Criminal Law and Procedure: a Two-year Survey - James P. Fleissner

• Publication year: 1996

Criminal Law and Procedure: A Two-Year Surveyby James P. Fleissner^*

I. Introduction

During the two-year survey period, the Georgia Court of Appeals and the Georgia Supreme Court issued well over a thousand published opinions addressing issues of criminal law and procedure.¹ The primary purpose of this Article is to summarize judicial decisions constituting noteworthy developments in the law. Given the scope of survey, the constraint of limited space imposed difficult choices concerning what to include. As in past years, this survey will focus on highlights, such as cases of first impression and cases presenting close or controversial issues. The Author hopes this Article will provide useful information for busy practitioners seeking to keep abreast of developments in Georgia criminal law and procedure. Beyond providing summaries of the cases, it is the further hope of the Author that the accompanying analysis and commentary will contribute to the public discourse on these important legal issues.

Of course, the body of two years' worth of criminal appellate decisions on myriad issues of law defies a general characterization. However, it is possible for a particular issue to stand out from the rest and assume a status of prominence as a "defining issue" of the period. During the survey period, several factors combined to push one issue confronting the Georgia criminal justice system to the forefront: the vexing problem of racial and socio-economic bias, both real and perceived.

The litigation that culminated with the Supreme Court of Georgia's opinion in Stephens v. State² was illustrative of the difficulty inherent in the race issue and the sharp divisions to which the issue gives rise. Stephens involved allegations that prosecutors had applied the Georgia statute requiring mandatory life imprisonment for two-time drug offenders disproportionately against African-American defendants.³ The Stephens saga involved a bitter and complex legal debate, allegations of racism and the hard feelings such charges engender, fears of paralyzing the criminal justice system with endless litigation, and concerns over hindering the fight against crime. As will be discussed below, the Georgia Supreme Court acknowledged there was an apparent problem, but declined to impose a judicial solution. The court's decision shifted the debate to the halls of the legislature where something remarkable happened: Despite political trends towards ever-tougher penalties for drug crimes, the legislature eliminated the mandatory life term for two-time drug offenders, thereby defusing the explosive issue raised in Stephens. The controversy represented the most prominent legal debate of the survey period. The ultimate outcome of the controversy represented a meaningful step towards reducing the perception of racial unfairness in the Georgia criminal justice system.

Here is how Stephens unfolded: Defendant was an African-American convicted in Hall County for selling cocaine.⁴ Defendant was eligible to be sentenced under the provision that required life imprisonment upon conviction for a second drug offense,⁵ and the prosecution opted to seek a life sentence under the mandatory life sentence provision.⁶ Citing statistics that suggested that the application of the mandatory life sentence law was racially skewed against African-Americans, defendant challenged the use of the law in his case as a violation of the equal protection guarantees of the United States and Georgia Constitutions.⁷

On March 30, 1995, a sharply divided Supreme Court of Georgia denied defendant's challenge, holding that the statistics presented by defendant were insufficient to establish an equal protection violation in his case.⁸ The four-justice majority also refused to hold that defendant's statistics established a sufficiently strong inference of discriminatory application of the mandatory life sentence provision so that the prosecution should be required to present the sentencing court with assurances that the provision was applied to defendant for race-neutral reasons.⁹

Two of the three dissenting justices joined in a strident response to the majority.¹⁰ The dissent characterized defendant's statistical evidence of discrimination as "numbing and paralyzing" and urged that the proper course would be to establish a procedure requiring prosecutors to respond to such a showing by coming forward with proof that the selection of the defendant for sentencing under the mandatory life sentence law was based on permissible race-neutral reasons.¹¹

The closeness of the outcome can be seen in the special concurrence of Justice Thompson, who cast the deciding fourth vote.¹² Of defendant's statewide statistical data regarding racial application of the mandatory life sentence law, Justice Thompson stated that "only a true cynic can look at these statistics and not be impressed that something is amiss."¹³ Further, Justice Thompson was open to the dissenters' view that the court might require the prosecutor to provide a justification for a decision to apply the law in some circumstances.¹⁴ Justice Thompson's vote, however, was premised on his conclusion that defendant's statistical evidence was insufficient to show discrimination in the critical jurisdiction, Hall County, where defendant was prosecuted.¹⁵ Justice Thompson's concurrence, which included an overt request that the

General Assembly consider amending the mandatory life sentence law,¹⁶ clearly leaves one with the sense that the outcome of this racially charged case could have been different.

What added to the public controversy over the ultimate decision in Stephens is that the outcome had been different. Thirteen days before the issuance of the final opinion in Stephens, the supreme court had issued a slip opinion in the case with a different result.¹⁷ In that opinion, Justice Thompson provided the decisive vote for a majority that found the statistics presented by the defense "numbing and paralyzing" and "so grossly disproportionate to prosecution percentages as to shock the conscience."¹⁸ In what the short-lived majority termed a "watershed case," the March 17, 1995 opinion held that the United States and Georgia constitutional guarantees of equal protection require a prosecutor, in light of the statistical proof of discriminatory application of the mandatory life sentence law, to provide a race-neutral explanation for the decision to apply it to defendant Stephens.¹⁹ The three justices who were soon to join Justice Thompson in the majority dissented in the initial decision in Stephens.²⁰ Following angry and public protests, mainly from prosecutors,²¹ the Supreme Court took the unusual step of reconsidering and reversing its prior decision.²²

Needless to say, the controversy surrounding Stephens galvanized opinion on both sides of the public debate and helped to bring the issue of discrimination in the criminal justice system to the forefront. The decision in Stephens took place while another significant event was occurring: The Georgia Supreme Court Commission on Racial and Ethnic Bias in the Court System was finishing its work. The Commission, established by the Supreme Court of Georgia in 1993 to study the issue of bias, issued its final report in August 1995, several months ahead of schedule.²³ Upon the release of the report, Commission co-chairman and court of appeals Judge Jack Ruffin said, "[l]et the word go forth that racism is not allowed a captaincy on the ship of justice."²⁴ Of course, this statement denies that racism is in command of the vessel, but allows that it is aboard. The Commission's final report, while praising the fairness of most persons involved in the criminal justice system, forthrightly acknowledged the role of racial and class bias.²⁵ Although the Commission found open and intentional bias only in isolated instances, it "concluded from all the evidence it considered that there are still areas within the state where members of minorities, whether racial or ethnic, do not receive equal treatment from the legal system."²⁶ More frequent than intentional acts of discrimination, the Commission noted, "there are incidences of bias which appear to result from unintentional conduct resulting from a lack of awareness."²⁷

The Commission also concluded "that the system is biased against economically disadvantaged individuals."²⁸ The Commission further noted that socio-economic bias "more seriously affects minorities since they compose a greater portion of the economically and educationally disadvantaged."²⁹ The Commission also found that the criminal justice system in Georgia "parallels the national picture" of disproportionately high numbers of minorities involved in the system as arrestees, defendants, and inmates.³⁰ And the problem of perceptions is even greater: The Commission's research showed that minorities (and women) "see a totally different justice system than non-minority males."³¹ Not surprisingly, negative perceptions of the system breed distrust.³²

The Commission's final report, which is an admirable effort at a reflective self-study by the justice system, clearly serves to make the issue of race and class bias a pre-eminent concern of the survey period. The ongoing national debate over issues of race and class in the criminal justice system engendered by the O.J. Simpson trial underscores the importance, and timeliness, of the Commission's work. Significantly, the Commission's final report contains many constructive proposals for addressing the current state of affairs.³³

If the Commission's report was admirable, the effort to repeal the mandatory life term for two-time offenders was heroic. The legislation, which reportedly was the result of negotiations between prosecutors and the defense bar,³⁴ became law on July 1, 1996.³⁵ The amended law provides that a second or subsequent drug felony may be punished by a sentence of ten to forty years or life imprisonment, at the discretion of the...