Senate Bill 37 Summary & Post Humphrey v. Wilson1 Analysis2
Origins of the Bill
Senate Bill 37 ("SB 37") was introduced during the 2007 Georgia Assembly Legislative Session on January 23 by Senator Emanuel Jones. Although the Senate Judiciary Committee favorably reported on SB 37 on March 19, 2007, the bill did not pass through to the House before the end of the 2007 session. SB 37 was recommitted in the Senate for the 2008 Georgia Assembly Legislative Session on January 14, 2008.
Legislative Purpose
The proposed bill, if enacted, would revise § 17-10-1 of the Official Code of Georgia Annotated ("O.C.G.A.") in order to permit the correction and modification of sentences of some teenagers who were convicted of sex offenses after engaging in mutual sexual activity and subsequently received mandatory minimum sentences prior to a 2006 change in the law. Such teenagers, if tried and convicted today, would fall under the exceptions created by the "Romeo and Juliet" clauses in H.B. 1059 (2006), and would receive much shorter sentences. Because the "Romeo and Juliet" provisions were not retroactive, SB 37 attempts to provide an avenue of relief for juveniles currently serving mandatory minimum sentences for offenses that are now classified as misdemeanors.
The sponsor's specific intent in drafting the bill was to secure the release of Genarlow Wilson and young people like him. Wilson engaged in consensual oral sex with a classmate and as a result was convicted of a felony and received a mandatory ten-year sentence. Subsequent to the 2007 legislative session and as a result of a habeas corpus petition filed by Wilson's attorney, the Supreme Court of Georgia held that Wilson's ten-year prison sentence was grossly disproportionate to his crimes and therefore constituted cruel and usual punishment under both the Georgia and United States Constitutions. However, the Supreme Court's decision was narrowly tailored and SB 37 is still necessary in order to release those young people who were sentenced under the pre-2006 laws and who are still serving longer sentences.
Summary and Explanation of the Proposed Changes
SB 37 would allow sentencing courts to modify sentences for young people convicted of the crimes of sodomy, child molestation, aggravated child molestation, and enticing a child for indecent purposes, after providing notice and an opportunity for a hearing to the prosecuting attorney. The bill would allow judges to, in effect, retroactively apply the "Romeo and Juliet" exceptions, passed during the 2006 legislative session as a part of HB 1059, to people convicted before July 1, 2006 when the new law went into effect. The "Romeo and Juliet" exceptions protect "consensual" or mutual sexual activity between teenagers from felony prosecution. These "Romeo and Juliet" clauses create misdemeanor offenses for mutual sexual activity and exclude these same offenses from the mandatory sex offender registration and monitoring requirements. Specifically, the Romeo and Juliet clauses provide:
Regarding teenagers charged with sodomy3 and aggravated child molestation (with sodomy as the aggravating factor)4 -- children ages 13 through 18 engaging in mutual sexual activity will be protected from felony prosecution when there is no more than four years age difference between them.
Regarding teenagers charged with the offenses of statutory rape5, child molestation6, and enticing a child for indecent purposes7 -- children ages 14 through 18 engaging in mutual sexual activity, with no more than four years age difference between them, will be protected from felony prosecution.
Since the "Romeo and Juliet" provisions are not retroactive, SB 37 attempts to make the law effectively retroactive by revising O.C.G.A. § 17-10-1(f) as described below.
(1) Creating an exemption to the statute of limitations for the correction, reduction, or modification of sentences.
Currently, O.C.G.A. § 17-10-1(f) allows the sentencing court to order the correction, reduction, or modification of sentences within one year of the date the sentence is imposed or, after direct appeal, within 120 days of the receipt of the order affirming the judgment, whichever is later. Before the sentencing court orders the correction, reduction, or modification of the sentence, it must issue a notice and an opportunity for a hearing to the prosecuting authority.
SB 37 proposes to add language and a new paragraph to O.C.G.A. § 17-10-1(f) that would provide an exemption to the time limits that govern when a sentencing court may modify a sentence. Under the language of SB 37, individuals convicted of a sexual offense prior to July 1, 2006, who would fall under the exceptions created by the "Romeo and Juliet" clauses in H.B. 1059 (2006) if their actions had occurred after the law went into effect, may have their sentences corrected, reduced, or modified by the sentencing court at any date after the sentence was imposed.
Why SB 37 Is Still Necessary After Humphrey v. Wilson
Despite the fact that Genarlow Wilson was released and his mandatory ten-year sentence deemed unconstitutional, SB 37 is still necessary because the Supreme Court's decision (1) was narrowly tailored and (2) creates a burdensome process for release for those young people who were sentenced under the pre-2006 laws and who are still serving longer sentences.
(1) The Wilson decision is narrowly tailored.
In making its decision, the Georgia Supreme Court explicitly relied only on the new provision of the Romeo and Juliet Law relating to aggravated child molestation with sodomy as the aggravating factor (O.C.G.A. § 16-6-4) thereby limiting the application of the law created by the case to only those other juveniles convicted under that portion of the newly enacted laws. The Court expressly stated,
"[T]oday's opinion will affect only a small number of individuals whose crimes and circumstances are similar to Wilson's, i.e., those teenagers convicted only of aggravated child molestation, based solely on an act of sodomy, with no injury to the victim, involving a willing teenage partner no more than four years younger than the defendant."8
The decision does not apply to other mutual sexual activity that might have resulted in pre-2006 felony prosecution, conviction, and detention for juvenile and young adult offenders.
(2) Wilson decision creates a burdensome process for release -- Habeas Corpus Petitions
The Court in Wilson specifically stated that, "we are not applying the 2006 Amendment retroactively in this case. Instead… we merely factor the 2006 Amendment into the evaluation of whether Wilson's punishment is cruel and unusual."9 Because the Court specifically stated that the 2006 laws were not being applied retroactively, the Court's decision cannot be interpreted as creating judicial law that would automatically allow sentencing modifications for juveniles convicted of aggravated child molestation with sodomy as the aggravating factor (O.C.G.A. § 16-6-4) who are currently serving longer sentences under the pre-2006 laws. Instead, any juvenile convicted of aggravated child molestation with sodomy as the aggravating factor (O.C.G.A. § 16-6-4) will have to individually seek to have their punishment deemed unconstitutional through a habeas corpus petition. Habeas petitions generally allow prisoners to challenge the legal authority under which they are being detained. After a petition is filed on behalf of a juvenile, the court would then rely on the Wilson decision to determine that the individual juvenile's sentence was unconstitutional. This process is long and complex and places a burden on both the legal system and those juveniles seeking to be released.
In addition, there are problems associated with the habeas process:
Under O.C.G.A. § 9-14-42(c), an individual must bring a writ for habeas relief within four years (in the case of a felony) from when their conviction becomes "final by the conclusion of direct review or the expiration of time for seeking such review"10 or from "the date on which the facts supporting the claims presented could have been discovered through the exercise of due diligence."11 Therefore, all claims must be brought within four years of the later of a final appeal of the individual's case or the Wilson decision (four years from the Wilson decision is approximately Oct. 2011). Because the mandatory sentences for the crimes discussed were long under the previous statutes, there is the possibility for some juveniles that more than 4 years have passed from the date of their final appeal and that they are not aware of the change in law. As a result, those juveniles may not pursue the habeas petition process prior to 2011, which would effectively bar them from any habeas relief. Additionally, persons convicted of these crimes who have already served their sentences, but who wish to remove the felony designation from their records may also be time barred if they do not pursue the habeas process prior to 2011.
Ordinarily a petitioner for a writ of habeas corpus is not entitled to have counsel appointed to represent him.12 Because the habeas petition process is complex, navigating it alone may be confusing or impossible for some of the persons convicted under these rules.
For these reasons, SB 37 is still necessary to efficiently effectuate the release of those persons sentenced as juveniles to serve mandatory minimum sentences for offenses that are now classified as misdemeanors.
Further Recommendation
(a) Issue: The bill may not achieve the sponsor's intent because the bill as written fails to adequately specify which sentencing guideline the court is to follow when correcting, reducing, or modifying a sentence. For example, if the court must apply the sentencing law that was in effect at the time of a criminal act committed before July 1, 2006, the "Romeo and Juliet" exceptions would not apply and, therefore, the sentence could not be reduced below the mandatory minimum sentence for the offense (ten years). On the other hand, if the court is permitted to apply the current law as revised in 2006, then the "Romeo and Juliet" exceptions make the offense a misdemeanor and exempt those convicted from the mandatory minimum sentence. In the latter case, the sentencing court could either order the reduction of the sentence below the previous felony minimum or repeal the sentence entirely. In order for the bill to serve its purpose and pass judicial scrutiny, SB 37 must offer more clarity about the intent to apply the post-2006 sentencing structure than is currently provided by SB 37.
According to Lockhart v. State,13 the sentencing court must sentence the defendant "in accordance to the sentencing provisions that existed at the time of his criminal act."14 In Lockhart, the defendant originally received a ten-year sentence, five to serve, on a burglary charge and a ten-year sentence, two to serve, on a rape charge.15 However, the sentence was declared void because the sentencing guidelines at the time of his conviction mandated a ten-year sentence, without the possibility of parole, for the rape conviction.16 The defendant was re-sentenced for the rape conviction and received the mandatory ten-year without the possibility of parole sentence.17 Between the original conviction and the re-sentencing, the Georgia General Assembly enacted legislation that made his original sentence valid.18 In responding to Lockhart's challenge to restore his original shorter sentence, the Court of Appeals of Georgia stated that "the fact [the law] . . . was subsequently amended to reduce the sentence for the crime has no bearing on this case, as laws . . . are prospective in nature and are not applied retroactively absent a clear expression of the intent of the Georgia Assembly to do so."19 Any sentence that is valid under the original law is not invalidated by a subsequent amendment.20
(b) Recommended Language: In order to clarify that the legislature intends to apply the 2006 sentencing scheme by passage of the proposed Code Section 17-10-1 (f)(2), the Barton Clinic proposes the following amendment. An additional sentence should be inserted at 17-10-1(f)(2)(D) after the phrase "any part of the sentence imposed," which states:
Any modification of the sentence must be in accordance with the amended versions of §§ 16-6-2(d), 16-6-3(c), 16-6-4(b)(2), 16-6-4(d)(2), or 16-6-5(c) as enacted on July 1, 2006, with the applicable provision being dependent on the underlying offense of the sentence being modified.
Conclusion
Despite the Supreme Court of Georgia's decision in Humphrey v. Wilson that Genarlow Wilson's punishment was cruel and unusual, SB 37 is still necessary to efficiently effectuate the release of those persons sentenced as juveniles to serve mandatory minimum sentences for offenses that are now classified as misdemeanors. This is because the decision in Wilson (1) was narrowly tailored and (2) creates a burdensome process for release for those young people who were sentenced under the pre-2006 laws and who are still serving longer sentences. Further, in order to achieve the intent of the bill's sponsor and to comply with the conditions established by the Georgia Court of Appeals in Lockhart v. State, SB 37 should be amended to specify that sentence corrections, reductions, and modifications must be made in accordance with the sentencing guidelines current as of July 1, 2006.
1 Humphrey v. Wilson, 652 S.E.2d 501 (Ga. 2007).
2 January 25, 2008 by Marissa Corda, Student Attorney, Emory University School of Law Class of 2008 (Amending Senate Bill 37 Summary and Analysis created April 10, 2007 by Chandani Patel, Student Attorney, Emory University School of Law Class of 2008).
3 O.C.G.A. § 16-6-2(d).
4 O.C.G.A. § 16-6-4(d)(2).
5 O.C.G.A. § 16-6-3(c).
6 O.C.G.A. § 16-6-4(b)(2).
7 O.C.G.A. § 16-6-5(c).
8 Wilson, 652 S.E.2d at 510 (emphasis added).
9 Wilson, 652 S.E.2d at 510.
10 O.C.G.A. § 9-14-42(c)(1).
11 O.C.G.A. § 9-14-42(c)(4).
12 O'Neil v. Cladwell, 203 S.E.2d 191 (Ga. 1974)
13 489 S.E. 2d 594 (Court of Appeals of Georgia 1997)
14 Id. at 595.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id. (emphasis added).
20 Id.
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