Justice Nels Peterson, Supreme Court of Georgia. (Photo: John Disney/ALM)

If the Georgia Supreme Court had a crystal ball, it might show a debate coming up about what constitutes cruel and unusual punishment.

That prediction comes from a concurring opinion Justice Nels Peterson wrote and shared Monday expressing concern that the high court could be off track on the subject. It also offers a textbook definition of originalism.

“I am skeptical that our analytical approach to the Cruel and Unusual Punishment Clause of the Georgia Constitution is consistent with the original public meaning of that Clause,” Peterson began—getting straight to his point as he can be counted on to do.

Peterson agreed fully with the majority opinion by Justice Keith Blackwell. Blackwell explained the high court's decision to reinstate a 20-year prison sentence that a judge for a habeas corpus challenge threw out on the determination that it was “cruel and unusual.” Blackwell said the habeas court was wrong on the facts and the law.

The case at hand is that of Brandon Pate. Prosecutors and two witnesses told the jury about a night in late December 2006 or early January 2007—when Pate was 15 years old—at the home of a girl identified as M.R., who was 13, according to Blackwell.

M.R. had let her best friend sneak into her bedroom window to watch television and eat snacks, even though her father—asleep in the next room—had forbidden her to have visitors that night. Pate and another boy had dropped off the best friend. Pate returned through the window later, ostensibly to pick up the friend. But then he demanded sex from M.R. When she refused, he pulled a knife from his pocket and threatened to “slit your dad's throat.” Believing him, she complied. She said nothing for two years. When she finally told her father, he reported the incident to police, according to Blackwell.

Pate was convicted in 2010 of statutory rape, aggravated assault and possession of a knife during the commission of a felony, Blackwell said. He was sentenced to 20 years in prison for the statutory rape, plus probation for another 20 years for aggravated assault and an additional five years of probation for possession of a knife. The jury acquitted him of the most serious charge, forcible rape.

In 2018, a Washington County judge set aside the convictions on the grounds that both Pate and M.R. were juveniles and so the case should not have been a felony, and that the sentence was “cruel and unusual,” Blackwell said.

“We first consider the determination of the habeas court that the statutory rape of which Pate was found guilty is only a misdemeanor,” Blackwell said. “The habeas court reasoned that Pate was 'not more than two years older' than M.R. at the time of the statutory rape, and for that reason, his conduct was punishable only as a misdemeanor under OCGA § 16-6-3 (c).”

That law says that a case is a misdemeanor if a victim is at least age 14 but under 16 and the person convicted of statutory rape is 18 or younger.

“Here, M.R. was only 13 years of age at the time of the statutory rape,” Blackwell said.

Next, the court turned to the finding that the sentence was cruel and unusual.

“In this case, the habeas court's inference of gross disproportionality

Rested principally on its view that the conduct underlying Pate's conviction for statutory rape was merely 'consensual sex with an individual younger than him' and was only a 'passive felony.' But the record shows that this characterization is wrong.” Blackwell said. “M.R. did not readily consent to sex with Pate at all—she refused him repeatedly and expressly. She finally gave in and agreed to have sex with Pate only after he brandished a knife and threatened to kill her father, who was asleep in an adjoining bedroom. To call such conduct 'consensual sex' and only a 'passive felony' is to grossly mischaracterize what Pate did to M.R.”

Blackwell went on to say that Pate's 20 years in prison “does not meet even the threshold inference of gross disproportionality, and so, despite his young age, his sentence for statutory rape must stand.”

Attorney General Chris Carr had no comment on Blackwell's decision or Peterson's concurrence.

Pate was represented by Ecleynne Mercy and Timothy McCalep.

“I am extremely disappointed with the Supreme Court's ruling,” McCalep said. “I am however, optimistic that the Court's opinion will benefit other defendants seeking justice and relief.”

Peterson's concerns about the “original public meaning” of cruel and unusual punishment in the Georgia Constitution could come up again.

Peterson cited Elliott v. State, 2019 Ga. LEXIS 112, at *17 (II) (C) (Case No. S18A1204, decided Feb. 18, 2019). The Elliott opinion said the justices “should not simply recite holdings” of the U.S. Supreme Court regarding the U.S. Constitution and “uncritically import them into our interpretation” of parallel provisions of the Georgia Constitution,” Peterson said.

“But for the last several decades, we have done precisely that in our application of Georgia's Cruel and Unusual Punishment Clause,” Peterson said. “Instead, we should interpret the Clause according to its original public meaning, informed by its text, context, and history.”

“Interpretation of this provision requires consideration of its meaning in 1861,” Peterson said.

“Shortly after the Georgia provision's adoption, we explained the meaning of the prohibition on cruel and unusual punishment,” Peterson said. That holding was that, as long as the General Assembly does not provide cruel and unusual punishments, “such as disgraced the civilization of former ages, and make one shudder with horror to read of them, as drawing, quartering, burning,” the Constitution does not limit legislative discretion.

“We expressly viewed this construction as incompatible with what would become the United States Supreme Court's 'evolving standards of decency' analysis,” Peterson said. “But then the United States Supreme Court's dramatic shift in interpretation of the Eighth Amendment during the 1970s—including the invalidation of Georgia's death penalty—knocked us off course. And by the late 1980s, we had reversed course entirely.”

Peterson cited Fleming v. Zant, 259 Ga. 687 (1989). He said in that opinion the court addressed the history and context of the Georgia Constitution in one sentence and then “flatly ignored” it in the next, turning away from 100 years of precedent.

“Ever since, we have applied the United States Supreme Court's 'evolving standards of decency' analysis to decide questions under the Georgia Constitution,” Peterson said. “It seems to me quite likely that such an approach cannot be squared with the original public meaning of the Georgia Constitution, and if it cannot, we should reconsider our approach in the proper case.”

The case is Conley v. Pate, No. S18A1121.