Though I have never been a legislator, nor a lawyer, nor have I even played one on television, I have a more than basic understanding of how laws are made, take effect, and the legislative process. Here is a simple primer with some examples which folks might find helpful.
Let’s say that in the upcoming session of the Georgia General Assembly, the legislature decriminalized the possession and consumption of less than one ounce of marijuana.
Though unlikely to happen, as it stands a number of law enforcement agencies and urban police departments, operating under local ordinances or enforcement policies within their jurisdiction, are already no longer making arrests for what is commonly referred to as minor possession.
Regardless, if that were to be signed into law statewide by Governor Brian Kemp, that new statute would take effect either upon signature (if that language is included in the bill) or, more typically on July 1 of the following year, in this case, July 1, 2024. Individuals previously charged, prosecuted – even serving time – for such minor possession cases would not suddenly be freed or have their charges dropped due to that change in the law. That takes effect going forward, not retroactively or backward.
The system leaves some wiggle room in that a prosecutor or solicitor might reduce or drop pending charges, in recognition of the change in applicable law, or during sentencing a judge or jury might substantially reduce charges, penalties, or sentences accordingly, but this would not occur automatically.
Several years ago, the general assembly passed a law to allow for the growth, prescription, sale, and distribution of medical cannabis. The law was signed, went into effect, an oversight body was appointed, the Administrative Procedures Act was followed, and rules and procedures were established and promulgated. Yet, closing on five years after that statute was passed there remains no Georgia medical cannabis grower, manufacturer, or retail distribution network in place.
And when new laws are passed, though electronic versions exist, Georgia no longer annually prints massive OCGA (Official Code of Georgia Annotated) manuals, and there is no instant distribution methodology where suddenly all law enforcement officers, solicitors, district attorneys, and the courts suddenly have awareness of all new statutes just passed and their exact effective dates. This requires ongoing training of all parties that are part of law enforcement and the court system.
Kemp served only a short time in the Georgia State Senate, yet he clearly understands this. Georgia has a state constitution, as do all 50 states. If say a law was passed regarding how elections are conducted, ballots are tabulated, and what types of balloting are allowed, advance voting, absentee voting, the use of ballot drop boxes, and so on ... a special legislative session to change those types of voting, equipment, methodology, or results tabulation would be effective for the next election cycle, not back to an election already passed.
The governor and Georgia general assembly last year passed a law (Senate Bill 92 during the 2023 session) to create a Prosecuting Attorney Qualifications Commission (PAQC), similar in structure and operating ability to the Judicial Qualifications Commission created in 2018.
Since the session ended, the governor, lieutenant governor, and house speaker appointed members to the PAQC, operating procedures are being written and promulgated, and a small group of existing district attorneys who feel this potential oversight is unnecessary, potentially chilling, and possibly unconstitutional, have filed litigation before the law takes full effect.
Not surprisingly, there are a few legislators making noise about calling a special legislative session to discipline or reduce the budget or restrain the operations of the Fulton County Judicial Circuit and its current district attorney, Fani Willis, due to her ongoing RICO criminal case prosecution of former President Donald J. Trump and 18 alleged co-conspirators.
Again, a small civics lesson, when the general assembly held its last special session in 2021 to draw congressional district maps, those new maps took effect for congressional races during 2022, not for any prior elections and contests. So, if Kemp were to call a special session or sign a writ for a call issued by either legislative chamber, such a new statute would impact only the conduct of district attorneys elected at a future point in time.
We can’t undo the present or precedent without a fully functioning time machine, even when the case involves an ornery former president. Got that? There will be a pop quiz next week at the state capitol.