*1 General, Strausner, Attorney Rachelle L. Assistant Attor- Assistant General, ney appellant. pro se. Rollins,
Conley Eugene
S94A1854. STEPHENS'v. THE STATE. 560) Justice. Fletcher, Stephens challenges constitutionality Freddie of OCGA 16- § (d), provides imprisonment 13-30 for life on the second convic- possession tion of the sale or with intent to distribute a controlled provision substance. He applied contends that is irrational and racially discriminatory in violation of the United States and Constitutions. The trial court denied his constitutional challenge and Stephens sentenced to two life sentences based on his conviction on violating two counts of the Georgia Controlled Substances Act sell- ing cocaine. We hold that OCGA 16-13-30 does not violate the process equal protection due or clauses of the Federal or State Consti- tutions based on Stephens presents the statistical evidence that and affirm.
1. The challenged statute states:
(d) Except as provided, otherwise any person who vio- (b) lates subsection of this respect Code section with to a controlled substance Schedule or drug a narcotic Schedule II guilty felony and, shall be of a conviction thereof, punished by shall be imprisonment for not less than years five nor years. Upon more than 30 conviction of a sec- subsequent offense, ond or he imprisoned shall be for life. (b) OCGA 16-13-30. “manufacture, Subsection makes it unlawful to deliver, distribute, dispense, administer, sell, possess with intent to any distribute controlled substance.” For a defendant to receive a life conviction, sentence for a second notify the state must the defendant prior to trial that punishment intends to seek the enhanced based Mays past on convictions. See 91-92 481) (1992); OCGA 17-10-2.
Stephens applied contends that the statute as discriminates on the basis of race. He argues that this court should infer discrimina- tory intent from countywide statewide data on sentences drug County, offenders. Stephens where was convicted, the trial court percent found that 100 per- of the sons serving a life under sentence are African- American, although up African-Americans make percent less than 10 county population approximately 50 to 60 persons drug arrested in investigations. Relying provided on evidence Paroles, the State Board of Pardons and the trial court also found 98.4 serving life sentences for *2 1, drug May 1994, African-American, offenses as of were Af- although comprise only rican-Americans percent 27 population. state’s Finally, Department a 1994 Georgia study per- of Corrections on the eligible (d) sons for a life sentence under subsection shows that less (1 168) than one of the whites sentenced for two or more convictions drug sentence, sales are serving compared a life to 16.6 (202 1,219) of the blacks.
In an
challenge
earlier
penalty sentencing
death
in Georgia
based on
showing
persons
statistics
who murder whites are more
likely to be
blacks,
sentenced to death than
who murder
United States
Court held that
the defendant had the bur
proving
den of
purposeful
existence of
discrimination and its dis
criminatory effect
McCleskey Kemp,
279,
on him.
481 U. S.
292
(107
1756,
262) (1987);
Agan,
see State v.
SC
95
541,
LE2d
259 Ga.
(384
863) (1989),
548
denied,
(110
SE2d
1526,
cert.
SC
765) (1990);
State v. Causey, 246 Ga.
108
735,
(273
6)
LE2d
SE2d
(1980). “Thus,
prevail
Clause,
Equal
under the
Protection
de
[the
prove
must
his case acted with
decision-makers
fendant]
discriminatory purpose.” McCleskey,
Relying McCleskey, on mandatory this court has held that life sentence of OCGA applied. is constitutional as See State, Cain v. (422 535) Cain, (1992). Ga. 598 SE2d we re jected statistics, articles, showing likely and charts blacks are more imprisoned for drug offenses than are whites because the statistical prove evidence failed to an prosecu essential element to a selective — tion case prosecution “that engaged a deliberative selective process of enforcement based on race.” Similarly, Id. at 599. we held in two other cases that there was insufficient evidence of selective en against forcement blacks to meet the standard of intentional discrimi nation. See Hall v. 533) (1992) Causey), (relying on denied,_U. standard announced in cert. S. _ SC Hailey (1993); LE2d 917) (1993) (same applied standard to case from Hall S._ County), denied,_U. cert. 126 LE2d (1994).
Stephens concedes
prove any discriminatory
that he cannot
in
by
tent
Georgia
Assembly
enacting
General
the law or
County
attorney
district
in choosing
imprisonment
to seek life
attorney
case. His
sentencing hearing:
stated at the
“I cannot
prove
any
do not feel there is
evidence to show that the district
attorney’s
exercising
prosecutorial
office is
their
discretion
a dis
criminatory manner
. . .
I don’t think I can demonstrate the
[and]
legislature
discriminatory
enacting
acted with
intent
this code sect
preclude
finding
equal
ion.”1 These concessions
this court from
protection violation under the United States Constitution. See Mc
292; Cain,
Cleskey, 481 U.
atS.
2. We also conclude evidence presents support equal pro- is insufficient evidence to his claim of an Stephens tection violation under Constitution. fails to present concerning per- the critical evidence race the number of sons for life sentences under OCGA 16-13-30 in Hall County, attorney but whom the district has failed to seek the aggravated attorney sentence. Because the judicial district each cir- cuit exercises discretion in determining when to seek a sentence of life imprisonment, present a defendant addressing must some evidence whether the handling particular engaged case selective prosecution prove equal protection a state violation. theAs trial found, Stephens present any court pros- failed to evidence of selective in pursuing ecution an enhanced sentence.
Stephens’ argument inferring about intent from the statistical ev- *3 ignores idence also may that other factors explain besides race sentencing disparity. Absent analysis from the statistical is a consid- eration of charges relevant factors such as the brought, concurrent offenses, prior sentences, representation by offenses and retained or appointed counsel, convicted, existence of a guilty plea, circuit where and the legal probation, prison, defendant’s status on parole. or on adequate Without more information about what is happening both County, statewide and in Hall we defer deciding whether statistical evidence prove alone can ever be sufficient to allegation of discrim- inatory in sentencing intent under Constitution.2
3. The
argues
McCleskey Kemp
dissent
is not the control-
ling precedent,
relying
instead
on the
United States
Court
peremptory
decision on
challenges in jury selections in Batson v.
Kentucky,
69) (1986).
90 LE2d
We must
look McCleskey
proper
to
analysis
a
of the substantive
issue
us,
Batson,
before
rather than
because
dealt with the use
subsequent hearing, Stephens again
At a
admitted that he could not
prove
attorney’s
enforcing
discriminatory
that the district
office is
statute
a
certainly
applying
fashion. I know the Courts have no discretion
so
Courts
aren’t
discriminatory
the statute in a
fashion and I
do not believe can demonstrate that
legislature
enacting
discriminatory
the statute enacted it with
intent.
Gleason,
374, 376,
27) (1992);
See Grissom v.
n. 1
see also State v.
Russell,
(Minn. 1991) (relying
in requiring explain to the reasons for the statistical dis- parity capital Many decisions. problems of these same in requiring exist attorneys justify district their decisions seek- ing a life drug statewide, sentence for offenses based on and even countywide, statistics of serving prisons life sentences state drug offenses.
First, “[requiring prosecutor study analyzes rebut a past prosecutors conduct of scores of quite different from requiring contemporaneous rebut a challenge to his own acts. See Batson v. Kentucky, supra]” McCleskey, 481 U. S. at S.[, 476 U. Second, n. 17. statewide statistics are not reliable in determining policy particular of a attorney. district questionable
It is also
any
whether
policy
consistent
can be
studying
derived from
prosecutors.
the decisions of
The Dis-
Attorney
trict
is elected
particular
the voters in a
county.
Const.,
6, 8,
See Ga.
Art.
Par. 1. Since decisions whether to
prosecute and
charge
what to
necessarily are individualized
variations,
involve infinite factual
among
coordination
attorney
district
offices across a
relatively
State would be
Thus,
meaningless.
any inference from statewide statistics to
prosecutorial
“policy” is of doubtful
relevance.
295-296,
Id. at
Finally,
n. 15.3
the Court
policy
stated that the
consid-
prosecutor’s
erations behind a
argue against
discretion
requiring dis-
attorneys
trict
to defend their
penalty.
decisions to seek the death
Id.
296;
Mobley
see also
(1995)
4. Stephens
argues
also
the
process
statute violates due
equal protection by creating an
sentencing
irrational
Seeking
scheme.
repeated
deter
drug
by
sales
person
the same
is not
irrational.
3
County
accurately
Even the statistics from Hall
do not
reflect the record of the district
attorney in this case since she did not assume offlce until 1993.
Therefore,
previous decision that
there is a rational
we adhere to our
16-13-30
and that
basis for the
scheme
OCGA §
deprive persons
process
equal protection
of due
under
does not
(400
632) (1991);
State,
Tillman v.
Carley, fully I majority’s appellant’s concur affirmance of life sen- However, separately explicate why, my opin- tence. so as to write ion, Georgia provides independent Constitution this court with no authority hearing to order a remand for a wherein the imposition must defend the decision seek the that sentence against appellant. appellant’s
It is OCGA contention that is violative Constitution, I, equal protection clause Art. I, II, Sec. Par. because it him discriminates as an African- certainly may American criminal defendant. It is clear that this court interpret equal protection clause of our state as af- constitution rights fording greater equal pro- to our citizens than does the federal interpreted by Supreme tection clause as Court of the United Gleason, 374, (2), States. Grissom v. 262 Ga. fn. 1 SE2d (1992). However, dispute right there is no that the of this state’s citi- racially discriminatory zens to be free from the application of statutes clearly guaranteed by by our state constitution as well as the Con- Therefore, case, stitution of the United States. this we must decide appellant whether separate has shown that this state constitutional right imposition has been violated of a sentence under OCGA (d). assessing equal protection 16-13-30 When challenges, this court consistently has applied analysis established Court of the in making United States Grissom v. determination. Gleason, (2). Barge-Wagener at 375 Constr. Co. See also v. Morales, (2) (429 190, 671) (1993); 263 Ga. SE2d Ambles (2) (383 406, 555) (1989). analysis, Under that our focus appellant must be whether has shown that “the deci- sionmaker in discriminatory purpose. McCleskey his case acted with Kemp, 279, (1987).” 481 U. S. SC 95 LE2d (Emphasis (2) (422 in original.) Cain v. 535) (1992). Kentucky, defendant Batson v. 69) (1986)
90 LE2d prima showing made a facie that racial discrimi- may and, nation have jury been a factor selection in his case circumstances, under those Court of the United States *5 upon prosecutor held that it was incumbent to rebut that show- McCleskey, however, ing. Court of the United States specifically prima a case rejected proposition that facie of racial implementation sentencing discrimination in the of statute a could upon compiled other shown mere reliance statistics from cases and that, had no circumstances, prosecutor held under those burden to justify his decision. The refusal of Court of the United States require
to prosecutor provide explanation that the for his [McCleskey] completely decisions in is with consistent [that] longstanding precedents Court’s hold that a need explain not his decisions unless criminal defendant presents prima a of facie case unconstitutional conduct with Kentucky, his case. See, Batson respect e.g., supra to McCleskey v. Kemp, (Emphasis supplied.) 296, supra at fn. 18. right Accordingly, appellant while has an to unchallenged be sen- race, Gris- regard tenced for his crime his holding without to analysis som compels apply to determining us viability imposed pursu- of his claim him sentence (d) equal ant to OCGA 16-13-30 protection violates the clause of our § Grissom simply state constitution. We cannot ignore mandate and conclude that this court is authorized to extend the remedial Batson mandate presented to a has no absolutely defendant who any purposeful By evidence of racial discrimination his case. so do- we ing, equal protection analysis” would silentio sub revive “a new I, I, II specifi- Art. Sec. Par. Constitution which was Grissom, (2). Grissom cally rejected adhere to appellant’s concur the affirmance of sentence because he has not purposeful shown that was therein. racial discrimination a factor Justice, concurring specially. Thompson, 1. previous rejected On occasions this Court that OCGA claims (d) being discriminatorily 16-13-30 enforced African- Hailey Americans. See
(1993); Hall v. (1992). In so doing, we noted the statistical evidence of selective enforcement was meet test. insufficient the intentional discrimination the same
OCGA provides punishment, enhanced all sentence, subsequent life who are convicted of a second or sale Despite of certain pro- controlled substances. the fact that the statute sentence, sentence, mandatory vides for one life we are (d) is be- OCGA 16-13-30 the claim that presented again once with time, This we are introduced discriminatory fashion. in a ing used pause: From 1990 give must us information which statewide 1,107 eligi- put 202 out of was used period, the prison During life. that same African-Americans ble prison for life. eligible of 167 whites put used to out statute was receiving a one in six chance A African-American had eligible life receiving 1 in 167 chance of A life white had life sentence. *6 2,700 likely to was more An African-American life sentence. way, another a white was life than a white. Stated receive a sentence likely not to receive a life sentence under 2,700 percent more — a life statute, provided for one sentence same a statute which surprise to those as much a These statistics are no doubt sentence. who do judicial system as to those practice within the who work and not. inform, It can tell what explain. not
Statistical
information can
However, only
cynic
true
can look at these
happened,
why.
not
a
has
That some-
impressed
something
that
is amiss.
statistics and not be
(d) has been converted
in the fact that OCGA 16-13-30
thing lies
§
imposes a
mandatory
statute into a statute which
from a
life sentence
attorney,
in the
only in
cases in which a district
life sentence
those
discretion,
informs a defendant
that the State
exercise of his or her
v.
90,
Mays
91-92
punishment.
See
seeking enhanced
Hendrixson,
State
(1992);
854-855
526) (1984); OCGA 17-10-2.
§
McCleskey Kemp,
LE2d
2. The legislature expecta- enacted OCGA 16-13-30 with unrepentant drug imprisoned tion that sellers would life. But happening. Statewide, is not approximately (d). life offenders receive a sentence under OCGA 16-13-30 presented evidence this case serves as notice to Assembly mandatory General of Georgia life sentence provision of repealed has been de facto. With notice, legislature such there are at least three courses of action might pursue. now choose
(1) The Assembly mandatory General choose to the could leave life sentence on the books that it used in realizing being is a small percentage eligible Militating against cases. this course of ac- is passed by tion the fact all laws the legislature that should be fol- for Contempt any contempt lowed. and failure follow law breeds for and follow failure to other laws.
(2) Assembly The General could reaffirm its commitment to a mandatory by requiring attorneys life sentence district inform all prior defendants of convictions and thus enforce OCGA 16-13-30 § respect Militating against with all life offenders. mandatory course of action the is fact that life sentences are not fa- by prosecuting by vored the bar or That is the defense bar. evidenced 1,274 only fact that 1990 to life eligible from out of actually defendants received a life sentence under OCGA 16-13-30 § (d). Thus, nearly 85 convicted of second or those subse- quent sale something Clearly, received sentence of less than life. mandatory life for this are sentences offense not favored.
(3) Assembly change mandatory The choose to General could penalty options life sentence to one of several which the impose. penalty For example, court could for a second or subse- quent imprisonment sale not nor could be for less than five more than See, (b). thirty years, (b); e.g., or 16-6-1 16-8-41 life. OCGA §§ in- and up to a sentence option to enter then have judge would then life sentence would of a Any use or abuse cluding a life sentence. 17-10-6. correction, necessary. OCGA if See § and subject to review address ways to Assembly find other course, could General Of (d). my is concern It 16-13-30 posed OCGA problems § Assembly way the General in whatever problems be resolved these carry the courts thereafter, that, prosecutors best and deems legislative will. out that Justice, dissenting.
Benham, Presiding pursu- County serving life sentences Hall persons from Of those life sentence for the (d), mandates a 16-13-30 ant to OCGA § intent to distribute possession with for sale of second conviction African-American, al- narcotics, percent are hundred one certain ten only approximately comprise though African-Americans system, African- prison In our state County’s population. sentences persons serving life of the 375 represent 98.4% Americans (d). part of the These statistics were 16-13-30 violating OCGA numbing and of such in this case. the face trial court finding of the It inquiry. statistics, says there is no need for majority paralyzing respect- I I and from which take issue this determination is with fully dissent. (d): 16-13-30 to OCGA regard claims with
Appellant makes two (2) the statute (1) on its face and is unconstitutional The statute claim that OCGA applied. As to the unconstitutional as United Fifth, Eighth Amendments Sixth violates opinion that it does Constitution, majority I agree with States (d), applied, vio- not. But as to the claim that Constitution United States Amendment of the lates the Fourteenth Constitution, I, agree with I, II and Art. Sec. Par. appellant does. of whether a viola-
1. I slate on the issue do not write on a clean States Constitution Amendment to the United tion of the Fourteenth My very issue. dealt with this longA line of cases has has occurred. (25 LE Virginia, Strauder West analysis begins with a state stat- 664) (1880), Supreme Court struck down the U. S. where duty. In the qualified jury men were ute under which white *8 (85 824, Alabama, 202, 13 LE2d v. 230 SC Swain in 380 U. S. dissent 759) Strauder: (1965), Goldberg quoted from Justice particular exist prejudices often
It is well known that jurors, community, sway judgment the in classes enjoyment full classes the deny . . . of those to enjoy. protection which others of that
365 dissent, In Goldberg to sought apply principles Justice Strauder equal in protection stated in manner which foreshadowed (106 Kentucky, in Batson v. developments the later U. 476 S. 79 SC 1712, 69) (1986). 90 LE2d claim,
To Equal always assert successful Protection there has requirement been a at the or purposeful federal level that intentional Georgia, v. (87 be shown. Whitus discrimination 385 U. S. SC 545 (1967). Alabama, v. 643, 599) Swain LE2d supra, 17 Faced with a Equal claim peremptory of denial of Protection in the use of chal- lenges, the United States recognized Court the horrors of discrimination, imposed heavy but nevertheless burden on those discrimination, who requiring they prose- would claim “show the systematic peremptory challenges cutor’s use of against Negroes over (id. 227) period prevail of time” Equal order Protec- to on tion claim. impossible Swain frus-
This almost proof imposed burden of sought trated those who claim Fourteenth Amendment violation Hence, peremptory challenges. the area of the court revisited the Kentucky, supra. later in Batson v. 21 years issue some weighty The burden of Swain rejected as being Equal was inconsistent with Pro- developed subsequently. tection place, standards its Court system installed a that shifted burden give peremptory challenges race-neutral reasons for the the de- once fendant facts supporting prosecu- established an inference that tor’s of peremptory challenges racially Relying use was motivated. part Swain and on language housing employment on discrimi- cases,4 the court Batson nation that an inference stated of discrimi- natory intent could drawn from data. certain conduct Batson Beyond its peremptory effect on challenges, importance of significantly was that on claiming reduced the burden one discrimi- nation, circumstances, in- recognizing under certain the crucial discriminatory allegedly formation about an come decision could from the one made who the decision. reasoning analyzing
This the course of we need follow in Mc issue in this case rather than the more restrictive course taken Cleskey Kemp, v. (107 262) 1756, (1987), SC 95 LE2d McCles and applied majority. appellant cogently argued, As key variables, penalty procedure, many dealt with the death with its jury, including extremely placed broad discretion whereas 4 Arlington Heights Housing (97 555, Metropolitan Corp., v. Dev. E.g., 429 U. S. SC 252 597) (1976). (1977); Washington Davis, v. 50 229 LE2d LE2d 426 U. S. SC 48 Wheeler, People prompting federal courts also had in such state court decisions as Soares, (1978); Rptr. and Commonwealth Cal.3d 258 Cal. Mass. P2d 110) (1979). 499), denied, S. LE2d NE2d cert. 444 U. *9 purports to be what in case deals with this involved legislation the if fits within the conviction sentencing process: straightforward application in mandatory. it is the But statute, is a life sentence it, and, with play into comes that discretion sentencing scheme the receive a For a defendant discrimination. of invidious specter the notify the de conviction, State must the a second life sentence punishment the enhanced it intends to seek to trial that prior fendant Mays v. Ga. 91-92 See past convictions. based on attorneys employ That district (1992); 17-10-2. OCGA choose to in the State will which cases discretion to decide very broad by the beyond question demonstrated is apply OCGA § on Supreme Court Commission study for the the conducted data from 1,184 cases identified in the Courts: and Ethnic Bias Racial sentence, only imposed in less than it was for a life showing eligibility in cases, say imposed was not is to that it percent of the which percent of the cases. more than 85 taxing role unappreciative of the vital and
I not unmindful or am ongoing undertake the battle attorneys are called district state, Throughout drug trafficking. illicit blight responsibility advancing burden of they shoulder an enormous successfully, they must be invested so against drugs, and to do fight ongoing prose- making decisions about considerable discretion with discretion, However, concen- very is the breadth of that cutions. decision-maker, necessary makes it that single in a which trated one, confronted with facts exercising the discretion be the when one discriminatory application, to bear supporting an inference of racial the discretion was exercised without establishing burden of McCleskey Batson because all case is more like than influence. This scheme involved this case resides sentencing the discretion court, whereas attorney, to the exclusion of the trial the district McCleskey, spread of discretion penalty cases such as death court, jurors introduces vari- prosecutor, the trial and the among the addition, analysis. rigorous ables call for more many safeguards penalty procedure, with its complexity of the death specific findings every stage from the recurring necessity sentencing jury, differentiates it from the relative grand jury to the applicable to this case. The ex- simplicity scheme procedure pressed majority and of the that the concern of State wholly penalty cases is un- propose applicable in this case is to death McCleskey similarity is that only The between this case founded. processes by very is the different they sentencing. both involve It very distinguish these dif- determined which which the sentences are apply only remedy proposed herein My analysis ferent cases. and the (d). to OCGA 16-13-30 complicated not so
The this case is sentencing scheme involved penalty as that involved in exer- death cases. alone regard If attorney cises discretion with the district sentence. give prior aggrava- chooses to notice conviction will be used in sentencing, outcome, tion of can a conviction have one based on beyond just discretion that It review. was such insulation from the Batson prompted reject “crippling review which bur- court . proof prosecutor’s den of . . peremptory challenges rendered] [that . . . largely scrutiny.” immune from constitutional
Appellant correctly *10 pattern” ‘stark’ may accepted proof discriminatory as sole of distinguishing U. intent. 481 S. 293. In from such a case, 12 in Court mentioned in fn. “a cases which statis pattern discriminatory impact tical of demonstrated constitutional Id., Lightfoot, was Gomillion violation.” fn. 12. One U. 364 S. 339 110) (1960), SC 5 city’s LE2d were where boundaries al tered so as to 400 excluding exclude 395 of black voters without Hopkins, Wo v. single voter, Yick white and the other was 118 U. S. 220) (1886), 356 LE an requiring ordinance permits the operation applied of laundries was so as to exclude all applicants only applicant. of over Chinese and one white “ (McCleskey, presented pattern” statistics those cases ‘stark’ 293), pattern at 481 U. S. but than presented no more stark case, in this the present case. based on evidence from enforce law ment officers who testified as to arrest rates and other relevant statist ics,5 percent people the trial court found that 100 of from county serving were pursuant who life sentences (d) statewide, percent were African-Americans of all and 98.4 (d) persons serving pursuant life sentences to OCGA 16-13-30 were s.6 study by African-American From a commissioned System, Court Commission in the on Racial and Ethnic Bias Court Department conducted the Chief of the Georgia Research of of Corrections, and supple certified to this court the trial court as a record, mental appears prisoners that of 167 white identified as be 5 Agent percent drug investigations David Mcllwraith testified that 50 involved Investigator Shelly Manny sixty investigations drug black males. testified she County, only fifty only percent conducted in Hall nine involved blacks and that of her under buys investigator cover involved black males. Another narcotics testified that since he County only percent had made over 300 distribution cocaine cases Hall involved black males. (100%) people serving prison “One hundred life sentences in the state system County African-Americans, although under OCGA 16-13-30 are from population County approximately African-American Hall Georgia is 10%. At this time 369 of 375 African-Americans, serving life sentences under OCGA 16-13-30 are (sic 27%) although comprise only population.” 37% state African-Americans the total R. 122-123. (d) by pursuant ing eligible § 16-13-30 to OCGA for a life sentence drug offense,7 re one for a sales of a second conviction
virtue
By contrast,
1,017
African-Ameri
of a total
that sentence.
ceived
can
being
prisoners
criteria, 202
under the same
as
identified
findings
Expressed
percentages,
indi
those
life sentence.
received a
drug sales
of two or more
African-American convicted
cate that an
offenses
white
likely
than a
2,761
more
to receive a life sentence
drug
person
offenses.8The ma
or more
sales
convicted of two
presented by appellant
jority
insuf
to be
the statistical evidence
finds
express
goes
some
that statistical evidence
ficient and
on to
doubt
discriminatory
prove
allegation of
be sufficient to
alone can ever
intent.
533) (1992),
In Hall v.
The without reliance on this one causes this differences between the contexts of that case and responsibility development of court to fall short of its to further the positive opportunity in a the law. This case offers us an to contribute way to This could be a the advancement of federal constitutional law. opportunity case, estab- watershed lish a and this court should seize this to possible procedure similar to that outlined Batson to make it effectively challenge for a the use of life sentences defendant distribute, study possession The did not include those convicted of with intent to al (d), though provisions triggers that offense also of OCGA 16-13-30 because the simple Department distinguish database maintained possession, of Corrections does not between sentence, trigger mandatory possession which does not life with intent distribute. explained testimony by percentage This the author of is derived from a calculation study developed study showing using figures a 0.6 likelihood of life statute, eligible sentencing sentence for under the and a 16.57 a white defendant likelihood for an African-American defendant. racially discriminatory fashion. seeking discriminatory application sentencing
In show of this alleging scheme, the burden should remain on the defendant discrimi prove purposeful nation to the existence of discrimination. Bat See say son, However, at 93. as the S.U. Court went on to 93-94, in Batson at deciding per- if the defendant his of has carried burden inquiry
suasion, a court must undertake “a sensitive into may such circumstantial and available.” of direct evidence intent as [Cit.] evidence of Circumstantial invidious intent may proof disproportionate impact. [Cit.] include [A] ... may prima pur- defendant . .. make out a facie case poseful by showing totality discrimination that the the rel- gives discriminatory pur- evant facts rise to an inference of pose. requisite showing, [Cit.] Once the defendant makes the explain adequately the burden shifts to the State to the ra- present exclusivity]. [in case, [Cit.] cial exclusion State The general meet cannot on burden mere assertions they properly that its officials did not discriminate or that performed Rather, their [Cits.] official duties. the State must “permissible racially demonstrate neutral selection cri- procedures produced teria and sult.” have re- monochromatic [Cits.] by providing explanation Court continued Batson prima
of what a defendant must show to establish facie That case. explanation eminently adaptable procedure propose to the we adopt in this case: initially The defendant must show he is a member of group capable being singled racial out for differential [Cit.] evidence, treatment. fendant In combination with that a de- may prima by proving then amake facie case that in jurisdiction particular provision [the the used has been exclusively disproportionate popula- or in a manner percentages group]. tion [ex- the defendant’s Proof of disproportionate pur- clusive or use] raises an inference poseful bespeaks discrimination because the “result discrim- [Cit.] ination.” *12 proof appellant clearly
Batson, at 94. The offered in this case “ pattern,” application shows a speaks ‘stark’ of the statute which “be- being so, discrimination.” That I would hold that he enti- was tled the the Fourteenth Amendment to the U. S. Constitution to have prosecution explanation application make race-neutral for its 370 procedure. aggravated sentencing I the Fourteenth Amendment
2. Even if were not convinced
procedure
of the
requires the establishment
to the U. S. Constitution
herein,
propose
appropriate procedure
I
it as an
I
would
propose
right
against deprivation
state
the citizens of this
safeguard
Georgia
Consti-
guaranteed
law as it is
equal protection of the
tution.9
(2) (418
(1992),
Gleason,
we
In Grissom Georgia Constitu- equal protection clause noted that while equal protection being coextensive with the tion has been treated as Constitution, interpret equal may “this court of the U. S. clause rights Georgia greater Constitution to offer protection clause protection interpreted by clause as the United equal than the federal always fn. 1. not follow the Supreme Court.”10 Id. We need States way In we must lead the as state courts federal courts. some instances Living- Wheeler, Soares, supra. my In dissent in supra, and did (1994), I con- ston v. 402 SE2d said that our 264 Ga. protection for our citizens: stitution is not without . . . deciding under our constitution whether all should law, equal we must draw from the well- stand before Georgia is spring Georgia history, keeping mind that which, original unlike the subse- one of the thirteen colonies quently-formed strength states which drew from the central government, strength government furnished to the central so, rights. doing from our storehouse of But we did not cupboard completely leave our state constitutional bare and entirely protection bereft of for our own citizens. position,
Id. at 415. In I assert here that this is the keeping with that strength and our de- time for this Court to draw from our historical fairly before the termination that the citizens of this state be treated law, equal pro- Georgia’s guarantee constitutional declare requires applied evenly, tection entirely I from our own Although race-neutral fashion. would draw pro- authority put protective place, measures constitution 9 I, I, provides Paragraph Georgia II as follows: Article Section of the 1983 Constitution duty impar person property paramount government “Protection to is the and shall be complete. person equal protection tial and No shall be denied the laws.” Miller, 547) (1990) See, e.g., (finding State v. SE2d Amendment); Green v. provides protection Constitution broader than the First 360) (1990) (finding grants right against Ga. State Constitution a broader Zant, Fleming Constitution); than the U. self-incrimination S. 339) (1989) (holding guarantee against punishment cruel and unusual state constitutional standard). more extensive than federal constitutional *13 pose, I considering as did when this case from a federal constitutional standpoint, procedures that look to the S. we the U. Court Batson, in supra. established hold, therefore,
I would a purely as matter of state constitutional law, equal protection that of the in of law the context OCGA 16-13- § (d) requires prosecution required, that the when be a defendant prima has a showing made facie to of sufficient raise an inference une- qual application statute, ‘permissible to “demonstrate that ra- cially procedures produced neutral selection criteria and the have mo- Batson, nochromatic result.’ at 94. And I would hold [Cit.]” by further showing appellant present that made in the case was to sufficient shift the burden to State.
3. appellant showing Because has made a sufficient of discrimina- tory (d) application of OCGA 16-13-30 that the State should be re- quired give to race-neutral applica- reasons for the “monochromatic” tion County, of that statute in Hall this court should vacate the life sentences and remand this hearing. case the trial court for a At such hearing, prosecution should the trial court find that could provide not race-neutral for reasons the “monochromatic result” of application County, of OCGA in Hall for the offenses permissible, involved would still but be not with the aggravation punishment (d). of authorized On hand, the other should the trial court provided find the State has appropriate reasons, race-neutral the life sentences would reim- posed, whereupon appellant appeal. would be entitled to a new Batson, prosecution
Just as the it was reined must also be reined in here give and called an account of itself. The statis- tics potential offered this injustice, case show an enormous for those just tip statistics are like iceberg, of an with the bulk lying surface, below yet to be expose realized. And unless reveal we will, massive shipping justice, obstacle lies lanes of just state, like tear iceberg, gaping ship hole in the of as just gaping ripped hole was the Titanic. Unless we detect it and steer it, clear of it will rip legal ship hole in the bulwark of state great calamity cause ill and destruction. We can afford fail to keep proper asleep pat- lookout or to when fall wheel such a strikes, ent peremptory disaster awaits us: with where it took years from the detection of Swain Ala- iceberg injustice Batson, bama beginning to the many injustices its destruction will integrity process be done and the will legal be scuttled. I
Because am that appellant convinced has made a sufficient showing discriminatory application of OCGA 16-13-30 required give State should be race-neutral reasons for the “mo- application nochromatic” County, respect- of that statute fully dissent majority’s rejection appellant’s from the claim. joins this dissent. that Justice Sears
I am authorized to state 30, Decided March April 21, 1995. denied Reconsideration Killeen, Summer, Summer, A. Thomas J. Summer & Daniel appellant. Sartain, Gump, A. Assistant Attorney, Thomas
Lydia J. District General, Bowers, Attorney Susan V. Attorney, J. Michael District General, Smith, Paula K. Assis- Attorney Boleyn, Senior Assistant General, Attorney tant appellee. *14 Martin,
John R. amicus curiae.
S95A0585. MORTON v. CARNES.
(456 SE2d
Hunt, Chief Justice. prohibi- In of appeal from the denial of his motion for a writ tion, constitutionality concerning Albert Morton raises error failure to rule on his underlying his conviction and the trial court’s judgment. We affirm. motion arrest violating August Albert Morton was convicted of County zoning by storing Fulton ordinance automobiles the back home, Appeals for residential use. The Court of his which zoned rejected challenges Morton’s various constitutional to his conviction re-sentencing. but vacated his sentence and remanded the case for 336) (1992). Morton In the sec- App. case, appeal Appeals affirmed Morton’s re- ond sentence, of this the Court his relitigate and held that Morton could not the merits of Morton v. App. underlying conviction.
839) (1993). conclusively appeal claims in this have been de- Morton’s him, Accordingly, are moot.1 the trial court did termined prohibition. by denying not err Morton’s motion for a writ of Judgment All the Justices concur. affirmed. It is the record the trial court ruled on Morton’s motion arrest unclear from whether However, any judgment. ruling because in that motion on that motion would be moot conviction, underlying again challenges all of Morton raised various constitutional to his challenges against him. have been determined notes also the U. S. Court rec ognized proof itself which presents that statistical “