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Ga. Attorney General to Defend Sex Offender Law on Two Legal Fronts
Fulton County Daily Report
August 07, 2007
The defense of Georgia sex offender law has placed the state's attorney general in the awkward position of arguing to the state Supreme Court that the law cannot be applied retroactively while arguing in a separate case in federal court that the law's retroactive provisions are legal.
The Georgia Legislature's 2006 amendments to the state sex offender law have drawn Attorney General Thurbert Baker into litigation to defend the law on two legal fronts. In one case, Baker is seeking to uphold a 10-year sentence imposed on Genarlow Wilson for having unforced oral sex, when he was 17 years old, with a 15-year-old girl. Baker entered the Wilson fray in June after a judge in Monroe County granted Wilson's civil habeas petition.
Citing a 2006 amendment to the sex offender law that reduces aggravated child molestation in some cases of consensual oral sex from a felony to a misdemeanor, Monroe County Superior Court Judge Thomas H. Wilson (who is no relation to Genarlow Wilson) reduced the now 21-year-old Wilson's felony sentence to a misdemeanor and ordered his release.
The 2006 amendment, known as the "Romeo and Juliet" provision, reduced the penalty for aggravated child molestation from a 10-year minimum felony sentence to a misdemeanor punishable by no more than 12 months in prison if oral sex was consensual and between a teenager 18 or younger and no more than four years older than his or her minor partner, who must be at least 13. But the Legislature declined to make that provision retroactive.
Baker appealed the court ruling, arguing the judge did not have authority to apply the new misdemeanor statute retroactively.
Meanwhile, for the past year, Baker has been defending another of the 2006 amendments to the state sex offender law -- arguing that the Legislature had the authority to enact a new law that retroactively bars anyone on the state's sex offender registry from living, working or loitering within 1,000 feet of a school bus stop or church. That amendment expanded provisions of the sex offender law that already barred people on the registry from living within 1,000 feet of a school, day care center, swimming pool or park.
With the enactment of that law on July 1, 2006, the majority of those already on the sex offender registry whose residences and work had complied with state law suddenly found they were no longer in compliance and must move or risk violating the law.
"Those people are being punished retroactively," said Stephen B. Bright, of the Southern Center for Human Rights and co-counsel in the federal civil litigation. The Southern Center last year sued the state on behalf of a class of convicted sex offenders -- some of whose convictions stemmed from circumstances similar to Wilson's -- arguing that the 2006 amendments governing where a sex offender may live are unconstitutional. Baker is defending the state in that case.
The case is Whitaker v. Perdue, No. 4:06-CV-0140 (N.D. Ga.). Lead plaintiff Wendy Whitaker's name is on the state sex offender registry because she was convicted as a 17-year-old of engaging in consensual oral sex with a 15-year-old male classmate while on school property. She pleaded guilty to a single charge of sodomy and was sentenced to five years probation.
Southern Center lawyers have argued that the "bus stop" provision makes the new law so restrictive that there remains no habitable place in Georgia where sex offenders can live. Any registered sex offender found out of compliance with the new living restrictions faces a mandatory prison sentence ranging from 10 to 30 years.
"People like some of our plaintiffs-- people who have been convicted of a sex offense, have served their probation and completed it successfully," Bright said. Yet, under the provisions of the 2006 amendment, many are now facing arrest and prosecution if they do not sell their home and relocate or find a new job that is not within 1,000 feet of a school bus stop or a church. "That's severe punishment," Bright said.
The arguments made by the attorney general in the Wilson case and in the federal Whitaker case "is a very sharp [contradiction] for any logical thinking person," Bright said. "What basically is happening is that they are piling on new punishment to the 10,000 people on the registry while opposing retroactive application of a law that everybody agrees should have been, and was, changed.
"It's blind adherence to inflexible laws which the Legislature has ... enacted without thoughtful considerations of the implications."
But Baker spokesman Russell D. Willard dismissed suggestions that the attorney general's defense of retroactive provisions of the 2006 amendments in federal court contradicted arguments made by state attorneys before the Georgia Supreme Court that the law should not be applied retroactively in Wilson's case.
"First, you have the issue of legislative intent," Baker said. "The General Assembly clearly did not make the 'Romeo and Juliet' provision retroactive but did make the sex offender registration requirements apply to all sex offenders currently on the sex offender registry.
"In addition, those requirements and any restrictions on those on the registry are clearly not punitive and criminal in nature to anyone on the registry. The courts have consistently held that restrictions of individuals on the registry are regulatory, not criminal in nature. The criminal penalties are if they violate the regulations in terms of either failing to register or violating the regulatory restrictions of the registry.
"It's apples and oranges. They are committing a new offense when they are failing to comply with the regulations of the sex offender registry. ... You're dealing with criminal law in the Genarlow Wilson case and regulatory law in the ongoing Whitaker litigation."
In a brief submitted to the state Supreme Court before oral arguments in the Genarlow Wilson appeal, Senior Assistant State Attorney General Paula K. Smith obliquely referenced the apparent contradiction, but only in a footnote.
In her brief, Smith argued that the Georgia code holds that state laws "cannot ... ordinarily have a retrospective application" and that any increase in punishment "cannot be applied retroactively under the ex-post facto clause" -- a provision that has been upheld by state case law.
"It has long been the law in this state that, in general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission," Smith wrote in the Wilson brief. "Laws prescribe only for the future. It is the settled law of this state that where a crime is committed on a certain date, the penalty which attached to the crime on that date is the penalty exacted by our law."
But a decrease in punishment -- such as the habeas judge ordered in Wilson's case -- "is not constitutionally required to be applied retroactively," Smith noted. "Neither the United States nor the Georgia Constitution requires retroactive application of statutes that decrease punishment."
However, in a footnote in the Wilson brief, Smith sought to resolve the contradiction in arguments the state has submitted in the federal Whitaker case. "Registration under Georgia's sex offender law is not part of the sentence imposed," Smith argued. "It is part of a regulatory scheme that requires certain convicted sex offenders to register. The only 'punishment' involved arises if a person prospectively refused to register or prospectively chooses to reside or work in an area prohibited by law."
Bright disagrees. "The registry law is fundamentally unfair. ... You take people who have already completed their prison sentence, their probation and are no longer under the provision of the courts, then suddenly add really onerous provisions which may deprive them of their living or make it virtually impossible for them to find a place to live. ... That's beyond the pale."
"I don't think either the attorney general or the courts are so handcuffed by the law that they have to reach an unjust and harsh result in these cases," Bright said.
