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November 26, 2008

Georgia high court finds mandatory life term for failure to register unconstitutionally excessive

The Atlanta Journal-Constitution has this article reporting on an important ruling yesterday in Georgia. The article is headlined "State Supreme Court: Sentence for sex offenders overruled; Life in prison breaks Eighth Amendment," and its provides an effective and detailed summary of the court's work:

The Georgia Supreme Court on Tuesday struck down another provision of the state’s tough sex-offender law, calling mandatory life sentences for offenders who fail to register a second time “grossly disproportionate” punishment.

In a 6-1 decision, written by Justice Robert Benham, the court said the life sentence imposed upon 26-year-old Cedric Bradshaw of Statesboro violates the Eighth Amendment’s guarantee against cruel and unusual punishment. “We conclude the imposition of a sentence of life imprisonment is so harsh in comparison to the crime for which it was imposed that it is unconstitutional,” Benham wrote....

On Tuesday, the court ordered Bradshaw, who tried repeatedly to find a place to live without breaking the law, to be re-sentenced. His lawyer, circuit public defender Robert Persse, applauded the ruling. “The state’s penalty provision was excessive and clearly disproportionate to the offense in question,” he said....

In his ruling, Benham noted that someone convicted of voluntary manslaughter or aggravated assault with the intent to murder, rob or rape can receive a sentence as lenient as one year.

Benham also compared Georgia’s mandatory life term with punishment called for in 23 other states.  Of the others, three states call for a maximum punishment of two years; 12 call for sentences of up to five years; six provide maximum terms of 10 years; two allow up to 20 years; and New Hampshire calls for a minimum seven-year sentence, Benham wrote. “Georgia’s mandatory punishment of life imprisonment is the clear outlier, providing the harshest penalty and providing no sentencing discretion,” Benham wrote.  “This gross disparity between Georgia’s sentencing scheme and those of the other states reinforces the inference that [Bradshaw’s] crime and sentence are grossly disproportionate.”

Chief Justice Leah Ward Sears, in a concurring opinion, said life sentences “should be reserved for society’s most serious criminal offenders … Bradshaw’s failure to register as a sex offender, when his underlying crime only landed him in jail for five years, is not the kind of crime a civilized society ought to require him to pay for with his life.”

Justice George Carley issued the lone dissent, calling the decision a “monumental abuse of this court’s authority to determine the constitutionality of legislation.” The Legislature’s amendment in 2006 calling for the mandatory life term “constitutes the clearest and most objective evidence of how society views a punishment,” he wrote.

The Supreme Court of Georgia's ruling in Bradshaw v. State is available at this link.  Writing at Sex Crimes, Corey Yung here asserts that "the majority is exactly right on this one."  I concur and I hope this ruling will embolden other courts to be more deliberative in discharging the constitutional duty to assess whether and when extreme terms of imprisonment are constitutionally excessive. 

November 26, 2008 at 10:16 AM | Permalink


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I wouldn't be surprised if SCOTUS reversed on cert... One thing I don't get about the dissent is this- Judge Carley finds significant that states that don't allow for a sentence of more than one year will be forced to raise their sentences or lose federal dollars. Aside from the absurdity of comparing one year and a day sentences to sentences of life with no discretionary parole for at least seven years, how can legislatures forced into a criminal justice practice sanctioned under SCOTUS's Dole precedent be considered reasoned judgement of the people relevant to the eighth amendment?

Posted by: Jacob Berlove | Nov 27, 2008 6:14:30 PM

I would be very surprised to see a reversal. As Justice Rehnquist was fond of saying, "We are not an error correction court." The Bradshaw majority's analysis was right on the money with the three step test emanating from Harmelin and Ewing. As a matter of fact, it was the best opinion I've read which employs Justice Kennedy's protocol in Harmelin. First, is there an inference of gross disproportionality? Second, if so, what does the same state punish for other crimes? and Third, what do other states punish for the same crime?

Bruce Cunningham

Posted by: | Nov 28, 2008 9:02:09 PM

Bradshaw was my case. From what I have heard, the State is not seeking review by SCOTUS. I am not sure why. We are having this case set for resentencing. If the resentence is excessive, we might be back in front of the Supreme Court of Georgia based on the same argument.

Posted by: Robert Persse | Jan 1, 2009 6:50:28 PM

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