2021 Georgia Code
Title 42 - Penal Institutions
Chapter 5 - Correctional Institutions of State and Counties
Article 3 - Conditions of Detention Generally
§ 42-5-52. Classification and Separation of Inmates Generally; Placement of Juvenile Offenders and of Females; Transfer of Mentally Diseased, Alcoholic, Drug Addicted, or Tubercular Inmates

1. The department shall provide for the classification and separation of inmates with respect to age, first offenders, habitual criminals and incorrigibles, diseased inmates, mentally diseased inmates, and those having contagious, infectious, and incurable diseases. Incorrigible inmates in county correctional institutions shall be returned to the department at the request of the proper county authority.
2. The department may establish separate correctional or similar institutions for the separation and care of juvenile offenders. The commissioner may transfer any juvenile under 17 years of age from the penal institution in which he or she is serving to the Department of Juvenile Justice, provided that the transfer is approved thereby. The juvenile may be returned to the custody of the commissioner when the commissioner of juvenile justice determines that the juvenile is unsuited to be dealt with therein. The commissioner may accept a juvenile for transfer into a penal institution upon the request of the commissioner of juvenile justice if such juvenile is 16 years of age or older and has been committed to the Department of Juvenile Justice for a class A designated felony act or class B designated felony act, as defined by Code Section 15-11-2, and such juvenile's behavior presents a substantial danger to any person at or within a Department of Juvenile Justice facility. In the event of such transfer, the department shall have the same authority over and responsibility for such juvenile as the Department of Juvenile Justice has for such juvenile and shall maintain sight and sound separation as set forth in paragraph (5) of subsection (c) of Code Section 15-11-504.
3. Female inmates shall be removed from proximity to the place of detention for males and shall not be confined in a county correctional institution or other county facility except with the express written approval of the department.
4. The department is authorized to transfer a mentally diseased inmate from a state or county correctional institution or other facility operating under its authority to a criminal ward or facility of the Department of Behavioral Health and Developmental Disabilities. The inmate shall remain in the custody of the Department of Behavioral Health and Developmental Disabilities until proper officials of the facility at which the inmate is detained declare that his or her sanity has been restored, at which time the inmate shall be returned to the custody of the department. At any time after completion of his or her sentence, an inmate detained by the Department of Behavioral Health and Developmental Disabilities on the grounds that he or she is mentally diseased may petition for release in accordance with the procedure provided in Chapter 3 of Title 37. Prior to completion of his or her sentence, this procedure shall not be available to the inmate.
5. Upon being presented with a proper certification from the county physician of a county where a person has been sentenced to confinement that the person sentenced is addicted to drugs or alcohol to the extent that the person's health will be impaired or life endangered if immediate treatment is not rendered, the department shall transfer the inmate to the custody of the Department of Behavioral Health and Developmental Disabilities. The inmate shall remain in such custody until officials of the Department of Behavioral Health and Developmental Disabilities determine the inmate is able to serve his or her sentence elsewhere.
6. The department may transfer any inmate afflicted with active tuberculosis from any state or county correctional institution, or any other facility operating under the authority of the department, to a tubercular ward or facility specially provided and maintained for criminals by the department at a tuberculosis facility or facilities operating under the Department of Public Health.

(Ga. L. 1897, p. 71, § 8; Penal Code 1910, § 1203; Ga. L. 1931, Ex. Sess., p. 118, §§ 8, 9; Code 1933, §§ 77-317, 77-318, 77-319; Ga. L. 1956, p. 161, § 14; Ga. L. 1957, p. 477, § 2; Ga. L. 1960, p. 234, § 1; Ga. L. 1962, p. 699, § 1; Ga. L. 1991, p. 94, § 42; Ga. L. 1992, p. 1983, § 21; Ga. L. 1997, p. 1453, §§ 1, 2; Ga. L. 2009, p. 453, § 3-23/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2013, p. 294, § 2-1/HB 242.)

The 2013 amendment, effective January 1, 2014, in subsection (b), inserted "or she" in the second sentence, and added the fourth and fifth sentences. See editor's note for applicability.

- Commitment of juvenile to adult correctional facility prohibited, § 15-11-34.

- Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For note, "Behind Closed Doors: An Empirical Inquiry Into the Nature of Prison Discipline in Georgia," see 8 Ga. L. Rev. 919 (1974).

JUDICIAL DECISIONS

Confinement of drug addict not cruel and unusual punishment.

- Although the defendant's physician certified that the defendant was a drug addict and withdrawal from drugs was inadvisable, a sentence of 12 months and a fine of $500.00 was not cruel and unusual punishment in light of subsection (e) of this section. Trammell v. State, 125 Ga. App. 39, 186 S.E.2d 438 (1971).

Cited in Irwin v. Arrendale, 117 Ga. App. 1, 159 S.E.2d 719 (1967); Wilson v. Kelley, 294 F. Supp. 1005 (N.D. Ga. 1968); Wilkes County v. Arrendale, 227 Ga. 289, 180 S.E.2d 548 (1971); Southerland v. Ga. Dep't of Corr., 293 Ga. App. 56, 666 S.E.2d 383 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions rendered under former Code 1933, § 77-401 are included in the annotations for this Code section.

- Board of Corrections can transfer an inmate to Central State Hospital for treatment as a mentally diseased inmate; if an inmate is declared sane prior to completion of the inmate's existing sentence, the inmate can be returned to stand trial for outstanding charges. 1970 Op. Att'y Gen. No. 70-72.

Subsections (a) and (c) of former Code 1933, §§ 77-317, 77-318, and 77-319 (see now O.C.G.A. §§ 42-2-8,42-2-9, and42-5-52), indicate that the director of the Board of Corrections (now commissioner of corrections) is authorized to determine whether or not an inmate is mentally diseased and should be transferred to a state mental hospital. 1968 Op. Att'y Gen. No. 68-136.

- By implication from the language of this section, the Board of Corrections retains a certain amount of administrative control over a prisoner transferred to the criminal facilities at Central State Hospital. 1975 Op. Att'y Gen. No. 75-146.

- In order that an alcoholic or drug addict who is a prisoner be transferred to a state hospital, the county physician must certify that the health of the prisoner will be impaired or the prisoner's life endangered unless treatment is received. 1962 Op. Att'y Gen. p. 381.

- When a prisoner certified to be an alcoholic is sent to a state hospital, that prisoner may be removed to another prison when hospital authorities determine the prisoner is able to serve the sentence elsewhere. 1962 Op. Att'y Gen. p. 378.

- Board of Corrections has the power to promulgate rules and regulations as to good time allowances which are applicable to prisoners transferred to Central State Hospital due to mental illness. 1975 Op. Att'y Gen. No. 75-146.

- Convicted felons should and will only be given shock treatment at the Milledgeville State Hospital (now Central State Hospital) and then only when prescribed by a staff physician of that hospital. 1965-66 Op. Att'y Gen. No. 66-214.

Responsibility for returning an insane fugitive convict to the state is on the Department of Corrections. 1945-47 Op. Att'y Gen. p. 427 (decided under former Code 1933, § 77-401).

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 83, 84, 133.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 23-25, 85, 86, 128, 129, 136, 140.

- Constitutionality of statutes in relation to treatment or discipline of convicts, 50 A.L.R. 104.

Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.

Authority of court to order juvenile delinquent incarcerated in adult penal institution, 95 A.L.R.3d 568.

Right of incarcerated mother to retain custody of infant in penal institution, 14 A.L.R.4th 748.