Tuesday, July 1, 2008

MANDATORY LIFE! for failure to update information within 72 hours.

The Atlanta Journal Constitution, The Volokh Conspiracy, and Sentencing Law and Policy all cover a story about a prosecution under GA's law requiring a mandatory life sentence for the second failure to update your registration.

GA, has had lots of problems with its draconian sex offender laws.

In one case, the GA high court dealt with a case in which a person was on the registry and had moved into a house in GA. A school bus stop was placed near his house after he had moved into the house. The GA law required him to move, since he was not allowed within that distance of a school bus stop. I don't remember how the courts ruled on possibly striking that down...but GA subsequently revised that law to allow people who were already living somewhere not to move if a school bus was put up after they moved in.

In another case in GA, a 16 year old got a 10 year sentence for statutory rape with a 15 year old-thinking she was older of course. That guy got a sentence reversal form the GA Supreme Court on 8th amendment 'cruel and unusual punishment' grounds.

Now, in another 8th amendment cruel and unusual punishment case before the GA Supreme Court, the defendant was originally convicted of both sexual solicitation of a minor and statutory rape and served his time for both. For the second offense, he was required to register as a sex offender. GA requires a sex offender in the registry to update his information with the sheriff if it changes. The update must be done within 72 hours.

In one instance, the defendant failed to register his change of address becuase he inadvertently transposed two numbers in his address. This was his first failure to register. In the second instance, the defendant tried to change his address, then wasn't able to move into the new address within 72 hours, and was hence technically in violation.

Unfortunatly, GA law prescribes a mandatory life sentence for failure to comply twice.

I looked up GA's sex offender registration law. (GA code 42 section 1-12). The offense's language does not require "intent". Nor is there a general statute elsewhere in the law, that applies, that says that all offenses must specifically state what intent is required. Thus, since the statute doesn't explicitly require intent, no showing of intent not to register is required to convict the guy. Thus, "I tried to comply," is not an excuse. "I tried to call and leave a message," is not an excuse. "It got lost in the mail," is not an excuse.

I noticed the law requires height and weight to be among the information in the registry. Does this mean if you go on a diet you need to call the sheriff within 72 hours!? Strictly speaking, unfortunately, yes it does.

The prosecutor in this case is quoted in the media as saying "it's not my place...to decide...what we want to enforce or not enforce."

Obviously, this prosecutor is an idiot. The choice of what to enforce is solely the prosecutors' and the prosecutor's alone. Its called absolute prosecutor's discretion.
Indeed, the barrier to this kind of outrageousness is supposed to be prosecutor's discretion, not the 8th amendment. One public defender in GA on the Volokh conspiracy's web comment thread about the case, commented that prosecutor's often hide evidence of the first failure to comply, in order to avoid the outrageousness of this issue.

But the law's stupidity is what created this potential. We should not simply blame the prosecutor for this situation.

Some might argue that "sex offender's" should be getting life anyway, so such issues are not sympathetic to them.

I would suggest to people who make such arguments, that such people actually look at a sex offender registry at some point. I have looked at the sex offender registries in many states, including GA, and I notice that many people who register are there for crimes such as certain types of solicitation of a minor, or indecent exposure.

Lists of things you might be on the registry for in GA include such things as viewing online child porn, incest, and certain indecent telephone conversations.
To date I have never heard of a 2nd degree murder registry or an armed robber registry.

Probably correctly, the 8th amendment is very very rarely used to invalidate sentencing laws. Probably incorrectly, as the Sentencing Law and Policy author notes, when the 8th is used to invalidate sentencing laws, it is usually used in the context of the death penalty, while ignoring disproportionate prison terms.

I guess it will be another law in the incredibly dumb, and never should be prosecuted category. Unfortunately, it will probably also be in the "now that it has been prosecuted is going to stick" category as well.

I don't know how much its costs the taxpayer to incarcerate, (and provide free health care to) such people for life for such ridiculously small offenses, but I know its too much.

It's unfair to the criminal and unfair to the taxpayer-and the politicians just eat it up.


Martin Weiss said...

I detect that you are becoming more cynical about the legislative branch?

George Weiss said...

yes. however, the cure is not to give power to the exeutive or the courts-but to have the executive quickly and effectively tell the legislative branch when their laws are stupid and untenable-instead of singing them into law.