# Amicus Curiae Brief — California Dept. of Corrections v. Morales > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0500%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1995 - **Citation:** 514 U.S. 499 ## Text ~ RBIEF?. o \ 4) Mov 3% i994 No. 93-1462 | Qs Me ilk | In The ~ 7 Supreme Court of the United States October Term, 1994 + CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Petitioners, 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 + BRIEF AMICUS CURIAE BY THE STATE OF GEORGIA IN SUPPORT OF PETITIONERS + 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? EE eS Lg ee ee ae ee ee OE ee ee ee ee ial eer ii TABLE OF CONTENTS Page(s) CRRDCRLIOE PEIOOIEE vv oi ctcdccvdvestsscadgmene i TAREE Ge Ge ooo cs ccnviccccccoviséussenet ii FARES QR o ov cecccsvesectdsesescuen iii CED ITT oC nccdonciccnvicesessenstenuene 1 OR oc bdcstvadssevetontcavecsespneeanee 2 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 Pe 3 CONC EARS wepccccccccocseccéucetecacensasweeal 8 iii 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 + 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 ¢ BRIEF AMICUS CURIAE BY THE STATE OF GEORGIA IN SUPPORT OF PETITIONERS ¢ 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. ¢ 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. + 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. + CONSTITUTIONAL PROVISION United States Constitution, Art. I, Sec. X, Cl. 1, which states “no state shall . . . pass any . . . ex post facto law... .” ¢ 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. ¢ 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. ¢ STATEMENT OF THE CASE The facts and course of proceedings outlined in Peti- tioners’ brief are incorporated by this reference. + 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0500%3A12. Public record. Not legal advice.