In a case decided on May 21, 2018, the Georgia Supreme Court held that a general Georgia pardon removes sex offender registration requirements. State v. Davis, S17G1333.
Pardon for a sex offense now requires a special application. It also requires a lengthier period of law-abiding life to be eligible for a pardon. These requirements are set out on the Board of Pardon and Parole's website. They are:
- Completed the sex offender sentence at least 10 years prior to applying
- Within 90 days of the application, complete a pyschosexual evaluation by an approved sex offender treatment provider. Costs are the responsibility of the applicant.
- Within 90 days of the application, submit to a disclosure polygraph by an approved polygraph examiner. Costs are the responsibility of the applicant.
- Provide a current copy of the most recent risk level evaluation by the Sexual Offender Registration Review Board (SORRB)
- Led a law-abiding life during the 10 years prior to applying
- Have no pending charges
- Paid all fines and restitution in full
A pardon is an order of official forgiveness granted to a person who has maintained a good reputation in their community following the completion of the sentence. It does not expunge, remove or erase the offense from the person's record.
Davis had plead guilty in 1995 to aggravated sodomy against his six-year-old daughter and was sentenced to ten years with two to serve in confinement and the balance on probation. In 1996, he was required to begin registering as a sexual offender under the then new law. He did so. His probation terminated ion July 15, 2005.
Subsequently, he applied for a pardon at least five years after the end of his sentence, as was then allowed. He was granted a pardon by the Board of Pardons and Paroles on February 13, 2013. The pardon excepted firearm rights. So, he was still not entitled to possess firearms.
After receiving his pardon, Davis moved to North Carolina, changing his residence, without notifying Chatham County of his move. The registration laws would have required him to notify Chatham County at within 72 hours prior to his change of residence.
He was indicted by Chatham County for failure to update his residence address. Davis's attorney filed a general demurrer (motion to dismiss) stating that the indictment failed to state a criminal offense because Davis could admit the failure to register but not be admitting to a criminal offense since he was no longer subject to the registry laws because of the pardon.
The trial court decided that the pardon which removed all legal disabilities flowing from the underlying criminal conviction did not remove the requirement to register. The court reasoned that the pardon did not remove regulatory requirements only punitive requirements. It found that only punitive requirements would qualify as legal disabilities from the conviction. It based this on a 1956 Attorney General's Opinion which held that the only legal disabilities were the right to hold public office, to vote, and to serve on a jury. Of course, in 1956, there was no sex offender registration law.
The trial court granted a certificate of immediate review which allowed the issue to go up on appeal even though the prosecution was not over. The appeal went to the Court of Appeals, which reversed the trial court. It found that the plain language of the Constitution, Board rules, and the pardon itself constrained it to conclude that the requirement to register as sex offender was a legal disability which was removed by the Board's pardon.
The case then went to the Supreme Court of Georgia, through a process called certiorari.
The Supreme Court found that its exclusive appellate jurisdiction over constitutional issues meant that the Court of Appeals should not have exercised jurisdiction of the appeal since it involved novel constitutional issues. It therefore set aside the Court of Appeals' decision as a nullity. Even so, the Supreme Court then went on to agree with Judge Dillard's decision.
It found that the registration requirements set out by OCGA 42-1-12 constitute a legal disability.
The pardon power is not restricted from lifting the sex offender registration requirements. The pardon granted to Davis did not exclude the sex offender registration requirements.
A pardon is an extraordinary remedy, and neither pardon nor the inclusion of sex offender registry requirements in the pardon will be granted lightly. Significant evidence of rehabilitation is needed along with ten years of good behavior after the sentence termination date.