Should a Georgia judge have the power to sentence a person arrested for possessing methamphetamine residue in a plastic baggie to several years in prison — the same as a person possessing up to 27 grams?
Or should the state allow judges to show leniency through lesser sentences and give the offender an opportunity to attend some form of rehabilitation that addresses the causes of addiction?
The members of the General Assembly have chosen the latter.
A new piece of legislation that goes into effect on July 1, House Bill 1176, remains tough on drug trafficking and other serious felonies but gives judges leeway to sentence drug offenders to fewer years in prison and with the probability their sentence will include mandatory rehabilitation efforts.
Kermit McManus, the former district attorney for the Conasauga Judicial Circuit covering Whitfield and Murray counties, now treads the halls of the Gold Dome in Atlanta when the Legislature is in session working as a lobbyist for the District Attorneys’ Association of Georgia. He said the organization helped keep the legislation on track to become law through many committees and lawmakers’ hands.
“What 1176 does is it changes in some ways the way the state of Georgia is going to deal with people who commit crimes,” McManus said. “The overall theme of the Criminal Justice Reform Act is that for the worst of the worst — with all the ‘seven deadly sins’ (of serious felonies committed by) career criminals, drug dealers and manufacturers — those penalties for those kinds of offenders have not changed. They’re still tough, tough sentences. What was changed in terms of the drug part of it is that the penalties have been reduced and go into effect over a three-year period.”
McManus said in the first year sentences for the possession of schedule 1 through 5 drugs — including meth and prescription drugs — will be reduced somewhat.
“The sale, possession with intent to distribute, manufacture and distribution (crimes) — those sentences don’t change, just the possession changes ... In the current law, if it’s your second possession offense for methamphetamine, you can be sentenced from 5 to 30 (years in prison). That’s gone, that’s not there anymore. So what they’re doing is they’re dealing with the possession people, reducing the amount of time they’re going to get in this first year (of the law’s implementation).”
McManus said next year “it all changes again.”
“It goes into a weight or volume sentencing program for drugs, so we’re going to have to weigh the drugs ... (and) that will determine what the penalties are going to be,” he said.
District Attorney Bert Poston affirmed that possession of less than a gram “will carry a significantly lower sentence than under current law.”
“Currently, a first conviction for simply possessing a drug like cocaine or methamphetamine carries a sentencing range of 2-15 years, regardless of the weight of the drug,” said Poston, who reported he was at the Capitol for some of the committee meetings and discussions on the bill. “Of course, sentencing ranges don’t tell the whole story ... Actual sentencing within that range is based on the particular details of the case, including the weight of the drug and other circumstances, as well as the particular history of the defendant.”
“The idea behind it is, as far as the (offenders) are concerned, is to minimize their time in prison and maximize our ability to deal with them in drug courts,” said McManus. “That’s another big part of the reform act is to standardize drugs courts across the state, fund it to where we’ll have drug courts everywhere in the state, which we do not have right now. Right now, all drugs courts are individualized. Ours (Conasauga district) is very good because we have good support. In some places it’s not quite as good. That’s the whole idea, is to move people away from imprisoning for ‘possession of drugs’ and doing more with treatments and drug courts and that kind of thing.”
DAs not fully supportive
McManus said Gov. Nathan Deal — along with House Speaker David Ralston and Lt. Gov. Casey Cagle — developed the sentence reform initiative by creating a Criminal Justice Reform Council. In a summary of the provisions of HB 1176, the council states one of its “main findings” was that drug and property offenders account for almost 60 percent of all prison admissions.
“In 2010, more than 5,000 lower-risk drug and property offenders with no prison history were sent to prison, accounting for 25 percent of all admissions,” the summary found. (To download a PDF file of the summary, go to http://pdfflare.com/pdf/Georgia+HB+1176.)
“It was not our idea, the prosecutors didn’t come up with this — we reacted to it,” McManus pointed out. “Our role was to be advisers to the legislators who were vetting the bill through the committees from our position as experts in the field of criminal law and criminal prosecution, to make sure that nothing in the bill was illegal or not thought out well, but that it adhered to legal principles.”
But he added prosecutors were not willing advocates.
“There are parts of the bill that if you had asked prosecutors if they want this, they’d have said, ‘No, that’s not the way we think it ought to go,’” he said. “We were never asked that question, that was not part of the discussion whatsoever. The discussion was, ‘Here is the bill, here’s what we’re going to do. Your role as prosecutors is to tweak it to where it works.’ And that’s what we tried to do. We tried to make sure things didn’t get put in there that were abhorrent to us — or to the public. Public safety, of course, is our paramount concern ... we didn’t advocate to pass this bill, we advocated to put into the bill things that could make it work the best we could within the framework the governor gave to us.”
Dealing with inflation
Local attorney Steve Williams thinks HB 1176 is “a good, reasonable thing.”
“First of all, in regard to theft charges,” he began. “The difference between misdemeanor and felony has been set for years. For instance, shoplifting becomes a felony at $300 or more right now, and it’s been that way for 20 or 30 years. And of course, things have changed significantly in American culture over (that time), so they’ve upped it to $500, which I think is a very reasonable thing. Generally, a felony theft (charge) has been $500 and they’ve upped that to $1,500, and I think that is a reasonable approach. They have differentiated in levels of burglary, the worst being residential burglaries ... separated out from commercial burglaries from what’s worse to what’s least worse.”
Williams said Deal and the Legislature “have determined that they’re most interested in solving drug addiction issues more than just housing people in jail.”
“I think that’s a more reasoned approach,” he said. “So many of the persons we see have drug addiction issues as opposed to folks who are trafficking in drugs. (The new sentencing is) mandated as a minimum, but judges can sentence people above the minimum so it’s not that they’re mandated to give these defendants the minimum ... Again, if you’re got somebody that may be a first-time drug offender with possession but they may have a long criminal record in other ways, the judges may not go for the minimum. But I think the Legislature has taken a reasoned approach to individualizing situations — drug addiction, small thefts — which I think is fair. You know, there’s been a lot of inflation over the past 20 to 25 years since those minimum theft limits were set.
“Housing people in jail does not solve addiction problems. I’m not going to say everybody who goes to drug court is successful because they’re not, but they’re certainly much more successful.”
Anna Johnson is a former public defender and is now a defense attorney in the Dalton-Chatsworth area.
“I have had a chance to look at it and get an overview, and I like it,” she said enthusiastically of the law. “I especially like it in the theft and drug cases, which it affects the most ... (the original sentences) happened in 1982, and inflation has gone up. What normally would have been a misdemeanor back then is now a felony. Because they’ve cut the threshold so much, that’s going to be great. If the firearm or the car is under $1,500, that’s still going to be a felony — that hasn’t changed. But it’s a big deal when it changes the other (sentences), because it will keep someone from going to prison ... the sentencing has finally caught up with the rest of inflation.”
Johnson also likes the idea of “putting more money into these accountability courts,” referring to drug courts and programs like the Residential Substance Abuse Treatment (RSAT) program through the state Department of Corrections.
“Whereas before, I would just plead somebody to a straight prison time rather than plead them to the RSAT because of the long bed wait time, you know, because they didn’t have many (beds) ... Before, it was better for them to parole out because they could parole out quicker than they could get out of the RSAT program — which is really the help that they need — because the bed wait is so long.”
Johnson called the new law a “win-win” for the minor drug offender who needs help.
“Once they get these new substance abuse treatment centers open, people can get the help they need so that when they get out maybe they won’t re-offend,” she said. She also believes the programs can be “very therapeutic.”
“It’s helpful when drug abusers can talk with their peers about their addiction problem, with other abusers and counselors in a confidential setting,” she noted. “They have confidentiality clauses in there so they don’t have to worry about things coming out of that group. I just think that people can talk about their issues, talk about their problems, without anybody in the group judging them and — because of the confidentiality clauses — it getting outside the group where other people can judge them. It can be open and that can be helpful to their rehabilitation ... I’ve turned into a fan of drug court. It’s really helping these people who feel lost. Everything Gov. Deal has done (with HB 1176) is going to have a profound impact on these people.”
Change sexual sentencing?
Circuit Public Defender Mike McCarthy called the law “a good first step.”
“I don’t think it should be the be-all and end-all of any kind of reform. I could recognize this was not an easy bill to come up with because of all the parties represented. I mean, I can imagine the prosecutors would have been very resistant to lowering penalties — because traditionally they are,” said McCarthy, a former assistant district attorney himself. “So I applaud the effort, particularly to lower the maximum penalties for these lower amounts. So I’m very much in favor of that.”
But he added it looks like lawmakers “basically picked off the lowest hanging fruit.”
“The offenses they dealt with would have been the easiest ones to reach some kind of consensus (on),” he pointed out.
McCarthy delved into what he “would have liked to have seen.”
“I hope this will be looked at in the future is that this commission tackle the mandatory minimum (sentences), and institute some type of degree structure for that,” he said. “A few years ago the Legislature passed the Romeo and Juliet law where if the age difference was within four years, like let’s say you’ve got a 15-year-old girl and an 18-year-old guy and they were doing something sexually that was consensual. Suppose they had sexual intercourse and it wasn’t forced. Well, in that instance the boy could be just charged with a misdemeanor of child molestation instead of felony child molestation.”
But McCarthy said sexual conduct between people “involves a lot more than just intercourse.”
“I mean, I don’t want to get into all that — but other things happen besides the physical act of intercourse,” he continued. “The Legislature didn’t address that. If the boy (just) touched the girl in her private parts ... he’s looking at 25 (years in prison) to life for aggravated sexual battery. That makes no sense to me. So I would hope that they have another round of sentencing reform ... I’m very much in favor of anything that moves us toward community solutions and not just prison.”
Poston said the reform bill is intended “to save taxpayers’ money by reducing prison populations over the long term.”
“In the short term, it poses challenges to local prosecutors and other members of the criminal justice system as we attempt to implement and adapt to these changes,” he said. “Time will tell how the reform bill will affect local communities as well as state budgets.”
Pew Research and prison beds
The Public Safety Performance Project at the Pew Center on the States — a nonpartisan “fact tank” that provides information on issues, attitudes and trends, according to its website (pewresearch.org) — was pivotal in helping develop Georgia’s Criminal Justice Reform Act.
“The number-crunchers (and) statisticians (at the Public Safety Performance Project at the Pew Center on the States) looked at different things and came up with the numbers for sentencing ranges,” said former district attorney Kermit McManus, who now works as a lobbyist for the District Attorneys’ Association of Georgia. “Basically, they said if you change the sentencing range from this amount down to this amount, you’re going to save this many prison beds.”
The “flip side” is that drug courts are going to be “beefed up.” There will also be assessments of individuals’ risk to re-offend, McManus pointed out.
“If you provide all the treatment out there that’s necessary ... you’re going to reduce the reason for them committing crimes if you address those things such as education, employment, addictions and those kinds of things — that’s the idea behind it,” he said. “Now whether it works will only be known in time ... it comes down to how is the state going to follow up with this legislation? Where are they going to come up with the money to provide the treatment programs and the treatment professionals for those programs everywhere in the state of Georgia?”
McManus said “putting people on probation does not mean they’re going to be compliant,” noting that half of a Superior Court’s time in session deals with probation hearings, probation violations and failures to appear.