facto laws, and these are included in said Appendix.  The trial court’s application of these laws is contrary to common sense and reason as well as the law of this Court.

 Statement of the Case

XXXXX XXXXX completed all of the qualifications entitling him to be removed from the Registry as described in the statute, and was determined to be in the lowest class of possible offenders following a review by the State-appointed Board, and was found by the trial court not to present a substantial risk of future dangerous sexual offense, yet his petition for release was arbitrarily denied, depriving him of his rights to substantive due process as guaranteed to all United States citizens by the United States Constitution.  His continuation on the Registry constitutes ex post facto law, and ignores the implied fairness of due process. After the appellate courts in Georgia would not review his punishment, he has applied to the Supreme Court of the United States for a determination of the lawfulness of a statute that purports to provide relief to qualified persons but ultimately contains no standard for said relief other than caprice or whim.

 Reasons for Granting the Writ

The individual States and the federal government have taken vastly differing approaches to a matter that concerns each and every one of them, and XXXXX XXXXX’ case requires the direct action of the Supreme Court of the United States, which found a right to substantive due process implied and inherent in similar discretionary statutory dictates in its decisions in cases like Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).  Where a method for relief is specified by statute, the relief cannot be meaningless, and the statute in question is therefore meaningless since the relief it purports to provide hinges on one arbitrary opinion.  Georgia adopts this discretionary standard for relief in OCGA § 42-1-19, and several other States have adopted similar standards.  All permit a judge to grant a petitioner relief, but do not require the relief to be granted even if the person meets every specified qualification.  This mere appearance of relief is an unconstitutional deprivation of the substantive due process assurances enunciated by the Court in Zadvydas.

The issue of substantive due process has been preserved for review through the references to “fairness” made by XXXXX XXXXX in his Brief in Support of Motion for Reconsideration of Judgment and for Directed Verdict (specifically at page 5), a stamped copy of which is included here in Appendix A for the consideration of the Court.  It does not use the express terms “substantive due process”, and instead refers to this concept as “fairness”, but the ideas are the same regardless of their labels.  It is true that “the courts do not hold statutes invalid because they think there are elements therein which are violative of natural justice or in conflict with the court’s notions of natural, social, or political rights of the citizen, not guaranteed by the constitution itself.”  State v. Adams, 91 So.3d 724, 732 (Ala. Crim. App. 2010)(striking down Alabama’s sex offender registration scheme requiring a permanent address for registrants as unconstitutionally discriminating against persons without a permanent address). However, this case involves the decision of a Georgia trial court to exercise statutory discretion in disregard for the inherent substantive due process to which citizens are entitled.  “[P]leadings are judged by their function and not the name given by a party.”  Manning v. Robinson, 223 Ga.App. 139, 476 S.E.2d 889 (Ga. Ct. App. 1997)(quoting Holloway v. Frey, 130 Ga.App. 224, 202 S.E.2d 845 (Ga. Ct. App. 1973)).  The terms used to describe the concepts are irrelevant, when the concepts themselves cry for justice to the pleader.

The judgment of the court contrasted with the findings of fact that it made in the same Order thereby ignores substantive due process and presents only an unconstitutionally vague and improperly arbitrary and punitive standard.  This violation of substantive due process makes the case of XXXXX XXXXX readily distinguishable from Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), because the standard on which that case turned was the mere fact of conviction for a sexual offense, and therefore only a question of procedural due process.  This case involves substantive due process as a consequence of the empty standard used to evaluate XXXXX XXXXX’ request to be removed from the Registry, because of the inherent illogical discrepancy between the findings of the Court and its judgment.

The case also involves the unconstitutionality of the statute in question as an ex post facto law, demonstrated by the language used by the Court in its Order on Defendant’s Petition for Removal from Sex Registry in Appendix A.  The issue was protested as a wrongfully punitive measure on page 7 of XXXXX XXXXX’ Brief in Support of Motion for Reconsideration of Judgment and for Directed Verdict, a copy of which has also been included for the reference of the Court in Appendix A.  That application of the Registry permits the courts to transform an otherwise purely civil prophylactic measure into an unlawful punitive action.  Again, the terminology is descriptive, rather than technical, but the unconstitutional action is pointed to.

Rule 10(c) of the Rules of the Supreme Court of the United States says that a Petition for the Writ of Certiorari will be considered by the Court if “a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.”  This standard is met by the case at bar.

The Orders of the trial court included in Appendix A of the Petition for Certiorari to the Supreme Court of the United States show that on their faces that the standard relied on by the trial court for this removal mechanism – which is perfectly proper in reference to the statutory standard listed in full in Appendix B, being a matter of the sole discretion of the presiding judge – is inherently vague and results in woefully unconstitutional ex post facto decisions.  This law as written fails in any evaluation of its fairness for due process purposes and, being vague as written, is plainly a punitive unconstitutional measure as applied in this case and any and all others in which it may arise.

Argument and Citation to Legal Authority

“Justice delayed for even one day is justice denied.”  Adams v. Hebert, 279 Ga.App. 158, 159, 630 S.E.2d 652 (2006), and XXXXX XXXXX has spent over fifteen years seeking justice for offenses for which no jury has ever convicted him.  This brief sets forth the reasons why the law as enacted and applied in this manner is a forbidden form of ex post facto law and why the remedy set out for relief from the punitive aspects of that law is a sham as applied – a set of arguments that were not made prior to the issuance of the Order involved because they were not known effects until they were used arbitrarily by the trial court at the conclusion of the case.  The questions of Constitutional law here made were raised implicitly throughout, and were implicated directly by the manner of the Court’s ruling.

 I.         The statutory provision providing for release from the Registry is unconstitutionally vague in violation of the requirements of Due Process of Law.

The Fourteenth Amendment of the United States Constitution provides the protections of the Fifth Amendment’s due process protections to citizens of the individual States by reiterating in Section 1 that no State may “deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  The Georgia Constitution of 1983 also protects the rights of its citizens to due process of law and equal protection explicitly in the first two paragraphs of Article I, saying that “[n]o person shall be deprived of life, liberty, or property except by due process of law” and further stating that “[p]rotection to person and property is the paramount duty of government and shall be impartial and complete.  No person shall be denied the equal protection of the laws.”  These statements are in sharp contrast to the practice of the Georgia government in its administration of the provisions of Section 42-1-19 of the Official Code of Georgia regarding the sole statutory method for seeking release from the registration, residency, and employment restrictions of the Registry, because it places sole discretion for the ultimate determination to be made in the hands of one judge and his arbitrary decision.

A.  Compliance with the procedure provided for by O.C.G.A. Section 42-1-19 for seeking removal from the Registry does not ultimately provide any guarantee of removal under any possible set of circumstances, in violation of substantive due process of law.

The case at bar does not involve a question of misapplication of the law as codified in O.C.G.A. Section 42-1-19 to the facts found by the judge; rather, this case involves a fundamental question of the basic fairness of that evaluation, and the absolute discretion of the trial court judge on the ultimate issue, after making findings explicitly showing the fitness of a petitioner for the relief requested, is a violation of any and all substantive standards of due process of law.  When a specific statute grants a right to relief, it is not appropriate to analyze it in terms of substantive due process.  See generally Albright v. Oliver, 510 U.S. 266 (1994)(there is a constitutional “liberty interest” but must be resulting harm to sue in tort).  The statute in question states that the presiding judge “may” grant the requested relief (only if the qualifications have been met), implying that the presiding judge is permitted to choose to deny the requested relief.  O.C.G.A. § 42-1-19(f).    The specific statute grants no right to relief, therefore, and the harm that has resulted is the continued registration expense and the continued prejudice and disadvantage that it causes, and is proven to cause.

Section 42-1-19 of the Official Code of Georgia is entitled “Petition Release Requirements”, yet there is no manner in which a person is definitely permitted to obtain such a release regardless of his or her fulfillment of those conditions.  The statutory scheme set forth in Section 42-1-19 which appears to provide a comprehensive list of qualifications necessary for removal from the Registry ultimately does not present any such qualifications to the public, and is unconstitutionally vague therefore “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” Coates v. City of Cincinatti,, 402 U.S.  614, 622, 91 S.Ct. 1686 (1971);U.S. v. Jones, 689 F.3d 696, 703 (C.A.7 2012).

B.  The law as written and administered complied with only procedural Due Process while neglecting any substantive, real measure of relief from the registration requirement.

Article I, Section I, Paragraph 1 of the Georgia Constitution of 1983 provides a guarantee to citizens of due process, which mirrors the promises of the Constitution of the United States by seeking to grant to all entitled citizens the benefit of the procedural and substantive protections guaranteed by law.  Not including a substantive due process guarantee as a limit on discretion of superior court judge renders the law meaningless as written because the standards called for by it are impossible to discern, even if its procedural requirements are followed precisely.  There is absolutely no evidence in this case that they weren’t, but the absurd and illogical result was something permitted by the law as written.  Only this past year, the Supreme Court decided the case of Federal Communications Comm’n v. Fox Television Stations, Inc., 132 S.Ct. 2307, 183 L.Ed.2d 234 (2012), in which an FCC ruling was overturned because it failed to give proper notice of what conduct was required and what was prohibited, in which Justice Kennedy affirmed that “[a] fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”  Id. at 2317.  In this case, no conduct is stated or implied by the statute as a sufficient condition to ensure the sought-for and promised relief.

The closest parallel to the statutory remedy scheme at issue here may be found in the removal provisions for unlawful immigration discussed by this Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).  In that case, a question arose regarding the interpretation of a statutory provision that facially appeared to allow for a decision by a factfinder regarding the legal penalties of the statute – not intended as punishment but merely as safety measures for the public at large and as a means of restricting the movement of detainees during an active process.  There, the INS director was tasked with making reviews of a detention at certain times, finding for or against detention based on a variety of factors including the presumed dangerousness of the subject and the possibility of deportation to an appropriate foreign country under 8 U.S.C. § 1231.  What matters the most for this case is the Court’s ultimate findings regarding the detention of Kestutis Zadvydas.  He sought habeas corpus release from his confinement after it became unfeasible to effect his deportation within any reasonable time, but the INS asserted the right in the plain language of the statute to continue his detention indefinitely while the subjective factors were present.  This Court disagreed, saying “[t]he Fifth Amendment’s Due Process Clause forbids the Government to “depriv[e]” any “person … of … liberty … without due process of law.” Freedom from imprisonment-from government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that Clause protects.”  Zadvydas, 533 U.S. at 690 (referencing Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)).

This Court has made it clear that due process is more than an empty procedural litany but actually a substantive remedy.  “We construe statutes “in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence,” and “their meaning and effect is to 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.””  Chase v. State, 285 Ga. 693, 695-696, 681 S.E.2d 116 (Ga. 2009)(quoting Botts v. Southeastern Pipe–Line Co., 190 Ga. 689, 701, 10 S.E.2d 375 (Ga. 1940)).  It is this “meaning and effect” that the law as written seems to be applying without regard for either the traditions of common law or of the constitution, and certainly without regard to other statutes or the decisions of the courts, since the presence of the implied standard of fairness would remove the statute from unlawful vagueness.

C.  Because no definite mechanism for removal from the Registry is specified under statute regardless of qualification, Section 42-1-19 as written is void for vagueness.

“The void-for-vagueness doctrine reflects the principle that ‘a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1310 (C.A. 11 2009); Roberts v. U.S. Jaycees, 468 U.S. 609, 629, 104 S.Ct. 3244 (1984); Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126 (1926).  By including in this statutory scheme the ultimate standard of “may”, thereby eliminating any knowable rationale from the statutory scheme entirely and leaving the final decision entirely in the hands of a judicial officer’s sole discretion, unbound by and requirement of logic or rationality, persons of common intelligence can and do necessarily differ as to its meaning.

The statutory scheme of Section 42-1-19 bears similarity to the standard of the zoning ordinance in VFW John O’Connor Post # 4833 v. Santa Rosa County, Floriada, 506 F.Supp.2d 1079 (N.D. Fla.2007).  In that case, a zoning ordinance provided that a requirement could be waived “upon a proper showing,” but gave no further guidance as to what might count as such a showing. The district court held that the “proper showing” standard was void for vagueness because it was not “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.””  Leib v. Hillsborough County Public Transp. Com’n, 558 F.3d 1301, 1309 (C.A.11 2009)(quoting VFW John O’Connor Post # 4833).

The key point in this line of cases seems to be that a criminal statute that “simply has no core” and lacks “any ascertainable standard for inclusion and exclusion” is impermissibly vague regardless of the facts in the case.  Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242 (1974).  That standard can be distinguished from that of Section 42-1-19, however, in that the requirements for inclusion of consideration under that statute are enumerated except for the final condition by which a Superior Court judge would be required to grant any of the requested relief.  In U.S. v. Jones the Court described the quality that renders this vagueness, saying that “[s]uch a statute is vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.””  Id. at 703 (quoting Coates, 402 at 622).  It is for this reason – that the statute appears to list qualifications but really promises no relief at all under any circumstances – that the case may be distinguished from Finnicum v. State, 296 Ga.App. 86, 673 S.E.2d 604 (Ga. Ct. App. 2009), where the Movant initially raised his argument in the trial court by attacking the constitutionality of the statutory scheme itself and his exclusion from the release it purported to afford to others.  Because he raised those claims in the trial court before any ruling, and the court therefore had opportunity to consider them but then never ruled either for or against his claims, they were waived for consideration.  In this case, they were not raised in the trial court because there was no reason to raise them then, and it was only the particular wording of the Orders themselves – included in Appendix A – that brought those conditions to the fore.

Petitions seeking removal from the Registry are civil actions in nature according to the decision in Taylor v. State, 304 Ga.App. 878, 698 S.E.2d 384 (Ga. Ct. App. 2010)(affirming underlying conviction but holding counsel deficient for failing to advise of registration requirement from plea following collateral consequence decision), and would fall under the mechanisms and rules of the Georgia Civil Practice Act.  Section 9-2-3 of that Act states that “[f]or every right there shall be a remedy; every court having jurisdiction of the one may, if necessary, frame the other”, and to deny direct consideration of this issue is to ignore that statutory enactment and the guarantee it brings to the citizenry affected.

In the case at bar, the Court expressly found by a preponderance of the evidence that the individual did not pose a substantial risk of perpetrating any future dangerous sexual offense.  However, it then denied the relief requested, ruling that he “shouldn’t be released at this point”.  Order on Defendant’s Petition for Removal From Sex Registry, p. 2.  It is difficult to imagine what logical relationship is borne between the continued registration requirement and civil notification other than a punitive requirement unless there is proof that rehabilitative efforts are ongoing – proof that is entirely absent from the record in this case because it simply doesn’t exist at all

Because the statute in question ultimately places an impossible hurdle in the way of any person seeking release from the Registry by making it so that they can meet every qualification but still be denied relief by the caprice or whim of a Superior Court judge, the relief that the statute purports to offer is only illusory, and the conditions that would actually meet the approval of the decision-maker are impossible to know with any certainty at all.  “[T]he law must be one that carries an understandable meaning with legal standards that courts must enforce.” Giaccio v. State of Pennsylvania, 382 U.S. 399, 403, 86 S.Ct. 518 (1966).  By failing to include a final standard for remedy under any circumstances, the legislature did not finalize the statute and left the decision as to whether enough qualifications were present up to the other branches to decide on.  “Legislatures may not so abdicate their responsibilities for setting the standards of the … law.”  Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242 (1974).  The law as written is void for vagueness.

 II.       The law as applied without definite standards requiring relief is punitive in nature beyond sentences provided by law, and therefore violates the Constitutional prohibition against Ex Post Facto law.

In direct contradiction to the views apparently held by the trial court and expressed in the verbiage chosen in its ruling – one of punitive measures without benefit of concrete findings and known consequences, rather than the rehabilitation and public notification purposes that a comprehensive Registry of sex offenders might otherwise serve – “the United States Supreme Court and this Court have made it clear that sexual offender registry requirements such as those contained in OCGA § 42-1-12 are regulatory, and not punitive, in nature.”  Rainer v. State, 286 Ga. 675, 675-676, 690 S.E.2d 827 (Ga. 2010).

A.  Economic harm from the Registry is repeatedly discussed in the jurisprudence of Georgia and sister states as not being a “punishment” for the qualifying crime but only an incidental effect.

Much like other cases that have considered the issue, and contrary to the illogical and unlawful use in the case at bar, the Registry was shown to no more than a public notification service.  In this case, arbitrary continuation on the Registry is slavish obedience to a dead hand, and only a punitive basis explains the trial court.

The practical effect of the Registry’s harm has been documented.  “Taken as a whole, the research shows that while police registration discourages sex offender recidivism, public notification actually encourages it.”  J.J. Prescott and Jonah E. Rockoff, “Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?” Journal of Law and Economics 54:1 , University of Chicago Press.

Article I of the United States Constitution prohibits both the federal government and State governments from enacting ex post facto laws.  Section 9 states that “[n]o…ex post facto Law shall be passed” and Section 10 similarly prohibits States from doing the same.  However, in applying the otherwise protective statute that creates and empowers the Registry, Georgia has transformed a civil prophylactic into a criminal punishment beyond the statute’s scope, and has created a forbidden ex post facto law.  The ringing words of the Declaration of Independence, that “[w]e hold these truths to be self-evident, that all men are created equal…” (emphasis supplied) cannot be forgotten.  That idea damns the Georgia application of the statute that falsely appears to offer a method for offenders to leave the Registry when they have been found by a neutral body of experts to no longer pose a substantial risk, but the Georgia statute vests a judge with the power to act based on caprice rather than logic and turns a community prophylactic into arbitrary punishment.

In 1798, in the case of Calder v. Bull, Justice Chase described an ex post facto law as one that “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed”.  3 U.S. (3 Dall.) 386, 390 (1798).  Centuries later, this test still applies, and the recognized prejudicial effects of the laws establishing and administering the Registry, used as a tool for indefinite punishment for an undetermined amount of time following the completion of all punishment associated with the underlying crime, blatantly qualifies for the standard enunciated by Justice Chase.  The Orders of the trial court reflect its punitive nature, and this law is unconstitutional.

In other words, the law’s careful construction is being utilized in a way that makes it something other than a basic registry for civil information but instead a further means of punishment.  In the past few years, the Courts have invalidated sex offender registry laws that act as punitive measures even when intended to serve regulatory purposes.  In Alabama, for just one example, the registry statute was stricken down as applied largely because by requiring a permanent residence it discriminated unfairly against homeless offenders, and was really punitive in nature.  See State v. Adams, 91 So.3d 724 (Court of Criminal Appeals of Alabama 2010).

B.  Arbitrary refusal of release from the Registry is forbidden ex post facto punishment.

The determinative question is whether the legislature meant to establish “civil proceedings.” Kansas v. Hendricks, 521 U.S. at 361. If the intention was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, the Court must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.”  Smith, 538 U.S. at 85.  “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.”  Smith, 538 U.S. at 109 (concurrence of Justice Souter).  There is no particular “magic” in a plea under Alford, and it doesn’t give a criminal defendant any new rights with respect to punishment that would be imposed from a criminal conviction.  See generally Morrell v. State, 297 Ga.App. 592, 677 S.E.2d 771 (Ga. Ct. App. 2009)(guilty plea under Alford still requires inclusion in Registry).  Nonetheless, there are still definite punishments prescribed at the time of sentencing.  The key to the Morrell decision is that even with an Alford plea the underlying criminal offense of the defendant required his registration; there was no uncertainty.  In this case, on the other hand, XXXXX XXXXX qualified for relief and was evaluated by the Board which classified him as a Level I Offender.  Order for Sex Offender Registry Reclassification.  OCGA § 42-1-12(a)(12) clarifies that this is the lowest classification possible.  He is still being punished to this day, by means of the revulsion and notoriety which the Registry imposes. Even Justice Clarence Thomas, in his concurrence to the 2002 Smith case, though he ultimately endorsed upholding the sex offender registration scheme, noted that “[t]he publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism.”  538 U.S. 84, 99, 123 S.Ct. 1140 (2002)(emphasis supplied).

The humiliation potential of the Registry is well-documented.  “Six in 10 respondents (61%) who believe their state does maintain a registry say they have checked it.”  Lydia Saad, Sex Offender Registries Are Underutilized by the Public, Gallup News Service, July 9, 2005.  Because the actual effect of the enforcement of the law as written is punitive, and the standard by which the law is effected is subjective and facially ambiguous, the dissent of Justices Ginsberg and Breyer to Smith can be applied in the instant case.  Because the effect of the law has been determined to be punitive due to the discrimination and economic punishment it creates, reflected in the Orders of the trial court, OCGA § 42-1-19 represents a forbidden ex post facto law.


The statutory provision providing for release from the Registry is unconstitutionally vague in violation of the requirements of Due Process of Law.  Compliance with the procedure provided for by O.C.G.A. Section 42-1-19 to seek removal from the Registry ultimately provides no guarantee of removal under any set of circumstances, in violation of substantive due process of law.  The law as written and administered complied with only procedural Due Process while neglecting any substantive, real relief from the registration requirement.  Because no definite mechanism for removal from the Registry is specified regardless of qualification, Section 42-1-19 as written is void for vagueness.  The law as applied is punitive in nature beyond sentences provided by law, and therefore violates the Constitutional prohibition against ex post facto law.  Economic harm from the Registry is repeatedly discussed in the jurisprudence of Georgia as not being a “punishment” for the qualifying crime but only an incidental effect, but arbitrary refusal of release is forbidden ex post facto punishment.





Comments are closed.