The winning lawyer said he sees broad implications for a Georgia Supreme Court decision Monday striking down a law requiring lifelong electronic monitoring for certain convicted sex offenders who have served their sentences.
“It’s going to affect a lot of people,” said Mark Yurachek, who argued the appeal for Joseph Park. He said others similarly situated should contact their local sheriff. “I don’t think those offenders any longer can be subject to the monitoring requirement,” Yurachek added.
In a unanimous opinion written by Chief Justice Harold Melton, the high court ruled that Georgia Code § 42-1-14 (e) “authorizes a patently unreasonable search that runs afoul of the protections afforded by the Fourth Amendment to the United States Constitution.” Melton said the court found that requiring someone to wear an electronic monitor permanently “cannot stand under the Fourth Amendment, at least with respect to individuals who have completed their criminal sentences.”
The requirement amounts to a lifelong search imposed after a person has completed the sentence and probation imposed, Melton said. No small factor in the equation is the requirement that the offender pay for the lifelong monitoring.
“It really seems like the first cousin of executing someone and then sending the family the bill for the bullet,” Yurachek said. “I don’t think anybody should be paying for the government to search their home.”
Attorney General Chris Carr said in an email from a spokesman, “We have reviewed the Court’s opinion and respect its decision.”
Park was convicted in 2003 in Douglas County of child molestation and nine counts of sexual exploitation of a minor. He was sentenced to 12 years in prison, with eight to serve. Shortly before Park was released from prison in 2011, the Sex Offender Registration Review Board classified him as a “sexually dangerous predator.” Section (e) of § 42-1-14 says that any sex offender classified as a “sexually dangerous predator” must wear and pay for an electronic monitoring system linked to a GPS system “for the remainder of his or her natural life,” according to Melton.
Park sought re-evaluation of his classification but lost. The Supreme Court declined to hear his appeal on that matter.
But then, in February 2016, Park was arrested and indicted for tampering with his ankle monitor, an offense that carries a punishment of up to five years in prison. The case at hand is an interlocutory appeal from the tampering case before DeKalb County Superior Court Judge Gail Flake. Flake ruled the statue to be constitutional following a 2017 hearing.
“This ends that,” Yurachek said of the tampering case. He also said the charge is misleading because the problem with the monitor was that it kept falling off. “It was unintentional,” he said.
Yurachek agreed in part with the special concurrence Justice Keith Blackwell wrote. Blackwell said he agrees with the decision but wrote separately to emphasize that Melton’s opinion “does not foreclose other means by which the General Assembly might put the same policy into practice.”
“Our decision rests in significant part on the fact that subsection (e) requires some sexual offenders to submit to electronic monitoring even after they have completed the service of their sentences,” Blackwell said. “But nothing in our decision today precludes the General Assembly from authorizing life sentences for the worst sexual offenders, and nothing in our decision prevents the General Assembly from requiring a sentencing court in the worst cases to require GPS monitoring as a condition of permitting a sexual offender to serve part of a life sentence on probation.”
At least at the original sentencing, the defendant would have a right to an attorney, Yurachek said.
“I do agree that, if you’re going to make it part of the landscape, making it part of sentencing would be the way to go,” Yurachek said. “I know Georgia’s Legislature is always happy to ramp up the punishment for this particular class of offender, but I don’t agree that’s always deserved or worthy.”
The case is Park v. State, No. S18A1211.