# Petitioners Brief — Garner v. Jones

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 244

## Text

(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.
+
On Writ Of Certiorari To The
United States Court Of Appeals

For The Eleventh Circuit
+

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

i PE cocccescececeoesescesees i
PE Ch cddcccecceescoccescoccescosoccess ii
SD Ge? Gs cecccccercccccecccesoeccees iii
TAREE OF AUT IRIE oc ccccccccccccccccccccees Vv
SED DEE cs hocncecceccocccceeccccecceeeoes 1
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
BESO Gb, GRIND GED cece ccsccccccstcccccscscsesscace: 3
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

ee, Ge BO. BH GG ccc ccccccccccccccesccceces 6

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
Se Gs GU, ee Oe Oy We OD ove cccccccccccvccccecee 4
ee Ss OE OO cs. won cccccncednececuseus 14
A, Mn a on pesca cnunkerces 1, 9, 11

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.

+

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0323%3A5. Public record. Not legal advice.