Sb 127 - Criminal Procedure
| Citation | Vol. 35 No. 1 |
| Publication year | 2018 |
SB 127 - Criminal Procedure
Adriana C. Heffley
Georgia State University College of Law, adrianaclalreheffley@gmail.com
Allison S. Kim
Georgia State University College of Law, akim31@student.gsu.edu
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| Code Sections: | O.C.G.A. 8 17-17-15 |
| Bill Number: | SB 127 |
| Act Number: | 468 |
| Georgia Laws: | 2018 Ga. Laws 920 |
| Summary: | The Act introduces procedure by which victims who were not provided notice criminal proceedings, after requesting notice, may file a motion to be acknowledged by the court. This Act is meant to create a means by which a victim's rights, as introduced by the constitutional amendment in SR 146, may be raised or enforced. |
| Effective Date: | January 1, 2019 |
History
In 1983, Californian Marsy Nicholas was murdered by her ex-boyfriend.1 One week later, after attending her funeral, Marsy's brother and mother unexpectedly found themselves face-to-face with
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her killer in a grocery store; neither had been notified by local authorities that he had been released on bail.2 In 2008, Marsy's brother Henry Nicholas funded a campaign for a "California state constitutional amendment designed to make sure that moment outside the grocery store wouldn't happen to others," calling it "Marsy's Law."3
Today, national organization Marsy's Law for All (MLFA) seeks to ensure that the United States Constitution and all state constitutions enumerate rights for victims of crimes which parallel those extended to the accused.4 A handful of states have adopted Marsy's Law, and efforts to introduce similar legislation are ongoing in additional states, including Hawaii, Montana, and Nevada.5 Georgia is among the states without explicitly enumerated rights for victims of crime in its state constitution.6 Although Georgia's 2010 Bill of Rights for Crime Victims seeks to provide the right to be heard and the right to be notified of proceedings to victims of crime, proponents of Marsy's Law contend that the law is toothless.7 Representative Rick Williams (R-145th) argued that, despite the 2010 Bill of Rights for Crime Victims, "victims often find that [rights listed in the 2010 law] aren't enforceable" and stated that a constitutional amendment guaranteeing rights to victims of crime
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should "not add a burden on Georgia's criminal justice system because it's supposed to enforce these rights already."8
In 2015, Georgia House Resolution (HR) 1199 sought a constitutional amendment requiring that victims be informed of "services [] available to them, [] hearings and major developments in the criminal case," and affirming a victim's "right to be heard at plea or sentencing proceedings."9 HR 1199 also promised to "guarantee the right to restitution for victims."10 According to MLFA Georgia spokesman Brian Robinson, Marsy's Law failed to garner enough support because the MLFA Georgia team was just forming, and the 2015-2016 effort began too late to achieve a constitutional amendment.11 Over the next two years, Marsy's Law proponents worked with law enforcement and the victim's rights community to develop a realistic amendment to the Georgia Constitution.12
Bill Tracking of SB 127
Consideration and Passage by the Senate
Senator John Kennedy (R-18th) sponsored Senate Bill (SB) 127 in the Senate.13 The Senate read the bill for the first time on February 8, 2017, and committed the bill to the Senate Committee on Judiciary.14 On February 24, 2017, the Senate Committee favorably reported the bill by Committee substitute.15
The Committee substitute revised much of the introduced bill's text and added more subsections.16 The Committee substitute changed the language in subsection (c) and divided subsection (c)
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into multiple subsections. The Committee substitute retained language from the introduced bill's subsection (c) in the Committee substitute's subsection (c)(1), denying a victim "standing to participate as a party in a criminal proceeding or to contest the disposition of any charge."17 However, the Committee substitute introduced a clause before that language that identifies the subsequent sections as exceptions to this denial of standing.18
The Committee substitute also introduced subsections (c)(2)(A), (c)(2)(B), (c)(3), and (c)(4). These sections replaced the language in the introduced bill's subsection (c) and expanded on the ideas introduced by that language as exceptions to denial of standing.19 Subsections (c)(2)(A) and (c)(2)(B) created an exception when a victim is not given an opportunity to be heard after he or she makes a written request to be notified of all criminal proceedings.20 These subsections give procedural instructions regarding the information the victim must provide in the request and the motion which the victim may file if his or her right to be heard is denied.21
The Committee substitute's subsection (c)(3) provided a procedure for when the motion the victim filed in accordance with subsection (c)(2) alleges potential failures by the prosecuting attorney or the court.22 This subsection allows the prosecuting attorney or judge to recuse himself or herself in accordance with Code section 15-18-5 or Code section 15-18-65 for prosecutors and Code section 15-1-8 for judges.23 The Committee substitute's subsection (c)(4) provides instructions for a procedure related to setting a hearing or disposing of the motion.24
The Senate read SB 127 for the second time on February 27, 2017.25 The Senate read the bill for the third time on March 3,
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2017.26 The Senate passed the Committee substitute on March 3, 2017, by a vote of 51 to 1.27
Consideration and Passage by the House
Representative Rich Golick (R-40th) sponsored SB 127 in the House.28 The House read the bill for the first time on March 6, 2017, and referred the bill to the House Judiciary Non-Civil Committee.29 The House read the bill for a second time on March 9, 2017. On March 21, 2018, the House Judiciary Non-Civil Committee favorably reported the bill by Committee substitute.30
The Committee substitute retained all of the language from the bill as passed by the Senate for subsections (c)(1) and (c)(2)(A).31 The Committee substitute changed subsection (c)(2)(B) minimally, requiring the victim to provide the hearing notice to the prosecuting attorney and defendant in addition to a copy of the motion.32 The Committee substitute also moved what was subsection (c)(3), as passed by the Senate, to subsection (c)(6).33 The Committee substitute also introduced new subsections (c)(3), (c)(4), and (c)(5).34
The Committee substitute's subsection (c)(3) borrowed language from what was previously subsection (c)(4) of the bill as passed by the Senate.35 This language gives the court discretion to set the motion for a hearing or to dispose of the motion.36 However, the Committee substitute also introduced language that gives the
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prosecuting attorney and the defendant the right to be present should the court conduct a hearing.37
The Committee substitute's subsection (c)(4) introduced language that bars appeals for motions made under this section38 . Subsection (c)(5) introduced language that makes motions under this subsection the only means of raising or enforcing rights provided by the Chapter or Section 1 of Article 1 of the Georgia Constitution.39
The House read the bill for the third time on March 27, 2018.40 The House unanimously passed the Committee substitute on March 27, 2018.41 On March 29, 2018, the Senate unanimously passed the House Committee substitute.42
The Act
The Act amends Code section 17-17-15 of the Official Code of Georgia, relating to the failure to provide notifications within the Crime Victims' Bill of Rights.43 The overall purpose of the Act is to create a procedure within the Victims' Bill of Rights by which a victim can make a written request to the prosecuting attorney to be notified of all proceedings.44 In the event of noncompliance on the prosecutor's part, the Act allows a victim to file a request with the court to be heard on the matter.45
Section 1
Section 1 of the Act revises subsection (c) of Code section 17-17-15, which previously did not confer standing upon a victim to participate as a party in a criminal proceeding or to contest the disposition of any charge.46 The Act adds several subsections within
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subsection (c) that confer standing on a victim in certain circumstances.
Subsection (c)(2) has two subparts: (A) and (B). Subsection (c)(2)(A) confers standing on a victim who has made a written request to the prosecuting attorney.47 Furthermore, this subpart (A) provides a procedure that a victim may utilize in the event a prosecutor or the court does not comply with the request. A victim may file a motion with the court requesting to be heard on this matter.48 Subsection (c)(2)(A) extends this procedure to file a motion to be heard regarding noncompliance with any provision of this Chapter.49 Subsection (c)(2)(B) provides administrative guidelines regarding the motion in the previous subpart. The victim must file the motion no later than twenty days after the claimed denial, and the victim must provide a copy of the motion and hearing notice to both the prosecuting attorney and the defendant.50
Subsections (c)(3) and (c)(4) describe the court's powers regarding the victim's motion described in subsection (c)(2). Subsection (c)(3) gives the...
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