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State sex offender statute comes under scrutiny

By Jason A. Smith

jsmith@henryherald.com

As the merits of a sex-offender statute are debated in the state's Supreme Court, a local attorney is questioning aspects of the statute, saying it unfairly target homeless offenders.

David Abbott, of Abbott & Cone law firm in McDonough, said he became concerned about the requirements of the Official Code of Georgia Annotated 42-1-15, when he began defending convicted offender, Hezekiah Bartley.

According to official court documents, Bartley, who pled guilty in 2004 to child molestation, registered with the Henry County Sheriff's Office in July 2006 as a sex offender, indicating a Hampton address as his place of residence.

In October 2007, Bartley reportedly failed to notify the Sheriff's Office when he moved from that address. The reason Bartley no longer lived there, explained Abbott, is that he was evicted for non-payment of rent. The attorney said the restrictions thus placed on where Bartley could live, as a convicted sex offender, constituted an undue burden.

"[A sex offender] cannot live within 1,000 feet of a school, pool, nursery, church or school bus stop," Abbott said. "The practical effect of that is, you can only live in the sticks."

The prohibitions as to where a sex offender can live, Abbott explained, often prevent an ex-convict from living with his relatives, and hinders his or her ability to find employment.

As such, he said, many sex offenders are homeless, despite the state sexual offender registry statute's rule which says that homelessness does not constitute an address.

"What that means is, it is impossible, under this statute, for a homeless person to register, even if they try," Abbott said.

This, the attorney said, creates a "catch-22" for many offenders.

Under the statute, a convicted offender, if found guilty of violating it, can be sentenced to 10-30 years in prison for an initial violation, and may receive a mandatory life sentence for a second conviction.

"So a person can be sentenced to life in prison, just for being homeless," Abbott explained.

In addition, Abbott noted the "broad" nature of the category of people who are affected by the statute.

"For instance, if a person was convicted of indecent exposure, and there was a child around, they would have to register, even if they didn't touch anyone," he said.

Still, the defense attorney said the worst effect of the sex offender law in Georgia is felt by "people who are railroaded into guilty pleas."

"Under Georgia law, if you are charged with aggravated child molestation, there is a mandatory minimum sentence of 25 years in prison, and you are not eligible to get parole," he said. "Typically, those [defendants] will plead guilty to child molestation ... and not have to do any jail time. A person might take that plea, even if he didn't do it."

Abbott also cited a similar case in Hall County that is currently making its way through the state Supreme Court, State of Georgia v. William James Santos. One of the items at issue in the case is whether Santos, a homeless, convicted sex offender, should be punished, or whether the current statute is "singling out" registrants without a home address.

Abbott took his concerns about the statute, in the form of a letter dated Jan. 7, to Henry County District Attorney Tommy Floyd.

In the letter, he referred to a state Supreme Court case from 2003, Mann v. Department of Corrections, involving an offender who owned a house where a day-care facility was subsequently established. The defense attorney requested that the D.A.'s office "coordinate its enforcement" of the statute with the Sheriff's Office, so that registering offenders are not punished for living at an address previously approved by authorities.

Although Henry County District Attorney Tommy Floyd has yet to answer Abbott's letter, he said he is familiar with the residency requirements imposed on sex offenders in Georgia, and said there may be "some constitutional problems" with the statute.

"You're basically mandating that a [homeless offender] find an address, and charging them with a crime when they don't have the ability to do so," he said.

Still, he said the problems with the statute only apply in the "narrow circumstance" of a homeless offender, who is unable to find work. Offenders who are "employable and can establish an address," he said, should do so, and should be held accountable when they refuse.

In addition, the prosecutor noted the positive aspects of the statute. He said not knowing the whereabouts of someone convicted of a sex-related crime creates a "serious situation" that is unsafe for Georgia residents.

"I can't think of anything more dangerous than a sex offender who is homeless, and the state has no idea where they're located," Floyd noted.

Abbott said he hopes Superior Court Judge Wade Crumbley, before whom Hezekiah Bartley has a case pending, will wait on a decision by the Georgia Supreme Court in the Hall County case, before proceeding further in regard to his client.