The failure to update information on the sexual offender registry, itself involving "neither violence nor threat of violence to any person[,]" is a "passive felony" Solem v.
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The facts of appellant's case accentuate the passivity of his failure to register his current address inasmuch as his failure was preceded by his registration of two addresses of relatives that were rejected by the sheriff's department as being in violation of the distance requirements of the sex offender registry law, and by appellant's voluntary appearance at the jail within 24 hours of an investigator having informed appellant's sister the occupant of his first rejected registered address that he needed to get in touch with appellant.
Thus, despite appellant's failure to register his current address, he was readily accessible to police upon their visit to the address where he initially planned to live upon his release from jail. 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.
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The State maintains we should treat appellant's sentence of life imprisonment as one for a term of seven years since appellant would be eligible for consideration for release on parole after having served seven years of his life sentence. We disagree. In Georgia, it is the Board of Pardons and Paroles that is constitutionally vested with the power to grant parole, and the power to make parole decisions is discretionary. Daker v. Ray, Ga. 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, U. A guilty defendant in Georgia must be sentenced to life imprisonment only in a narrow set of circumstances.
A sentence of life imprisonment is mandated for lesser crimes when the defendant is sentenced as a recidivist after having committed a serious violent felony see fn. All of these crimes are violent, more disruptive of society, and require manifestly more culpability of a defendant than the failure of a registered sex offender to make authorities aware of a recent change in address.
Likewise, more violent crimes than the failure to register result in lesser punishment than life imprisonment. The intra-jurisdictional proportionality analysis confirms the inference of disproportionality. 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. 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 25 states that provide a single penalty regardless of the number of previous convictions for failure to register, the maximum punishment is less than a year in Alaska and Wisconsin; the maximum penalty is between one and five years in 15 states Arizona months ; Delaware up to 2 years ; California up to 3 years ; Colorado years ; North Dakota 90 days-5 years ; Connecticut and Kansas years ; New Jersey years ; and Florida, Hawaii, Mississippi, Montana, Oklahoma, Ohio, Washington up to 5 years.
Seven states provide for a maximum punishment of between five and ten years' imprisonment Alabama 1 yr. Utah authorizes a minimum sentence of 90 days. 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 the inference that the appellant's crime and sentence are grossly disproportionate. 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.
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. 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. 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. Based upon precedent of the Supreme Court of the United States, this Court has repeatedly "[r]ecogniz[ed] that recent legislative enactments constitute the most objective evidence of a society's evolving standards of decency and of how a society views a particular punishment.
Wilson, Ga. See also Johnson v. Zant, Ga. In Division 2 a , however, the majority rejects the applicability of this principle because, "in the case at bar, it is the legislature's most recent enactment that stands charged as imposing a sentence that is grossly disproportionate. In support of its analysis, the majority cites two cases, one of which is entirely inapplicable and the other of which actually contradicts the majority opinion. Terry v. That case actually held that applying Humphrey in the different context of determining whether banishment was constitutionally unreasonable would lead to anomalous results.
Dawson v. 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. Zant, supra at 3 , S. 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 Division 2 b , the majority, citing Solem v.source
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The majority also selectively quotes from the General Assembly's findings in , omitting those findings which show that the suggestion that the felony here was merely "nonviolent and victimless. To the contrary, [Bradshaw's] crime threatened to cause grave harm to society.
Michigan, supra. The legislative findings which are relevant to this case read as follows:. Smith v. Doe, U. 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. In Division 2 c , the majority quotes Rummel v.
Estelle, U. Rummel v. Estelle, supra at II , S. 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. Helm, supra at IV B , S. 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.
Griffin, Ariz. See also Williams v. Bradshaw's sentence must be regarded as far "less severe than the one invalidated in Solem, in which the petitioner had been sentenced to life imprisonment without the possibility of parole. Lewis, F.
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Estelle, supra, where the petitioner was eligible for parole in 12 years. Compare Taylor v. Lewis, supra. 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.
Michigan, supra at II A , S. Therefore, the intra-jurisdictional and inter-jurisdictional proportionality analyses set forth in the majority opinion are completely unnecessary. 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.
Other crimes in this state, "of course, implicate other societal interests, making any such comparison inherently speculative.
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Estelle, supra at II , n. 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. Estelle, supra.
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