The Georgia State Constitution
Below are the Georgia Supreme Court Decisions that provide the silver bullet to protect you from Compelled Acts of Self-Incrimination.
This doctrine is not limited to the Georgia Sex Offender Registry. It applies to ANY statute that attempts to compel any person to give information to the state that may be used against him, for example, an abortion provider being made to report information to the state that may be illegal or false or incomplete, and can be used against him in a court of law.
In reading Georgia Supeme Court decisions I came across somehing very interesting that every defense attorney and every litigator in Georgia should be aware of. Whereas the 5th Amendment to the United States Constitution offers protection against giving testimony or evidence that might tend to incriminate oneself, the Georgia State Constitution goes way beyond that, to prohibit "Compelled Acts of Self Incrimination."
"The Georgia Constitution protects each of us from being forced to incriminate ourself.Unlike the similar right guaranteed by the FifthAmendment to the United States Constitution, this state constitutional protection applies to more than mere testimony; it also protects us from being forced to perform acts that generate incriminating evidence." Olevik v The State (2017)
Although this discussion is based on a pair of cases (Olevik v The State, and Elliot v The State) that were originally DUI Implied Consent cases, that is not relevant here. What is important is that the Georgia Supreme Court has outlined in exquisite detail how the Georgia State Constitution makes ANY statute that is coercive and compels an act of self-incrimination is by its very language unconstitutional on its face.In other words, you can't be made to provide information or perform any act that amounts to a mandatory confession.
While ths doctrine does not relieve a registered sex offender from the requirement to report in person to be photographed and fingerprinted, it certainly does relieve the person from having to provide, other than his name, the required information, lest that information be used against you in a criminal case.
OCGA § 42-1-12. State Sexual Offender Registry
(a) As used in this article, the term:
(1) “Address” means the street or route address of the sexual offender’s residence. For purposes of this Code section, the term shall not mean a post office box.
(16) “Required registration information” means:
(A) Name; social security number; age; race; sex; date of birth; height; weight; hair color; eye color; fingerprints; and photograph;
(B) Address, within this state or out of state, and, if applicable in addition to the address, a rural route address and a post office box;
(C) If the place of residence is a motor vehicle or trailer, the vehicle identification number, the license tag number, and a description, including color scheme, of the motor vehicle or trailer;
(D) If the place of residence is a mobile home, the mobile home location permit number; the name and address of the owner of the home; a description, including the color scheme of the mobile home; and, if applicable, a description of where the mobile home is located on the property;
(E) If the place of residence is a manufactured home, the name and address of the owner of the home; a description, including the color scheme of the manufactured home; and, if applicable, a description of where the manufactured home is located on the property;
(F) If the place of residence is a vessel, live-aboard vessel, or houseboat, the hull identification number; the manufacturer’s serial number; the name of the vessel, live-aboard vessel, or houseboat; the registration number; and a description, including color scheme, of the vessel, live-aboard vessel, or houseboat;
(F.1) If the place of residence is the status of homelessness, information as provided under paragraph (2.1) of subsection (f) of this Code section;
(G) Date of employment, place of any employment, and address of employer;
(H) Place of vocation and address of the place of vocation;
(I) Vehicle make, model, color, and license tag number;
(J) If enrolled, employed, or carrying on a vocation at an institution of higher education in this state, the name, address, and county of each institution, including each campus attended, and enrollment or employment status;
(K) The name of the crime or crimes for which the sexual offender is registering and the date released from prison or placed on probation, parole, or supervised release; and
(L) The landline and mobile telephone numbers of the sexual offender.
Obviously, some of this information is already known to the Sheriff and is not incriminating, but some of it can absolutely be self-incriminating. For instance:
Since any change in required information must be reported in person within 72 hours of the change, then, if, for whatever reason, 72 hours elapses and the change has not been reported in person, the registered person is in violation and guilty of a felony. To report it after 72 hours is tantamount to a confession since there is no defense for this non-compliance.
Providing the required information is coercive and mandatory
OCGA § 42-1-12
(f) Any sexual offender required to register under this Code section shall:
(3) Maintain the required registration information with the sheriff of each county in which the sexual offender resides or sleeps;
(4) Renew the required registration information with the sheriff of the county in which the sexual offender resides or sleeps by reporting in person to the sheriff within 72 hours prior to such offender’s birthday each year to be photographed and fingerprinted;
(5) Update the required registration information with the sheriff of the county in which the sexual offender resides within 72 hours of any change to the required registration information, other than where he or she resides or sleeps if such person is homeless. If the information is the sexual offender’s new address, the sexual offender shall give the information regarding the sexual offender’s new address to the sheriff of the county in which the sexual offender last registered within 72 hours prior to any change of address and to the sheriff of the county to which the sexual offender is moving within 72 hours prior to establishing such new address. If the sexual offender is homeless and the information is the sexual offender’s new sleeping location, within 72 hours of changing sleeping locations, the sexual offender shall give the information regarding the sexual offender’s new sleeping location to the sheriff of the county in which the sexual offender last registered, and if the county has changed, to the sheriff of the county to which the sexual offender has moved; and
(6) Continue to comply with the registration requirements of this Code section for the entire life of the sexual offender, excluding ensuing periods of incarceration.
This is the part that invokes the doctrine of Compelled Acts of Self-Incrimination
OCGA § 42-1-12
(n) Any individual who:
(1)Is required to register under this Code section and who fails to comply with the requirements of this Code section;
(2) Provides false information; or
(3) Fails to respond directly to the sheriff of the county where he or she resides or sleeps within 72 hours prior to such individual’s birthday
shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than 30 years; provided, however, that upon the conviction of the second offense under this subsection, the defendant shall be punished by imprisonment for not less than five nor more than 30 years.
Now, imagine reporting in person as required by OCGA § 42-1-12 (f) (5), announcing your presence by giving your name, and then remaining silent on the information that may or may not be timely and accurate or could be construed as incorrect.
At present, you would be immediately arrested and charged with 'Failure to Register as a Sex Offender.' What is needed is to file a Petition for Declaratory Judgement, O.C.G.A. § 9-4-2, asserting that this requirement is unconstitutional on its face and as it applies to persons whose sentences have been completed.
At present, you would be immediately arrested, thrown in jail, and charged with 'Failure to Register as a Sex Offender.' What is needed is to file a Petition for Declaratory Judgement, O.C.G.A. § 9-4-2, asserting that this requirement is unconstitutional on its face and as it applies to persons whose sentences have been completed.
Incidentally, for persons who are on probation or parole, all this information can be collected by the community supervision officer and entered into the record.For persons whose sentences have been completed, the government has any number of ways to obtain all the information that they need to satisfy the law. There is no longer any need to report in person. There are other ways to get the information such as text messages, email messages, or even simply a video phone call.
It is a misconception that most people charged with 'failure to register as a sex offender' or, FTR, have actually failed to register. The overwhelming majority of persons charged with FTR are actually already registered. A person who is actually already registered will be so charged with failure to register if he is beyond 72 hours reporting any change to the required information, fails to report an anticipated change of residence address 72 hours PRIOR to such change and then again within 72 hours after the move, or if he simply finds himself unable to get to the Sheriff's office in a timely manner.
Most persons convicted of an offense that causes them to have to register are sentenced to serve time in prison. About a week before their release from prison at the expiration of their sentence, the prison counselor will register that person with all the required information, so that when that person is released from prison he is already registered as a sex offender. He then has 72 hours from the day that he is released to report to the sheriff of the county where he intends to reside to confirm his required information and to be photographed and fingerprinted - again - as if his fingerprints have somehow changed. If he fails to report in person, or if he does report and any of the required information he gives is incorrect or incomplete, then he is charged with 'failure to register as a sex offender' even though he is in fact already registered. It is at this in-person reporting that he is compelled by law to perform an act of self-incrimination, as it is nigh impossible to fully comply with the requirements set forth in OCGA § 42-1-12(f), since it is all so confusing.
There is zero tolerance. There are NO exceptions written into the law. If the registered person has a change in the required information, and forgets to report such change in person, and then reports the change more than 72 hours later, then he is guilty of a felony and can be sentenced to prison for as much as 30 years. This is a non-violent, victimless crime. The person who forgets to report the change in his required information has literally done NOTHING, yet will be charged with a felony violation of the law. This is un-American.
Here is the quirk in this whole scheme that the government is not telling the registered person: if he reports to the sheriff in a timely manner and then remains silent, and refuses to fill out their many forms, then he is protected by Paragraph XVI of the Georgia State Constitution. However, if he does as he thinks he is required by law and volunteers the possibly incriminating information, then he is not protected by Paragraph XVI of the Georgia State Constitution.
BUT, therein lies the rub. The Attorney General has not informed the sheriffs of the state that the registered person is under no obligation to perform this compelled act of self-incrimination, so if the person exercises his constitutional right not to perform this act of self-incrimination, he will be immediately arrested and thrown in jail. Under no other circumstance that I know of will a person be summarily arrested and thrown in jail for exercising his constitutional rights. This is un-American.
Again, to be made to report, in person, to the sheriff and give information that may or may not be timely, correct, and complete, is a "Compelled Act of Self-Incrimination", an act that is prohibited by the Georgia State Constitution. Every sheriff and every county that participates in this unlawful scheme should be sued for real and compensatory damages under the racketeering laws of this state.