Appeal or Certiorari by State in Criminal Cases Hb 349

• Jurisdiction: Georgia,United States
• Publication year: 2013
• Citation: Vol. 30 No. 1

Appeal or Certiorari by State in Criminal Cases HB 349

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APPEAL AND ERROR

Appeal or Certiorari by State in Criminal Cases: Amend Chapter 7 of Title 5 of the Official Code of Georgia Annotated, Relating to Appeal or Certiorari by the State in Criminal Cases, so as to Provide the State with More Direct Appeal Rights; Provide the State with Cross Appeal Rights; Provide for Cross-References; Provide for Liberal Construction of the Chapter; Amend Part 1 of Article 2 of Chapter 13 of Title 16, Title 17, Article 3A of Chapter 5 of Title 40, and Title 42 of the Official Code of Georgia Annotated, Relating to Schedules, Offenses, and Penalties for Controlled Substances, Criminal Procedure, Suspension of Driver's License for Certain Drug Offenses, and Penal Institutions, Respectively, so as to Enact Provisions Recommended by the Governor's Special Council on Criminal Justice Reform in Georgia; Change Provisions Relating to Sentencing for Trafficking in Certain Drugs; Provide for Definitions; Clarify Provisions Relating to the Weight or Quantity of Controlled Substances and Marijuana; Change Provisions Relating to Sentencing Serious Violent Offenders, Certain Sexual Offenders, and Repeat Offenders; Create the Georgia Council on Criminal Justice Reform and Provide for its Members, Chairperson, Other Officers, Committees, Staff, and Funding; Allow a Drug Court or Mental Health Court Division Judge to Order the Department of Driver's Services to Change a Defendant's Driving Privileges for Participants in Their Court Programs Under Certain Circumstances; Delete Definitions; Change Terms of a Probated Sentence; Amend Part 7 of Article 7 of Chapter 3 of Title 20 of the Official Code of Georgia Annotated, Relating to HOPE Scholarships and Grants, so as to Provide that Incarcerated Individuals who Qualify for HOPE GED Vouchers May Use Such Vouchers Within 24 Months of Release; Amend Article 2 of Chapter 8 of Title 24 of the Official Code of Georgia Annotated, Relating to Admissions and Confessions, so as to Change Provisions Relating to a Child's Description of Sexual Contact or Physical Abuse; Amend Code Section 37 of Article 1 of Chapter 3 of Title 35 of the Official Code of Georgia Annotated, Relating to Review of Individual's Criminal History Record

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Information, Definitions, and Privacy Considerations, so as to Clarify Provisions Relating to Record Restriction Involving Certain Felony Offenses; Change Provisions Relating to the Application of the Code Section to Arrests Occurring Prior to July 1, 2013; Amend Code Section 43 of Article 2 of Chapter 9 of Title 42 of the Official Code of Georgia Annotated, Relating to Information to be Considered by the State Board of Pardons and Paroles Generally, so as to Define Terms Applicable to Issuing Medical Reprieves to Entirely Incapacitated Persons Suffering a Progressively Debilitating Terminal Illness; Amend Code Section 183.1 of Article 8 of Chapter 5 of Title 49 of the Official Code of Georgia Annotated, Relating to Notice to Alleged Child Abuser of Classification, Procedures, Notification to Division, and Children Under 14 Years of Age Not Required to Testify, so as to Correct a Cross-Reference; Provide for Related Matters; Provide for an Effective Date and Applicability; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. §§ 5-7-1, -2 (amended); 5-7-6 (new); 16-13-31, -31.1 (amended); 16-13-54.1(new); 17-10-1, -6.1, -6.2, -7 (amended); 17-19-1, -2, -3, -4, -5 (new); 20-3-519.6 (amended); 24-8-820 (amended); 35-3-37 (amended); 40-5-75 (amended); 40-5-76 (new); 42-1-1 (amended); 42-8-35 (amended); 42-9-43 (amended); 49-5-183.1 (amended)

Bill Number: HB 349

Act Number: 84

Georgia Laws: 2013 Ga. Laws 222

Summary: The Act creates a Council on Criminal Justice Reform, which will provide criminal justice reform for juveniles and adults by awarding the State more appeal rights. The Act also allows judicial discretion regarding waiver of mandatory minimum sentences,

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provides incentives for a defendant's compliance with terms of a court program, provides medical reprieve for an incapacitated person, and restores the child hearsay exception to non-victim children who witnessed sexual contact or abuse of another child.

Effective Date: July 1, 2013

History

When Governor Nathan Deal (R) first took office, the State of Georgia was the tenth largest state in the United States by population.¹ However, Georgia had the fourth largest prison population.² In 2010, one in every thirteen adults in Georgia was "under some form of correctional control."³ This represented "the highest rate in the nation."⁴ In 2010 one in seventy adults was behind bars in Georgia and the State was spending upwards of one billion dollars per year simply to house inmates.⁵ Governor Deal (R) realized that Georgia's "tough on crime" stance was not as effective as it needed to be, which led him to take steps to begin reforming both the adult and juvenile criminal justice systems in Georgia.⁶

In 2011, Governor Deal and the General Assembly authorized the Special Council on Criminal Justice Reform to focus on overhauling the criminal justice system and implementing new policies regarding the criminal justice system for adults and juveniles.⁷ Among the policy concerns leading to the formation of the Special Council was a concern that non-violent criminals were moving through the prison system and returning to prison—the "cycle of crime" was not being

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broken.⁸ Thirty-five percent of those released from prison were back in prison within three years of being initially released.⁹

Prior to the reformation of the criminal justice system in Georgia, other states had been successful with their own reforms.¹⁰ Specifically, Texas began reforming its criminal justice system in the mid-2000's and has enjoyed great success.¹¹ Instead of adding approximately seventeen thousand beds to its prisons in order to meet the needs of future projections, Texas chose to pursue probation programs and other supervisory programs focused on rehabilitation for non-violent criminals.¹² In 2007, Texas Governor Rick Perry summed up the goal of Texas criminal justice reform in his State of the State Address by saying, "'we can take an approach to crime that is both tough and smart . . . [T]here are thousands of non-violent offenders in the system whose future we cannot ignore. Let's focus more resources on rehabilitating those offenders so we can ultimately spend less money locking them up again.'"¹³ This strategy has proven successful for Texas, as it has seen a significant drop in crime and has realized a cost savings of over $2 billion.¹⁴ Based on Texas's success, other states, such as Kentucky and South Carolina, have followed its lead in adopting their own criminal justice reforms and focusing on rehabilitating non-violent offenders instead of locking them up.¹⁵

Kentucky implemented criminal justice reform in 2011.¹⁶ Its "prison population had jumped more than 260 percent since 1985 and

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costs had risen more than 200 percent.¹⁷ Kentucky created a task force to investigate criminal justice reform and the council presented recommendations for change.¹⁸ The recommended changes were similar to those adopted by Texas, and to those in House Bill (HB) 349.¹⁹

HB 349 is really the start of Governor Deal's vision for criminal justice reform in Georgia.²⁰ More than a generation ago, states began the tough on crime approach, which has generally been viewed as a good thing.²¹ However, with this approach, differentiation between drug offenses stopped, and many offenses were grouped together under the law.²² While this approach seemed like it would be successful in terms of public safety, it is apparent now that the approach may have lacked sufficient vision, and a new approach is necessary.²³ Two years ago, HB 265 was introduced to set up the Special Council on Criminal Justice Reform.²⁴ Throughout 2011, the council created a set of recommendations that became the core of HB 1176, which pertained to appeal rights of the state in criminal cases, enacted provisions of the Special Council on Criminal Justice Reform for Georgians, and changed provisions in several criminal statutes, and the General Assembly enacted it.²⁵ The first set of recommendations pertained to the juvenile justice code, which was presented during the 2013 legislative session in HB 242 and

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unanimously approved on February 28, 2013.²⁶ The second set of the 2012 recommendations is embodied in HB 349, regarding criminal justice reform relating to adults.²⁷ HB 349 will provide judges with more sentencing options for certain cases, will alter some of the state's appeal rights, and will ensure that criminal justice reform remains a priority by creating a new Georgia Council on Criminal Justice Reform that will exist for ten years, through June 2023.²⁸

Bill tracking of HB 349

Consideration and Passage by the House

Representatives Rich Golick (R-40th), Matt Hatchett (R-150th), Christian Coomer (R-14th), B.J. Pak (R-108th), Mary Margaret Oliver (D-82nd), and Chad Nimmer (R-178th) sponsored HB 349 in the House.²⁹ The House read the bill for the first time on February 14, 2013 and for a second time on February 18, 2013.³⁰ Speaker of the House David Ralston (R-7th) assigned it to the House Judiciary Non-Civil Committee, which favorably reported a Committee substitute on February 21, 2013.³¹ Differing only slightly from the bill as introduced, the Committee made three changes.³² First, language in the original bill allowed a proponent to directly appeal an adverse ruling on a pre-trial evidentiary hearing, which would disrupt the judge's docket.³³ The changes, however, allow for an imposed limitation on when the direct appeal could occur, which gives the judge discretion as to when to rule on the issue and more control of their docket.³⁴ Second, language in the original bill restored the law

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that a non-victim child's...