Over the past couple of years, Georgia’s criminal justice system has undergone some significant changes. This process of change continues because of the very hard work from people on all sides of the criminal justice debate.
Another significant bill passed the General Assembly this year. HB 349 is part of the criminal justice reform package that was introduced at the urging of Governor Nathan Deal. It passed the Senate with very minor changes. Since the bill is rather large, I am going to outline some of the more important provisions for this column.
HB 349 is primarily based on the Governor’s Criminal Justice Reform Council Recommendations.
First, the bill removes the word ‘knowingly’ in regards to the weight of illegal drugs. This amendment clarifies that the accused does not have to have subjective knowledge of the actual weight of the drug in order to be found guilty under a drug statute.
HB 349 also grants discretion to the court for departure from a mandatory minimum sentence for a serious violent felony when the prosecuting attorney and defendant agree. This is a huge change in the law that will greatly assist in resolving cases that used to create a backlog on criminal dockets throughout the state.
Also, Superior Court judges will be allowed discretion from mandatory minimum sentences in a small number of drug trafficking cases. This makes sense because oftentimes a very low level drug offender is prosecuted under the drug trafficking laws that were originally intended to apprehend the much larger participants in the crime organization. Those larger participants rarely put themselves in a position to be prosecuted.
Defendants would be eligible for reduced sentences if they meet the following five requirements: A) No prior felony conviction; B) was not a ringleader of the conduct; C) did not use a weapon; D) the criminal conduct did not result in death or serious bodily injury to any victim; and, E) the judge determines justice would not be well served by imposing the minimum mandatory sentence.
The bill also proposes more judicial discretion to minimum mandatory sentences for serious violent offenders, sexual offenders and repeat offenders. Judges could impose less than a minimum mandatory sentence upon agreement of the court, the prosecution and the defense. The legislation outlines several requirements that must be met for consideration.
Not everything in HB 349 originated with the Special Council. I spoke with Douglas County DA David McDade on Wednesday who co-wrote and sponsored several pieces of the bill on behalf of the District Attorney Association of Georgia.
McDade and other prosecutors urged a change that allows direct appeals to the appellate courts if a lower court excludes prosecutorial evidence submitted during pre-trial. However, McDade said he is most proud of the legislation that expands the protections for children who witness abuse.
Under the bill, prosecutors will have the authority to introduce statements made by those children to others describing what they saw and heard, thereby helping to ease the trauma and reduce the re-victimization of those children during court proceedings by hopefully reducing the amount of times they have to testify.
My take on HB 349 is that it will benefit the citizens of Georgia. I do not agree will all of the provisions in the bill. But, I have not seen a perfect piece of legislation in my lifetime. Criminal defense attorneys and prosecutors will have to adjust rather quickly to HB 349. Governor Deal is expected to sign the legislation any day now.