BRADSHAW v. THE STATE
S08A1057
Supreme Court of Georgia
November 25, 2008
284 Ga. 675 | 671 SE2d 485
BENHAM, Justice
Cedric Lavell Bradshaw was found guilty in a bench trial of failing to register as a convicted sex offender in that he had failed to provide his valid current address within 72 hours of changing his address.
1. The State presented evidence that appellant had been serving a sentence in the county jail for statutory rape.4 Within 72 hours of his release, appellant registered as a sex offender with the Bulloch County Sheriff’s Department and listed his sister’s residence as his residential address. See
The evidence presented during the bench trial was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of failure to register as a sex offender. Jackson v. Virginia, 443 U.S. 307 (99 S. Ct. 2781, 61 L. Ed. 2d 560) (1979).
2. The issue before us is the constitutionality of the mandatory sentence of life imprisonment which the trial court was required to impose upon appellant after finding him guilty of the offense.5 The
In order to determine whether a sentence set by the legislature is grossly disproportionate, the court initially addresses “the gravity of the offense compared to the harshness of the penalty.” Ewing v. California, supra, 538 U.S. at 28; Humphrey v. Wilson, 282 Ga. 520, 525 (2007). If a threshold inference of gross disproportionality is raised, and it is “the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality” (Harmelin, supra, 501 U.S. at 1005), the court then determines whether the inference of gross disproportionality is confirmed by a comparison of the defendant‘s sentence to sentences imposed for other crimes within Georgia and for the same crime in other jurisdictions. Id. The U. S. Supreme Court has observed that there are “some common principles that give content to the uses and limits of proportionality review.” Harmelin, supra, 501 U.S. at 998 (Kennedy, J., concurring).
The first principle acknowledges that the fixing of penalties and prison sentences for specific crimes “involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not courts.” [Id.] The second principle recognizes that the
Crosby v. State, 824 A.2d 894, 905-906 (Del. 2003).
(a) Citing the recognition in Humphrey v. Wilson, supra, 282 Ga. at 527, that the most “recent legislative enactments constitute the most objective evidence of a society‘s evolving standards of decency and how a society views a particular punishment,” the State points out that the version of the statute at issue contains the latest legislative view, having been enacted in 2006. In Humphrey, this Court described the most recent legislative action, which modified the mandatory sentence imposed on the defendant after the defendant was sentenced, as a legislative determination that the sentence earlier imposed was grossly disproportionate to the crime committed by the defendant. Id. at 528-529. In contrast, in the case at bar, it is the legislature‘s most recent enactment that stands charged as imposing a sentence that is grossly disproportionate. The suggestion that in all cases the most recent legislative pronouncement on punishment is evidence of an evolving standard of decency that supports a determination that the punishment contained therein is not grossly disproportionate leads to the anomalous result that, as a matter of law, the most recent legislative pronouncement does not impose cruel and unusual punishment. While a statute is presumed constitutional unless it manifestly infringes upon a constitutional provision or violates the rights of the people,
[t]he mere fact that the Legislature has spoken on the issue of the [sentence to be imposed for a particular crime] does not preclude or in any manner limit this Court‘s evaluation of the [sentence] to determine whether it comports with the constitutional prohibition against cruel and unusual punishment.
Dawson v. State, 274 Ga. 327, 328 (2) (554 SE2d 137) (2001). We reiterate the observation we recently made in Terry v. Hamrick, 284 Ga. 24, 28 (663 SE2d 256) (2008), and decline “to engraft onto every statutory change enacted by the General Assembly an interpretation that the legislature is thus making a pronouncement of constitutional magnitude.”
(c) In examining the sentence imposed on appellant, we note that a sentence of life imprisonment is the third most severe penalty permitted by law, exceeded in severity only by capital punishment and life imprisonment without the possibility of parole. Life imprisonment is the most severe sentence that can be imposed for a crime that does not involve murder or recidivist punishment for a serious violent felony.7 See
nothing in the applicable statutes mandates that the guidelines control the final parole decision. . . . [T]he ultimate grant or denial of parole to a prisoner who is eligible under the guidelines remains a discretionary matter for the Board . . . in that the Board expressly reserved its discretion to deviate from the recommended parole date derived therefrom.
Id. Thus, appellant‘s “inability to enforce any ‘right’ to parole precludes us from treating his life sentence as if it were equivalent to a sentence of [seven] years.” Rummel v. Estelle, 445 U.S. 263, 280 (100 S. Ct. 1133, 63 L. Ed. 2d 382) (1980).8
Based on the foregoing factors, we conclude that the threshold inference of gross disproportionality is raised by the imposition of a mandatory sentence of life imprisonment for appellant‘s second failure to amend his sex offender registration by providing his valid current address to the sheriff‘s department. Consequently, we next determine whether the inference of gross disproportionality is confirmed by a comparison of the defendant‘s sentence to sentences imposed for other crimes within Georgia (intra-jurisdictional proportionality analysis) and for the same crime in other jurisdictions (inter-jurisdictional proportionality analysis). See Harmelin v. Michigan, supra, 501 U.S. at 1004-1005.
3. A guilty defendant in Georgia must be sentenced to life imprisonment only in a narrow set of circumstances. A mandatory life sentence is the minimum sentence that may be imposed for the crimes of murder (
4. Finally, we turn to the inter-jurisdictional proportionality analysis in which we compare appellant‘s sentence of life imprisonment to sentences imposed in other states for the same conduct. Harmelin v. Michigan, supra, 501 U.S. at 1005.
Every state has enacted a statute punishing the failure to register as a sex offender, but no state other than Georgia imposes a punishment of life imprisonment for a second infraction. Twenty-four states (including Georgia) have statutes that specify punishment for a second conviction for failing to register or maintain one‘s sex offender registration. Of the other 23 states, one authorizes maximum punishment of imprisonment for less than a year for the second offense (Tennessee: 180 days); one authorizes a maximum sentence of one year imprisonment (South Carolina); another authorizes a maximum sentence of less than two years (Ohio: 6-18 months); 11 states provide maximum punishment of up to five years’ imprisonment (New Mexico (3 years); Virginia and West Virginia (1-5 years); Minnesota (2-5 years); Missouri (up to 4 years); Maine (3-5 years); Iowa, Maryland, Massachusetts, South Dakota, Vermont
Based on this review, Georgia‘s mandatory punishment of life imprisonment is the clear outlier, providing the harshest penalty and providing no sentencing discretion. This gross disparity between Georgia‘s sentencing scheme and those of the other states reinforces
We conclude that 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.10 However, the unconstitutionality of the sentence does not require the trial court to dismiss the indictment charging appellant with failure to register as a sex offender. Consequently, the judgment of conviction is affirmed and the case is remanded to the trial court with direction to vacate the sentence of life imprisonment and resentence appellant.
Judgment affirmed, sentence vacated, and case remanded with direction. All the Justices concur, except Carley, J., who concurs in part and dissents in part.
SEARS, Chief Justice, concurring.
Life in prison is a severe punishment that should be reserved for society‘s most serious criminal offenders. Some people even believe that rotting in prison for life is more torturous and inhumane than a quick and instantaneous death. Be that as it may, 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.
CARLEY, Justice, concurring in part and dissenting in part.
I fully concur in Division 1 and in the affirmance of the judgment of conviction for failure to register as a sex offender. In Division 2, however, the majority rejects the clearest and most objective evidence under our Eighth Amendment precedent, simplistically minimizes the gravity of Bradshaw‘s crime by denominating it as a passive, nonviolent felony, erroneously maximizes the harshness of the penalty by treating his eligibility for parole as insignificant, and disregards the evolving consensus with respect to that crime both within and outside Georgia. Therefore, adherence to the doctrine of stare decisis, the rules of statutory construction, and the principle of separation of powers compels me to dissent to today‘s monumental abuse of this Court‘s authority to determine the constitutionality of legislation.
1. Based upon precedent of the Supreme Court of the United States, this Court has repeatedly “[r]ecogniz[ed] that recent legisla-
Under the majority‘s erroneous and wholly unsupported analysis, a societal consensus as expressed in the most recent legislative amendment is apparently relevant only in invalidating a penalty and not in upholding it. To the contrary, even if a societal consensus opposes a particular sentence at some time, that “does not mean that such consensus may not [again] change thus altering what comes within the meaning of cruel and unusual punishment.” Fleming v. Zant, supra at 690 (3). Therefore, the most recent statutory sentencing provision constitutes the clearest and most objective evidence of how society views a punishment which was nonexistent or less severe in the past.
In this case, the 2006 amendment to
2. In Division 2 (b), the majority, citing Solem v. Helm, 463 U.S. 277, 292-293, 296 (103 S. Ct. 3001, 77 L. Ed. 2d 637) (1983), discounts the
The General Assembly finds and declares that recidivist sexual offenders and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes: . . . [r]equiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public; [and] [p]roviding for community and public notification concerning the presence of sexual offenders . . . . The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender‘s presence.
could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature‘s findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is “frightening and high.” [Cits.]
Smith v. Doe, 538 U.S. 84, 103 (II) (B) (123 S. Ct. 1140, 155 L. Ed. 2d 164) (2003). Accordingly, the General Assembly clearly was authorized to conclude that a sexual offender‘s failure to register is an extremely serious crime which thwarts its statutory strategy for protecting the public from the high risk of repeated sexual offenses. As even the majority acknowledges, substantive penological judgments are ” ‘properly within the province of legislatures, not courts[,]’ ” and a state legislature is entitled to accord great weight to the penological goal of deterrence and to utilize a theory of mandatory sentencing. Harmelin v. Michigan, supra at 998-999 (I) (B), 1006 (II) (B).
3. In Division 2 (c), the majority quotes Rummel v. Estelle, 445 U.S. 263, 280 (II) (100 S. Ct. 1133, 63 L. Ed. 2d 382) (1980) for the proposition that Bradshaw‘s ” ‘inability to enforce any “right” to parole precludes us from treating his life sentence as if it were equivalent to a sentence of (seven) years.’ [Cit.]” (Maj. op. p. 680.) While that is true enough, immediately after this quoted language, the Supreme Court of the United States stated the following:
Nevertheless, because parole is “an established variation on imprisonment of convicted criminals,” [cit.], a proper assessment of [the] treatment of [the defendant] could hardly ignore the possibility that he will not actually be imprisoned for the rest of his life.
Rummel v. Estelle, supra at 280-281 (II). Although parole is a discretionary matter for the Board of Pardons and Paroles, “the General Assembly has required the Board to establish and use a parole guidelines system. [Cit.]” Daker v. Ray, 275 Ga. 205, 206 (2) (563 SE2d 429) (2002). “Thus it is possible to predict, at least to some extent, when parole might be granted.” Solem v. Helm, supra at 301 (IV) (B). Unlike pardon and commutation, which are given little weight in Solem, parole “is an important consideration in determining the actual prison time to be served under any sentence which is parole eligible.” State v. Griffin, 744 P.2d 10, 12 (II) (Ariz. 1987) (In Banc). See also Williams v. State, 539 A.2d 164, 172 (Del. 1988). Bradshaw‘s sentence must be regarded as far “less severe
Accordingly, in light of the gravity of Bradshaw‘s offense and his eligibility for parole in seven years, this surely is not “the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” Harmelin v. Michigan, supra at 1005 (II) (A). Therefore, the intra-jurisdictional and inter-jurisdictional proportionality analyses set forth in the majority opinion are completely unnecessary. Harmelin v. Michigan, supra.
4. Even assuming that an inference of gross disproportionality has been raised, the majority‘s comparison of Bradshaw‘s sentence with those imposed for other crimes in Georgia and for the same crime outside the state do not in any way confirm that inference. In Division 3 of its opinion, the majority errs, in a manner similar to Division 2 (b), by assuming that violent criminals in Georgia are necessarily more culpable than sex offenders who fail to register. As discussed above, however, the legislature was authorized to conclude that such failure to register increases the extremely high and grave risk of repeated sexual offenses against members of the public, which commonly involve violence or the threat of violence.
Moreover, the Supreme Court of the United States has observed that “the presence or absence of violence does not always affect the strength of society‘s interest in deterring a particular crime or in punishing a particular criminal.” Rummel v. Estelle, supra at 275 (II). Other crimes in this state, “of course, implicate other societal interests, making any such comparison inherently speculative.” Rummel v. Estelle, supra at 282 (II), fn. 27. Many offenses in Georgia can hardly be termed “violent,” “and yet each can be viewed as an assault on a unique set of societal values as defined by the political process.” Rummel v. Estelle, supra. Such offenses include, for example, a variety of crimes which relate to property or, similar to the crime here, impede the administration of justice in some way. Many of those nonviolent offenses have statutory punishments which are equal to or greater than some of the violent crimes listed by the majority. See
Accordingly, the majority‘s intra-jurisdictional proportionality review fails to confirm any inference of gross disproportionality.
5. In the inter-jurisdictional proportionality analysis in Division 4 of its opinion, the majority merely recites the penalties in other states without considering any of the recognized variables which complicate that analysis, including parole eligibility, as discussed above, and the role of prosecutorial discretion with respect to recidivist provisions. Rummel v. Estelle, supra at 280-281 (II).
Another factor undermining the majority‘s analysis is the nationwide trend of increasing the penalties for failure to register as a sex offender. In 2006, Congress increased the federal punishment for failure to register as a sex offender to a single maximum penalty of ten years’ imprisonment.
Furthermore, I have not located any instance of a decreased punishment, and many, if not most, states have at some point increased the sentences for failure to register as a sex offender. State v. Cook, 187 P.3d 1283, 1286 (Kan. 2008); In re Derrick B., 139 P.3d 485, 491 (II) (Cal. 2006); Peterson v. Shake, 120 S.W.3d 707, 708 (Ky. 2003); Gary L. Miller & Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 30 Ind. L. Rev. 1005, 1008 (I) (D) (1997); Jessica R. Ball, Public Disclosure of “America‘s Secret Shame:” Child Sex Offender Community Notification Law in Illinois, 27 Loy. U. Chi. L.J. 401, 425 (III) (A) (1996). Given the clear national trend,
[e]ven were we to assume that the statute employed against [Bradshaw] was the most stringent found in the 50 States, that severity hardly would render [his] punishment “grossly disproportionate” to his offenses or to the punish-
ment he would have received in the other States. . . . Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State.
Rummel v. Estelle, supra at 281-282 (II). Thus, the majority‘s inference of gross disproportionality is not reinforced by its inter-jurisdictional proportionality review.
In just one year, the majority has departed from the analytical framework of Humphrey v. Wilson, including its emphasis on utilizing the clearest and most objective evidence of how society views a particular punishment. In Humphrey, supra at 532 (3) (g), this Court joined the Supreme Court of the United States in “emphasiz[ing] that it is the ‘rare case[ ]’ in which the threshold inference of gross disproportionality will be met and a rarer case still in which that threshold inference stands after further scrutiny. [Cit.]” Indeed, outside the context of capital punishment and extreme cases such as punishment of overtime parking by life imprisonment, successful challenges to the proportionality of legislatively mandated terms of imprisonment should be “exceedingly rare.” Ewing v. California, 538 U.S. 11, 21-22 (II) (A) (123 S. Ct. 1179, 155 L. Ed. 2d 108) (2003). “[T]he issue of punishment is generally one for the legislative branch, and legislative discretion is deferred to unless the sentence imposed shocks the conscience. [Cit.]” Johnson v. State, supra. Because the case before us is not one of those exceedingly rare cases that shocks the conscience, I strongly dissent to that portion of the judgment which vacates the authorized sentence of Bradshaw and remands this case for re-sentencing.
DECIDED NOVEMBER 25, 2008.
Robert L. Persse, for appellant.
Richard A. Mallard, District Attorney, W. Scott Brannen, Assistant District Attorney, for appellee.