July 1 is the New January 1

Several important criminal laws go into effect in Georgia on July 1. Most are in line with the prevailing “get tough on crime” attitude in the statehouse.

Senate Bill 44 imposes a five-year mandatory prison sentence for gang-related offenses and an additional five years for recruiting minors to commit crimes on behalf of the gang. Republican Governor Brian Kemp said that SB 44 sends a clear message to gang members that recruiting children for criminal activity will have serious consequences. “This bill will help us stop the spread of gangs, hold offenders accountable, and keep our communities safe,” he said in April.

Critics call the measure a step backward in criminal justice that they say should emphasize rehabilitation over locking people up, and they argue that a judge’s discretion on sentencing would be unreasonably limited by the bill. Separately, a new law requiring cash bail for charges unrelated to criminal gangs could result in someone being arrested during a traffic stop if they have an outstanding failure to appear in court charge on their record.

House Bill 227, which increases criminal penalties for damaging critical infrastructure such as water systems, electric grid, or law enforcement buildings, also took effect on Saturday, July 1.

This year, a controversial law and order bill that failed to pass would have added 31 criminal charges requiring bail, such as misdemeanor trespassing and marijuana possession. Lawmakers will have a chance to reconsider SB 64 when the legislative session resumes in January. 

Lawmakers also passed bills prohibiting transgender care for minors and authorizing minors to sell lemonade at roadside stands.

Pretrial Release

This provision failed, but in the current political environment, it’ll probably pass eventually. Republicans have the numbers. Once the bill’s sponsors water down a few provisions, the votes will be there.

The divisiveness in the Republican Party indicates the divisive nature of this issue. Five years ago, no one cared about pretrial release, unless they were under arrest. Now, it’s very controversial. Officials cannot lock up everyone and throw away the key. They also cannot swing the cell doors wide open and allow everyone to walk out.

A line must be drawn somewhere. To make the line-drawing process a little easier, three forms of pretrial release are available in Cobb County and most other jurisdictions.

• Own Recognizance Release: Officials instituted OR release to give jailers another option. But OR release probably blurred the aforementioned line. For example, only nonviolent offenders may be released on their own recognizance. But many crimes, like DUI and stalking, could be violent or nonviolent, depending on one’s perspective.
• Cash Bond: SB 64 expanded mandatory cash bond requirements. Most people don’t have the cash to pay a $1,000 emergency expense, and many people can’t immediately borrow (i.e. use a credit card) that much money either. Cash bond could be at least $1,000, even in a misdemeanor.
• Bail Bond: Usually, a bail bond is a hybrid between OR release and cash bond release. It’s normally available in all but the most serious crimes, and a bail bond costs about a tenth of cash bond. If it’s not immediately available, a Marietta criminal defense lawyer can usually convince a judge to set bond during a bond reduction hearing.

We highlighted the differences. Now, let’s look at the sames. All defendants must appear at all required hearings. Other general conditions, such as remaining in the county and periodic in-person check-ins, apply as well. In addition, most judges add offense-specific conditions, like an IID (ignition interlock device, or blow-and-go), in a DUI.

Terroristic Threat or Act

Usually, a terroristic threat is making a credible threat to harm a large group of people at the same time. A terroristic act is intentionally harming a large group of people at the same time. As is often the case in criminal law, the adjectives and adverbs are the most important words in these laws:

• Making a Threat: These charges usually involve social media or other online posts. As most of us know, most social media and other online posts are either entirely fake or greatly exaggerated. At trial, the state must prove, beyond any reasonable doubt, that the defendant typed the post and hit “send” entirely on his/her own. Good luck with that, especially if someone else knew the account username and password.
• Credible Threat: Specifically, the terroristic threat must upset or frighten a reasonable person. Unleashing a monster on the Brooklyn Bridge is clearly not a credible threat. Blowing up the Brooklyn Bridge probably isn’t a credible threat either. Exploding a bomb on the Brooklyn Bridge is a far-fetched yet credible threat. Attacking a school or other public building is a somewhat less far-fetched and credible threat.
• Intentional Harm: There’s a difference between intentional and reckless. Intentionally basically means maliciously, at least in this context. Recklessly basically means sociopathically. Reckless people act and don’t care if people get hurt.

The crime of terroristic threat, the much more common offense of the two, is complete when the defendant makes the threat. Prosecutors don’t need evidence of credibility, like a bomb or machine gun in the backseat of a car, although that evidence makes the charges easier to prove.

Street Gang Crime

Mandatory minimum sentences have a checkered past, to say the least. At best, mandatory minimums may reduce crime. At worst, mandatory minimums result in disproportionate sentencing and reduce judicial discretion. That last sentence contained a lot of Legalese, so let’s break it down a little.

In the early 1980s, when the War on Drugs reached a fever pitch, Congress added harsh mandatory minimums to crack cocaine offenses and lesser mandatory minimums to powder cocaine offenses. A chemist told lawmakers that crack cocaine was much more concentrated, and therefore much more dangerous, than powder cocaine. Upon further review, that testimony might have been overclaimed.

As for court discretion, a mandatory minimum basically says that lawmakers, not judges and juries who know the facts, are better suited to punish defendants. That ain’t right.

Of course, the sentencing provision doesn’t matter if a Marietta criminal defense lawyer successfully challenges the evidence in the case. These challenges are often successful in criminal gang recruitment matters.

Frequently, during their investigations, officers scroll through text messages and flag messages which, in their opinion, indicate gang participation. An independent analyst often has a different opinion. Furthermore, the search itself might be illegal. Officers must have search warrants to go past a phone’s home screen. The owner could consent to a search. But owners who are already in custody can’t effectively consent to a property search, like an underage girl cannot effectively consent to sex.

Some new laws could significantly affect criminal cases in Cobb County. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Convenient payment plans are available.