Petitioners Brief — Garner v. Jones

(f Supreme Court,

U.S

FILED

No. 99-137

2 1999

In The OFRIOE OF THE CLERK

Supreme Court of the United States

¢

J. WAYNE GARNER, former Chairman of the State Board

of Pardons and Paroles of the State of Georgia,

JAMES T. MORRIS, former Chairman of the State Board

of Pardons and Paroles of the State of Georgia,

GARFIELD HAMMONDS, JR., former Chairman of the

State Board of Pardons and Paroles of the State of

Georgia; BOBBY K. WHITWORTH, Member of the State

Board of Pardons and Paroles of the State of Georgia, and

TIMOTHY E. JONES, former Member of the State Board

of Pardons and Paroles of the State of Georgia,

Petitioners,

ROBERT L. JONES,

Respondent.

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On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

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BRIEF OF PETITIONERS

¢

THurRBERT E. BAKER

Attorney General

Mary BetH WESTMORELAND

Deputy Attorney General

CHRISTOPHER S. BRASHER

Please Serve: Senior Assistant Attorney

General

CHRISTOPHER S. BRASHER Counsel of Record

40 Capitol Square, SW

Atlanta, Georgia 30334-1300 Jacqueuine F. BuNN

(404) 657-3983 Assistant Attorney General

QUESTIONS PRESENTED

. , Georgia’s State Board of Pardons and Paroles is con-

bk Pos stitutionally and statutorily created. The Board is vested

Oe with the power of executive clemency and has the power

gt 1a SEO iat Sy | to grant reprieves, pardons, and paroles. Both the

ee one, Se SS - 3 , Supreme Court of Georgia and the United States Court of

See a Bae aN ee gah rey ae Nass Appeals for the Eleventh Circuit have surveyed the rele-

Pek OP reat One See, | : vant Georgia statutory and constitutional provisions and

Loeeryagne fi, : = concluded that the Board, exercises “virtually unfettered

ape ge | discretion” with its clemency power.

patter fk ae 3 | The questions presented are:

res" a. Ee eae wid 1. Whether the Ex Post Facto Clause of the

pit eo at ale : . United States Constitution bars Georgia from

Bimeme tee ts applying its regulation governing the recon-

pina E Mes ioe t Cal ah 2 ee sideration schedule for life-sentenced inmates

pte Sas a aN Se aa ee DO who have been denied parole, when the regula-

Fey Se ey See ai e, - lag tion has no effect on the sentence imposed, the

Sethe eae ah on . substantive formula for consideration for

parole, or the determination of eligibility for

| | | parole, or whether the change creates only “the

i | most speculative and attenuated possibility of

producing the prohibited effect of increasing the

measure of punishment.”

ore 2. Whether the decision below conflicts with

the decisions of other United States courts of

appeals and the appellate courts of the several

states as to the meaning and import of this

Court’s decisions in California Department of Cor-

rections v. Morales and Lynce v. Mathis.

ii

PARTIES BELOW

The parties to the proceeding in the Eleventh Circuit

Court of Appeals and in the District Court were as listed

in the caption. For purposes of Respondent's claims for

declaratory and injunctive relief, pursuant to Fed. R. Civ.

P. 25(d) of the Federal Rules of Civil Procedure, the

Petitioners are Walter S. Ray, Chairman, Bobby K. Whitw-

orth, Garfield Hammonds, Jr., Dr. Betty Ann Cook, and

Dr. Eugene P. Walker, the current members of the Georgia

Board of Pardons and Paroles.

en ne

TABLE OF CONTENTS

Page

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es 6hébdvonesedeeseceseecevececesees: 1

CONSTITUTIONAL AND OTHER PROVISIONS.... 1

STATEMENT OF THE CASE..........cccccscccccees 2

A. FACTUAL BACKGROUND .................. 3

B. PROCEDURAL BACKGROUND.............. 4

C. PROCEEDINGS BELOW .................+... 8

SUMMARY OF THE ARGUMENT ................. 4

GE Se cenecoccccdtecccccccccccceccescocces 11

I. GEORGIA’S APPLICATION OF ITS

AMENDED REGULATION GOVERNING

THE RECONSIDERATION SCHEDULE OF

LIFE-SENTENCED INMATES WHO HAVE

BEEN PREVIOUSLY DENIED PAROLE DOES

NOT VIOLATE THE EX POST FACTO

CLAUSE OF THE UNITED STATES CONSTI-

RAEEPPPPTOOTTTTTITITTTTIT TT TTT TIT 11

A. GEORGIA’S PAROLE BOARD IS

INVESTED WITH BROAD AUTONOMY

AND DISCRETION.........-.cseeeceees 14

iv

TABLE OF CONTENTS - Continued

Page

B. A CORRECT APPLICATION OF THIS

COURT’S PRECEDENTS DEMON-

STRATES THAT GEORGIA’S PAROLE

RECONSIDERATION SCHEME DOES

NOT VIOLATE THE EX POST FACTO

Ce cc cccccccecoccccccosscsessocens 17

C. THE ELEVENTH CIRCUIT’S ANALYSIS

OF GEORGIA’S PAROLE RECON-

SIDERATION SCHEME WAS ERRO-

NEOUS AND MISAPPLIED THIS

COURT’S CLEAR PRECEDENTS ........ 21

Il. THE ELEVENTH CIRCUIT ERRONEOUSLY

PLACED THE BURDEN OF PROOF UPON THE

PETITIONERS CONTRARY TO THIS COURT'S

CLEAR DIRECTIVE IN MORALES ............ 29

GSES coccccctcccesccscessoseadsuneseseset 32

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TABLE OF AUTHORITIES

Page

Cases

Akins v. Snow, 922 F.2d 1558 (11th Cir. 1991), cert.

denied, 501 U.S. 1260 (1991).......... 7, 21, 22, 24, 30

Beazell v. Ohio, 269 U.S. 167 (1925)............... 12, 13

Brantley v. Thompson, 216 Ga. 164, 115 S.E.2d 533

I senate elie cela tee dade tae 27

Calder v. Bull, 3 Dall. 386 (1798) ............. 11, 12, 13

California Department of Corrections v. Morales, 514

I a aa passim

Collins v. Youngblood, 497 U.S. 37 (1990).. 11, 12, 13, 30

Doe, ex dem. Truluck, et al. v. Peeples, 1 Ga. 1 (1846) .... 27

Fletcher v. Williams, 179 Ill. 2d 225 (1997)............ 18

Furnari v. Savaras, 914 P.2d 508 (Colo. 1996)......... 18

Hill v. Jackson, 64 F.3d 163 (4th Cir. 1995) ........ 18, 28

Jarrett v. City of Boston, 209 Ga. 530, 74 S.E. 530

ibd beech ddan dive tendideuibahndse sx 27

Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996), cert.

CO 31

Jones v. Garner, 164 F.3d 589 (11th Cir. 1999) .... passim

Jones v. Georgia State Board of Pardons and Paroles,

SD P.Sa 1145 (llth Cle. 1996)... cc ccccccccccess 5, 14

Jones v. State, 234 Ga. 108, 214 S.E.2d 544 (1975)...... 3

Jones v. State, 251 Ga. 361, 306 S.E.2d 265 (1983)...... 3

Jordan v. Tennessee Board of Paroles, 1997 Tenn. App.

BREED OP cocccccccccccccccesesoccecoseococecesosss 18

vi

TABLE OF AUTHORITIES - Continued

Page

ee oh Gate, Fee Ge, Ga Gc ccccccceseecesss sees 27

Lynce v. Mathis, 519 U.S. 433 (1997) ............. passim

Miller v. Florida, 482 U.S. 423 (1987).............+45. 12

Roller v. Gunn, 107 F.3d 227 (4th Cir. 1997), cert.

denied, 522 U.S. 874 (1997) ..........220005: 18, 28, 31

Shabazz v. Gabry, 123 F.3d 909 (6th Cir.), cert.

denied, 522 U.S. 1019 (1997)............ 18, 21, 22, 26

Sultenfuss v. Snow, 35 F.3d 1494 (11th Cir.), cert.

denied, 523 U.S. 1191 (1995)............045. 14, 24, 27

Tackitt v. Prudential Ins. Co., 758 F.2d 1572 (11th

Ge GD nccccoccncesepeccsccessusdésdcesscooncees 29

Tuff v. State, 732 So. 2d 461 (Fla. 1990).............. 18

Vargas v. Morris, 266 Ga. 141, 465 S.E.2d 275, cert.

denied sub non. Vargas v. Garner, 517 U.S. 1108

Ss cucencssasceqncesdsauegsescudédkeessauasuses 5

STATUTES

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See, Gi Ge Ge Be oc dccccccccecsducnsdscsacectessds ii

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a, Gee Gs Bh Gn cnccenccicdeccesecidessécns 5, 14

Sn: GS BE, Bi Give ctcccccssdscccscsescesctec 5

Ga, GD Rae, B Ge ccc cccccccccencocsesccsces 2

Ga. Code Ann. § 42-9-45(a) ... 2... 6... cece cece eens 6, 15

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vii

TABLE OF AUTHORITIES - Continued

Page

REGULATIONS

Ga. Comp. R. & Regs. r. 475-3-.05..... 1, 2, 6, 7, 15, 25

Ga. Comp. R. & Regs. r. 475-3-.06...............45. 6, 7

CONSTITUTIONAL PROVISIONS

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OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eleventh Circuit is reported as Jones v. Garner, 164

F.3d 589 (11th Cir. 1999), and is printed and included in

the appendix to the petition for a writ of certiorari (“Pet.

App. __”). See Pet. App. A, la. The order on the merits

by the United States District Court for the Northern Dis-

trict of Georgia, No., 1:95-CV-3012-CAM (August 25,

1997) is unreported. See Pet. App. B, 20a.

e

JURISDICTION

The Eleventh Circuit entered its opinion and judg-

ment on January 6, 1999 (Pet. App. A, 1a) and entered its

denial of Petitioners’ Motion for Rehearing and Sugges-

tion of Rehearing En Banc on April 19, 1999 (Pet. App. C,

30a). The petition for writ of certiorari was filed on July

19, 1999, and this Court granted the petition on Septem-

ber 28, 1999.

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CONSTITUTIONAL AND OTHER PROVISIONS

INVOLVED IN THE CASE

U.S. Const. Art. I, § 10:

No State shall .. . pass any . . . ex post facto

Law...

Ga. Comp. R. & Regs. r. 475-3-.05(2)

(effective December 1, 1979) (now superceded):

Reconsideration of those inmates who have

been denied parole shall take place at least

every three years. The Board will inform

inmates denied parole of the reasons for such

denial without disclosing confidential sources of

information or possibly discouraging diagnostic

opinions. (Text set out fully at J.A. 86-87).

Ga. Comp. R. & Regs. r. 475-3-.05(2)

(effective September 12, 1993) (presently in effect):

Reconsideration of those inmates who have

been denied parole shall take place at least

every eight years. The Board will inform

inmates denied parole of the reasons for such

denial without disclosing confic ential sources of

information or possibly discouraging diagnostic

opinions. (Text set out fully at J.A. 88-90).

STATEMENT OF THE CASE

This case stems from a change in the manner in

which Georgia’s Board of Pardons and Paroles (“Board”)

reconsiders life-sentenced inmates for parole after an ini-

tial denial of parole by the Board. No inmates in Georgia

are ever entitled to parole. Life-sentenced inmates are in a

unique class because they are never given a tentative

parole month. The Board is required according to regula-

tions adopted pursuant to Ga. Code Ann. § 42-9-40(a) to

initially review life-sentenced inmates for parole after

they have served a fixed number of years.

Thus, no issue regarding parole eligibility arises

herein. Rather, Respondent Jones complains about a

change in the Board’s regulations allowing them to recon-

sider him for parole less frequently after the Board ini-

tially denied him parole and denied him on

reconsideration twice subsequently.

In the eighties and nineties, many offenders, who had

committed heinous crimes that would have resulted in

the imposition of the death penalty in the past, received

life sentences and subsequently became statutorily eligi-

ble for parole. Thereafter, the Board amended its rules to

decrease the frequency of mandatory reconsideration

after an initial denial of parole in an effort to conserve

and better utilize its finite resources for the review of

other inmates who had a realistic likelihood of parole.

Similarly, the Georgia General Assembly enacted the

“Sentence Reform Act of 1994” to statutorily address this

concern. 1994 Ga. Laws 1959. A review of the underlying

facts and an explanation of the Board’s structure provide

the backdrop for the legal issues presented.

A. Factual Background

In the parole reconsideration process, the severity of

the offense and prior criminal history are factors consid-

ered by the Board. Thus, the facts of the underlying

crimes are significant. Respondent, Robert L. Jones, has

been convicted of two separate murders. See Jones v. State,

234 Ga. 108, 214 S.E.2d 544 (1975); Jones v. State, 251 Ga.

361, 306 S.E.2d 265 (1983). At the time of the first murder,

the victim, Jack Bell, lived in the same rooming house

where Jones resided. Id. Jones gained entry to Bell’s bed-

room and “began cursing loudly” until Bell awoke. Id.

Jones demanded his car on which Bell had made

repairs. Bell asked Jones to pay the $58.00 for the repairs,

and, in response, Jones “raised a shotgun and shot the

victim as he lay in the bed.” Id. Jones was sentenced to

life in prison after his conviction for this murder July 23,

1974. (J.A. 48). On November 24, 1979, Jones escaped

from custody. (J.A. 48).

On March 26, 1982, Jones murdered his second vic-

tim, Frances Tutt Davis, who was a stranger to Jones.

Jones, 251 Ga. at 361, 306 S.E.2d at 266. That afternoon,

Ms. Davis was waiting to board a train in downtown

Atlanta when Jones stabbed her to death with an ice pick.

Id. Jones fled the scene, “leaving the ice pick embedded”

in Ms. Davis’ chest. Id. Jones was convicted of the murder

of Ms. Davis and was sentenced to a second term of life

imprisonment on August 20, 1982. (J.A. 48).

Respondent was initially considered for, and denied,

parole in September 1989. (J.A. 48). He was reconsidered,

and again denied, in September 1992. (J.A. 49). Respon-

dent was considered a third time, and again denied

parole, in September 1995. (J.A. 49). At that time, Respon-

dent was advised that his next reconsideration would

come within the next eight years. (J.A. 49).

B. Procedural Background

Unlike most states, Georgia’s Board is vested with

“the power of executive clemency, including the power to

grant reprieves, pardons, and paroles; to commute penal-

ties; to remove disabilities imposed by law; and to remit

any part of a sentence for any offense against the state

after conviction.” Ga. Const. Art. IV, § 2, { 2(a). Both the

Supreme Court of Georgia and the United States Court of

Appeals for the Eleventh Circuit have surveyed the rele-

vant Georgia statutory and constitutional provisions and

have concluded that the Board, in its exercise of clemency

power has “virtually unfettered discretion.” Jones v. Geor-

gia State Board of Pardons and Paroles, 59 F.3d 1145, 1150

(11th Cir. 1995); see also Vargas v. Morris, 266 Ga. 141, 465

S.E.2d 275, cert. denied sub nom. Vargas v. Garner, 517 U.S.

1108 (1996).

Georgia’s Board operates independently of the execu-

tive and judicial branches of government, and the Gen-

eral Assembly’s statutorily articulated legislative policy

is:

In recognition of the doctrine contained in the

Constitution of this state requiring the three

branches of government to be separate, it is

declared to be the policy of the General Assem-

bly that the duties, powers, and function of the

State Board of Pardons and Paroles are execu-

tive in character and that in the performance of

its duties under this chapter, no other body is

authorized to usurp or substitute its functions

imposed by this chapter upon the board.

Ga. Code Ann. § 42-9-1. The Board is statutorily charged

with “the duty of determining which inmates serving

sentences imposed by a court of this state may be

released on pardon and parole and fixing the time and

conditions thereof.” Ga. Code Ann. § 42-9-20. The Board

must personally “study the cases of those inmates whom

the board has the power to consider so as to determine

their ultimate fitness for such relief as the board has

power to grant.” Id. Except as otherwise provided by law,

inmates serving sentences of life imprisonment become

statutorily eligible for the exercise of the Board’s powers

after the service of seven years’ imprisonment. Ga. Code

Ann. § 42-9-45(f). The Board is authorized to provide, by

regulation, for eligibility for reconsideration of those

inmates previously denied parole. Ga. Code Ann.

§ 42-9-45(a).

So that it could effectively exercise its considerable

discretion, the Board promulgated rules and established

policies with regard to the parole consideration process.

Ga. Comp. R. & Regs. r. 475-3-.06 (“An inmate serving a

life sentence, for which parole is authorized by law is

automatically considered for parole on the date permitted

by applicable constitutional and statutory law.”), and Ga.

Comp. R. & Regs. r. 475-3-.05 (“Reconsideration of those

inmates serving life sentences who have been denied

parole shall take place at least every eight years.”). Once

parole is denied to a life-sentenced inmate, the Board’s

reconsideration policy is based upon its Rules and its

policy statement regarding the “Interval for Reconsidera-

tion of Parole Denials in Life Sentence Cases,” which

provides that:

All Life Sentence Cases denied parole may be

set for reconsideration up to a maximum of

eight years from the date of last denial when, in

the Board’s determination, it is not reasonable to

expect that parole would be granted during the

intervening years. Inmates set-off under this

policy may receive expedited parole reviews in

the event of a change in their circumstances or

where the Board receives new information that

would warrant a sooner review.

Board Policy Statement No. 4.110. (J.A. 55-7).

Prisoners convicted of crimes committed prior to the

implementation of this policy challenged the application

to them of the eight-year set off, and the United States

Court of Appeals for the Eleventh Circuit found that the

retroactive application of the amended regulation vio-

lated the Ex Post Facto Clause. Akins v. Snow, 922 F.2d

1558 (11th Cir.), cert. denied, 501 U.S. 1260 (1991). Thus,

the Board amended its practices accordingly. (J.A. 49).

Subsequent to this Court’s decision in California

Department of Corrections v. Morales, 514 U.S. 499 (1995),

and based upon advice from the Attorney General of

Georgia that the Morales decision effectively overruled

the Eleventh Circuit’s holding in Akins, the Board

resumed retroactive application of its amended regula-

tion. (J.A. 49).

When the Respondent committed his second murder

in 1982, the pertinent Board rule with regard to “Time-

Served Requirements for Parole Consideration” provided:

Persons serving felony sentences or combination

felony and misdemeanor sentences of twenty-

one or more years, including a life sentence, are

eligible for parole consideration upon comple-

tion of the service of seven years.

Ga. Comp. R. & Regs. r. 475-3-.06(3). With regard to

parole reconsideration, the rules provided in pertinent

part, “Reconsideration of those inmates who have been

denied parole shall take place at least every three years.”

Ga. Comp. R. & Regs. r. 475-3-.05(2). In 1985, and, again

in 1993, Rule 475-3-.05(2) was amended to increase the

maximum period for reconsideration of life-sentenced

inmates from three to eight years. The Respondent chal-

lenges the application of this “eight-year rule” to his two

sentences of life imprisonment.

C. Proceedings Below

After being advised that his parole reconsideration

was being set-off for eight years by the Board, Respon-

dent initiated suit under 42 U.S.C. § 1983 alleging that the

retroactive application of the amendment violated the Ex

Post Facto Clause of the United States Constitution.

Respondent sought damages, as well as a declaratory

judgment that the application of the amended regulation

in his case violated the Ex Post Facto Clause.

Following a period of discovery, the parties filed

cross-motions for summary judgment. The District Court

granted summary judgment to the Board, finding that, as

in Morales, the amended regulation “creates ‘only the

most speculative and attenuated possibility of producing

the prohibited effect of increasing the measure of punish-

ment.’ ” (Pet. App. 27a).

On appeal, a panel of the Eleventh Circuit reversed

and remanded. As a factual matter, the Circuit Court

found that “Eight years is a long time.” Jones v. Garner,

164 F.3d at 595. Also, the Circuit Court held that this

“Court’s reasoning in Morales and Lynce [v. Mathis, 519

U.S. 433 (1997)] reaffirms the correctness of our holding

in [Akins].” Id. at 596. Finally, the Eleventh Circuit found

that “there is a ‘sufficient risk’ that the amended Georgia

regulation would ‘increase the measure of punishment.’ ”

The Circuit Court reversed the grant of summary judg-

ment to the Board and remanded the case to the District

Court. The Eleventh Circuit subsequently denied the

Board’s Motion for Rehearing with Suggestion for

Rehearing En Banc.

SUMMARY OF ARGUMENT

The United States Constitution forbids the states

from passing ex post facto laws. Art. I, § 10, { 1. In order

to establish that a regulation is an ex post facto law, one

must show that the “change alters the definition of crimi-

nal conduct or increases the penalty by which a crime is

punishable.” California Department of Corrections v.

Morales, 514 U.S. 499, 507, n. 3 (1995). It is not sufficient to

merely demonstrate “disadvantage” from the retroactive

application. Moreover, such showing cannot be “specula-

tive or attenuated [/d., at 508-9],” but must rather demon-

strate “with . . . certainty that the amended statutory

scheme [is] more onerous than that at the time of the

crime.” Lynce v. Mathis, 519 U.S. 433, 446, n. 16 (1997).

Respondent challenged the application to him of an

amendment to Georgia’s parole reconsideration require-

ments for life sentenced inmates which allows the Board

to “set-off” the parole reconsideration date of an inmate

who has been initially denied parole for up to eight years,

instead of the previous three years. The Regulation has

no effect upon any inmate’s parole eligibility, or upon the

discretion of the Board as to whether it ever grants parole

to life-sentenced inmates.

Under Georgia’s parole system, life sentenced

inmates have no expectation of parole, as it is the Board

alone which ultimately determines whether they are ever

10

released from confinement. No other entity within Geor-

gia’s government is constitutionally permitted to inter-

fere with the exercise of the Board’s discretion in

determining whether to grant parole to inmates within its

jurisdiction.

The Eleventh Circuit’s holding in the case below that

the instant regulation is an ex post facto law is erroneous.

Underlying this erroneous ruling is the fallacious

assumption by the lower court that more frequent man-

datory parole reconsideration ultimately leads to earlier

release from confinement. This assumption ignores the

reality that Georgia’s Parole Board retains the ultimate

authority to decide whether Jones is ever paroled.

Thus, the Circuit Court misapplied this Court's rul-

ings in Morales and Lynce by employing a perfunctory

application of the factors examined by this Court in

Morales, rather than focusing on the ultimate effect of

whether the retroactive application “constitutes a ‘suffi-

cient risk of increasing the measure of punishment

attached to the covered crimes.’ ” Morales, 514 U.S. at 509.

Moreover, the Circuit Court erred in placing the burden

of proof upon the Board.

Had the Eleventh Circuit focused upon the question

of whether it could be shown, beyond mere speculation,

that Jones’ sentences were increased by this retroactive

change, it could not have reached its erroneous conclu-

sion. Those errors require this Court to reverse the deci-

sion of the Eleventh Circuit. Additionally, the record,

statutes and other authorities available demonstrate that

11

the District Court’s grant of summary judgment to the

Board was, indeed, correct.

S

ARGUMENT

I. GEORGIA’S APPLICATION OF ITS AMENDED

REGULATION GOVERNING THE RECONSIDERA-

TION SCHEDULE OF LIFE-SENTENCED INMATES

WHO HAVE BEEN DENIED PAROLE DOES NOT

VIOLATE THE EX POST FACTO CLAUSE OF THE

UNITED STATES CONSTITUTION.

Article I, § 10 of the United States Constitution for-

bids the several states from passing any “ex post facto”

law. Art. I, § 10, { 1. “Although the Latin phrase ‘ex post

facto’ literally encompasses any law passed ‘after the

fact,’ it has long been recognized by this Court that the

constitutional prohibition on ex post facto laws applies

only to penal statutes which disadvantage the offender

affected by them [cits. omitted].” Collins v. Youngblood,

497 U.S. 37, 41 (1990).

In his now-famous opinion in Calder v. Bull, 3 Dall.

386 (1798), Justice Chase described four categories of ex

post facto laws:

lst. Every law that makes an action done before

the passing of the law, and which was innocent

when done, criminal; and punishes such action.

2d. Every law that aggravates a crime, or makes

it greater than it was, when committed. 3d.

Every law that changes the punishment, and

inflicts a greater punishment, than the law

annexed to the crime, when committed. 4th.

Every law that alters the legal rules of evidence,

12

and receives less, or different, testimony, than

the law required at the time of the commission

of the offense, in order to convict the offender.

Id. at 390.

This venerated exposition on what comprises ex post

facto laws is still consistently cited by this Court as a

cornerstone of its ex post facto jurisprudence. See, e.g.,

Miller v. Florida, 482 U.S. 423 (1987); Collins v. Youngblood,

497 U.S. 37 (1990); Morales, 514 U.S. 499 (1995); Lynce v.

Mathis, 519 U.S. 433 (1997). Likewise, this Court’s expla-

nation of ex post facto laws in Beazell v. Ohio, 269 U.S. 167

(1925), has been characterized as a “formulation .. . fa-

ithful to our best knowledge of the original understand-

ing of the Ex Post Facto Clause: Legislatures may not

retroactively alter the definition of crimes or increase the

punishment for criminal acts.” Collins v. Youngblood, 497

U.S. at 43-44.

In Collins, this Court removed from the ex post facto

lexicon the “procedural” versus “substantive” distinction

which the Court noted had “imported confusion into the

interpretation of the Ex Post Facto Clause.” Id. at 45. In its

place, this Court directed that the aforementioned Calder

and Beazell definitions be used in analyzing alleged ex

post facto laws. Id. at 50-51.

In California Department of Corrections v. Morales, 514

U.S. 499 (1995), this Court reviewed a legislative change

to the frequency with which the California Board of

Prison Terms reconsidered inmates who had been ini-

tially denied parole, finding no ex post facto violation,

but rather that the change created “only the most spec-

ulative and attenuated risk of increasing the measure of

-- ——-., ——-- —

13

punishment. ...” Id. at 514. Furthermore, in Morales, this

Court reaffirmed its support for the Calder and Beazell

definitions commended in Collins, stating that “[a]fter

Collins, the focus of an ex post facto inquiry is . . . on

whether any [legislative] change alters the definition of

criminal conduct or increases the penalty by which a

crime is punishable.” Morales, 514 U.S. at 507, n. 3. This

Court also removed from ex post facto consideration the

question ot whether retrospective laws merely “disadvan-

tage” offenders, calling “that language . . . unnecessary to

the results . . . and inconsistent with the framework

developed in Collins v. Youngblood. [cit.]” Id.

Thus, based upon this evolution of ex post facto

jurisprudence, in order to prevail on a claim that a change

in the law, as applied to an individual, is an ex post facto

law, one must do more than to merely demonstrate “dis-

advantage.” Indeed, there must be a showing that the

“change alters the definition of criminal conduct or

increases the penalty by which a crime is punished.”

Morales, 514 U.S. at 507, n. 3. Such showing cannot be

“speculative or attenuated (Morales, 514 U.S. at 508-9],”

but it must instead be demonstrated “with . . . certainty

that the amended statutory scheme was more onerous

than at the time of the crime.” Lynce, 519 U.S. at 446, n.

16.

1 Although this Court again used the term “disadvantage”

in Lynce v. Mathis, 519 U.S. 433, 441 (1997), the Court was careful

to remain true to the earlier definitions by cautioning, as it had

in Morales, that the “relevant inquiry is whether the change

alters the definition of criminal conduct or increases the penalty

by which a crime is punishable.” Lynce, 519 U.S. at 443. Thus, it

appears that the “disadvantage” standard is truly disfavored.

14

A. GEORGIA’S PAROLE BOARD IS INVESTED

WITH BROAD AUTONOMY AND DISCRE-

TION.

Unlike the California Board of Prisons Terms

described by this Court in Morales, Georgia’s Board of

Pardons and Paroles is the sole seat of all executive

clemency powers. Ga. Const., Art. IV, § 2, { 2. Any

attempt by the General Assembly to limit the discretion

of the Board to parole inmates within its jurisdiction

would violate the separation of powers provision of

Georgia’s Constitution. Id. See also, Ga. Code Ann.

§ 42-9-1.

The Eleventh Circuit has previously had occasion to

review the constitutionality of Georgia’s parole system. In

Sultenfuss v. Snow, 35 F.3d 1494 (11th Cir.), cert. denied, 513

U.S. 1191 (1995), the Eleventh Circuit, addressing

whether the parole “grid system” used for non-life sen-

tence cases created a “liberty interest,” found that the

Board, because of its constitutional and statutory auton-

omy under Georgia law, exercised “substantial discre-

tion . . . [which] belies any claim to a reasonable

expectation of parole.” Id. at 1502.

Similarly, in Jones v. Georgia State Board of Pardons and

Paroles, 59 F.3d 1145 (11th Cir. 1995), the Eleventh Circuit

found no ex post facto violation in the retrospective

application of a change in the method of calculating a

non-life sentence inmate’s tentative parole month pur-

suant to the “grid system” because the Board exercised

“virtually unfettered discretion” to deviate from those

guidelines which it had established. Id. at 1150.

Georgia’s General Assembly vested in the Board the

authority to “promulgate rules and regulations, not

15

inconsistent with” Georgia law. Ga. Code Ann.

§ 42-9-45(a). Pursuant to that authority, the Board

adopted, and later amended, the regulation in question,

Ga. Comp. R. & Regs. r. 475-3-.05(2), providing for the

frequency of parole reconsiderations in life sentence cases

after an inmate is initially denied parole. (J.A. 86, 88).

The Board further described its intentions regarding

parole reconsideration schedules, after having amended

its policy to allow a “set-off” of reconsideration for up to

eight years, through its written policies and procedures.

Those policies clearly indicate how the Board intends to

exercise its “virtually unfettered discretion” by stating

that “[a]t the time the members vote to deny parole in a

life sentence case, the members will indicate the number

of years the inmate must serve prior to being next consid-

ered.” (J.A. 56).

The Georgia Board of Pardons and Paroles has exer-

cised its considerable discretion to free itself from focus-

ing upon those inmates, like Jones, whose heinous crimes

and multiple-offender status gives them, in the Board’s

opinion, virtually no near-term likelihood for parole, and

instead focus its limited resources and time upon those

cases which do. The propriety of this change is borne out

by the fact that, unquestionably, it is the Board which has,

and will continue to have, the only authority to decide

whether Jones is ever released from prison.

Thus, the Board, empowered as it is with the ultimate

decision-making power as to Jones’ parole, should not be

prohibited from determining how to best utilize its

resources by deferring parole reconsideration of this

inmate whom it has clearly indicated has little or no

16

likelihood of parole within the next eight years barring a

significant change in circumstances. That, however, is

exactly the effect of the Circuit Court’s decision below.

Embodied in the state constitutional provisions, stat-

utes, regulations and policies outlined above is the deci-

sion by the State of Georgia that its Pardons and Paroles

Board should be the body which has the ultimate author-

ity over the exercise of executive clemency. The regula-

tion challenged in the trial court by Respondent Jones is,

quite simply, the extension of that very decision.

The Board has, by and through that regulation and

the accompanying policies and procedures, expressed its

desire to bring its discretion to bear in a manner which is

cost-effective and efficient, while still being fair and equi-

table to those inmates within its jurisdiction. Thus,

inmates with no realistic near-term likelihood of parole

(as determined by the ultimate decision-makers) are not

caused to suffer the likely emotional stresses of being

frequently considered, only to be frequently denied.

Rather, those inmates are told, honestly and directly, that

they cannot anticipate parole within the period of their

“set-off,” save for a “change in their circumstances or

where the Board receives new information that would

warrant a sooner review.”

Apart from the above, this process has the additional

salutary effect of encouraging inmates whose heinous

crimes, lengthy criminal histories, or poor institutional

records are tempered by no (or inadequate) attempts at

rehabilitation to undertake such measures in hopes that

those efforts will be viewed favorably by the Board at the

inmate’s next reconsideration. The ability of the Board to

17

set off reconsideration on an individual basis also pro-

vides that inmate with an indication of how extensive

those efforts must be.

Additionally, the ability of the Board to effectively

direct the expenditure of its resources allows it to focus

those limited resources upon the inmates within its juris-

diction who do, in fact, have a realistic near-term likeli-

hood for parole. Thus, the Board, faced as it and all other

corrections-related entities are nationwide with burgeon-

ing prison populations, is able to focus those resources

where they can be most effective.

B. A CORRECT APPLICATION OF THIS

COURT’S PRECEDENTS DEMONSTRATES

THAT GEORGIA’S PAROLE RECONSIDERA-

TION SCHEME DOES NOT VIOLATE THE EX

POST FACTO CLAUSE.

What Petitioner seeks is an application by this Court

of the ex post facto analysis which is set out above. By

analyzing the effect of applying this change in the Regu-

lation to Jones, this Court should conclude that no effect,

aside perhaps from the salutary ones set out above, can

ever be conclusively demonstrated. Such analysis, free

from the speculation urged by Jones and engaged in by

the Court below, leads inexorably to the conclusion that

Jones’ two life sentences, coupled with the heinous

crimes for which he received them and the multiple

parole denials by the Board, has no basis to ever expect to

18

be paroled. Thus, he can show nothing more than mere

speculation in support of his claim.?

In Morales, this Court noted that the Ex Post Facto

“Clause is aimed at the laws that ‘retroactively alter the

definition of crimes or increase the punishment for crimi-

nal acts’,” 514 U.S. at 504, and found the relevant inquiry

to be “whether any such change alters the definition of

criminal conduct or increases the penalty by which a

crime is punishable.” Id. at 506, n. 3. Moreover, this Court

warned the judiciary against “the micromanagement of

an endless array of legislative adjustments to parole and

sentencing procedures. ...” Id. at 508.

Such an approach, guided by the admonition of this

Court to “[focus] on the effect of the [change in the] law

on the inmate’s sentence,” Lynce, 519 U.S. at 444, yields a

review based upon the regulation in question, not a com-

parison between two systems, as was engaged in by the

Eleventh Circuit. An appropriate application of those

2 The same is, of course, true of any inmate serving a life

sentence in Georgia, although the Board is only applying this

policy to a limited class of inmates. (J.A. 49-50).

3 Such was the case in numerous other circuits and states

that have applied those notions to parole system changes within

their own jurisdictions anu have found no violation of the Ex

Post Facto Clause. See, e.z., Hill v. Jackson, 64 F.3d 163 (4th Cir.

1995); Roller v. Gunn, 107 §.3d 227 (4th Cir.), cert. denied, 522 U.S.

874 (1997); Shabazz v. Gabry, 123 F.3d 909 (6th Cir.), cert. denied,

522 U.S. 1019 (1997); Furnari v. Savaras, 914 P.2d 508 (Colo. 1996);

Tuff v. State, 732 So. 2d 461 (Fla. 1990); Fletcher v. Williams, 179 Ill.

2d 225 (1997); Jordan v. Tennessee Board of Paroles, 1997 Tenn.

App. LEXIS 27.

#4 : on nea

a 26 bide

ey epee, eam

19

factors to the change in the frequency of parole recon-

sideration in Georgia, free from the speculation engaged

in by the Circuit Court, can only yield the result that

there is no ex post facto violation in the application of

this rule change.

Respondent Jones complains that the change by the

Board to its rule extending the maximum “set-off” period

for parole reconsideration to eight years is an ex post

facto law. Neither the Circuit Court below nor Jones has

ever pointed to any fact, statute, regulation, or policy that

supports this claim. Instead, they rely upon the assump-

tion that more frequent mandatory parole reconsideration

leads to an earlier release date, and thus Jones’ sentence

is extended by the amended regulation; or, as stated by

the Circuit Court, there is a “sufficient risk” that the

amendment would “increase the measure of punishment

attached to the crimes.” Jones v. Garner, 164 F.3d at 595.

(cits. omitted).

The cornerstone of Jones’ argument, this alleged

nexus between reconsideration frequency and the length

of incarceration, cannot be proven. The Board has discre-

tion over the ultimate question of whether Jones will ever

within his life span be released from confinement, and

the Board has clearly indicated in denying him parole in

1995 (as it had done twice previously) that “the main

reasons for this decision cited by the Board . . . are [the]

circumstances and nature of offenses, and multiple

offenses.” Jones v. Garner, 164 F.3d at 594, n. 7. Jones’

assertion, and the Eleventh Circuit’s decision, that the

application to him of a change in parole reconsideration

requirements is an ex post facto law is thus based solely

upon “the most speculative and attenuated possibility of

20

producing the prohibited effect of increasing the measure

of punishment.” Morales, 514 U.S. at 509.4

Should this Court decide contrary to Petitioners in

this cause, the effect will be to plunge the judiciary into

the “micromanagement of an endless array of legislative

adjustments to parole and sentencing procedures”

warned of by this Court in Morales. 514 U.S. 508-9. Such

predicted consequences are no mere hyperbole, as any

observer of prisoner litigation is all too well aware.

The Board’s policies and procedures clearly allow

inmates to bring matters before the Board at any time

when the inmate believes those matters warrant parole

reconsideration. Likewise, the Board, pursuant to public

information or its own investigation, might well sua

sponte decide it necessary to reconsider inmates prior to

their set-off reconsideration date. Thus, concerns regard-

ing extended periods of “parole ineligibility” and

“chances” for parole missed because of reconsideration

set-offs are the true hyperbole in this case.

* Given the Circuit Court’s previous holdings that

Georgia’s Parole Board is empowered with such broad

discretion, and the Constitutional and statutory provisions

which undergird that conclusion, one is forced to speculate that

the Court below has concluded that, although it cannot compel

the Board to exercise its discretion to release any inmate, it can,

and will, force the Board to consider inmates for parole on a

schedule which it deems appropriate. This premise rests upon

the fallacious nexus between frequent reconsideration and

earlier parole.

21

C. THE ELEVENTH CIRCUIT’S ANALYSIS OF

GEORGIA’S PAROLE RECONSIDERATION

SCHEME WAS ERRONEOUS AND MISAP-

PLIED THIS COURT’S CLEAR PRECEDENTS.

The Eleventh Circuit erred in reversing the District

Court’s grant of summary judgment in favor of the

Board, and further erred in concluding that this Court's

decision in California Department of Corrections v. Morales,

514 U.S. 499 (1995), did not overrule the Circuit Court's

previous decision in Akins v. Snow, 922 F.2d 1558 (11th

Cir. 1991), but instead reaffirmed “the correctness of our

holding in that case.” Jones v. Garner, 164 F.3d at 596. A

review of the Circuit Court’s decisions in both the present

case and in Akins reveals that the principal basis for the

Court’s erroneous rulings in these cases is its fundamen-

tal misunderstanding of the operation of Georgia’s parole

system.

The Eleventh Circuit’s assumption in Akins, and later

in its decision in the present case, that there is an inherent

relationship between the frequency of mandatory parole

reconsideration and how soon an inmate is released from

confinement most clearly demonstrates its misunder-

standing.> See, e.g., Jones v. Garner, 164 F.3d at 591, n. 4;

5 This notion has been specifically rejected by the Sixth

Circuit Court of Appeals, which found that “there exists no

legal nexus between the decrease of regularly scheduled parole

hearings and eligibility for parole,” based upon Morales. Shabazz

v. Gabry, 123 F.3d 909, 914 (6th Cir), cert. denied 522 U.S. 1019

(1997). The Court in Shabazz was openly critical of a lower court

which “relied upon an assortment of anecdotal observations

and speculation to conclude that the amendments may present

sufficient risk of increased punishment. [The Sixth Circuit

22

Akins, 922 F.2d at 1562. The Court’s misunderstanding of

Georgia’s parole system is further illustrated by its find-

ings in Akins, which it later reaffirmed in Jones v. Garner,

that “a parole reconsideration hearing is part of a pris-

oner’s parole eligibility.” Jones v. Garner, 164 F.3d at 591,

n. 4 (quoting Akins, 922 F.2d at 1561-62).

Even assuming, arguendo, that parole eligibility is

part of an inmate’s sentence, that decision does not affect

the inquiry here because Jones became eligible for parole

after serving seven years of his second life sentence, at

which time he was immediately reviewed for parole, and

denied. The Board subsequently, based upon its clearly

expressed policy, “set-off” its reconsideration of Jones for

eight years.

The specific aspect of Georgia’s parole system that

the Court’s premise fails to consider is that Jones became

eligible for parole by operation of law after serving seven

years of his 1982 life sentence, and he has remained

eligible for parole since that date. The Court’s conclusion

that “eligibility in the abstract is useless,” [Akins, 922 F.2d

1562; Jones v. Garner, 164 F.3d at 591, n. 4] fails to reckon

with the reality that, in life, we may be eligible for many

positions, honors, awards, or accolades, but it is the dis-

cretion of the decision-making body that may “keep” us

from them, not “ineligibility.” Under the Eleventh Cir-

cuit’s definition of parole eligibility, the only time an

found that such a] holding is erroneous in light of [this Court's]

explicit rejection in Morales of the expansive view that ‘the Ex

Post Facto Clause forbids any legislative change that has any

conceivable risk of affecting a prisoner’s punishment’.” Id. at

914-15.

23

inmate would be eligible for parole is the precise moment

when the inmate is actively being considered by the

Board.

Here, it is the discretion of the Board, lawfully

granted and lawfully exercised, that has kept Jones from

parole, not the frequency or infrequency of his recon-

sideration. Any other conclusion strains credulity and is

unsupported by the record. If the Court below had, as it

claimed, focused upon “a prisoner's ultimate date of

release . . . to determine whether the change constitutes a

‘sufficient risk of increasing the measure of punishment

attached to the covered crimes’ [Jones v. Garner, 164 F.3d

at 593],” it could not have reached its conclusion that the

change in Georgia’s parole reconsideration scheme was

an ex post facto law.

Unfortunately, however, the Court engaged in pre-

cisely the type of “speculative and attenuated” reasoning

which this Court has rejected. Morales, 514 U.S. at 509. As

noted above, because the ultimate decision of whether

Jones will ever, during the course of his natural life, be

released from prison is now and will always be within the

discretion of the Board, he cannot demonstrate beyond

mere speculation that he will (or even may) remain in

prison longer because the Board changed its reconsidera-

tion schedule to allow themselves to review Jones as

infrequently as every eight years. This fact is underscored

by the further reality that the Board’s particularized deci-

sion to “set-off” Jones’ parole reconsideration for eight

years was due to its determination, pursuant to its own

policy, that “it is not reasonable to expect that parole will

be granted during the intervening years.” (J.A. 56).

24

The Eleventh Circuit’s fundamental misunderstand-

ing of Georgia’s parole system, as discussed above and

made evident in its decision below and in Akins, has

manifested itself in the Circuit Court misapplying this

Court's decision in Morales to the facts of the instant case.

Even a cursory review of the Eleventh Circuit's deci-

sion below reveals that its analysis of this Court’s rulings

in Morales is limited to a perfunctory application of the

factors deemed appropriate by this Court in that particular

case. The court below engaged in that perfunctory review

process when it “examine[d] the [Georgia] regulation in

light of the factors discussed in Morales and [found] it to

be wholly distinguishable from the statute at issue in that

case.” Id. at 553.

In reviewing the instant regulation, the Eleventh Cir-

cuit found that the “set of inmates whose parole consider-

ation will be affected by [the Georgia regulation] is thus

bound to be far more sizeable than” the set in Morales.

(Emphasis supplied). Id. at 594. The Circuit Court then

went on to say that “[t]his set must . . . be comprised of

many inmates who can expect at some point to be paroled

[emphasis supplied].” Id.°

The fact that the Georgia regulation applies to all life-

sentenced inmates is without significance. First, such crit-

icism smacks of the “micromanagement” warned against

by this Court in Morales, 514 U.S. at 508. Next, the Court

* As noted above, the Circuit Court has previously held

that the “substantial discretion reserved by the Board belies any

claim to a reasonable expectation of parole.” Sultenfuss v. Snow,

35 F.3d 1494, 1502 (11th Cir.), cert. denied, 513 U.S. 1191 (1995).

25

below wholly disregarded the evidence in the record, in

the form of the affidavit of the Board’s Director of Legal

Services, who averred that the Board’s set-off policy was

applied to “life sentenced inmates who have committed

capital offenses and inmates serving life sentences under

Georgia’s Serious Violent Felony Recidivists laws.” Also,

as noted above in Petitioner’s factual statement, the

crimes for which Jones is incarcerated are equally horrific

to those committed by Morales. Lastly, the Board is under

no obligation to ever parole any inmate serving a life

sentence.

The Court below described Ga. Comp. R. & Regs. r.

475-3-.05(2) as not “carefully tailored” to further the legit-

imate end of saving time and money and not increasing

punishment.” That criticism was comprised of several

aspects, including the “lack” of a requirement to make

any particularized findings in its decision to “set-off” an

inmate for a period beyond the previous three year inter-

val, the “lack” of “any sort of hearing on this question,”

? This inquiry seems to be in conflict with this Court's

admonition in Lynce that “to the extent that any purpose might

be relevant in this case, it would only be the purpose i

the” Board’s 1995 amendments. Lynce, 519 U.S. at 433. An

application of such mandate, mindful of the Board’s broad

discretion, leaves one to ask what possible purpose the Board

could have had to promulgate such a regulation other than to

relieve itself of the continual burden of reviewing inmates about

whom it had determined “it is not reasonable to expect that

parole would be granted during the intervening years,” and

focus upon the overwhelming remainder of those inmates

under its jurisdiction.

26

and that the “default” frequency under the Georgia regu-

lation is “at least every eight years.” Jones v. Garner, 164

F.3d at 595.

The Circuit Court's criticism stems, again, from a lack

of understanding about Georgia’s parole scheme. To hold

that a Board which is under no requirement, either consti-

tutional or statutory, to ever hold parole consideration

hearings or make particularized findings regarding the

decision to deny parole to an inmate should nonetheless

be required to hold such hearings or make such findings

supporting a decision to delay reconsideration for parole

simply does not follow.® As the Court cites nothing in

support of its apparent belief in the constitutional signifi-

cance of this factor, it amounts only to the type of “spec-

ulative and attenuated possibility of . . . increasing the

measure of punishment” which this Court held in Morales

was insufficient “under any threshold we might establish

under the Ex Post Facto Clause.” Id. at 509.9

® Note, however, that among the reasons for denying parole

to Jones and setting off his reconsideration are the reasons

stated in the Board’s 1995 letter to him: i.e., the “circumstances

and nature of the offense, and multiple offenses.” Given the

Board’s reliance on such factors (which had been static for 15

years) in denying parole and setting off reconsideration, one

wonders how Jones’ term of confinement is actually increased

by setting off his reconsideration for an additional five years,

given his ability to bring important changes to the Board’s

attention in the interim and request expedited review.

% See also, Shabazz v. Gabry, 123 F.3d 909, 915 (6th Cir.), cert.

denied, 522 U.S. 1019 (1997) (“anecdotal observations and

personal speculation” provide no basis for finding ex post facto

violation).

27

Also, the Court below characterized the Board’s

“default” reconsideration schedule as “at least every

eight years.” This conclusion is belied by Board pro-

cedure 4.110, which indicates that “[a]t the time the mem-

bers vote to deny parole in a life sentence case, the

members will indicate the number of years the inmate

must serve prior to being next considered.” (J.A. 55-7).

Thus, there is no “default” set-off period, rather there is

only the individualized determination by the Board as to

how long that inmate’s next parole consideration should

be deferred. The Circuit Court’s formulaic approach to

this scheme is best summarized by its statement that

“eight years is a long time.” Jones v. Garner, 164 F.3d at

595. Given such an incredible conclusion, the Eleventh

Circuit found the Board’s specific policy, described

above, to be inadequate.'°

Although the Circuit Court below tacitly acknowl-

edges this Court's later clarifications of Morales made in

1 Moreover, the Board’s policies and procedures in this

regard are essentially its own interpretation of the requirements

upon it, which the Court below has previously held to be

“entitled to great deference, unless clearly erroneous.”

Sultenfuss v. Snow, 35 F.3d 1494, 1503 (11th Cir.), cert. denied, 513

U.S. 1191 (1995). The Circuit Court’s conclusion that the Board’s

Policy Statement is inadequate because it is “unenforceable and

easily changed” clashes with the presumption in Georgia law,

first stated by Justice Lumpkin of the Georgia Supreme Court in

1846 that “must not this Court, in favor of Public Officers,

presume that they discharged their duty, in compliance with the

law, in absence of all proof to the contrary?” Doe, ex dem. Truluck,

et al. v. Peeples, 1 Ga. 1 (1846). See also, Brantley v. Thompson, 216

Ga. 164 (1960); Jarrett v. City of Boston, 209 Ga. 530 (1953); Kirk v.

State, 73 Ga. 620 (1884).

28

Lynce, the Eleventh Circuit fails to properly focus, as this

Court directed, on the effect of the law on the inmate’s

sentence. Lynce, 519 U.S. at 444. Had the Circuit Court

held true to that directive, it perhaps would have avoided

the perfunctory application of the factors of California’s

law to that in Georgia’s parole scheme. Instead, the Elev-

enth Circuit, bound as it was to the erroneous notion of a

nexus between the frequency of parole reconsideration

and the date of release, effectively limited this Court's

decision in Morales to its facts. Such cannot be what this

Court intended."

The fact-bound interpretation of this Court’s decision

in Morales which was rendered by the Circuit Court

below is inconsistent with a system of federalism which

allows states the freedom to approach a problem from a

variety of perspectives. The Circuit Court's interpretation

further fails to recognize the organic nature of state law

in a system of federalism. How can Georgia be expected,

based upon its vastly different historical and constitu-

tional underpinnings, to produce a parole system identi-

cal to California’s? And, more importantly, why should it,

in a system of federalism, be expected to do so???

1! Other jurisdictions have applied the holding in Morales

to parole scheme changes more broad than those in that case,

and have found those changes not to be ex post facto laws. Thus,

those decisions reject the limited application given Morales by

the Court below. Indeed, the Fourth Circuit Court of Appeals

has explicitly rejected such a limited interpretation of Morales.

Roller v. Gunn, 107 F.3d 227, 237 (4th Cir.), cert. denied, 522 U.S.

874 (1997); Hill v. Jackson, 64 F.3d 163 (4th Cir. 1995).

12 This is not to say that the Circuit Court below erred in

undertaking to review the present matter to determine whether

29

In comparing, by rote, the characteristics of the Cali-

fornia statute in Morales to the Georgia parole scheme, the

Circuit Court has espoused a view that any system not

exactly like that reviewed in Morales is likely to’ be consti-

tutionally infirm if it is forced by burgeoning prison

populations, limited resources and limited time to change

the frequency with which it reviews inmates for parole.

Such a conclusion fundamentally misapplies this Court’s

decision in Morales.

Il. THE ELEVENTH CIRCUIT ERRONEOUSLY

PLACED THE BURDEN OF PROOF UPON PETI-

TIONERS, CONTRARY TO THIS COURT’S

CLEAR DIRECTIVE IN MORALES.

The Eleventh Circuit reviewed the instant grant of

summary judgment by the District Court de novo.'? In so

doing, however, the Court below erroneously placed the

burden of proof upon the Board. See, e.g., Jones v. Garner,

164 F.3d at 595-96.

At its essence, the opinion of the Circuit Court below

finds that the Board has not carried its burden of proving

that, in light of the Eleventh Circuit’s previous opinion in

the rule in question is an ex post facto law. Rather, the Circuit

Court’s error was in drawing from this Court’s decision in

Morales a command to conduct such an analysis in a perfunctory

and fact-specific manner. To draw so little from this Court's

opinion in Morales ignores the fact that, given the paucity of

cases which this Court can consider each year, its decisions must

be something more than mere fact-specific rulings from which

no guidance can be drawn for other circumstances faced by

inferior Courts in the future.

13 Tackitt v. Prudential Ins. Co., 758 F.2d 1572 (11th Cir. 1985).

30

Akins, the amended regulation in question does not vio-

late the Ex Post Facto Clause. Thus, the Court below has

apparently substituted its holding in Akins for the

requirement that Jones bear the burden of proof, and has

cast that burden, instead, upon the Board to “prove the

negative” that there is no ex post facto violation in the

application of that amended regulation to Jones.

As this Court stated in Morales, “we have never sug-

gested that the challenging party may escape the ultimate

burden of establishing that the measure of punishment

itself has changed. Indeed, elimination of that burden

would eviscerate the view of the Ex Post Facto Clause

that [was] reaffirmed in [Collins v. Youngblood, 497 U.S. 37

(1990)].” 514 U.S. at 510, n. 6. Indeed, it is the presump-

tion of the Circuit Court below (born, as set forth above,

from its misunderstanding of Georgia’s parole scheme)

that there is a nexus between the frequency of mandated

parole reconsideration and the date of release from con-

finement which has been substituted herein below for the

burden of proving “that the measure of punishment has

changed.” Id.

The evidence produced by the Board demonstrated that

Jones had been considered for and denied parole in 1989,

1992, and 1995. Jones v. Garner, 164 F.3d at 590. Jones has

never demonstrated that his confinement has been

lengthened by the instant regulatory change. Indeed, as

shown herein above, Jones cannot demonstrate beyond

mere supposition that his confinement could be lengthened.

Instead, in the proceedings below, it was the Circuit

31

Court’s assumption that was substituted for that proof,

thereby shifting the burden to the Board. This was error.'4

The only claim posited by Jones (or, on his behalf by

the Circuit Court below) is the assumption, without

proof, that the increased interval between parole recon-

sideration reviews lengthened his sentence.'5 Thus, the

burden of proof has been erroneously shifted to the

Board.

Had the Eleventh Circuit correctly followed the man-

date of this Court in Morales, Jones would have been

required to provide proof to support his claims. Instead,

the Eleventh Circuit improperly shifted the burden of

proof to the Board. Had this Court’s mandate been fol-

lowed, the Circuit Court would have reached the inevita-

ble conclusion that Jones’ ex post facto violation claim

14 In Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996), cert.

denied, 520 U.S. 1242 (1997), the Ninth Circuit, applying this

Court’s reasoning in Morales, found that “[iJn this case, [the

inmate] 1s similarly unable to demonstrate that an increase in

his punishment actually occurred, because, like Morales, he had

not actually been paroled under the old law.” Johnson, 92 F.3d at

967.

15 In Roller v. Gunn, 107 F.3d 227 (4th Cir.), cert. denied, 522

U.S. 874 (1997), the Fourth Circuit Court of Appeals rejected as

“conjecture” an inmate’s unsubstantiated claims that a decrease

in the required frequency of parole reconsideration increased

his punishment. Id. at 236. Such an approach is consistent with

this Court’s “sufficient risk of increasing the measure of

punishment” analysis in Morales, 514 U.S. at 509, because the

Fourth Circuit recognized that mere “conjecture” can never

form the basis of a “sufficient risk.”

32

was necessarily premised upon supposition and assump-

tion. The Eleventh Circuit's failure to properly place the

burden of proof is error requiring reversal.

S

CONCLUSION

WHEREFORE, for all the above and foregoing rea-

sons, Petitioner prays that this Honorable Court reverse

the judgment of the Eleventh Circuit Court of Appeals,

and direct that judgment be entered in favor of Peti-

tioners.

Respectfully submitted,

TxHursert E. Baker 033887

Attorney General

Mary BetH WestmMoreLANpD 750150

Deputy Attorney General

CHRISTOPHER S. BrasHEeR 078330

Senior Assistant

Attorney General

Counsel of Record

Jacquetine F. BUNN 748662

Assistant Attorney General

PLEASE ADDRESS ALL

COMMUNICATIONS TO:

CHRISTOPHER S. BRASHER 4

Senior Assistant Attorney General

40 Capitol Square, S. W.

Atlanta, GA 30334-1300

Telephone: (404) 657-3983