The End of Spousal Privilege in Georgia

Lawmakers in Georgia are poised to change the balance of power in the prosecution of domestic violence. The Georgia House of Representatives approved HB 711 last month and sent it on to the Georgia Senate. The bill was approved without change and sent to the governor’s desk. Once it goes into effect, HB 711 will allow prosecutors to compel victims of domestic violence to testify against their abusive spouse. It also protects the communications between victims of domestic violence and sexual abuse and the agencies that are created to help them.

This changes an age-old loophole in the law that made it much more difficult for prosecutors to obtain convictions against battering spouses. The loophole, coupled with an 8-year-old opinion from the Supreme Court of the United States, severely tied the hands of domestic violence prosecutors and allowed batterers to go free. In recognition of the sanctity of marriage, a spouse has a general privilege as not to be compelled to testify against one another in criminal proceedings. This privilege became abused in the prosecution of domestic violence cases. Spouses, generally under pressure from their abusers, could refuse to take the stand to testify against the attacker.

Until 2004, prosecutors were able to get around this privilege with some creative legal maneuvering. Once spouses exercised their privilege to refuse to testify, the witness could be deemed to be legally unavailable, allowing the admission of hearsay statements of the victim to 911 operators and law enforcement officers at trial. This exception to the hearsay rule allowed prosecutors to present some very powerful evidence. But the noticeable absence of the victim on the witness stand or the noticeable presence of the victim in support of the batterer sent an equally powerful message to a jury as well.

In 2004, prosecutors were dealt another blow when the Supreme Court held in Crawford v. Washington that the admission of hearsay statements of unavailable witnesses was a violation of the Sixth Amendment in that an accused has a right to confront his accuser in court. This left prosecutors without a witness to many brutal attacks, trying to piece together cases with photographs of injuries and 911 recordings.

The new law will allow prosecutors to compel these victims to take the stand against their abusive spouses. Even if they fail to testify honestly, once these witnesses have testified, their prior inconsistent statements to law enforcement can be admitted to as evidence in trial. According to Solicitor General David Cannon, Jr., “Georgia was the last state to allow this privilege in domestic violence cases, but this bill will allow us to put some real teeth into prosecuting these cases. We will be able to make a difference.”

Eric Ballinger is private practicing attorney in Canton, GA. He serves as the attorney training coordinator for the Cherokee Family Violence Center and handles may pro-bono cases each year for victims of domestic violence.

 

Criminal Justice Reform: A Challenge for the 2012 Legislative Session

Each year, criminal justice is a serious concern for the Georgia Legislature.  Fighting crime is always an important platform for lawmakers, however with costs increasing and budgets tightening, changes need to be made to the $1 billion a year corrections system. While costs of corrections are increasing, many question whether or not business as usual is effective.

House Bill 265 from the 2011 session of the General Assembly created the Special Council for Criminal Justice Reform for Georgians. The Council, made up of appointees from the Governor, Lieutenant Governor, Speaker of the House and the Chief Justice of the Supreme Court of Georgia, was established to address the spiraling costs of crime and punishment. With help from the Pew Charitable Trusts, they were tasked to identify the current problems and make recommendations on how to best use the state resources. The Council made its report to the legislature on Nov. 1, 2011.

The Council found that prison population in the past two decades has doubled to nearly 56,000 inmates, placing 1 in every 70 adult Georgians behind bars. Projections show that by 2016, that inmate population will grow to 60,000.

Georgia’s prisons are already operating at 107 percent capacity. Much of this space is presently being taken by non-violent offenders. Yet this rising prison population is not deterring crime as recidivism—offenders returning to the community to commit new crime—remains unchanged.

Similarly, the Council found the state’s community based corrections systems are stretched to the point of becoming ineffective. As of 2010, there were 156,000 probationers and 22,000 parolees supervised in Georgia. Those charged with supervising these offenders are without the tools to rehabilitate as the services and programs that the officers refer offenders—particularly substance abuse and mental heath services—are insufficient and in some cases non-existent.

Overall, the Council found that business as usual in the criminal justice system in Georgia is going to break Georgians and needs to become more effective in preventing recidivism. In its November 2011 report, the Council made a three part recommendation that called for improving public safety and holding offenders accountable; focusing expensive prison beds on serious offenders; and examining the priorities of reinvestment of funds in the criminal justice system.

The overall plan outlined in the report calls on the system to strengthen community based corrections (probation and parole; allowing for increased supervision; and more resources for rehabilitation). The Council also saw a great deal of benefit in “accountability courts” that use a carrot and stick approach of intensive court supervision over a period of rehabilitation.

Offenders in these accountability court programs see a judge routinely and interact with a panel of counselors, probation officers and drug testing personnel on a daily basis. Offenders that are making progress are rewarded while offenders that slip spend short periods in jail. These courts presently function in several counties as “Drug Court” and “DUI Court” and are enjoying very successful numbers in both rehabilitation and preventing recidivism at costs far less than incarceration.  Accountability courts received attention last year as Governor Deal’s son, a Hall County Superior Court judge, oversees the drug court in that county.

While strengthening community based programs offers more opportunity for rehabilitation to non-violent offenders, it frees up the expensive bed space for serious violent offenders that need to be removed from society. To effectuate such changes will require a reinvestment of the funds spent on the criminal justice system. Money will need to be focused on community based treatment for mental health and drug treatment as well as funds to establish the statewide system of accountability courts.

Now, the task of breaking the centuries old model of crime and punishment in the State of Georgia is laid at the feet of the Georgia General Assembly just in time for the 2012 session. Implementing these changes is not only going to require a reinvestment of funds but also a change in the mindset of the many people and agencies that operate the criminal justice system. While many of the players are resistant to change, it is clear that Georgia can no longer afford business as usual.