Criminal Law
| Publication year | 2014 |
Criminal Law
Bernadette C. Crucilla
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In this year's criminal law survey, I have taken a cue from my colleagues of past years and included only the most significant cases and statutory amendments.1 A body of law born from resolving the inherent conflicts between prosecutors and defenders is necessarily in a constant state of change. It is, therefore, impossible to comment on every development within a specific time period. To that end, this Survey limits the discussion to those legal developments with the widest application to Georgia criminal law practitioners for the time period from June 1, 2013 through May 31, 2014.
This survey period is significant for one of the most expansive statutory overhauls in the criminal justice system in decades.2 In what is arguably Governor Nathan Deal's most valuable gubernatorial achievement to date, a "one-two" punch was delivered to both Georgia's adult and juvenile justice systems via the enactment into law of House Bills 3493 and 2424 with the assistance of the Georgia General Assembly.5 In addition, an ongoing commitment to reform was exhibited via
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creation of the Georgia Council on Criminal Justice Reform, a board of fifteen appointees tasked with conducting biennial reviews of both the adult and juvenile justice systems.6
A. Statutory Reform—Adult Criminal Justice
Adult criminal legislation became effective July 1, 2013, and applies to all criminal offenses occurring on or after that date.7 As a general overview, more liberal appeal rights were given to the prosecution,8 and trial courts were provided sentencing options below the mandatory minimums for trafficking in drugs,9 as well as for serious violent felonies and sex offenses.10 Provisions regarding a defendant's knowledge of the weight of the drugs they possessed were clarified.11 In addition, defendants are now permitted to retain otherwise lost driving privileges while they are enrolled in rehabilitative programs,12 incarcerated individuals can use Helping Outstanding Pupils Educationally General Education Development (HOPE GED) vouchers after release,13 and more lenient options are available for expungement of criminal records.14 Each category will be discussed in turn.
Rather than being limited only to the appeal of the grant of a defendant's motion to suppress, prosecutors can now appeal any trial court order excluding evidence. Further, a certificate of immediate review is no longer needed in any instance.15
The drug trafficking statutes were amended to remove the "knowingly" requirement, which previously required prosecutors to prove that defendants had knowledge of the weight of the controlled substance they possessed.16 This amendment closed the gap left open by former section 16-13-31(a)-(f) of the Official Code of Georgia Annotated (O.C.G.A.),17 which required that a person "knowingly" sell, manufacture, deliver or possess a trafficking amount of a particular drug, and
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subsequent court interpretations of that statute.18 In addition, the trafficking statutes now permit a judge to deviate from mandatory minimum sentences if the judge finds certain conditions are met.19 This discretion is not unfettered, however, because the court is limited in how much it can deviate.20 Although the statute continues to cap a prison sentence at a maximum of thirty years,21 it does expressly provide the court with a loophole that permits it to deviate downward from any mandatory minimum sentences whenever the prosecutor and the defendant agree to such deviation.22 There are mirror provisions for trafficking the drug ecstacy.23
Mandatory minimum sentences for both serious violent felonies and sexual offenses were also eviscerated, permitting the court to depart downward whenever the prosecutor and the defense agree.24 The prior rules prohibiting parole and early release remain relatively untouched; however, defendants are now permitted early release to participate in a transitional center or work-release program during their final year of incarceration.25
Other notable provisions include availability of HOPE GED vouchers to incarcerated people within twenty-four months of release.26 Practitioners should also note additional lenient expansions to expungement
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rules.27 The statute further allows defendants to retain otherwise lost driving privileges while enrolled in rehabilitative programs.28
The adult criminal code amendments are arguably pro-defendant.29 The amendments illustrate an overall trend in Georgia away from strict mandatory minimum sentencing and toward a more balanced approach that expressly encourages cooperation and agreement between prosecutors and defendants, as well as offender rehabilitation.30 It is hopeful these revisions will have a positive effect on Georgia's racially disproportionate and overcrowded prison population.31
B. Statutory Juvenile Justice Reform
House Bill 242 (the Act) rounds out the Governor's criminal justice reform with a focus on the juvenile code.32 Juvenile justice reform was a process that began in 2004 with work by, among others, the Georgia State Bar's Young Lawyer's Division and JUSTGeorgia, a statewide juvenile justice coalition, which eventually completed a model juvenile justice code.33 In 2012, Governor Deal issued an executive order reassembling the Special Council on Criminal Justice Reform to continue its recommendations to the legislature,34 and through House Bill 242, the code was ultimately amended during the 2013 session.35
The largest portion of the Act amends Title 15 of the Juvenile Code.36 These new provisions took effect on January 1, 2014 and apply to all offenses and juvenile proceedings that occur on or after that date.37
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The first portion of the Act outlines the legislative policy behind the reform.38 This includes protection of the community, accountability for violations of law, treatment and rehabilitation for the juvenile offender, and guarantees of due process of law.39 These principles are recurrent throughout the statutory scheme.
Highlights of the Act include a new and comprehensive seventy-six item definition section, and the creation of an entirely new designation of juvenile as a child in need of services (CHINS).40 The least restrictive custody possible for a CHINS is favored, and any detention ordered must be extremely limited and temporary in nature.41
A new two-tiered class of designated felonies (Class A and Class B) was also created.42 This two-tiered classification provides adjustment of penalties based on the severity of the offense and limits sentencing for the less severe offenses to no more than eighteen months in confinement.43 For example, for Class A felonies, a maximum of sixty months in confinement, followed by twelve months of intensive supervision, is mandated.44 For Class B felonies, confinement must be for a maximum term of eighteen months, followed by six months of supervision.45 In all circumstances, the court must be guided by the policy that the least restrictive facility is always favored.46 Further, the court must consider certain factors before ordering restrictive custody for any child adjudicated of committing a Class A or B felony, including: the child's age and maturity; the child's needs and best interests, record, background, and risk level; the nature of the offense; the community needs; and the victim's characteristics.47
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The delinquency provisions of the code were also completely revamped, paying particular attention to due process considerations.48 Included are requirements regarding the parties to a proceeding,49 a limited right to waive representation by an attorney,50 and new provisions mandating the appointment of a guardian ad litem.51 New procedural guidelines include the use of a detention assessment to determine if a child must be detained prior to adjudication,52 the procedures for intake and arraignment,53 and the procedures for service and discovery.54
There are likewise new guidelines regarding the transfer of juvenile cases to superior court.55 Although former rules regarding exclusive and concurrent jurisdiction of superior and juvenile courts are retained, when making optional transfers, the court must consider new criteria.56 Further, when a transfer order is issued, it is now immediately appealable by the juvenile.57
In addition, once a child is adjudicated delinquent, the Act provides new guidelines for disposition.58 For example, if directed by the court, a probation officer or other designee must prepare a written report to assist the court in determining the proper disposition, including the need for rehabilitation, and it must include the results of any ordered exams.59 Further, as required throughout the Code, the court is instructed to make the least restrictive disposition order appropriate in view of the seriousness of the delinquent act, the child's culpability, the child's age, the child's prior record, and the child's specific needs.60 All
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disposition orders must be tailored to the particular child's treatment, rehabilitation, and welfare.61
In addition to the new statutory maximum confinement provisions for designated Class A or B felonies, the Act includes new disposition provisions. For example, the court may not order a child adjudicated of a misdemeanor act to be placed in an "institution, camp, or other facility" unless the child has been previously adjudicated for a felony offense and has at least three prior adjudications for specific delinquent acts.62 Another important change to the disposition rules is that a child may move for early release from restrictive custody at any time and may renew said motion within six months.63
Consistent with the adult criminal justice reform during the survey period, the new laws are pro-juvenile.64 The laws further illustrate a new trend of providing the least...
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