Georgia Supreme Court Rejects Sex Offender Registration Challenge, Re-Affirms Originalism Commitment

In May, the Supreme Court of Georgia unanimously rejected a facial and as-applied challenge to the constitutionality of Georgia’s sex offender registry law,[1] which requires offenders who committed their offenses in another state to register with the local sheriff’s office upon taking up residence in Georgia.[2]

Derrick Session was indicted for the aggravated rape of a four-year-old child in Louisiana in May of 1994. A year later, Session pleaded guilty to an amended charge of sexual battery and was sentenced by a Louisiana court to ten years at hard labor on August 15, 1995. Session completed his sentence in 2004 and received a first-offender pardon under Louisiana law.[3]

After living in Texas for a while, Session moved to Paulding County, Georgia, and registered with the Paulding County Sherriff’s Office in April 2017. In March 2019, a detective conducted a residence check at the address Session provided in his initial registration and discovered that Session was now living in Kennesaw, Georgia, and had not updated his registration. Session was then arrested for failure to register in March 2020. 

On October 28, 2020, a Paulding County grand jury indicted Session on two counts of failure to register as a sex offender. After a bench trial on both counts, the trial court determined that Session was guilty and imposed an aggregate sentence of twenty years, with five in confinement, and with the incarceration time to be suspended provided that Session pay a $6,000 fine and subsequently comply with all requirements of the sex offender registration statute.

Session appealed[4] and raised several objections to his conviction, including on federal and state constitutional grounds. The crux of Session’s argument was that because sexual battery was a misdemeanor offense in Georgia at the time of his offense, and persons convicted of misdemeanors in Georgia were exempt from the registration requirement, it was therefore unconstitutional to require him to register for an offense he committed in Louisiana for which he would not have been required to register had he committed the same offense in Georgia. Specifically, Session argued that the registration requirement violated 1) the right to travel protected by the Privileges or Immunities Clause of the Fourteenth Amendment,[5] 2) the Equal Protection Clause,[6] and 3) the Social Status Provision of the Georgia Constitution.[7]

Presiding Justice Nels S.D. Peterson wrote the opinion of the unanimous court upholding the conviction.

The court first addressed Session’s non-constitutional argument that the evidence was insufficient to support his failure to register conviction. The court observed that under the plain text of Georgia’s sex offender registry law, Session was required to register because of his prior offense in Louisiana, and further that Session could not make any showing that the evidence was insufficient to support the conclusion that he was required to register in Georgia.[8]

Next, the court considered Session’s argument that the registration requirement violated the right to travel protected by the Privileges or Immunities Clause. The court observed that the United States Supreme Court’s right to travel precedents focused on “public benefits schemes that allocated benefits differently depending on how long a person had been residing in the State” and did not implicate criminal laws.[9] The court further observed that Session did not base his arguments on the fact that the registry law treated residents and non-residents differently, but instead based his challenge on the notion that the registry law “rel[ies] on another state’s handling of a particular criminal history to determine how that individual will be treated in Georgia.”[10] This argument ultimately failed, the court explained, because, while the Louisiana sexual battery felony and the Georgia sexual battery misdemeanor were similar, it would be “pure speculation to say of what particular crime Session would have been convicted, let alone to say that it would have been a misdemeanor, had he engaged in the same conduct in Georgia.” As a result, the court concluded that Session failed to show that Georgia’s registration requirement violated his right to travel.[11]

Third, the court considered Session’s equal protection argument. Session asserted that the registration requirement violated his right to equal protection because it impermissibly distinguishes between those who were convicted of sexual battery in another state and similarly-situated persons in Georgia.[12] In rejecting Session’s argument, the court reemphasized the fact that “Georgia’s definition of the crime of sexual battery was similar to, but not the same as, Louisiana’s definition at the time of the underlying offense,” and noted that differences in substantive criminal law between states “is not the sort of explicit distinction between in-state and out of state offenders . . . that other courts have found runs afoul of the Equal Protection Clause.”[13] After citing several precedents finding just such an explicit distinction, the court concluded that Session failed to show that his equal protection rights had been violated.

Finally, the court rejected Session’s argument that the registration requirement creates a disfavored class of citizens and therefore violates the Social Status Provision of the Georgia Constitution. The Social Status Provision provides that “[t]he social status of a citizen shall never be the subject of legislation”[14] and possesses a controversial history.

The court explained that the Provision first appeared in the 1868 Georgia Constitution, the ratification of which was necessary for Georgia’s readmission to the Union after the Civil War pursuant to the First Reconstruction Act of 1867.[15] The court further explained that Georgia courts “almost immediately” began interpreting the Provision in a “patently racist” manner and interpreted the Provision to “prohibit[] any attempts by the General Assembly to remove barriers to racial integration.”[16] The court then cataloged several precedents employing this “patently racist” interpretation of the Provision.[17] 

Session asserted that the Provision can no longer legitimately possess the meaning given to it by the Reconstruction-era courts, but it must still possess some meaning, and thus it should be understood to “prohibit[] the State from creating favored or disfavored classes of citizens.”[18] The court declined this invitation to imbue the Provision with new meaning and reaffirmed its methodological commitment to interpreting the Georgia Constitution “according to its original public meaning.”[19] The court explained that although the current Georgia Constitution was ratified in 1983, “when a provision has been ‘retained from a previous constitution without material change,’ we generally presume that the provision ‘has retained the original public meaning that provision had at the time it first entered the Georgia Constitution, absent some indication to the contrary.’”[20] Additionally, the court noted that “[a] constitutional clause that is readopted into a new constitution and that has received a consistent and definitive construction is presumed to carry the same meaning as that consistent construction.”[21] The court stressed the importance of delving into the history of the Provision in order to understand its original public meaning, stating that “[c]ases like these serve as a reminder that we focus on history not because it is always good, but because the rule of law requires it.”[22] Despite the dark history of the precedents surrounding the Social Status Provision, the court reasoned that even if the “Provision’s language prohibiting legislation with respect to ‘social status’ was thinly veiled code for preserving racial discrimination, including segregation, any such application of the Provision squarely violate[s] the Fourteenth Amendment” and “thus has no effect whatsoever.”[23]

The court left the question of whether there is an alternative original public meaning of the Social Status Provision for another day.[24] The court was satisfied that “Session fail[ed] to show how the registration requirement and related provisions, rather than the fact of being convicted of a sex offense ‘created’ a particular class of citizens . . . or caused ‘society’ to treat that class of persons differently.”[25] And the court closed its opinion by observing that Session “offered no proposed plausible construction if the Provision that would prohibit criminalizing certain types of conduct on the theory that it would create a disfavored class comprising those individuals convicted of such crimes.”[26]

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