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Georgia Court of Appeals Finds Standard Sex Offender Condition Unconstitutional

Posted by Sean A. Black | Mar 31, 2022 | 0 Comments

On February 18, 2022, the Georgia Court of Appeals decided Bryant v. State, 2022 WL 499796 (A21A1377) and found that the form Sexual Offender Special Conditions paragraph 1 was unconstitutional as overly broad and not specific.  

For reference, that paragraph states:

You shall have no contact, whether directly in person or indirectly, through any means of communication, with any child under the age of eighteen (18), nor with any person unable to give consent because of mental or emotional limitations. Neither shall you attempt contact with the aforementioned except under circumstances approved in advance and in writing by the Court. If you have incidental contact with children, you will be civil and courteous to the child and immediately remove yourself from the situation. You will discuss the contact at your next meeting with your Probation Officer.

This provision is selected in every single sex offender sentence that  I have ever seen, whether or not the criminal sexual conduct alleged involved minors.  As such, this decision may have an enormous impact on violation of probation petitions and warrants.

The defects identified by the appellate court are not specific to Bryant's individual case.  

The State sought and was denied reconsideration in the Court of Appeals.  The State filed for certiorari (further appeal) in the Georgia Supreme Court on March 18, 2022.  The Supreme Court has set a briefing schedule an placed the case on its June 2022 case.

The Supreme Court's decision is one to watch for, but it will likely be much later in the year.

This is not my appeal.  In fact, it appears that this is a pro se appeal, meaning that Mr. Bryant is representing himself.

Sentencing Courts Can Impose Conditions

A trial court sentencing a defendant after a plea or conviction certainly has authority to impose general and special conditions of probation.  Special conditions are those that are related to the particular case before the court.

With sexual offenses, the Department of Community Supervision (and its predecessor) have tried to make it easy for trial courts by generating and providing a sexual offender special conditions form, on which the trial court can select which form conditions apply and can write in modifications and alterations.  

In practice, I see judges go down the form checking every single option and giving no individualized consideration to any option or the facts of the specific case.

Probation conditions must be reasonably related to the nature and circumstances of the offense and rehabilitative goals of probation.  They must be stated with reasonable specificity to afford the probationer notice of the groups and places he or she must avoid.  Conditions cannot be so broadly worded as to encompass groups and places not rationally related to the purpose of the sentencing objective.

This Condition was Overly Broad and Not Specific

The Court of Appeals evaluated the language in Special Condition 1 (quoted above) and found that the condition could be applied to prohibit Bryant from shopping at virtually any store, visiting any restaurant, or literally going to any other location in which he would come into contact with the general public.  

The probationer should not have to rely upon the idea that the probation officer will not read the condition as meaning what it states.  

Several Other of the Form Conditions May Be Defective

While Bryant's appeal only addressed the one condition, it may be time for another look at that form because some of the other conditions are similarly overbroad and depend upon the probation officer not being overly technical.

For instance, Condition 6 dealing with images of minors.  It states:

Except as authorized by the Court or the Community Supervision Officer, you shall not create, possess, access or control any type of photograph, video, rendering or digital imagery of any minor.

No probationer can avoid violating that provision as written.  They must depend on the reasonableness of the court and the supervision officer.  

Any time the probationer watched (accessed) any type of television show, it is likely to include an image of a child.  You watch a football or baseball game, there are images of children among the spectators.  A baseball game is likely to focus in on kids scrambling to recover a ball hit into the stands.  A probationer picks up a newspaper or general magazine, it is likely to have images of at least one child.  A probationer goes to the mailbox to get their mail.  On an almost weekly basis, it will include retail store circulars, which are likely to have images of minors.  

It is obvious that these are not the images that the court is concerned about, but the court has not adopted a condition that is specific enough.  

Similar arguments are apparent as to Conditions 18, 19 and 20, dealing with driving logs, driving and hitchhiking.

In addition to the broadness issue, though, the court was concerned that the condition was not specific to the case being sentenced.

The trial courts have an obligation to consider the specific facts of the case and whether the conditions address a specific concern relative to the case.  On that front, some of the other conditions may be subject to attack.

Keep Watching

As I stated earlier, the Georgia Supreme Court still has to weigh in on this issue.  Hopefully, Mr. Bryant will triumph with that court as well.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

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