GA Code § 42-9-39 (2021)
2021 Georgia Code|Title 42 - Penal Institutions|Chapter 9 - Pardons and Paroles|Article 2 - Grants of Pardons, Paroles, and Other Relief|§ 42-9-39. Restrictions on Relief for Person Serving a Second Life Sentence

  The provisions of this Code section shall be binding upon the board in granting pardons and paroles, notwithstanding any other provisions of this article or any other law relating to the powers of the board.   Except as otherwise provided in subsection (b) of Code Section 17-10-7, when a person is convicted of murder and sentenced to life imprisonment and such person has previously been incarcerated under a life sentence, such person shall serve at least 30 years in the penitentiary before being granted a pardon and before becoming eligible for parole.   When a person receives consecutive life sentences as the result of offenses occurring in the same series of acts and any one of the life sentences is imposed for the crime of murder, such person shall serve consecutive 30 year periods for each such sentence, up to a maximum of 60 years, before being eligible for parole consideration.   Any other provisions of this Code section to the contrary notwithstanding, the board shall have the authority to pardon any person convicted of a crime who is subsequently determined to be innocent of said crime.     (Code 1981, §42-9-39, enacted by Ga. L. 1983, p. 523, § 1; Ga. L. 1994, p. 1959, § 14; Ga. L. 2006, p. 379, § 27/HB 1059.)   Cross references.   - Power and authority of the board to grant reprieves, pardons, paroles, and other relief, Ga. Const. 1983, Art. IV, Sec. II, Para. II.   Editor's notes.   - Ga. L. 1994, p. 1959, § 18, not codified by the General Assembly, provides: "This Act shall become effective on January 1, 1995, upon ratification by the voters of this state at the 1994 November general election of that proposed amendment to Article IV, Section II, Paragraph II of the Constitution authorizing the General Assembly to provide for mandatory minimum sentences and sentences of life without possibility of parole in certain cases and providing restrictions on the authority of the State Board of Pardons and Paroles to grant paroles." That amendment was ratified by the voters on November 8, 1994, so this Code section, as set out above, became effective on January 1, 1995.   Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sentence Reform Act of 1994.'"   Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds:   "(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and   "(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections."   Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: "The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a 'conviction' for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act."   Ga. L. 1994, p. 1959, § 17, not codified by the General Assembly, provides for severability.    Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond , 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond , it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."   Ga. L. 2006, p. 379, § 30/HB 1059, not codified by the General Assembly, provides, in part, that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."   Law reviews.   - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 159 (1994).   JUDICIAL DECISIONS   Construction with Georgia Street Gang and Terrorism Prevention Act.    - There is no legal authority to support the proposition that the Georgia Street Gang and Terrorism Prevention Act, O.C.G.A. § 16-15-1 et seq., and O.C.G.A. § 42-9-39, two very differently worded statutory provisions, are equivalent; thus, the defendant's argument that, as a matter of law, if the armed robbery of September 17, 1999, and the murder of December 28, 1999, are considered as part of the "pattern of criminal street gang activity" for purposes of violating the Street Gang Act, they must necessarily also be considered "offenses occurring in the same series of acts" within the meaning of § 42-9-39(c) failed. Seabolt v. State, 279 Ga. 518, 616 S.E.2d 448 (2005).   Denial of parole not necessarily cruel and unusual punishment.    - Since in pleading guilty to four counts of murder and one count of aggravated assault, the defendant admitted a number of acts that a jury could reasonably consider "aggravating circumstances" under O.C.G.A. § 17-10-30(b), and in both Georgia and other jurisdictions, the defendant might well have been sentenced to death, a sentence denying the defendant consideration of parole for 30 years, under subsection (c) of O.C.G.A. § 42-9-39 does not constitute "cruel and unusual punishment." McClendon v. State, 256 Ga. 480, 350 S.E.2d 235 (1986).   Juvenile offenders.    - Defendant's sentence for crimes the juvenile committed as a juvenile, which amounted to eight consecutive life sentences plus 60 years, was upheld on appeal because the United States Supreme Court had not expanded its mandate that the Eighth Amendment's prohibition of cruel and unusual punishment as the Amendment applied to juvenile offenders required a sentencer to consider a juvenile's youth and youth's attendant characteristics before imposing a sentence other than life without parole. Veal v. State, 303 Ga. 18, 810 S.E.2d 127 (2018), cert. denied, 139 S. Ct. 320, 202 L. Ed. 2d 218 (U.S. 2018).    Cited in Cook v. State, 255 Ga. 565, 340 S.E.2d 843 (1986); Davis v. State, 255 Ga. 598, 340 S.E.2d 869 (1986); Cargill v. State, 255 Ga. 616, 340 S.E.2d 891 (1986); In re L.L.B., 256 Ga. 768, 353 S.E.2d 507 (1987).   RESEARCH REFERENCES   Am. Jur. 2d.   - 59 Am. Jur. 2d, Pardon and Parole, §§ 30, 76.   C.J.S.   - 67A C.J.S., Pardon and Parole, §§ 18, 23-25, 46-53.   ALR.   - Construction and application of U.S. Const. Art. I, § 10, cl. 1, and state constitutional provisions proscribing state bills of attainder, 63 A.L.R.6th 1.