GA Code § 17-10-16 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 10 - Sentence and Punishment|Article 1 - Procedure for Sentencing and Imposition of Punishment|§ 17-10-16. Sentence to Imprisonment for Life Without Parole Authorized; Ineligibility for Parole or Leave Programs

  Notwithstanding any other provision of law, a person who is convicted of an offense committed after May 1, 1993, for which the death penalty may be imposed under the laws of this state may be sentenced to death, imprisonment for life without parole, or life imprisonment as provided in Article 2 of this chapter.   Notwithstanding any other provision of law, any person who is convicted of an offense for which the death penalty may be imposed and who is sentenced to imprisonment for life without parole shall not be eligible for any form of parole during such person's natural life unless the State Board of Pardons and Paroles or a court of this state shall, after notice and public hearing, determine that such person was innocent of the offense for which the sentence of imprisonment for life without parole was imposed.Such person shall not be eligible for any work release program, leave, or any other program administered by the Department of Corrections the effect of which would be to reduce the term of actual imprisonment to which such person was sentenced.     (Code 1981, §17-10-16, enacted by Ga. L. 1993, p. 1654, § 3.)   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1993, "May 1, 1993," was substituted for "the effective date of this Code section" in subsection (a).   Editor's notes.   - Ga. L. 1993, p. 1654, § 7, effective May 1, 1993, provides: "Except as provided in this section, the provisions of this Act shall apply only to those offenses committed after the effective date of this Act. With express written consent of the state, a defendant whose offense was committed prior to the effective date of this Act may elect in writing to be sentenced under the provisions of this Act provided that: (1) jeopardy for the offense charged has not attached and the state has filed with the trial court notice of its intention to seek the death penalty or (2) the defendant has been sentenced to death but the conviction or sentence has been reversed on appeal and the state is not barred from seeking the death penalty after remand."   Ga. L. 1993, p. 1654, § 8, effective May 1, 1993, provides: "Except as provided in Section 6 of this Act [Code Section 17-10-32.1], the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act nor shall this Act be construed as repealing Code Sections 17-10-30, 17-10-31, or 17-10-32 of the Official Code of Georgia Annotated."   Ga. L. 1993, p. 1654, § 9, effective May 1, 1993, provides: "No person shall be sentenced to life without parole unless such person could have received the death penalty under the laws of this state as such laws have been interpreted by the United States Supreme Court and the Supreme Court of Georgia."   Law reviews.   - For note on 1993 enactment of this Code section, see 10 Ga. St. U.L. Rev. 183 (1993).   JUDICIAL DECISIONS   Constitutionality.    - O.C.G.A. § 17-10-16 does not violate the equal protection clause of the Fourteenth Amendment because the statute places the discretion to withhold the presentation of a life-without-parole sentence in cases of crimes committed before May 1, 1993, in the hands of the prosecutor. Freeman v. State, 264 Ga. 27, 440 S.E.2d 181 (1994).    O.C.G.A. § 17-10-16 does not violate Ga. Const. 1983, Art. IV, Sec. II, Para. II, Ga. Const. 1983, Art. IV, Sec. VII, Para. II, and Ga. Const. 1983, Art. I, Sec. II, Para. III because the statute imposes legislative restrictions on the power of the Board of Pardons and Paroles to grant parole. Freeman v. State, 264 Ga. 27, 440 S.E.2d 181 (1994).    Legislature's power to prescribe punishment for crime includes the power to make ineligibility for parole part of the punishment. Moore v. Ray, 269 Ga. 457, 499 S.E.2d 636 (1998).   Ex post facto application.    - Application of O.C.G.A. § 17-10-16 to the defendant did not violate ex post facto prohibitions since the defendant expressly elected the application and that section did not establish a greater penalty or alter the situation to the defendant's disadvantage. Brantley v. State, 268 Ga. 151, 486 S.E.2d 169, cert. denied, 522 U.S. 985, 118 S. Ct. 449, 139 L. Ed. 2d 384 (1997).    When a defendant pled guilty to rape and the state did not seek the death penalty, it was error to impose a sentence of life without parole under O.C.G.A. § 16-6-1(b); under case law and O.C.G.A. § 17-10-16(a), a life sentence without parole was authorized only in cases when the state first sought the death penalty. Velazquez v. State, 283 Ga. App. 863, 643 S.E.2d 291 (2007), aff'd, 238 Ga. 206, 657 S.E.2d 838 (2008).    Cited in Rower v. State, 264 Ga. 323, 443 S.E.2d 839 (1994); State v. Velazquez, 283 Ga. 206, 657 S.E.2d 838 (2008); State v. Velazquez, 283 Ga. 206, 657 S.E.2d 838 (2008); Moore v. State, 303 Ga. 743, 814 S.E.2d 676 (2018).   OPINIONS OF THE ATTORNEY GENERAL   Constitutional limitations on power to parole.    - As of January 1, 1995, there have been placed additional constitutional limitations on the power of the State Board of Pardons and Paroles to parole. The limitations include the inability to parole during the mandatory minimum sentence for the seven serious violent felonies set out in O.C.G.A. § 17-10-6.1, the inability to parole for sentences of life without parole as set out in O.C.G.A. §§ 17-10-7(b)(2) and17-10-16, and the inability to parole for felony recidivists who are convicted for a fourth or subsequent such offense. Other felons and misdemeanants are required to serve the minimum time prescribed in O.C.G.A. § 42-9-45(b), subject to the authority reserved by statute to the board in O.C.G.A. § 42-9-46 to consider for clemency upon complying with certain notice procedures. 1995 Op. Att'y Gen. No. 95-4.