- Georgia retains a parole system, but does not allow discretionary parole for the most violent offenders or certain habitual offenders. See O.C.G.A. § 17-10-6.1 (2012).
- Allows for discretionary LWOP and JLWOP.
- Georgia has no minimum age for transfer of a juvenile to adult court. However, "[a] person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime." O.C.G.A. § 16-3-1.
Article I, Section I:
Paragraph XVII. Bail; fines; punishment; arrest, abuse of prisoners. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; nor shall any person be abused in being arrested, while under arrest, or in prison.
NOTE: The cruel and unusual punishment clauses of the Federal and Georgia constitutions are similar. Nevertheless, Georgia courts have recognized that the Eighth Amendment provides minimum standards, and that Georgia’s Article I, Section I, Paragraph XVII may be interpreted differently in the future.
- Sentencing Guidelines System – Georgia does not have a guidelines system.
- Habitual Offender Statute – O.C.G.A. § 17-10-7 (2012)
§ 17-10-7. Punishment of repeat offenders; punishment and eligibility for parole of persons convicted of fourth felony offense
The defendant bears the burden of proving mental retardation by a preponderance of the evidence. Fleming v. Zant, 259 Ga. 687, 691 (Ga. 1989). Furthermore, “[t]he jury shall not be bound by the opinion testimony of expert witnesses or by test results, but may weigh and consider all evidence bearing on the issue of mental retardation.” Id. If the jury finds the defendant mentally retarded, any sentence of death will be vacated and the defendant will instead be sentenced to life imprisonment. Id.
State Constitution & Proportionality
“Legislative enactments constitute the clearest and most objective evidence of how contemporary society views a particular punishment,” and unless the sentence shocks the conscious, courts should defer to legislative discretion. Johnson v. State, 276 Ga. 57, 62 (2002);Widner v. State, 280 Ga. 675 (Ga. 2006).
Appellate courts “will not review for legal error any sentence which is within the statutory limits. Any question as to the excessiveness of such a sentence should be addressed to the sentence review panel as provided in O.C.G.A. § 17-10-6." Small v. State, 243 Ga. App. 678, 680 (Ga. Ct. App. 2000) (citing Harden v. State, 239 Ga. App. 700, 702 (Ga. Ct. App. 1999).
"Federal constitutional standards represent the minimum, not the maximum, protection that this state must afford its citizens.” Fleming v. Zant, 259 Ga. 687, 690 (1989). The Supreme Court of Georgia has “explicitly held that in interpreting the prohibition against cruel and unusual punishment found in the Georgia Constitution, the applicable standard is ‘the standard of the people of Georgia, not the national standard.’” Dawson v. State, 274 Ga. 327, 328 (Ga. 2001) (quoting Fleming v. Zant, 259 Ga. 687, 690 (1989)).
The Supreme Court of Georgia “has acknowledged that "whether a particular punishment is cruel and unusual is not a static concept, but instead changes in recognition of the ‘evolving standards of decency that mark the progress of a maturing society.’" Dawson v. State, 274 Ga. 327, 329 (Ga. 2001) (citing Fleming v. Zant, 259 Ga. 687, 689 (1989)).
Under both the federal and Georgia constitutions, “a sentence is cruel and unusual if it is grossly out of proportion to the severity of the crime."Bragg v. State, 296 Ga. App. 422 (Ga. Ct. App. 2009).
To perform a proportionality analysis, "a court must first examine the gravity of the offense compared to the harshness of the penalty and determine whether a threshold inference of gross disproportionality is raised." Bragg v. State, 296 Ga. App. 422, 424 (Ga. Ct. App. 2009) (citing Humphrey, 282 Ga. 520, 525 (2007). An inference of gross disproportionality is rare. Id.
Punishment is unconstitutionally excessive if it: “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” Cox v. State, 241 Ga. 154, 155 (1978); Widner v. State, 280 Ga. 675 (Ga. 2006); Campbell v. State, 268 Ga. 44, 45 (Ga. 1997); Fleming v. Zant, 259 Ga. 687 (Ga. 1989).
The “mere fact that the Legislature has spoken on the issue of the method of execution does not preclude or in any manner limit this Court's evaluation of the selected method to determine whether it comports with the constitutional prohibition against cruel and unusual punishment.” Dawson v. State, 274 Ga. 327, 328 (Ga. 2001).
A mandatory sentence is not cruel and unusual simply because it is mandatory. Ortiz v. State, 266 Ga. 752, 753 (Ga. 1996); Campbell v. State, 268 Ga. 44, 45 (Ga. 1997); Widner v. State, 280 Ga. 675 (Ga. 2006).
The Supreme Court of Georgia has declined to hold a mandatory life sentence under § 16-13-30 (d) (distribution of a controlled substance) cruel and unusual punishment for purposes of Article I, Section I, Paragraph XVII of the Georgia Constitution. Stephens v. State, 261 Ga. 467, 468 (Ga. 1991).
The following cases mention a distinction between Article I, Section I, Paragraph XVII of the Georgia Constitution and the Eighth Amendment, but do not provide significant separate analysis:
- Widner v. State, 280 Ga. 675 (Ga. 2006) – States that Georgia’s Article I, Section I, Paragraph XVII “comparable” to the Eighth Amendment.
- Ortiz v. State, 266 Ga. 752, 754 (Ga. 1996) –
- Sims v. Balkcom, 220 Ga. 7, 12 (Ga. 1964) –
- Carey Can. v. Hinely, 181 Ga. App. 364, 372 (Ga. Ct. App. 1986) –
Leading Court Discussions of Graham and Miller
Gandy v. State, 290 Ga. 166, 718 S.E.2d 287 (November 21, 2011) (Graham does not apply to adults, homicide and sentence of terms of life without possibility of parole)
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Foster v. State, 294 Ga. 383, 754 S.E.2d 33 (January 21, 2014) (Graham and Miller do not categorically bar LWOP; OCGA § 16–5–1(d) does not mandate life without parole, but instead gives the sentencing court discretion over the penalty.)
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