07 LC
29 2689S (SCS)
Senate
Bill 23
By:
Senators Douglas of the 17th, Rogers of the 21st, Schaefer of the 50th, Hawkins
of the 49th, Staton of the 18th and others
AS
PASSED SENATE
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 1 of Chapter 10 of Title 17 of the Official Code of Georgia
Annotated, relating to criminal sentencing procedure, so as to provide that in
making determinations with respect to probation and suspension of sentences, the
court may inquire into and consider the legality of a prisoner´s presence
in the United States; to amend Article 2 of Chapter 9 of Title 42 of the
Official Code of Georgia Annotated, relating to granting of pardons, parole, and
other relief in general, so as to provide that the State Board of Pardons and
Paroles may inquire into and consider the legality of a prisoner´s presence
in the United States when making parole decisions; to make a statement of
legislative findings and intent with respect to applicability; to provide for
related matters; to provide an effective date; to repeal conflicting laws; and
for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
1 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating
to criminal sentencing procedure, is amended by adding a new Code section to
read as follows:
"17-10-1.3.
(a)
In determining whether to probate all or any part of any sentence of confinement
in any felony, misdemeanor, or ordinance violation case, the sentencing court
shall be authorized to make inquiry into whether the person to be sentenced is
lawfully present in the United States under federal law.
(b)
If the court determines that the person to be sentenced is not lawfully present
in the United States, the court shall be authorized to make inquiry into whether
the person to be sentenced would be legally subject to deportation from the
United States while serving a probated sentence.
(c)
If the court determines that the person to be sentenced would be legally subject
to deportation from the United States while serving a probated sentence, the
court may:
(1)
Consider the interest of the state in securing certain and complete execution of
its judicial sentences in criminal and quasi-criminal cases;
(2)
Be authorized to consider the likelihood that deportation may intervene to
frustrate that state interest if probation is granted; and
(3)
Where appropriate, be authorized to decline to probate a sentence in furtherance
of the state interest in certain and complete execution of sentences.
(d)
This Code section shall apply with respect to a judicial determination as to
whether to suspend all or any part of a sentence of confinement in the same
manner as this Code section applies to determinations with respect to
probation."
SECTION
2.
Article
2 of Chapter 9 of Title 42 of the Official Code of Georgia Annotated, relating
to granting of pardons, parole, and other relief in general, is amended by
inserting a new Code Section 42-9-43.1 to read as follows:
"42-9-43.1.
(a)
In determining whether to grant parole the board shall be authorized to make
inquiry into whether the prisoner is lawfully present in the United States under
federal law.
(b)
If the board determines that the prisoner is not lawfully present in the United
States, the board shall be authorized to make inquiry into whether the prisoner
would be legally subject to deportation from the United States while on
parole.
(c)
If the board determines that the prisoner would be legally subject to
deportation from the United States while on parole, the board may:
(1)
Consider the interest of the state in securing certain and complete execution of
its judicial sentences in criminal cases;
(2)
Be authorized to consider the likelihood that deportation may intervene to
frustrate that state interest if parole is granted; and
(3)
Where appropriate, be authorized to decline to grant parole in furtherance of
the state interest in certain and complete execution of
sentences."
SECTION
3.
The
General Assembly finds that this Act states factors for consideration in
discretionary decision-making processes within the criminal justice system. The
General Assembly finds that such factors could have been considered prior to or
without the enactment of this Act. Accordingly, it is the intention of the
General Assembly that this Act may be applied with respect to offenses committed
prior to its effective date as well as offenses committed on or after its
effective date. However, if there should be a judicial determination that
retrospective application is prohibited, it is the intention of the General
Assembly that retrospective application should be severable.
SECTION
4.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.