Does the Punishment Fit the Crime?: Applying Eighth Amendment Proportionality Analysis to Georgia's Sex Offender Registration Statute and Residency and Employment Restrictions for Juvenile Offenders

• Publication year: 2010

Georgia State University Law Review

Volume 28 j 7

Issue 2 Winter 2012

3-14-2012

Does The Punishment Fit The Crime?: Applying Eighth Amendment Proportionality Analysis to Georgia's Sex Offender Registration Statute and Residency and Employment Restrictions for Juvenile Offenders

Rebecca Shepard

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Recommended Citation

Shepard, Rebecca (2011) "Does The Punishment Fit The Crime?: Applying Eighth Amendment Proportionality Analysis to Georgia's Sex Offender Registration Statute and Residency and Employment Restrictions for Juvenile Offenders," Georgia State University Law Review: Vol. 28: Iss. 2, Article 7.

Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss2/7

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DOES THE PUNISHMENT FIT THE CRIME?: APPLYING EIGHTH AMENDMENT PROPORTIONALITY ANALYSIS TO GEORGIA'S SEX OFFENDER REGISTRATION STATUTE AND

RESIDENCY AND EMPLOYMENT RESTRICTIONS FOR JUVENILE OFFENDERS

Rebecca Shepard*

Introduction

If there is "a race to the bottom to see who can most thoroughly ostracize and condemn" sex offenders among states and municipalities, Georgia is a front runner.¹ Georgia's laws for convicted sex offenders are among the toughest in the United States,² including a sex offender registry and residency and employment restrictions.³ Once a person has been convicted of certain sexual crimes,⁴ as well as of certain crimes against minors, regardless of

J.D. Candidate, 2012, Georgia State University College of Law. Thanks to Professor Jonathan Todres for his valuable feedback and advice, and thanks to my family—Clint, Robin, and Eli—for their unending patience and support.

1. Sarah Geraghty, Challenging the Banishment of Registered Sex Offenders from the State of Georgia: A Practitioner's Perspective, 42 Harv. C.R.-C.L. L. Rev. 513, 514 (2007).

2. Id. at 515 (quoting Georgia State Representative Jerry Keen discussing residency and employment restrictions for registered sex offenders); Amanda West, The Georgia Legislature Strikes with a Vengeance! Sex Offender Residency Restrictions & the Deterioration of the Ex Post Facto Clause, 57 Cath. U. L. Rev. 239, 239^41 (2007); Id. at 239 n.4 (comparing Georgia statutes with statutes from twenty-two other states also imposing restrictions on convicted sex offenders).

3. Ga. Code Ann. § 42-1-12 (2010); Ga. Code Ann. § 42-1-15 (2010).

4. Ga. Code Ann. § 42-1-12(a)(9)(B) (2010); Ga. Code Ann. § 42-1-12(a)(10)(B) (2010); Ga. Code Ann. § 42-1-12(a)(14) (2010). Offenders must register if they are convicted of committing the following sexual crimes on or after July 30, 2001, against a victim who is a minor: criminal sexual conduct toward a minor, solicitation of a minor to engage in sexual conduct, use of a minor in a sexual performance, solicitation of a minor to practice prostitution, or any conviction resulting from a sexual offense against a minor victim. Ga. Code Ann. § 42-1-12(a)(9)(B) (2010). A victim is defined as a "minor" if she or he is under age eighteen at the time of the offense. Ga. Code Ann. § 42-1-12(a)(14) (2010). offenders must also register if they are convicted of any dangerous sexual offense, regardless of the age of the victim. Dangerous sexual offenses include: rape, aggravated assault with the intent to commit rape, sodomy, aggravated sodomy, statutory rape if the convicted individual is at least twenty-one years of age, child molestation, aggravated child molestation, enticing a child for indecent purposes, sexual assault against a person in custody, incest, second conviction of sexual battery, aggravated sexual

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whether the criminal activities were of a sexual nature,⁵ he is required to register and comply with residency and employment restrictions.⁶

In Georgia, minors who are convicted of sex offenses must comply with the same registry and residency requirements as adult sex offenders.⁷ This is not limited to violent crimes or acts that are predatory in nature.⁸ The result: Georgia teenagers can be convicted

battery, sexual exploitation of children, electronically furnishing obscene material to minors, computer pornography and child exploitation, obscene telephone contact, any sexual offense or attempted sexual offense against a victim who is a minor. Ga. Code Ann. § 42-1-12(a)(10)(B) (2010).

5. Ga. Code Ann. § 42-1-12(a)(9)(B) (2010); Ga. Code Ann. § 42-1-12(a)(10)(B) (2010); Ga. Code Ann. § 42-1-12(a)(14) (2010). Offenders must register as a sexual offender if they are convicted of committing the following crimes on or after July 30, 2001, even if the crimes were not sexual in nature: kidnapping or false imprisonment of a minor, except by a parent. Ga. Code Ann. § 42-1-12(a)(9)(B) (2010). A victim is a "minor" if she or he is under the age of eighteen at the time of the offense. Ga. Code Ann. § 42-1-12(a)(14) (2010). Kidnapping or false imprisonment involving a victim who is less than fourteen years old, except by a parent, is considered a "dangerous sexual offense" and convicted offenders must register as sexual offenders, even if the offensive conduct is not sexual. Ga. Code Ann. § 42-1-12(a)(10)(B) (2010). See also Bill Rankin, Ga. Supreme Court Rebuffs Sex Offender Registry Challenge, Atlanta J.-Const., Mar. 15, 2010, http://www.ajc.com/news/atlanta/ga-supreme-court-rebuffs-371444.html (discussing an example of an offender required to register as a sex offender when the underlying crime, kidnapping, was not sexual in nature).

6. Ga. Code Ann. § 42-1-15 (2010). Any individual required to register under Ga. Code Ann. § 42-1-12 (2010) may not reside within one thousand feet of any childcare facility, church, school, or area where minors congregate. Ga. Code Ann. § 42-1-15(b) (2010). The restrictions on employment are slightly less strict: no individual required to register as a sexual offender may volunteer or be employed at any entity within one thousand feet of a childcare center, school, or church, but the employment restrictions do not extend to entities near "areas where minors congregate." Ga. Code Ann. § 42-1-15(c) (2010). "Areas where minors congregate" are defined by statute as including: all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, public libraries, and public community swimming pools. Ga. Code Ann. § 42-1-12(a)(3) (2010). A registered sex offender who knowingly violates the residency and employment restrictions "shall be guilty of a felony and shall be punished by imprisonment for not less than ten nor more than 30 years." Ga. Code Ann. § 42-1-15(g) (2010).

7. Juveniles who are adjudicated delinquent are not required to register, nor are those convicted of misdemeanors. Ga. Code Ann. § 42-1-12(a)(9)(C) (2010). In Georgia, the legal age of majority is eighteen, and all persons under eighteen are minors. Ga. Code Ann. § 39-1-1(a) (2010). However, seventeen-year-old minors who commit offenses are tried as adults in Georgia; they are not under the jurisdiction of state juvenile courts. Ga. Code Ann. § 15-11-2(2)(A) (2010); Ga. Code Ann. § 15-1128 (2010). Furthermore, any minor between ages thirteen and seventeen who is charged with a crime can be tried in superior court and convicted of a felony. Ga. Code Ann. § 15-11-28(b)(1) (2010). Minors who commit any of seven crimes are automatically tried as adults and in superior court: murder, voluntary manslaughter, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, or armed robbery with a firearm. Ga. Code Ann. § 15-11-28(b)(2)(A) (2010).

8. Ga. Code Ann. § 42-1-12(a)(9)(B) (2010); Ga. Code Ann. § 42-1-12(a)(10)(B) (2010); Ga. Code Ann. § 42-1-12(a)(14) (2010). Examples of offenses that trigger the registration requirement, but may be non-violent or may occur in the context of a peer-on-peer relationship when perpetrated by a juvenile offender include: electronically furnishing obscene material to a minor, solicitation of a minor to engage in sexual conduct, and the catchall "[a]ny conduct which, by its nature, is a sexual offense" against a minor victim. Ga. Code Ann. § 42-1-12(a)(9)(B) (2010); Ga. Code Ann. § 42-1-12(a)(10)(B)

2012] GEORGIA JUVENILE SEX OFFENDERS 531

of sex offenses and required to register as sex offenders and comply with strict residency and employment requirements for behavior that may be quite different from the predatory offenses usually brought to mind by the term "sex offender."⁹

For example, a high school sophomore in Georgia was arrested in spring 2010 for furnishing obscene material to a minor.¹⁰ If charged under Georgia's child pornography laws and convicted, this seventeen-year-old boy would be required to register as a sex offender who committed a "dangerous sexual offense" and prohibited from residing or loitering near any area where minors congregate— including his own high school.¹¹ What behavior warrants these severe consequences? He sent a naked picture of himself to a sixteen-year-old friend via text message, also known as "sexting."¹² Does the punishment fit the crime?

This Note explores whether, when applied to minors, Georgia laws requiring registration as a sex offender and restricting residency and employment based on registration violate the Eighth Amendment guarantee against cruel and unusual punishment.¹³ Part I discusses Georgia's current requirements for sex offenders, including registration, residency, and employment restrictions.¹⁴ Part II considers the constitutional validity of these restrictions as applied to

(2010). Some peer-on-peer conduct satisfies the elements of sexual crimes, even though it may be nonviolent or...