Amicus Curiae Brief — California Dept. of Corrections v. Morales

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4) Mov 3% i994

No. 93-1462 | Qs Me ilk |

In The ~ 7

Supreme Court of the United States

October Term, 1994

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CALIFORNIA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

JOSE RAMON MORALES,

a/k/a PABLO JOSE RAMON MORALES,

Respondent.

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On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

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BRIEF AMICUS CURIAE BY THE STATE OF GEORGIA

IN SUPPORT OF PETITIONERS

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Terry L. Lonc

Assistant Attorney General

Counsel on Behalf of

the State of Georgia

Please serve: MicHaAeEL J. Bowers

— Attorney General

40 Capitol Square, SW Daryt A. Rosinson

Atlanta, GA 30334-1300 Senior Assistant

(404) 656-5161 Attorney General

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

IS A DETERMINATION TO EXTEND THE TIME

BETWEEN AN INMATE’S PAROLE HEARINGS LIM-

ITED BY THE RESTRICTIONS OF THE EX POST FACTO

CLAUSE WHICH PROHIBIT RETROACTIVE ENHAN-

CEMENT OF PUNISHMENT?

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TABLE OF CONTENTS

Page(s)

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CONSTITUTIONAL PROVISION ................55. 2

INTEREST OF THE AMICUS CURIAE............. 2

SUMMARY OF THE ARGUMENT ................. 3

STATEGe GP Fie GAs sce rsceveseteyenneecni 3

ARGUMENT AND CITATION OF AUTHORITY.... 3

I. EXTENDING THE TIME BETWEEN PAROLE

CONSIDERATIONS DOES NOT ENHANCE

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CONC EARS wepccccccccocseccéucetecacensasweeal 8

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TABLE OF AUTHORITIES

Page(s)

Cases:

Akins v. Snow, 922 F.2d 1558 (11th Cir.), cert. denied,

ee ee IED oo vc ccccccccccces 2

Beazell v. Ohio, 269 U.S. 167 (1922)................... 4

Collins v. Youngblood, 497 U.S. 37 (1990)....... 3, 4, 5, 8

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1

ee ea re ccc ccccceeccrecces 5

Morales v. California Department of Corrections, 16

ES 1

Portley v. Grossman, 444 U.S. 1311 (1980)........ 5, 6, 7

Sultenfuss v. Snow, __ F.3d ___, No. 91-8002 (11th

Cir. decided Oct. 5, 1994) (en banc)................ 5

Warden v. Marrero, 417 U.S. 653 (1974) ............... 6

Weaver v. Graham, 450 U.S. 24 (1981)................. 4

STATUTES:

United States Constitution,

cc cececccccesces 2

a eee i of es

No. 93-1462

°

In The

Supreme Court of the United States

October Term, 1994

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CALIFORNIA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

Vv.

JOSE RAMON MORALES,

a/k/a PABLO JOSE RAMON MORALES,

Respondent.

¢

On Writ of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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BRIEF AMICUS CURIAE BY THE STATE OF GEORGIA

IN SUPPORT OF PETITIONERS

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COMES NOW the State of Georgia, by and through

Michael J. Bowers, Attorney General for the State of

Georgia, and presents this its Brief Amicus Curiae in

support of Petitioners. For the reasons set forth, the deci-

sion of the court below should be reversed.

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OPINIONS BELOW

The original panel decision of the Ninth Circuit

Court of Appeals was reported in Morales v. California

1

Department of Corrections, 16 F.3d 1001 (9th Cir. 1994) and

decided February 9, 1994.

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JURISDICTION

The judgment of the United States Court of Appeals

for the Ninth Circuit was entered on February 9, 1994.

This appeal comes by Petition for Certiorari which was

granted by this Court on September 26, 1994 in Case No.

93-1462.

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CONSTITUTIONAL PROVISION

United States Constitution, Art. I, Sec. X, Cl. 1, which

states “no state shall . . . pass any . . . ex post facto law... .”

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INTEREST OF THE AMICUS CURIAE

This brief represents the interests of the State of

Georgia and the Georgia State Board of Pardons and

Paroles. The Georgia State Board of Pardons and Paroles

was the defendant/appellee in the case of Akins v. Snow,

922 F.2d 1558 (11th Cir.), cert. denied, __ U.S. __, 111

S.Ct. 2915 (1991). The Court of Appeals for the Ninth

Circuit, in the instant action, relied heavily on Akins in

support of its position that parole laws are subject to ex

post facto restrictions. The State of Georgia and the Geor-

gia State Board of Pardons and Paroles believe that the

analysis in Akins, upon which the Morales court relied, is

incorrect, rendering the Morales decision erroneous.

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SUMMARY OF THE ARGUMENT

A parole authority’s determination to extend the time

before it will hold subsequent parole hearings for an

inmate is not subject to the restrictions of the ex post

facto clause. The ex post facto provision applies to laws

which prohibit retroactive enhancement of punishment.

Laws establishing parole eligibility or parole consider-

ation are not a part of the sentence imposed. Parole is

merely an expectation that an inmate may receive the

State’s mercy by a reduction in his period of confinement.

Respondent's judicially imposed punishment was not

enhanced by a delay in his parole consideration date.

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STATEMENT OF THE CASE

The facts and course of proceedings outlined in Peti-

tioners’ brief are incorporated by this reference.

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ARGUMENT AND CITATION OF AUTHORITY

I. EXTENDING THE TIME BETWEEN PAROLE CON-

SIDERATIONS DOES NOT ENHANCE PUNISH-

MENT.

In Collins v. Youngblood, 497 U.S. 37 (1990), this Court

affirmed the longstanding definition of an ex post facto

law as:

any statute which punishes as a crime an act

previously committed, which was innocent

when done; which makes more burdensome the

punishment for a crime, after its commission, or

4

which deprives one charged with crime of any

defense available according to law at the time

when the act was committed... .

quoting Collins v. Youngblood, 497 U.S. at 42, Beazell v. Ohio,

269 U.S. 167, 169-70 (1925). The Collins decision limited

the application of the ex post facto clause and clarified

previous decisions of the Court.

The Court rejected the contention that ex post facto

analysis encompasses more than the long-established cat-

egories set forth in Beazeil. Thus, it is no longer appropri-

ate to inquire whether the law “alter[ed] the situation of a

party to his disadvantage” or “deprived [him] of a sub-

stantial right.” Id. at 47. Collins effectively provided the

“clean slate” desired by the concurrence in Weaver v.

Graham, 450 U.S. 24, 36 (1981) (Blackmun, J., concurring).

Likewise, any focus on whether the law in question is

procedural or substantive is irrelevant. The Court in Col-

lins stated that the cases which have drawn a distinction

between procedural and substantive laws have “imported

confusion into the interpretation of the ex post facto

Clause.” Id. at 45.

The only proper inquiry, therefore, is whether the

law falls within the “definition of crimes, defenses, or

punishments, which is the concern of the ex post facto

Clause.” Id. at 51. The question in this case is whether the

decision to extend the time between parole consider-

ations makes more burdensome the punishment for a

crime. Id. The answer is in the affirmative only if this

Court concludes that the scheduling of parole hearings is

synonymous with parole eligibility and that parole eligi-

bility is an inherent part of punishment. The court below

erred by basing its decision on these two false premises.

A. Parole Eligibility Is Not An Inherent Part Of

The Sentence Imposed.

This Court has never held that eligibility for parole is

a part of a prisoner’s sentence subject to the prohibitions

of the ex post facto clause. In light of Collins, which

narrowly defines the parameters «' the ex post facto

clause, this Court should not now enlarge its scope to

include parole eligibility. Parole is not a constitutional

right; it is at most an expectation. See, e.g., Greenholtz v.

Nebraska Penal Inmates, 442 U.S. 1 (1979). Parole is the

possibility that a prisoner’s period of confinement may

be reduced, an expectancy which may be denied for any

constitutionally permissible reason.

Once sentence is imposed by the court, the outer

limits of a prisoner’s punishment are established. Parole

provides a mechanism for conferring the grace of the

state upon an inmate by reducing the amount of time to

be served. The sentence, which is the judicially imposed

punishment, and the parole, which is the mercy of the

state bestowed upon the prisoner, are discrete functions

performed by separate branches of state government.

One is punishment which, once imposed, cannot be

enhanced; the other is mercy which, under the Georgia

scheme, may be granted or withheld so long as the rea-

sons for denial are not constitutionally impermissible.

Sultenfuss v. Snow, __ F.3d __, No. 91-8002 (11th Cir.

decided Oct. 5, 1994) (en banc).

Denial of parole does not extend a sentence, nor does

a sentence determine if or when an inmate will be

released on parole. Portley v. Grossman, 444 U.S. 1311

(1980). The first premise of the decision below thus fails.

If the sentence is not extended then punishment is not

enhanced. It follows that parole eligibility is not an inher-

ent part of an inmate’s sentence or punishment.

The reliance on Warden v. Marrero, 417 U.S. 653 (1974)

by the court below for the proposition that parole is a

part of Defendants’ punishment is misplaced. In Marrero,

this Court left open the question of whether parole eligi-

bility is a part of punishment for purposes of the ex post

facto clause. Marrero, 417 U.S. at 662. Marrero is limited to

its facts. The decision was an interpretation of parole

eligibility as defined by a federal statute and not an

attempt to define parole eligibility for ex post facto pur-

poses.

Collins instructs that the appropriate inquiry is

whether the law falls within the definition of crimes,

defenses, or punishments. Because parole eligibility does

not increase the sentence it is not punishment.

B. A Change In The Frequency Of Parole Hearings

Does Not Alter Parole Eligibility.

Hearing schedules do not extend the sentence of the

inmate, but merely provide an orderly mechanism by

which prisoners are periodically considered for parole.

The analysis in Portley v. Grossman, 444 U.S. 1311 (1980)

(Rehnquist, Circuit Justice), is persuasive. In Portley, the

Court held that “[parole] guidelines operate only to pro-

vide a framework for the [parole] Commission's exercise

of its statutory discretion.” Id. at 1312. The decision rec-

ognized that the denial of parole does not determine the

length of the sentence, stating:

—_a- oa se. eee

[t]he terms of the sentence originally imposed

have in no way been altered. Applicant cannot

be held in confinement beyond the term

imposed by the judge, and at the time of his

sentence he knew that parole violations would

put him at risk of serving the balance of his

sentence in federal custody. The guidelines,

therefore, neither deprive applicant of any pre-

existing right nor enhance the punishment

imposed.

Id. at 1312-13.

Respondent in this case was considered for parole

but parole was denied for at least another three years. It

is pure speculation that any requirement that Respondent

be reconsidered in less than this three year period would

result in an earlier release. The ex post facto clause does

not prohibit changes relating to speculative benefits

bestowed according to the unfettered grace of the state.

Rather, the clause stands guard against changes which

enhance or enlarge punishment concretely.

This Court has established the boundaries of the ex

post facto clause and narrowed the terms of its applica-

_ tion. That work should not be undone by applying the ex

post facto prohibition to laws or practices twice removed

from actual punishment; there is a sentence which deter-

mines time to serve, parole eligibility which provides a

hope of parole, and parole consideration rules which

provide a schedule for the exercise of the Board’s discre-

tion. At the very least, a distinction should be drawn,

from a constitutional perspective, between the complete

elimination of an opportunity for parole and an alteration

in the rules concerning when parole consideration will

take place.

In the final analysis, however, neither parole eligi-

bility nor parole consideration extends a prison sentence

or removes any tangible benefit. Therefore, under Collins,

the test of whether punishment is enhanced leads to the

conclusion that alterations in parole consideration sched-

ules do not violate the ex post facto clause.

S

CONCLUSION

For the foregoing reasons, the State of Georgia and

the Georgia State Board of Pardons and Paroles respect-

fully request that the decision of the Ninth Circuit Court

of Appeals be reversed.

Respectfully submitted,

Terry L. Lonc 457460

Assistant Attorney General

Counsel on Behalf of

the State of Georgia

MicuHaet J. Bowers 071650

Attorney General

Please serve:

Terry L. LONG

Assistant Attorney General

40 Capitol Squire, S.W. Daryt A. Rosinson 610012

Atlanta, GA 30334-1300 Senior Assistant

(404) 656-5161 Attorney General