Dangerous Sexual Predator Tag Requires Due Process

Under Georgia’s sex offender registration statute, the Board must classify those convicted of sex offenses into one of three levels: Level I (low risk), Level II (intermediate risk), and Level III (dangerous sexual predator). Those classified as dangerous sexual predators face a number of additional restrictions, including lifetime GPS monitoring.

Gregory was classified as a dangerous sexual predator after being convicted of lewd internet contact with a minor (he was actually communicating with an undercover police officer portraying himself as a minor). He first requested that the Board reconsider its classification. When that was denied, he appealed to the Superior Court which also refused to reconsider it. He then appealed to the Georgia Supreme Court on the grounds that this procedure violated due process in that it resulted in a loss of liberty without providing him with an evidentiary hearing.

In evaluating Gregory’s argument, the Supreme Court first determined whether there was, in fact, a liberty interest at stake. The ramifications of a dangerous sexual predator classification are that the person must abide by employment and residential restrictions that are over and above those placed on Level I and Level II offenders. Of particular significance to the Court was the condition that the person must wear (and pay for) an electronic tracking device for the rest of his life. Thus, the Court had little difficulty concluding that this classification placed a restraint on a person’s liberty.

As such, the Court explained that the Board’s decision to classify someone as a dangerous sexual predator must comport with due process. In analyzing whether this procedure provided adequate due process, the Court turned to the 3-part test outlined by the U.S. Supreme Court in Mathews v. Eldridge, which weighs (1) the liberty at stake; (2) the possibility that the current process would lead to erroneous deprivation of liberty; and (3) the government’s interest in the procedure or the burden of providing greater procedural protections.

Having already established the liberty interest at stake, the Court moved on to the second prong and held that there was a significantly higher probability of an erroneous deprivation of liberty in the absence of an evidentiary hearing. The type of evidence at issue in classifying sex offenders is generally of a subjective nature and is often open to dispute.

As to the third prong, the Board argued that having to hold an evidentiary hearing would be prohibitively costly and burdensome. The Court disagreed, pointing out that other jurisdictions have already answered this very question and held that requiring an evidentiary hearing for classification purposes does not put an undue strain on the government. The Court noted that the Board may elect to establish a procedure in which those classified as sexually dangerous predators can be afforded an administrative hearing to present favorable evidence and confront the evidence against them. This could possibly be more efficient and cost-effective than judicial hearings.

Regardless, the Court concluded that it is clear that the current procedure, or lack thereof, does not comport with due process and is therefore unconstitutional.