January 2014

Legislators in Virginia are contemplating changes to the law in response to MacDonald v. Moose (4th Cir. 2013), a case that struck down Virginia’s law that prohibited non-genital sex generally. Specifically, legislation has been introduced that would make it a felony for an adult to engage in non-genital sex with a minor between age 15 and 17, while vaginal intercourse is a misdemeanor. Vaginal sex among 15-17 years olds is perfectly legal, while non-genital sex would be a crime. Prostitution would be a misdemeanor as long as the prostitute and the john engage in vaginal intercourse; any other type of sex would be a felony.

In Georgia, we draw equally if not more draconian distinctions between genital and non-genital sex. For instance, public indecency covers “an act of sexual intercourse” in a public place. That crime is a misdemeanor under O.C.G.A. § 16-6-8. However, the offense of sodomy in a public place is a felony punishable by not less than one and no more than 20 years to serve in prison. Bowers v. Hardwick struck down Georgia’s sodomy law, but only to the extent that it applies to that sexual act in a private place. Public acts of sodomy are still illegal. See Mauk v. Ga. A few years ago, I was unsuccessful in an 8th Amendment challenge to a 10 year (without parole) sentence for a young man who was convicted for a voluntary act of non-genital sex with another teen.

Professor Volokh writes this about proposed changes to the law in Virginia:

I realize that some people … view nongenital sex as immoral — but even those people, I assume, are uninclined to outlaw things (unkindness, dishonesty, not honoring your father and mother, coveting your neighbor’s wife or property, and the like) just because they are immoral. Indeed, even people who view premarital sex generally as immoral tend not to be inclined to pass new laws banning all fornication. What is there about nongenital sex that makes it more properly subject to outlawing, especially given the perverse incentives that such a prohibition would create?

If the legislation passes, then Virginia, like Georgia will treat non-genital sex with a harsh sentencing scheme versus acts of vaginal sex. It is unclear why the legislature would incentivize teenage intercourse at the risk of unwanted pregnancy and the spread of disease, other than that such a scheme is an expression of the fundamentalist religious beliefs of individuals in power (welcome to our little red state). Of course, it’s difficult to justify the lengthy incarceration of teens based upon the decision to violate the religious sensibilities of state representatives and senators. Nevertheless, in a moment of passion between teens or between adults in certain situations, the message from our wise legislators is that the actors had better “go all the way.”

The AJC reports that The Southern Center for Human Rights has filed suit against GPDSC, its director, the Circuit Public Defender, the District Attorney and others for the state of indigent defense in that circuit. The suit is brought on behalf of 8 indigent defendants, juvenile and adults individually and as representatives of a class of indigent criminal defendants. The suit alleges that adult defendants are forced to wait for months with no contact or minimal contact with a lawyer. In some instances, a non-lawyer investigator has relayed plea offers just before trial. Juveniles have found themselves at some hearings with a lawyers and at others without. The Circuit has no juvenile public defender, and (according to the complaint) when the lawyers are off in court someplace else in the circuit, juvenile court continues, with or without counsel.

In 2003, the Southern Center sued officials in the Cordele Circuit for what was then a contract public defender system. According to the press release that was issued when the recent suit was filed:

The public defenders are unable to spend more than a few minutes per case.  Many poor people accused of crimes meet a public defender who knows nothing about them or their charges for the first time in court.  After a hurried conversation, many enter guilty pleas and are sentenced.  All but a few convictions are obtained through guilty pleas by people who do not receive the most basic elements of legal representation such as substantive attorney-client interviews, investigations, motions practice, and informed, professional advice about whether to plead guilty.

The well-written Complaint may be found here (pdf). The press release is also worth reading.

Yesterday, I assisted with an oral argument at the Supreme Court of Georgia. I was on the 2pm calendar (The Court usually sits in two sessions). As I often do when I have an afternoon calendar, I watched the 10am session online. I’ve written before about the value of watching other cases  on the calendar when you have court. It’s a good way to get oriented if you’ve never been to the court before or to take the temperature of things even if you have. You can do that virtually at the Supreme Court before you leave your office.

Today, I opened a window on my computer and watched some oral arguments from today’s sessions. There’s a link on the Supreme Court’s homepage, and this one may work, too. The Court also keeps an archive of the current term’s arguments online. Don’t have time or a way to read the briefs that go with the argument? The Court has this covered with well-written summaries. Want to find out how it all turned out? The opinions are also available online.

Lawyers 100 years ago or even 10 years ago couldn’t have imagined that such a resource as this would be around and would have loved to have something like this. All of the better lawyers I know read the Opinions Weekly from the Fulton Daily Report or some form of advance sheets. It’s a good practice but a monotonous one as you search for the criminal cases of significance (most aren’t particularly significant in the criminal realm). A practice of regularly watching argument at the Supreme Court is similarly worthwhile

Looking for a good way to figure out which cases are most worth watching? Cases where the Court has granted cert. to review a Court of Appeals case or where the Court has granted a habeas petitioner’s Application for Certificate of Probable Cause to Appeal tend to be more exciting. Look for a (G) in the case number for cert. cases or an (H) for habeas cases. The website is a good place for non-lawyers to learn how the Court decides cases, for lawyers to keep up with developments in the law, and for lawyers to prepare for oral argument (by seeing what to do and what not to do). Murder appeals and family law appeals tend not to draw questions from the justices.

The Atlanta Journal-Constitution reports that the Fulton County Sheriff may be held in contempt over the condition of the Fulton County Jail located in Atlanta. For the past several years, the Fulton County Jail has been under the supervision of the federal courts pursuant to a lawsuit involving inhumane conditions there.

Things don’t appear to be good. One of the more basic things that you would expect from the jail is working locks. Apparently the internal locks aren’t working so well, leaving inmates free to roam about. There are also insufficient beds for all of the inmates. When the population of the jail went below a certain number, the Fulton County commissioners would not approve outsourcing of the housing of inmates to other city jails, a measure that Fulton County had previously used to comply with federal court orders. Officials in Atlanta have not figured out how to pay for court-ordered renovations in years. According to the AJC:

Some say the Fulton County Jail on Rice Street has always been a problem — and an expensive one at that.The $48 million jail opened almost 25 years ago to solve the issues that plagued the old jail, such as overcrowding and dangerous conditions. But those problems remain today, critics say, despite the county being under a consent order that requires them to make significant renovations, limit the number of inmates and maintain an adequate staff.Because there aren’t enough beds, some inmates sleep on the floor. They roam where they shouldn’t because faulty locks can’t hold them in their cells. And not enough detention workers are on duty at any given time to stand guard. A federal judge has scheduled a hearing in early February in which the sheriff and the county must “show cause” why they should not be held in contempt.

I’ve gone to several events at the Georgia Dome this year. That facility is about as old as the Fulton County Jail. In fact, my son and I just went to the Chik-Fil-a Bowl there to watch the Texas A&M game. The locks seemed to work. We were only allowed into designated areas. It was cold and rainy out, but things were comfy under the dome. There were 67,000 people there, but there were seats to spare. Everybody seemed to have enough to eat and drink. There was ample security. You could text a message to a particular number if a problem arose. Little toy cows were parachuted to lucky fans from the rafters and from a remote controlled blimp. The City of Atlanta has kept things running well. And yet …

… And yet, local officials have found a way to fund and even better stadium. This one will be even cooler than the perfectly good one we already have, and the roof will open and close.

Meanwhile the Fulton County Sheriff prepares for another contempt hearing because his office can’t figure out how to get the locks to work in the jail.