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June 29, 2008

Doesn't Kennedy suggest life in prison for failing to register is unconstitutional?

This new Atlanta Journal-Constitution article highlights an appeal of an extreme state sentence that is another reflection of the modern sex offender panic.  The piece is entitled "Fairness of law to be judged -- Mandatory sentences: Georgia's Supreme Court will consider proportion."  Here are excerpts:

The judge had only one option when he sentenced Cedric Bradshaw: life in prison.  Bradshaw had not committed murder, rape or armed robbery.  His offense was failing to properly register as a convicted sex offender for a second time — even though he had repeatedly tried to follow the law....

On Monday, the state's highest court will consider whether the law is unconstitutional on grounds it is cruel and unusual punishment.

No other state calls for a life sentence for failing to register as a sex offender the second time, and even rape and armed robbery convictions in Georgia do not carry mandatory life terms, said Bradshaw's lawyer, Robert L. Persse, the circuit public defender in Statesboro. "The punishment for a second violation is grossly disproportionate to the offense," Persse said.  "That is particularly true when this is essentially a paperwork offense not accompanied by aggravating circumstances like violence, sexual deviance or being out in a schoolyard hunting for children."

The Bulloch DA's office is urging the state Supreme Court to uphold the life term. "The courts look at the Legislature's intent in determining the best evidence for the appropriateness of the sentence," Assistant District Attorney W. Scott Brannen said. "When they increase it [to a life term], that too is evidence of the intent and the will of the people."...

Brannen, the prosecutor, said the law is on the books and "it's not my place or the court's place to decide what we like and don't like and what we want to enforce or not enforce."  Bradshaw, Brannen said, broke the law by failing to give a valid address within the 72-hour reporting deadline.  "There are no exceptions in the law," he said.

I am not sure what I find more remarkable: the fact that Georgia punishes this regulatory offense with a mandatory life term, or the fact that in the wake of the Supreme Court's Kennedy ruling the defendant here could have sexually molested and beaten a dozen children without facing a harsher sentence.

As regular readers know, I have long been troubled that the U.S. Supreme Court's eagerness to hyper-regulate the reach of the death penalty through the Eighth Amendment has not extended to regulating extreme prison terms for relatively minor crimes.  The Georgia high court has previously shown the courage and wisdom to do something about a seemingly crazy prison sentence, and this would seem to be another case calling out for some remedy.

Further, as my post heading suggests, I think the recent Kennedy ruling from the Supreme Court provides some significant support for Bradshaw's constitutional challenge.  If life in prison is the harshest permissible sentence for the worst child rape, can the proportionality principle in the Eighth Amendment permit a regulatory offense to be subject to the same punishment?

June 29, 2008 at 11:18 PM | Permalink

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» This is Bad: from The Volokh Conspiracy
If you're a registered sex offender, failing twice to properly register your home address is really dumb. But if you're a state legislator, punishing that with a mandatory life sentence -- as Georgia has done -- is even dumber. The [Read More]

Tracked on Jul 1, 2008 12:58:54 AM

» The Death Penalty and Sex Offender Registries from Sex Crimes
Scott Henson at Grits for Breakfast offers a provocative post connecting a recent exoneration in a death penalty case with sex offender registries:Sen. Shapiro sounds a little defensive, and perhaps she should. She's correct that Blair's exoneration in... [Read More]

Tracked on Jul 2, 2008 8:33:51 PM

Comments

Another from California....

Justices set narrow limit on '3-strikes' reversals
Court of Appeal can act if a trial judge's denial of leniency is altogether 'irrational or arbitrary.'
By Claire Cooper -- Bee Legal Affairs Writer

Published 2:15 am PDT Friday, July 9, 2004

SAN FRANCISCO - The California Supreme Court on Thursday extended the power to skirt the state's "three-strikes" law to appellate judges, but only in the most exceptional cases.

Trial judges have long had the power to disregard "strikes" when justice demands a shorter sentence than 25 years to life.

The new decision clarified that a trial judge's denial of leniency may be reversed by the Court of Appeal if it's "so irrational or arbitrary that no reasonable person could agree with it."

Appellate courts had split over whether such power existed and what the standards for exercising it should be.

The decision was a loss for the state attorney general's office, whose lawyers had argued that only a trial judge's leniency, not a denial of leniency, should be appealable.

But it also was a loss for Shasta County sex offender Keith Carmony, the defendant whose case provided the ruling's framework.

His third strike was failing to register as a sex offender within five days of his birthday. He had registered five weeks before his birthday and again a week later, after moving.

Posted by: | Jun 30, 2008 2:54:25 PM

Another from California....

Justices set narrow limit on '3-strikes' reversals
Court of Appeal can act if a trial judge's denial of leniency is altogether 'irrational or arbitrary.'
By Claire Cooper -- Bee Legal Affairs Writer

Published 2:15 am PDT Friday, July 9, 2004

SAN FRANCISCO - The California Supreme Court on Thursday extended the power to skirt the state's "three-strikes" law to appellate judges, but only in the most exceptional cases.

Trial judges have long had the power to disregard "strikes" when justice demands a shorter sentence than 25 years to life.

The new decision clarified that a trial judge's denial of leniency may be reversed by the Court of Appeal if it's "so irrational or arbitrary that no reasonable person could agree with it."

Appellate courts had split over whether such power existed and what the standards for exercising it should be.

The decision was a loss for the state attorney general's office, whose lawyers had argued that only a trial judge's leniency, not a denial of leniency, should be appealable.

But it also was a loss for Shasta County sex offender Keith Carmony, the defendant whose case provided the ruling's framework.

His third strike was failing to register as a sex offender within five days of his birthday. He had registered five weeks before his birthday and again a week later, after moving.

Posted by: | Jun 30, 2008 2:57:05 PM

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