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03-22-2016, 08:08 AM
State High Court: Sex Predator Punishment Without a Hearing Is Unconstitutional
Katheryn Hayes Tucker (http://www.dailyreportonline.com/id=1202619839529/Katheryn-Hayes-Tucker), Daily Report March 22, 2016 | 0 Comments (http://www.dailyreportonline.com/id=1202752705279/State-High-Court-Sex-Predator-Punishment-Without-a-Hearing-Is-Unconstitutional?mcode=1202617074542&curindex=0&curpage=ALL#comments)
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http://www.dailyreportonline.com/image/EM/GA/Keith_R._Blackwell-Article-201603211142.jpg Justice Keith R. Blackwell. John Disney/Daily Report The Georgia Supreme Court has ruled that the state's highest level of restrictions on those identified as dangerous sexual predators—such as lifetime electronic monitoring and tracking—constitutes a deprivation of liberty guaranteed by the 14th Amendment and so cannot be done without an opportunity for a hearing.
A convicted sex offender won the right to a hearing challenging his life sentence of wearing an ankle monitor and other restrictions. In a 30-page unanimous opinion, Justice Keith Blackwell said the man's constitutional right to due process was violated by the denial of a hearing for him to present evidence challenging the restrictions placed on him with the highest level of threat assessment by the Sexual Offender Registration Review Board. Blackwell said due process could be satisfied by either a judicial or an administrative hearing. But in this case, both the board and the Fulton County Superior Court refused the request for a hearing.
The opinion raised concerns about the stigma and the practical effect of Georgia's treatment of those classified as the most likely to repeat sexual offenses against minors. The restrictions include bearing the cost of lifetime electronic monitoring and employment restrictions that prevent working within 1,000 feet of where minors congregate.
The winning lawyers in the appeal are J. Scott Key and Robert Rubin, who represented Scott Gregory.
"It's a significant precedent," Key said. "It's a very thorough opinion not only in explaining the reasoning that it's a due process violation, but just in explaining the way the whole process works."
Key had asked for and been denied a judicial hearing to argue against his client being included in the lifetime monitoring, highest threat category. "The irony is, you have these employment restrictions that severely hamper where you can work. At the same time you're told you have to pay for GPS tracking for the rest of your life. And you don't get a hearing."
On the losing side, the board was represented by Attorney General Samuel Olens, Deputy Attorney General Beth Burton, Senior Assistant Attorney General Joseph Drolet and Assistant Attorney General Hye Min Park. The attorney general's office declined to comment.
Gregory was arrested in 2009 for engaging in a sex act on a web camera that he thought was directed to an underage teenage girl but was actually going to a Forsyth County law enforcement officer working on an investigation.
Gregory pleaded guilty under the First Offender Act for violating the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007. He was sentenced to 10 years of probation with requirements that he undergo treatment and avoid alcohol and drugs as well as any future offenses. His first offender status was revoked in 2012 when he was arrested again for indecent exposure at a public swimming pool while intoxicated. He was sentenced to prison and probation for the first offense.
In 2013, the state Sexual Offender Registration Review Board designated Gregory as a "sexually dangerous predator," which denotes the highest threat and indicates the offender is "at risk of perpetrating any future dangerous sexual offense." A person designated as a sexually dangerous predator is subject to harsher requirements once out of prison. The additional requirements include bearing the cost of a lifetime of GPS monitoring and tracking as well as being unable to live, work or volunteer within 1,000 feet of any school, child care facility, church or other "area where minors congregate."
Blackwell noted that the board's decision to classify a Level III or highest risk "sexually dangerous predator" was based on subjective clinical determinations and actuarial predictions of likelihood of future crimes.
"We conclude that the liberty interests affected by classification as a sexually dangerous predator are substantial," Blackwell wrote. The stigma that follows such a classification—as well as the broad employment restriction imposed uniquely on sexually dangerous predators—may have a serious "adverse impact on an individual's ability to live in a community and obtain or maintain employment."
Blackwell's opinion said the danger of the board making an error in its risk assessment is "substantially more significant" in the absence of a hearing either before the board or the superior court.
The Blackwell opinion remanded the Gregory case to the Fulton County Superior Court for a hearing. For other cases, Blackwell said, the board may elect to establish procedures by which those classified as sexually dangerous predators "are afforded a meaningful opportunity in an administrative hearing to present favorable evidence and confront the evidence against them."
The opinion said the board could determine whether an administrative hearing would be more efficient and cost-effective than a judicial hearing, and that either one would fulfill the due process requirement of the 14th Amendment.
http://www.dailyreportonline.com/id=1202752705279/State-High-Court-Sex-Predator-Punishment-Without-a-Hearing-Is-Unconstitutional?mcode=1202617074542&curindex=0&curpage=ALL
Katheryn Hayes Tucker (http://www.dailyreportonline.com/id=1202619839529/Katheryn-Hayes-Tucker), Daily Report March 22, 2016 | 0 Comments (http://www.dailyreportonline.com/id=1202752705279/State-High-Court-Sex-Predator-Punishment-Without-a-Hearing-Is-Unconstitutional?mcode=1202617074542&curindex=0&curpage=ALL#comments)
share (http://www.dailyreportonline.com/id=1202752705279/State-High-Court-Sex-Predator-Punishment-Without-a-Hearing-Is-Unconstitutional?mcode=1202617074542&curindex=0&curpage=ALL#)
reprints (http://www.law.com/jsp/reprints/getaquote.jsp)
http://www.dailyreportonline.com/image/EM/GA/Keith_R._Blackwell-Article-201603211142.jpg Justice Keith R. Blackwell. John Disney/Daily Report The Georgia Supreme Court has ruled that the state's highest level of restrictions on those identified as dangerous sexual predators—such as lifetime electronic monitoring and tracking—constitutes a deprivation of liberty guaranteed by the 14th Amendment and so cannot be done without an opportunity for a hearing.
A convicted sex offender won the right to a hearing challenging his life sentence of wearing an ankle monitor and other restrictions. In a 30-page unanimous opinion, Justice Keith Blackwell said the man's constitutional right to due process was violated by the denial of a hearing for him to present evidence challenging the restrictions placed on him with the highest level of threat assessment by the Sexual Offender Registration Review Board. Blackwell said due process could be satisfied by either a judicial or an administrative hearing. But in this case, both the board and the Fulton County Superior Court refused the request for a hearing.
The opinion raised concerns about the stigma and the practical effect of Georgia's treatment of those classified as the most likely to repeat sexual offenses against minors. The restrictions include bearing the cost of lifetime electronic monitoring and employment restrictions that prevent working within 1,000 feet of where minors congregate.
The winning lawyers in the appeal are J. Scott Key and Robert Rubin, who represented Scott Gregory.
"It's a significant precedent," Key said. "It's a very thorough opinion not only in explaining the reasoning that it's a due process violation, but just in explaining the way the whole process works."
Key had asked for and been denied a judicial hearing to argue against his client being included in the lifetime monitoring, highest threat category. "The irony is, you have these employment restrictions that severely hamper where you can work. At the same time you're told you have to pay for GPS tracking for the rest of your life. And you don't get a hearing."
On the losing side, the board was represented by Attorney General Samuel Olens, Deputy Attorney General Beth Burton, Senior Assistant Attorney General Joseph Drolet and Assistant Attorney General Hye Min Park. The attorney general's office declined to comment.
Gregory was arrested in 2009 for engaging in a sex act on a web camera that he thought was directed to an underage teenage girl but was actually going to a Forsyth County law enforcement officer working on an investigation.
Gregory pleaded guilty under the First Offender Act for violating the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007. He was sentenced to 10 years of probation with requirements that he undergo treatment and avoid alcohol and drugs as well as any future offenses. His first offender status was revoked in 2012 when he was arrested again for indecent exposure at a public swimming pool while intoxicated. He was sentenced to prison and probation for the first offense.
In 2013, the state Sexual Offender Registration Review Board designated Gregory as a "sexually dangerous predator," which denotes the highest threat and indicates the offender is "at risk of perpetrating any future dangerous sexual offense." A person designated as a sexually dangerous predator is subject to harsher requirements once out of prison. The additional requirements include bearing the cost of a lifetime of GPS monitoring and tracking as well as being unable to live, work or volunteer within 1,000 feet of any school, child care facility, church or other "area where minors congregate."
Blackwell noted that the board's decision to classify a Level III or highest risk "sexually dangerous predator" was based on subjective clinical determinations and actuarial predictions of likelihood of future crimes.
"We conclude that the liberty interests affected by classification as a sexually dangerous predator are substantial," Blackwell wrote. The stigma that follows such a classification—as well as the broad employment restriction imposed uniquely on sexually dangerous predators—may have a serious "adverse impact on an individual's ability to live in a community and obtain or maintain employment."
Blackwell's opinion said the danger of the board making an error in its risk assessment is "substantially more significant" in the absence of a hearing either before the board or the superior court.
The Blackwell opinion remanded the Gregory case to the Fulton County Superior Court for a hearing. For other cases, Blackwell said, the board may elect to establish procedures by which those classified as sexually dangerous predators "are afforded a meaningful opportunity in an administrative hearing to present favorable evidence and confront the evidence against them."
The opinion said the board could determine whether an administrative hearing would be more efficient and cost-effective than a judicial hearing, and that either one would fulfill the due process requirement of the 14th Amendment.
http://www.dailyreportonline.com/id=1202752705279/State-High-Court-Sex-Predator-Punishment-Without-a-Hearing-Is-Unconstitutional?mcode=1202617074542&curindex=0&curpage=ALL