I generally do not accept these cases for representation unless they involve convictions from the northeast Georgia area or out-of-state convictions where the person lives in northeast Georgia.
The Basics of Classification
A look at the Georgia sex offender registry will show that four things show under leveling:
- Not Leveled
- Level I (Low Risk)
- Level II (Moderate Risk)
- Sexually Dangerous Predator
This page is not about establishing a level, which is addressed elsewhere. In general, there is no need to ask for a modification of a Level 1 classification. So, this page is about seeking a downward modification of a Level 2 or Predator classification.
The classification is intended to assess the "likelihood that a sexual offender will engage in another crime against a victim who is minor or a dangerous sexual offense." It is not intended to be an assessment of whether the person will commit a non-sexual offense. However, some of the instruments and methods used by the Board are not limited to the likelihood of committing a sexual offense.
A registrant may provide the Board with information as a part of the leveling process. The sexual offender may provide the board with information, including, but not limited to, psychological evaluations, sexual history polygraph information, treatment history, and personal, social, educational, and work history, and may agree to submit to a psycho-sexual evaluation or sexual history polygraph conducted by the board.
Strict Statutory Time Limits
It is important to know at the beginning that once a classification decision is made, there are strict time limits on challenging that leveling.
30 Days to Seek Board Review
The decision is sent to the offender by first-class mail. If that classification is Level II or sexually dangerous predator, then the offender has 30 days of the date of the notification letter to request a re-evaluation. The offender may submit the additional information set out above to assist the Board in making its decision. In addition, the offender may agree to submit to a psycho-sexual evaluation or sexual history polygraph.
If the offender has not had an independent psycho-sexual evaluation and is in a position to pay for those services, it will likely be very helpful. The report from that evaluation, if available early enough, may also be submitted to the Board for use in its re-evaluation process.
The re-evaluation is initiated by the offender submitting a written petition for evaluation. Again, this must be done within 30 days of the date of the notification letter. Failure to submit the petition means that the classification is final. The offender will be given 60 days to submit additional information.
The Board will issue a decision and provide it to the offender, the GBI, Department of Corrections, Department of Community Supervision, and the Sheriff for the county where the offender is registered.
30 Days to Seek Judicial Review
An offender can seek judicial review of either (1) the initial decision or (2) the re-evaluation decision. That petition for review must be filed within 30 days of the date of the letter containing the decision as to which review is being sought.
Given this, it is almost always advisable for an offender to seek re-evaluation first. This will expand the time to prepare the case for judicial review and to seek expert assistance if that level of evaluation has not been conducted prior to the initial classification.
Conduct of Judicial Review
The petition for judicial review is a lawsuit where the offender is the plaintiff and the Board is the defendant. It must be filed in the county where the Board offices are located, which is currently Fulton County. The petition must be served on the Board.
Within 30 days of the service of the petition, the Board must submit a summary of its findings to the court and mail a copy to the offender/petitioner. These findings are considered prima facie evidence of the classification. Both sides may submit any additional documentation to the court and a hearing may be conducted to determine the issue of classification.
Prima facie evidence means that it is sufficient by itself to establish the classification, but it remains subject to challenge by other evidence.
The court may either (1) uphold the Board classification or (2) if the court finds by a preponderance of the evidence that the offender has been placed in the wrong classification, the court may place the sexual offender in the appropriate risk assessment classification.
Decisions on the issue of classification often present factual and credibility conflicts. It is up the court to weigh all of the evidence presented in assessing what risk exists that the person will commit a future sexual offense.