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March 16, 2010

Georgia Supreme Court upholds sex offender registration for non-sex convictions

Rednack Thanks to How Appealing, I see that the Supreme Court of Georgia, in Rainer v. Georgia, No. S09A1900 (Ga. Mar. 15, 2010) (available here), yesterday upheld a provision of the state's sex offender registry law that requires the registration of certain persons not convicted of sex crimes.  This Atlanta Journal-Constitution article explains:

The law, said to be one of the toughest in the nation, allows the state to keep a tight leash on child molesters, rapists and other sexual predators after they have served their prison time. But it also requires anyone convicted of kidnapping or false imprisonment of a minor to register as a sex offender regardless if a sexual act was committed.

The challenge was brought by Jake Rainer, who committed a drug robbery in Gwinnett County in May 2000. Rainer and his co-defendants picked up a 17-year-old girl who was going to sell them some marijuana. Instead of making a deal, they drove her to a cul-de-sac, took the pot and abandoned her.

Rainer pleaded guilty to robbery and false imprisonment.  Because of the latter conviction, he now has had to register as a sex offender.  This means he cannot live or work within 1,000 feet of places where children congregate, such as parks, schools and swimming pools.

Writing for a 5-2 majority, Justice Harold Melton rejected arguments that the provision, as applied to Rainer, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, "are regulatory, not punitive, in nature." "Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is 'sexual' in nature before being required to register," Melton wrote....

Writing in dissent, Chief Justice Carol Hunstein said that although registration as a sex offender may not be considered punishment, "it is no mere administrative formality or minor inconvenience." Hunstein added that an offender who commits a sex crime while kidnapping or falsely imprisoning a victim "would clearly be covered" by other provisions of the registry law.

Department of Corrections records show there are dozens of offenders like Rainer who must register as a sex offender even though they committed no sex crime.

Legislation making its way through the state House may give such offenders a way to be released from the law's tough residency and employment restrictions. House Bill 571, which has the support of key lawmakers, allows offenders to petition Superior Court judges to remove them from the registry.

I am thinking that maybe Jeff Foxworthy ought to consider doing some public service announcements in Georgia that are a variation of his famous "You might be a redneck..." routine.  Specifically, I think Foxworthy might help get the word out with lines like:

March 16, 2010 at 10:53 AM | Permalink


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Unfortunately I believe the GA court is correct here. So long as the restrictions are held to be merely administrative it doesn't matter who they get applied to. I find the assertion that the restrictions aren't punishment to be laughable, but it's what we've got and I think the GA court should be applauded for applying an odious law fairly. The real ire should be directed at SCOTUS. Especially for not stepping up and saying while the original registry may not be punitive all the other restrictions are.

Posted by: Soronel Haetir | Mar 16, 2010 11:44:31 AM

Just because the law is introduced as non-punitive does not mean that the restrictions caused by the law are not punishment. Anyone who can't get a job or find a decent place to live would disagree with this being non-punitive in nature, especially those that were effected after their crime had already been paid for. This is a total crock and patting the GA supreme court on the back for not recognizing unfair treatment and punitive measures, making it impossible to lead a normal life once released from prison, is as reprehensible as the ruling itself. I won't congratulate Georgia for not recognizing this blatant unfairness of doling out the punishment for a sex crime, when no sex act was committed. Are we in this country THAT STUPID that we would rather throw away the key on someone who drops off a drug dealer WHO IS OF THE LEGAL AGE OF CONSENT and never even had sex with her? Is there not a commendable situation here where doing the right thing might be dropping a drug dealer off on the road somewhere???? Who gives a damn if she is 17 or 18, she was committing an illegal act and acting as an adult.

For example, If I knew some 17 year old girl was planning on committing a school shooting, and I took her out in the country and dropped her off in the middle of nowhere so she would cool off instead of committing her crime, would it then be fair to make me a sex offender simply because I did not take her where she wanted to go? If I had, would not another crime had been committed?And even if it hadn't, without sexual contact, how can you claim a crime of sexual CONTENT? I'm telling you now, every sex offender in America will end up going under ground because of increasingly punitive laws making it impossible for them to lead normal lives after release from their sentence. Remedial is another word for "we can't find any other reason to keep doing this to you, but we are afraid so we will twist the laws to ease our fears." Total BS.

The guy would have been better off to park a bullet in her brain pan.. in GA he might have been considered a hero for shooting a drug dealer.. and then there would have been no witness against him and he could have been out in 8yrs and on no registry. It's a stupid world we live in when Murder is more acceptable than telling someone who is underage to get out of the car cause we aint giving you money for weed. And I bet the girl received no punishment whatsoever for her dealing, either.

Posted by: tbucket | Mar 16, 2010 12:29:03 PM


there are almost ONE MILLION people on the registry. if even 10% decide their life is over and the state is NEVER GOING TO LEAVE THEM ALONE.....why NOT GO OUT WITH A BANG! the US will be dreaming of the good ole days when all they had was the talaban to worry about.

and just WHO would blame them! The govt has basically stated they HAVE NO RIGHTS! and that we can do WHATEVER WE WANT TO THEM. WHENEVER WHEN WANT!

Posted by: rodsmith | Mar 16, 2010 1:01:53 PM

“Anyone who can't get a job or find a decent place to live would disagree with this being non-punitive in nature, especially those that were affected after their crime had already been paid for.”

“unfair treatment and punitive measures, making it impossible to lead a normal life once released from prison”

How do the two statements above by tbucket reflect anything different from the “collateral consequences” faced by anyone else convicted of a crime in this country, especially those convicted of a felony? “We the people” are very good at paying lip service to the concept of “paid his/her full debt to society when in reality we never, regardless of the cost, allow them a real chance to redeem themselves. We, it seems, would rather pay for welfare, increased cost of prisons, etc. due to recidivism than give an ex-offender, even a first time non-violent offender a second chance. That is why legislation like H.R. 1529, the “Second Chance for Ex-Offenders Act of 2009” is being allowed, like it’s five pervious versions, to die in committee.

Posted by: T Kinney | Mar 16, 2010 1:06:20 PM

You might be a "sex offender" if you have ever run a marathon! Sadly, I am not joking, as runners, male and female, tend to relieve themselves along the way. Greta even did it without stopping.

If I didn't trust the source, I would never believe that a judge would write, ..."it is of no consequence whether or not one has committed an offense that is 'sexual' in nature before being required to register," Huh?

Your subtle point about custody/visitation disputes is well made. Yet another way to abuse both children and adults in the family court context.

Posted by: Stanley Feldman | Mar 16, 2010 1:23:39 PM

The RAINER v. STATE opinion is brief. It is also possible that some parents would think selling drugs or alcohol to minors is as damaging and dangerous as some sex offenses, which may suggest some equal protection argument.

Posted by: George | Mar 16, 2010 1:27:58 PM

How about a routine where "you might be an elitist if..."

You think the erosion of the constitution as applied to poor people is funny.
You think the tortured logic of applying onerous sex offender laws to people whose crimes had nothing to do with sex is humorous.

I'm undoubtedly being too harsh on you as I appreciate anyone who looks for humor, and know you're likely not trying to make fun of the defendants.

Still, I'm guessing that you've never defended a real client and something about a "distinguished professor" who's never had that experience laughing at these laws didn't sit well with me and I may have mistaken your intent. Maybe its just leftover frustration I have with law school rearing its ugly head.

But last week a client threatened suicide when I told him his pardon was rejected for a sex crime. While the trial judge specifically found him to be a "non-violent sex offender" with low risk to reoffend, the law in his state now requires this label to be stamped on his driver's license.

Thus, I'm likely taking out my frustration about such a system on you, and I'm sorry for that.
But these illogical laws, while helpful to politicians who'd like us not to focus on their inability to govern effectively by distracting us with fear, just don't seem funny to me. And when I hear about states not restricting their application but instead expanding it, it makes me throw up a little bit.

Posted by: David | Mar 16, 2010 1:52:36 PM

I did not read the Foxworthyisms as directed at the defendants. David, I understand your frustration, but not your displaced aggression toward DB..

Posted by: Stanley Feldman | Mar 16, 2010 2:05:07 PM

This is insane. The point of having non-elected judges, is to allow for common sense to prevail over general stupidity. However, it seems that the Justices themselves lack the intelligence to realize that the moment you restrict the privilege of others as a result of a crime, that restriction becomes punitive. If people cannot freely decide where to go, where to live, and who to hang out, then they are being denied rights as a punishment for "their actions."

The registry itself might not be punitive, because it allows police to be alerted of the presence of potentially dangerous individuals, but the supreme court should create protections for those convicted of sex crimes. For example, the state should allow a person convicted of a sex crime the opportunity to demonstrate he/she is not a danger to the community and thus should not be required to register as a sex offender. If the government recognizes the need for the registry, it should also provide guarantees to prevent injustices.

Posted by: EJ | Mar 16, 2010 3:19:13 PM

Just so you know, David, I share your frustration with the status quo and I did not mean to make light of the ugly reality now facing Jake Rainer and others in Georgia and elsewhere who are forced to wear our modern scarlet letter. Indeed, my goal was to highlight how extreme and broad the ruling here was (though the chief blame, of course, goes to the GA legislature).

Also, notwithstanding the unfortunate label "professor," I do get the chance to represent a number of real clients (even though probably many in the legal academy do not think such work is a great use of my time).

Posted by: Doug B. | Mar 16, 2010 3:35:20 PM

I enjoy your blog and apologize for the tone of my comment. Glad to hear you teach and appear in court as I'm sure both complement each other. A boss once told me "don't assume, you make as "ass" out of "u" and "me." I keep having to relearn that lesson I guess. Anyway, I'm pro humor as it helps us keep our sanity and should have appreciated the levity rather than criticizing the author. I let my frustration with the system influence my choice of words and am sorry. Again, I appreciate the blog, use it to keep updated and didn't mean to bite the hand that feeds. Take care.

Posted by: David | Mar 16, 2010 5:16:11 PM

Point taken about misplaced anger. See above. You know those letters you write that you should put on the shelf rather than in the mail? See above. Cheers!

Posted by: David | Mar 16, 2010 5:35:53 PM

Yeah George, but in this case the minor was selling the drugs, not the other way around. So the danger and damage was done to this lass long before she tried to sell weed to this guy. I blame the parents, who are precisely the ones who taught her to behave in this way, or at least did not reprimand her for it. Probably the same people who were screaming for Ranier's conviction and listing as a sex offender, when in the ned it was their example or lack of that caused the situation to begin with.

Posted by: tbucket | Mar 16, 2010 6:58:47 PM

Prof. Berman: My compliments on your taking real cases and on teaching classes. The cases markedly enhance your teaching ability and credibility with the students. Your teaching and research could make you a fearsome innovator in court.

You profess frustration with the utter failure and incompetence of the current system.

Gut check, sincerity check.

If it were not frivolous, would you attack judges personally, such as by enjoining them, demanding all out e-discovery on their computers, filing a long series of ethics complaints, requesting federal investigations of every little gotcha to be found in their records? I believe these are part of the duty of every defense lawyer to provide zealous advocacy. Yet none will ever go after a judge, the biased, out of control, little Caesar, mortal enemy of the client.

Make it as unbearable to be them as they make it unbearable to be everyone else, especially productive males.

Posted by: Supremacy Claus | Mar 16, 2010 8:59:50 PM

Unfortunately, the only way the terrified soccer moms will wake up to the travesty that is the registration system is by expanding the registration regimes in order to get to them and theirs. As long as it only affects the amorphous "other" or "those people," there will be no justice. To that end, I endorse any and all registries: give me DWI offenders, hot-check writers, copper thieves, crack-sellers, cocaine possessors, prescription drug abusers, wife-beaters, speeders, mail frauders and the like. Bring the shameful, pandering, ineffective, useless and unconstitutional system down under the weight of its own ponderous growth.

Posted by: Mark # 1 | Mar 16, 2010 9:29:19 PM

I would like to see a registry of lawyers. No product or service provider would serve anyone on the black list. The lawyer is trying to plunder and destroy all productive entities and people. They should return the favor with an all out boycott of all lawyers.

Posted by: Supremacy Claus | Mar 16, 2010 10:31:36 PM

SC--Every state has a registry of lawyers on its supreme court website. And since lawyers are a particularly arrogant bunch who announce that they are attorneys to everyone who will listen, notification of neighbors is unnecessary.

Posted by: Res ipsa | Mar 17, 2010 8:37:39 AM

What makes me aghast is that many strangers with whom I get into conversation ask if I am a lawyer. Then recently, I was standing in a line of real losers waiting to plead with the prosecutor in traffic court. He came out, and tried to take me in ahead of the rest, asking if I was a defense attorney. This time, I had not said a word.

I said, no, I am an owner of the law, but a defendant, and would wait my turn. I may end up being ejected from the Walmart if I try to buy a shirt. "No Lawyers." I then offered him a plea deal, where I would not do what I planned to do to him if the matter was dropped. He has to feel something before he really grasps the deal.

We might implant an RFID chip into all lawyers. At the cash register, an alarm is set off, and service is refused. A siren goes off, "Lawyer at Cashier 12." Security is summoned to throw the person out.

Posted by: Supremacy Claus | Mar 17, 2010 1:52:53 PM


Posted by: Rhonda | Apr 7, 2010 7:09:34 PM

Try getting a job while listed on the registry.....

Posted by: Sunny | May 31, 2010 6:36:18 PM

I'm a former prosecutor and now defense attorney (and general civil litigation), been licensed in Georgia for 7 years.
Georgia's sex offender "registration" law is far more than just registration. It's really like an additional term of probation. You have significant restrictions on where you can live, work, play, and who you can associate with. You have a diminished expectation of privacy. Every Halloween cops come around and threaten to arrest sex offenders who do not "voluntarily" check themselves in the local jail for their own protection. Like probationers, registered sex offenders are forced to meet with law enforcement periodically at the local Sheriff's office and get an updated mug shot. Like probationers, there is a fee for this "service." And like probationers, the penalty for even a minor violation can be huge, not based on what you did now (the violation) but really as additional punishment for what you did in the past that got you on the registry in the first place.

Posted by: Kurt Martin | Sep 17, 2010 5:42:32 PM

I would say that this is the most stupid things that i ever heard but its only one of them. A sex crime is a awful thing to be accused of if you didnt do the crime. All these laws are doing is ruining peoples lives. If you are a rapist or baby molester thats one thing but just because you got involved with a girl the law says is to young is as stupid as the people making the laws.Im no professor or lawyer or nothing fancy like that but I am the mother of a young man that has been put through the ringer for almost five years because he got involved with a girl four years one month younger than him. And that makes me an expert. Believe me she was more willing than him but he is doing the time. He is now on house arrest for two years for failing to get an id right after he got out of a two and a half year prison stay. He did not have the money and was trying to find work but they got to him first.He did everything else perfect and they still got him. Im sick of it. My sons life has been all ruined ever since her. She now has a baby to another man and still sleeps around. I pray for his sake he is legal. We can give these girls condoms in school and teach sex to them and thats ok.They act and dress like thirty year olds and go after the older boys because they have money and a car.We drum it in these girls heads that they are more mature than the boys but yet we will arrest a boy who is on her level and tell him hes to old and mature for her.They need to crap or get off the pot. Well thanks to the state of Florida and her my son no longer has a car or any money because he has a problem finding work. They punish these boys for this by ruining their lives.Something does not seem fair.Well Im ready to make some noise and I would love to hear from some other mothers thats sick and tired to and want their boys life back.Oh yea and if these girls are such little girls why do we have so many teen mothers and let them get abortions without parents concent? The law needs to realise that these girls dont play with baby dolls any more they play with the boys. God Bless

Posted by: linda | Apr 5, 2011 9:21:36 PM

I have a question. can you be made to register if when sentenced the court does not inform you that you will have to. and the court did not make you sign any documents saying you have to register. the special conditions of probation make no mention of it. i ask because the georgia department of corrections is saying i have to. need a response please. need help.

Posted by: Sam | Apr 8, 2013 8:22:27 AM

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