By Mike Klein
Georgia would establish an ongoing criminal justice reform council to oversee adult and juvenile justice issues in the state as part of proposed sentencing and corrections legislation being considered by policymakers this session.
In addition, adult criminal court judges would be allowed to depart from minimum mandatory sentences in a significantly small number of drug trafficking cases under legislation now before a House committee. Many of the provisions in HB 349, now before a House committee, were developed by the Special Council on Criminal Justice Reform. The Special Council’s juvenile justice recommendations are contained in HB 242.
This week will be important for both pieces of legislation. Tuesday afternoon, the House Judiciary committee members voted to pass HB 242 as expected. HB 349 had its first hearing Friday afternoon, and a second hearing is anticipated on Thursday.
The extension of the Council process that began two years ago provides a strong indication criminal that reforming Georgia’s criminal justice system and effectively implementing the new policies will remain a priority for at least ten years. The Special Council on Criminal Justice Reform was authorized by the 2011 General Assembly to focus on adults. Governor Nathan Deal used an executive order to keep the Council intact to focus on juveniles.
Under HB 349, a new Georgia Council on Criminal Justice Reform would be created for ten years through June 2023. As currently drafted, legislation stipulates the Governor would name five-of-15 members, including the chairman. Terms would be four years with possible reappointment. The judiciary, state agencies, sheriffs, prosecutors and public defenders would have representation.
The Council would conduct biennial adult and juvenile system reviews. It would have authority to retain outside consultants. The Council would be attached to the Governor’s Office for Children and Families for staff and funding.
This is the second consecutive year that the Special Council recommended that Superior Court judges should be allowed discretion from mandatory minimum sentences in a small number of drug trafficking cases. “Our drug statutes are very rarely capturing the kingpins who we were intending to capture. You’re generally capturing the mules,” Special Council co-chair and Court of Appeals Judge Michael Boggs told a House committee Friday afternoon.
Last year state prisons admitted 2,672 inmates who were convicted of drug trafficking. Fewer than 5 percent – 129 inmates – would have qualified for possible reduced sentences. Georgia law stipulates five-to-25-year minimum sentences based on the weight and type of drug. If enacted, changes would allow judges to reduce sentences and fines by up to 50 percent.
Defendants would be eligible for reduced sentences if they met all five requirements: A) No prior felony conviction; B) was not a ringleader of the conduct; C) did not use a weapon; D) the criminal conduct did not result in death or serious bodily injury to any victim; and, E) the judge determines justice would not be well served by imposing the minimum mandatory sentence.
“The bill does not abolish mandatory minimums for drug trafficking,” Boggs said. “All it does is set a lower minimum threshold that the judge could consider under appropriate circumstances. The judge is not required to deviate, only that the judge may.” (Click here to watch testimony.)
The bill also proposes more judicial discretion to minimum mandatory sentences for serious violent offenders, sexual offenders and repeat offenders. Criminal court judges could impose less than a minimum mandatory sentence upon agreement of the court, the prosecution and the defense. The legislation outlines several requirements that must be met for consideration.
HB 349 would change state law that requires prosecutors must prove a defendant “knowingly” trafficked drugs of a specific type and weight. If enacted as written, HB 349 says prosecutors would not be required to prove a drug trafficking defendant knew the weight of illegal drugs. Trafficking laws would become consistent with simple possession laws that passed last year.
Not everything in HB 349 originated with the Special Council. Prosecutors are pushing a change that would allow direct appeal to the Court of Appeals of Georgia or the state Supreme Court if a lower court excludes prosecutorial evidence submitted during pre-trial. An appeal above the trial court level could be triggered if prosecutors certify to the trial court that the excluded evidence is “substantial proof” in the case against the defendant.
Defense attorneys fear a virtually automatic evidentiary appeal to a higher court would delay trials. “The party who is going to suffer most would be an indigent person who cannot afford to make a bond,” McDonough attorney Scott Key said Friday, “because as that case is delayed that person may languish in the county jail, behind the wire and in the hard bed at the expense of the county taxpayers.” Key said long-term delays in molestation cases would potentially “worsen the trauma of the victim who has a pending case.” (Click here to view testimony.)
HB 349 would expand judicial protections to children who witnessed sexual contact or physical abuse against another child. Last year the state Supreme Court reversed a ruling from several years ago that said children who are witnesses are not afforded equal protections. HB 349 would take the 2012 Supreme Court opinion and enact it as law. (Click here to view testimony.)
“I am here today to thank the Georgia Public Policy Foundation for your role in building a fiscally conservative, pro-growth state. Not only did you help pave the way for a new generation of leadership, you continue to provide key policy advice and to hold us accountable to the principles we ran on. In short, you have had a transforming influence on this state. We are healthier, stronger, and better managed because of your efforts.