GA Senator attempts to fix sex offender law: “I would expect the courts will make us pay dearly for this pious bit of posturing"

8th April, 2009
Fulton County Daily Report
R. Robin McDonald

Though a bill to fix the most egregious problems with Georgia's sex offender law stalled, a federal judge sides with SCHR: Georgia cannot categorically ban people on the sex offender registry from working or volunteering at a church.

When a federal judge last week halted enforcement of Georgia's law banning sex offenders from volunteering at churches, one state lawmaker could easily have said, "I told you so."

Sen. Seth Harp, R-Midland, said U.S. District Judge Clarence Cooper "has shown eminent wisdom" in concluding that registered sex offenders had suffered irreparable injury because the law's lack of clarity has forced them to stop participating in a wide range of church-related activities.

"The sex offender law that we enacted [in 2006] was too far-reaching," said Harp, who is vice chairman of the Senate Judiciary Committee, a former county prosecutor and a former member of the U.S. Judge Advocate General Corps. "The bottom line is that it was bound to come to the courts and fail."

While praising Cooper, however, Harp chastised state House Republicans, and Majority Leader Jerry Keen, R-St. Simons, in particular, for killing a Senate bill intended to correct broad constitutional problems with the current sex offender statutes-including the provision that Cooper enjoined.

Harp said Keen-who, beginning in 2006, authored amendments that have made Georgia's sex offender statutes arguably the toughest in the nation-"is not a lawyer and refused to listen to lawyers." When the Senate sent the bill containing proposed constitutional fixes to the House in early March, House members ignored it, then substituted their own version which gutted the Senate measure, Harp said. The House version of the bill also failed to pass. "Those of us who really and truly are trying to protect children of the state are frankly horrified at what we got back from them," he said. "It was almost like 'Alice in Wonderland.'"

Keen did not return calls for comment or requests on Friday and Monday placed through his aide, Sally Fox. "As you well know, we had a lot going on here with the last few days of the session last week," Fox said in an e-mail sent Monday to the Daily Report. "Unfortunately, Rep. Keen is unavailable today as he is dealing with personal matters."

Last month, shortly before Cooper handed down his order, Keen told The Brunswick News in his district, "We've got a lot of people who are well-intentioned, but the changes they've recommended weaken the [sex offender] bill. I think there's a general misunderstanding of the law as it currently is. Some people are talking about fixes where we don't have a problem."
Since 2006, more than a dozen separate legal issues have been raised in seven state and federal cases in Georgia challenging the law's constitutionality.

With the enactment of tough, new amendments to the sex offender statutes on July 1, 2006, the majority of people already on the state sex offender registry whose residences and work had complied with state law suddenly found they were no longer in compliance and must move or risk as long as 30 years in prison, according to an expert for the Southern Center for Human Rights who testified in Cooper's case.

Amendments passed in 2006, 2007 and 2008 bar sex offenders from living or working within 1,000 feet of schools, churches, parks, gyms, swimming pools, day care centers or school bus stops and from performing volunteer services at churches.

Three times, the Supreme Court of Georgia has determined that portions of the law are unconstitutional and cannot be enforced. In 2007, Georgia's high court ruled that sections of the law requiring sex offenders to move even though they owned the property where they were living in order to comply with new restrictions was unconstitutional.

Last October, the Supreme Court found unconstitutional another provision of the law that required homeless offenders to register where they lived but failed to tell them how, lacking an address, they could comply.

In November, the high court struck down as unconstitutionally cruel and unusual punishment a third provision mandating a life prison sentence for sex offenders convicted twice of failing to register with authorities within 72 hours of changing their addresses.

Cooper's March 30 injunction was based on his determination that the church volunteer ban also would fail a constitutionality test. "Many class members were ordered to stop participating in religious activities by parole officers, sheriffs' deputies and other law enforcement personnel, while others were deterred from participating in such activities by the statute's apparent breadth and penalty of 10-30 years in prison," Cooper noted in his order.

Religious activities in which sex offenders participated that have been labeled a violation of state law include singing in the adult choir, playing piano, reading in a church service, cleaning the church kitchen, serving on church committees, preparing food for the homeless, audio recording services, attending adult Bible study, setting up for church events and speaking to the congregation during services, according to the order.

In his order, Cooper also concluded that allowing people on the state's sex offender registry "to continue to participate in their faith communities will further public safety by providing support, stability and a grounded sense of right and wrong" and that both the pardons and paroles board and the corrections department "recognize that encouraging people to be involved with faith-based programs will reduce recidivism" making an injunction "in the public interest."

The case, Whitaker v. Perdue, was filed June 20, 2006, on behalf of more than 11,000 people on the state's sex offender registry who would have been forced by the 2006 amendments to surrender their homes and jobs in order to comply with the new statutes. Lead plaintiff Wendy Whitaker has been on the sex offender registry since she was convicted, at age 17, of engaging in consensual oral sex with a 15-year-old schoolmate.

In his order, Cooper also reaffirmed an earlier decision to allow the suit to proceed as a class action. His March order established several sub-classes to challenge the church volunteer provision; any provision that would apply to individuals convicted prior to July 1, 2006 (before the harsher residency and employment restrictions on sex offenders were enacted); and a provision barring sex offenders from living within 1,000 feet of a school bus stop.

Harp said that even before Cooper issued his order, he and a number of Senate colleagues had realized that, as the number of cases challenging the sex offender statute on constitutional grounds grew, "We had a very severe problem with the constitutionality of the law. A significant portion was being challenged and probably would fail."

Harp said that at the beginning of the 2009 legislative session, he went to Lt. Gov. Casey Cagle and volunteered to "take this beast and try to correct it and try to have a law that is enforceable and will protect families and children in Georgia." With Cagle's assent, Harp said he called a series of meetings that included representatives of the state's sheriffs, county prosecutors and the criminal defense bar, as well as the offices of the governor, lieutenant governor and state attorney general. Keen and his staff were also invited to participate, Harp said, but "They did not. ... We had everybody at the table except Mr. Keen and his staff."
Harp said that on March 3 the Senate passed the resulting bill, Senate Bill 157, "which we thought would pass constitutional muster" and save the state "a tremendous amount of money" that would otherwise be spent unsuccessfully defending the troubled laws in court.
But Harp said that when the Senate bill was sent to the House in early March, "They sat on it." As the 2009 legislative session began to wind down, Harp said the House Judiciary Committee substituted its own version, which gutted the Senate bill.

"The only issue they addressed was something that already had been declared unconstitutional," Harp said. "They ignored the advice of the attorney general, the governor's staff, myself, the district attorneys and the sheriffs. ... I would expect the courts will make us pay dearly for this pious bit of posturing."

"I think you need to ask him [Keen] if he thinks there is a Constitution of the United States and a Bill of Rights," Harp added. "His comes out of the King James version of the Bible, maybe Leviticus."

Asked why the House substituted a truncated version of the Senate bill and stripped out many provisions that sought to remedy issues under constitutional challenge and why no House members or their staffs participated in meetings hosted by Harp, House Judiciary Committee Chairman Rep. Richard M. Golick, R-Smyrna, replied with an e-mailed statement that said, in part: "[A]s I committed to Sen. Harp publicly during consideration of SB 157, the House was (and still is) committed to addressing the entire remaining balance of issues during the balance of the year in order to be assured that we have a strong, common sense and comprehensive reform bill for the General Assembly to consider next session. There was a concern that a hurried work product on this important subject matter would increase the likelihood of long-term unintended consequences. ...

"The House wanted this issue to move forward, and we assumed that others did as well.
"That said, the House is committed to a very focused study in the interim and for action early in the 2010 Session in partnership with interested members of the State Senate."

Golick did not reply to a follow-up request to clarify some of his written comments.
Russ Willard, a spokesman for Georgia Attorney General Thurbert E. Baker whose office is defending the existing law, said this week that Baker's staff "has been open and willing to meet with anyone in the legislature on this issue" and has met with representatives of the governor's office, the state House and Senate, state district attorneys and sheriffs. "Our office has not opined on either side of whether the statute is constitutional or not," Willard said. "It is our duty to defend validly enacted statutes. And that we are doing."

With regard to the federal injunction, Willard said, "We continue to talk to our clients about the ramifications of the court's order, but we're not making public at this time what our thoughts on the matter may be or what actions we may take subsequently."

Gerald R. Weber Jr., an attorney with the Southern Center who is representing the sex offender plaintiffs in the case before Cooper, said that Harp's bill proposed changes in the current law that would have addressed issues raised in pending lawsuits, including the federal class action, that challenge the state sex offender law. "We have testified in support of the bill," Weber said. "It fixes a multitude of problems. We commend Sen. Harp for taking this on. It's not a popular thing to do."

Weber also noted, "Georgia's sex offender law has had more constitutional setbacks than any other sex offender law in the country... . Each session, there are revisions that sometimes fix some problems but always add new ones. It's either one step forward and two steps back or two steps forward and one step back. We're never quite reaching the goal line."

Weber also called the current law "so onerous it may actually impair public safety rather than enhance it. It casts such a giant net that it treats all people on the registry alike when there is a dramatic difference between a sexual predator who clearly needs all kinds of provisions and [class action plaintiff] Wendy Whitaker who had consensual sexual relations with a 15-year-old when she was 17... and now, decades later, is haunted by this law... ."The sad reality is that the politics of the issue make it difficult for the General Assembly to fix this law," he said.

Augusta attorney David E. Hudson, who is representing the state's sheriffs in the class action, said that Cooper's ruling did not surprise him. "I thought issues raised by the plaintiffs were serious questions ... that warrant the court's consideration," he said. "The sheriffs' point of view is they want to enforce the law as they are told to do so. If the court upholds it, they are ready to enforce it. If the court strikes down all or part of it, they will abide by that. The sheriffs' position in all this is, 'Someone tell us what to do, and we'll do it.'

"The sheriffs don't make the law. They don't interpret the law. They depend on the legislature and the courts to instruct them on what they can and cannot do." Hudson said that he thought it "made eminent good sense for the Legislature to address these questions if it could, and, if possible, take them out of the court system. ... I thought it was a very worthwhile project to undertake."

Hudson said the House's failure to pass Harp's bill "comes as a disappointment to me in this regard. ... A large sum of money has been spent by the state and others in litigation costs. During the entire time, enforcement of the statute has been largely shut down. ... It just makes common sense that the Legislature would do everything that it could to address these issues. Otherwise they forfeit ultimately what the law will be to a federal judge."


To view the Preliminary Injunction, click here.