This bill expands Georgia’s gang statutes, increases penalties related to the possession of a firearm by a convicted felon, and assists prosecutors by making elder, disabled adult, or child abuse; domestic violence; and crimes of bias easier to prosecute by providing for propensity evidence and enhancing recidivism sentences.
Gang Statute
Georgia’s gang statute, modeled on RICO, prohibits various types of conduct if the conduct is in the furtherance of a criminal street gang. This bill enhances the statute by expanding the venue requirements, requiring a superior court to set bond for those accused of gang charges, reviving an evidentiary tool that was held unconstitutional, and making a minor change regarding civil liability for gang related offenses.
Venue
Section Six of the bill expands venue in gang cases. In Georgia, venue is an element of criminal offenses, and accused persons have a right to be tried in the county where a crime allegedly took place. This bill expands venue for gang offenses to the following limits:
- If the accused is charged with committing a criminal act in furtherance of a criminal street gang, venue will be proper in any county in which one or more members or associates of the criminal street gang have conducted any offenses covered by the street gang act.
- If the accused is charged with acquiring property through criminal street gang activity, including money, venue will be proper in any county where an interest or control of any real or personal property is acquired or maintained.
- If the accused is charged with threatening others in the furtherance of a criminal street gang, venue will be proper in any county where the threat was communicated from, received in, where the threatened person resides, or in which the property of any person threatened is located.
Bond
Under Georgia law, and subject to delegation orders, magistrate courts can consider bond in any offense except offenses where life imprisonment or the death penalty may be imposed. This allows magistrate courts to hear nearly all bond matters without accused persons having to wait to be heard by a state or superior court judge. Section Seven of the bill would require violations of the street gang act to be heard by superior court judges only, which will functionally leave most defendant’s waiting weeks, if not months, to have bond considered.
Evidence
In State v. Jefferson, the Supreme Court of Georgia held a provision of the street gang act unconstitutional. This provision, contained in Code Section 16-15-9, would have allowed evidence of the commission, adjudication, or conviction of any enumerated offense within the gang act committed by a member or associate of the street gang to be admissible for the purpose of proving the existence of a criminal street gang, and such evidence will not be subject to certain hearsay restrictions. In Jefferson, the Supreme Court held that such evidence violates an accused Sixth Amendment right to confrontation.
Section Five of the bill would eliminate the hearsay exception, and require the state to comply with the hearsay rule to introduce relevant evidence regarding third party acts. This would likely require the State to introduce live testimony regarding gang related offenses of third parties, instead of just relying on the evidence of prior convictions to prove the existence of a criminal street gang.
Civil Liability
Under Georgia law, those convicted of criminal gang activity cannot deny the matters proved by the criminal proceeding in a related civil action. Section 4 of the bill would expand that restriction to those who have plead guilty or no contest to gang charges.
Possession of a Firearm by a Convicted Felon
Under Georgia law, any person who is a convicted felon or on first offender probation for a felony offense who possesses a firearm will be punished by imprisonment for one to ten years (or five to ten years for a second or subsequent offense, unless the prior offense was a forcible felony, in which case the punishment will imprisoned for five years. It is important to note that “imprisonment” in Georgia includes a probationary or suspended sentence, and not necessarily actual incarceration
Section 2 of this bill would require those whose prior convictions were an occurrence of family violence or a forcible felony to be sentenced to imprisonment of five to ten years on their first offense. Unlike prior drafts of this section in SB 359, it presently does not require this time to be actual incarceration and could be probated or suspended.
Elder Disabled Adult, or Child Abuse, Domestic Violence and Crimes of Bias
Propensity Evidence
Generally, evidence that the accused has committed an offense before (and therefore is likely to have committed the offense again), what is called “propensity evidence,” is inadmissible. Presently, propsensity evidence is only admissible for such purposes in sexual assault and child molestation offenses. Section Ten of this bill would allow propensity evidence for acts of domestic violence, child abuse, elder abuse, and disabled adult abuse. This section will also allow the state to introduce propensity evidence in any case where the state has alleged the accused intentionally selected any victim or group of victims or any property as the object of the offense because of such victim's or group of victims' actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability.
Mandatory Minimums
Under Georgia law, those convicted of a felony offense who are subsequently convicted of a felony must be sentenced to the longest period of time allowed by the statute (however this time can be probated or suspended). Section Eight of this bill would require those who have previously been convicted of a felony (or an offense which would be a felony if committed in Georgia) involving the abuse of a child, disabled adult, or elder and are convicted of a felony involving a child, disabled adult, or elder to be sentenced to the longest period of time allowable and removes the discretion to stay, defer, probate or suspend any period of the minimum sentence prescribed for that offense.
The bill does separate (1) disabled adults or elders from (2) child abuse, so that prior acts of child abuse would not be used under these new sections to new offenses of elder or disabled adult abuse, and vise versa.
Character Evidence
Under Georgia law, evidence of prior crimes, wrongs, or acts can be used against a person for certain purposes, including motive, opportunity, intent, preperation, plan, knowledge, identity, or absence of mistake or accident. This law requires the state when offering such evidence against an accused to provide reasonable notice in advance of trial (in most cases). Section Nine of this bill would require any party seeking to introduce such evidence against any person to comply with these notice requirements.
The ACLU of Georgia strongly opposes all aspects of this bill. Mandatory minimum sentences do nothing to protect Georgians, only limiting the discretion of our elected judges and reducing the legitimacy of the criminal legal system. The existing rules of evidence took nearly half a century to narrowly draw lines on what evidence is appropriate in criminal cases, and this bill seeks to introduce highly prejudicial evidence in many types of cases without any justification.