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Justice code changes

Additions and revisions to Georgia criminal code by HB349

Circumstances when the state can appeal motions in a criminal cases

Added to Section 5-7-1: “From an order, decision, or judgment excluding any other evidence to be used by thestate at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first, if: The changes won’t effect any defendant currently charged or convicted in the past.”

Mandatory minimum exceptions (cocaine, illegal drugs, marijuana, methamphetamine, ecstasy)

“In the court’s discretion, the judge may depart from the mandatory minimum sentence specified for a person who is convicted of a violation of this Code section as set forth in subparagraph (B) of this paragraph if the judge concludes that:

(i) The defendant was not a leader of the criminal conduct;

(ii) The defendant did not possess or use a weapon during the crime;

(iii) The criminal conduct did not result in a death or serious bodily injury to a person other than to a person who is a party to the crime;

(iv) The defendant has no prior felony conviction; and

(v) The interests of justice will not be served by the imposition of the prescribed mandatory minimum sentence.

Mandatory minimum exceptions (kidnaping victim under 14, rape, aggravated child molestation, aggravated sodomy, aggravated sexual battery)

In the court’s discretion, the judge may depart from the mandatory minimum sentence specified in this Code section for a person who is convicted of a serious violent felony when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum.

“Knowingly”

The word “knowingly” has been struck from the code. Previously, drug statutes described acts in which a person had “knowingly” sold, manufactured, delivered, or otherwise brought illegal narcotics in to the state.

Section 8.5.6 also adds that, “the defendant’s knowledge of such weight or quantity shall not be an essential element of the offense, and the state shall not have the burden of proving that a defendant knew the weight or quantity of the controlled substance or marijuana in order to be convicted of an offense.”

Georgia Council on Criminal Justice Reform

Section 11, chapter 19, establishes a permanent 15-member council to look at criminal justice issues and reforms.

“The Governor shall appoint all 15 members of the council which shall be composed of one member of the Senate, one member of the House of Representatives, one member who shall be either a Justice of the Supreme Court or a Judge of the Court of Appeals, one superior court judge, one juvenile court judge, one district attorney, one criminal defense attorney, one sheriff, the executive counsel to the Governor or his or her designee, the director of the Governor’s Office for Children and Families or his or her designee, and five other members as determined by the Governor.”

The council’s existence cannot be repealed until June 30, 2018.

From the Georgia General Assembly, final version, HB 349

When Gov. Nathan Deal signed a criminal reform justice bill Thursday, he described it as “part two” of sweeping criminal justice reform efforts in the state since 2011.

The reforms come in light of the examination of a costly prison system, with recommendation focusing on parts of the criminal code deemed costly, overbroad or misguided in justice’s pursuit with taxpayer dollars.

One part of the bill creates a set of circumstances in which judges can bypass standard mandatory minimum sentences.

A Governor’s Council on Criminal Justice reform made the recommendation in both its 2011 and 2012 reports, saying judges should be given more discretion in some cases, particularly nonviolent crimes.

To allow such discretion, the legislature would have to implement“mandatory minimum safety valves.”

Rep. Lee Hawkins, R-Gainesville, has long advocated for mandatory minimum reform.

“Going back to Zell Miller’s years as governor, strong intent for ‘three strikes you’re out,’ pretty strong language about penalties, and different aspects of the law, which everyone was in favor of strong penalties for offenders,” Hawkins said. “But along the way you find some flaws in the thinking process.”

Any law, Hawkins said, should be “open to review.”

“This will allow the judge to pledge consideration on the facts of the particular case, rather than apply the broad stroke of the law, which demands the maximum punishment,” Hawkins said.

The changes to code will apply to offenses committed on or after July 13, 2013.

The bill also creates a 15-member Georgia Council of Criminal Justice reform, to be appointed by the governor and conduct periodic reviews of issues and reforms in the system.

“Typically when you form groups to study legislation, once that group is through, and provides that info back to the legislature, or in this case governor’s office, so this creates continual commission to review conditions and problems related to criminal justice issues,” he said.

“I hope this in no way diminishes the ability of the district attorneys to perform their functions and charged duties,” Hawkins added.

In an email, Hall County District Attorney Lee Darragh said he was satisfied with the safeguards for district attorneys and victims.

“The legislature acted reasonably in giving the courts some more discretion in imposing less than the former minimum mandatory sentences on some drug offenses, but only under certain limited conditions if the prosecution and the defense do not agree that it would be appropriate to do so,” he said.

“Further, the prosecution has now been given the ability to directly appeal certain pretrial rulings of the trial courts without having to ask permission of the court, where those rulings affect the admissibility of certain material evidence, giving prosecutors an effective check on the courts if some rulings are contrary to prevailing law, again to the benefit of victims seeking justice.”

Superior Court Judge Jason Deal heads up Hall County’s drug court program.

“As I recall, on trafficking drugs, the change allows the court to have some discretion to deviate from the mandatory minimum, if they fit certain criteria — if they didn’t have a weapon, that sort of thing,” he said.

Other exemptions for consideration of a sentence lower than the mandatory minimum include no prior felony conviction, and no physical harm to others in the commission of the trafficking.

“The person who’s charged for trafficking sometimes is the mule, but not the actual drug kingpins,” Deal said, explaining why lengthy sentences sometimes feel misplaced.

There were some other changes made in the code. For instance, the word “knowingly” is now absent from Georgia drug statutes.

“Further, the word ‘knowingly’ has been removed from certain drug statutes, removing a perceived requirement that the prosecution would have to prove, essentially, that a defendant knew exactly what quantity of drugs he possessed, especially where the amount was near established weight thresholds for certain drug trafficking offenses,” Darragh said.

Jason Deal said Judge Bonnie Oliver had a case where there was an issue whether the state had to prove the defendant had “knowingly” possessed drugs.

“That case was resolved on a different issue, but the court made comments that this is something the legislature needs to address,” Deal said. “With the new change, the state doesn’t have to prove the person knew they were possessing.”

Judges can take upon themselves alone to consider a sentence below the minimum for drug trafficking convictions, but not others.

“With drug trafficking, the judge can do it on their own if they find those factors that warrant it. Sex offenses requires the defense attorneys and prosecution to agree,” Deal said.

Darragh expressed his approval to that power.

“The legislature kept in place the minimums on the top most serious crimes, known commonly as the ‘seven deadlies,’ unless the both sides agree to going below those limits,” he said. “Judges will still have no discretion to undercut those minimums unless the prosecution is on board with doing so, maintaining the prosecutions ability to effectively ensure the most severe sentences for the most heinous of crimes and offenders.”

In spite of that obstacle for defendants, Judge Deal said he anticipates the exemption will be taken advantage of.

“I think we’ll see it a lot. I think it’s good for judges to have discretion,” Deal said.

He cited the case of a 20-year-old man who had already admitted to acts defined as aggravated child molestation, involving other teens — aggravated child molestation carries a mandatory minimum sentence of 25 years.

Rather than pursue an aggravated child molestation conviction, he pled to child molestation. But those sorts of situations, Judge Deal said, are an ethical quandary.

“There should be truth in pleading; the person should plead to what they actually did. But the mandatory minimum might not be an appropriate sentence,” Deal said. “The thing with the sexual offenses, it’s not perfect, but it’s better than it was because it does allow for some discretion. It’s a good change.”

Citing the same type of charge, Darragh seemed to agree with that idea.

“In certain cases, DAs will be able to keep the original charge (like aggravated child molestation, for example), without having to reduce the charge where a less severe sentence may be appropriate, but will still have the ability to enforce the minimums mandatory sentences, on these most serious ‘seven deadly’ crimes,” he said. “So, all in all, these changes can be considered a plus for justice, for victims and for prosecutions.”

“I think this is a very forward-thinking approach and one that is obviously needed, and an improvement on the system,” Hawkins said. “It’s important for our system to delineate between the truly criminal, and those that are party, but not completely explicit in these crimes.”

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