Amicus Curiae Brief — Garner v. Jones

Supreme Court, U.S.

FILED

-'° , «1h

*tAXDY

Supreme Court of the U ited States

OFFICE OF THE CLERK

+

J]. WAYNE GARNER, et al.,

Petitioners,

Vv.

ROBERT L. JONES,

Respondent.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

+

BRIEF OF AMICI CURIAE THE AMERICAN

CIVIL LIBERTIES UNION, THE AMERICAN

CIVIL LIBERTIES UNION OF GEORGIA, AND THE

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF RESPONDENT

¢

Juni A. Pryor

Counsel of Record

BoONDURANT, Mixson & E_more, LLP

1201 W. Peachtree Street, N.W.

3900 One Atlantic Center

Atlanta, Georgia 30309-3417

(404) 881-4100

STEVEN R. SHAPIRO

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

GERALD WEBER

Rosert L. Tsai

American Civil Liberties Union

Foundation of Georgia, Inc.

142 Mitchell Street, Suite 301

Atlanta, Georgia 30303

(404) 523-6201

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE...............00005- 1

SUMMARY OF THE ARGUMENT ................. 2

RE 4. 40044. ben un ides veieseckeacaneeunsasass 4

RETROACTIVE APPLICATION OF THE GEORGIA

REGULATION SETTING OFF PAROLE RECON-

SIDERATION FOR EIGHT YEARS, FOR PRIS-

ONERS. WHO HAD BEEN ENTITLED TO

RECONSIDERATION EVERY THREE YEARS, VIO-

LATES THE EX POST FACTO CLAUSE.......... 4

A. The History and Purposes of the Ex Post Facto

Clause Demonstrate Its Enduring Importance... 5

B. The Framework Established by Morales and Its

Precedents Absolutely Forbids Retroactive Appli-

cation of Laws That Pose a Risk of Increasing

a PP ete ree 8

C. Disregard of the Morales Analysis, as Urged by

the Petitioners, Renders Morales Meaningless... 11

D. Under Morales, the Georgia Regulation Poses a

Sufficient Risk of Increasing the Measure of Pun-

ishment to Violate the Ex Post Facto Clause... 14

1. The Georgia Regulation Covers Inmates Sen-

tenced for a Vast Array of Crimes for Whom

Release on Parole Is Likely ................ 15

2. The Georgia Regulation’s Purpose Is to Maxi-

mize the Length of Confinement for Life-

Gomtemsed BAGAGIGS....cccccccccccccsccvcenss 17

3. The Georgia Regulation Does Not Afford

Inmates a Hearing and Particularized, Writ-

ten Findings to Ensure That No Delay in

Parole Release Results, Whether Inten-

tionally or Through Error..............-... 19

TABLE OF CONTENTS - Continued

Page

4. The Length of the Setoff Permitted by the

Georgia Regulation Is Much Greater and,

Therefore, the Harm Is Not as Speculative or

Easily Cured .........ccccccccecccccccceees 22

5. In Georgia, There Is No Mechanism to Rec-

tify the Harmful Effect of a Delay in an

Inmate’s Parole Suitability Finding......... 27

6. The Remote Possibility of an Expedited

Review, Not Enshrined in Georgia Law, is

Insufficient Protection Against Increased

PPTTTTTITTTI TILE TTT TT eee 27

7. There is No Opportunity for an Administra-

tive Appeal Under the Georgia Parole

I a edb cast reesedevecsevesesnccececese 29

PT Ccccch ech bnabeseesvereveesccceeccues 30

TABLE OF AUTHORITIES

Page

Cases

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

denied, 501 U.S. 1260 (1991)...... 2, 15, 19, 22, 23, 28

Bailey v. Gardebring, 940 F.2d 1150 (8th Cir. 1991) .... 28

Beazell v. Ohio, 269 U.S. 167 (1925)............. 8, 9, 10

Chae Chan Ping v. United States, 130 U.S. 581 (1889) ..... 7

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ........ 6, 7, 8

California Dep't of Corrections v. Morales, 514 U.S.

Set EM acceccccitesccccdctbaddanceoecéessess passim

Collins v. Youngblood, 497 U.S. 37 (1990)........... 9, 10

Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867) ...5, 7

Dobbert v. Florida, 432 U.S. 282 (1977) ............... 21

Ex parte Garland, 70 U.S. (4 Wall.) 333 (1867)......... 7

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) ......... 7

Fletcher v. Williams, 688 N.E.2d 635 (Ill. 1997)........ 13

Furnari v. Zavaras, 914 P.2d 508 (Colo. Ct. App.

ered eeShbeedybodsenensaurescécbcessscesocees 13

Glavan v. Press, 347 U.S. 522 (1953)..............2005. 7

Hill v. Jackson, 64 F.3d 163 (4th Cir. 1995) ........... 12

Hopt v. Utah, 110 U.S. 574 (1884)................044. 10

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

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

EAD 27 GOR. BG, BURP) cc cccscccccccccccccccccces 13,

iv

TABLE OF AUTHORITIES —- Continued

Page

Kring v. Missouri, 107 U.S. 221 (1883) ................ 5

Lindsey v. Washington, 301 U.S. 397 (1937)........... 29

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

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ..... 6

Miller v. Florida, 482 U.S. 423 (1987)...............+.. 11

Roller v. Gunn, 107 F.3d 227 (4th Cir. 1997)....... 12, 13

Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977) .... 28

Shabazz v. Gabry, 123 F.3d 909 (6th Cir. 1997)..... 12, 28

Smith v. United States Parole Commission, 875 F.2d

SEE Ge GR, Gees ccoceccdascoveséesccdsuccess 28

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

Gomme, GED GE. GES Gee ec ccccscvccccccccesssss 28

Tuff v. State, 732 So.2d 461 (Fla. 3 DCA 1999)....13, 19

Warden v. Marrero, 417 U.S. 653 (1974) ............... 7

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

Wolff v. McDonnell, 418 U.S. 539 (1974)............... 7

CONSTITUTIONAL PROVISIONS

CS. Gash. GE & BA BS caccceccvcvcceceecsoccececs 5

CS. Gansk. GA & SEB DB ccecccéccnceccsccdsssenss 5

Ge. Gamsh. GR Te © & GF Becccccccesescccccsscosess 26

STATUTES

Cal. Penal Code § 3041.5 (West 1999) ............... 20

OLG.A. | 16-89-069 CIDDUD . once ccccccccceccsccesss 16

Vv

TABLE OF AUTHORITIES - Continued

Page

es Oe I Ms cc ccescéccccccoscceeccess 16

es Sy Ge Gc cccccnccccccccccccosccsces 25

O.C.G.A. § 42-9-42(a) (1997)... 2... ccc ccc ee eee 26, 28

es fe SP I ccccécccencedccecdsocecses 25

nee 28

Ga, © Gre Cee ic ov cccccccccccccccccosess 24

es Se GE OI os odin cduvécnccicevbedocdeecen 21

REGULATIONS

Ga. Comp. R. & Regs. r. 475-3-.05(2) (1969) ......... 22

Ga. Comp. R. & Regs. r. 475-3-.05(2) (1995) ...... 20, 22

Booxs

The Federalist No. 44, at 282 (James Madison)

cE Se Ee ee 6

The Federalist No. 84, at 511 (Alexander Ham-

ilton) (Clinton Rossiter ed., 1961).................

Laurence H. Tribe, American Constitutional Law

EE ied ieee eee os cis eus 6

PUBLICATIONS

Effects of 2-Strikes Law Eyed, Chattanooga Free

Press, June 20, 1998, at A3 ............. cece ec eues 18

Wayne A. Logan, The Ex Post Facto Clause and the

Jurisprudence of Punishment, 35 Am. Crim. L.

it) Wt Ce on6 cendeceddududaboanbecestbendsé cc 5

vi

TABLE OF AUTHORITIES - Continued

James Salzer, Managing Prison Overflow; Commis-

sion Formed to Develop Guidelines, Fla. Times-

Union, Georgia Ed., June 2, 1998, at Al........

JoAnne D. Spotts, Sentence and Punishment: Provide

for the Imposition of Life Sentence Without Parole,

10 Ga. St. U. L. Rev. 183 (1993)................

OTHER AUTHORITIES

State of Georgia Board of Pardons and Paroles,

News Releases, “It’s a Fact” (visited Dec. 8, 1999),

<http:/ /www.pap.state.ga.us/NewRelea.nsf> ...

Georgia State Board of Pardons and Paroles, Fre-

quently Asked Questions, “How is a decision

reached by Board Members?” (visited Dec. 8,

1999) <http:/ /www.pap.state.ga.us/FQFrames.

ih cinenkeokdbenetentaeudléccedeesnendkounesen

Georgia State Board of Pardons and Paroles, News

Releases, “Parole Board Pursues Appeal” (vis-

ited Dec. 8, 1999) <http://www.pap.state.

SRC oo ccc ccodvecensencneccsces

Page

1

INTEREST OF AMICI CURIAE!

The American Civil Liberties Union (“ACLU”) is a

nationwide, nonprofit, nonpartisan organization with

nearly 300,000 members dedicated to preserving the prin-

ciples of liberty and equality embodied in the Constitu-

tion and this nation’s civil rights laws. The ACLU of

Georgia is one of its statewide affiliates. Since its found-

ing in 1920, the ACLU has appeared before this Court in

numerous cases involving the fair administration of jus-

tice, both as direct counsel and as amicus curiae. The

proper interpretation of the Ex Post Facto Clause is there-

fore a matter of great concern to the ACLU and its mem-

bers, as it was to the Framers of the Constitution.

The National Association of Criminal Defense Law-

yers (“NACDL”) is a nonprofit corporation with more

than 10,000 members nationwide and 28,000 affiliate

members in 50 states, including private criminal defense

lawyers, public defenders and law professors. The Ameri-

can Bar Association recognizes NACDL as an affiliate

organization and awards it full representation in its

House of Delegates. NACDL was founded in 1958 to

promote study and research in the field of criminal law,

to disseminate and advance knowledge of the law in the

area of criminal practice, and to encourage the integrity,

independence, and expertise of defense lawyers in crimi-

nal cases. NACDL seeks to defend individual liberties

1 Letters of consent to the filing of this brief have been

lodged with the Clerk of Court pursuant to Rule 37.3 of this

Court. Pursuant to Rule 37.6, amici curiae state that their counsel

authored this brief in its entirety. No person or entity other than

the amici curiae, their members, or their counsel made a

monetary contribution to the preparation or submission of this

brief.

2

guaranteed by the Bill of Rights and has a keen interest in

ensuring that legal proceedings are handled in a proper

and fair manner. Among NACDL’s objectives is the pro-

motion of the proper administration of justice.

SUMMARY OF THE ARGUMENT

The question presented in this case is whether the

retroactive application of a Georgia regulation governing

parole consideration is a violation of the Ex Post Facto

Clause of the United States Constitution. The regulation,

as amended in 1986, extended the time between parole

reconsideration reviews from three years to eight years

for life-sentenced inmates who previously have been

denied parole. In 1991, the Eleventh Circuit held that the

retroactive application of the amendment to inmates sen-

tenced before the amendment was adopted was an ex

post facto violation. Akins v. Snow, 922 F.2d 1558 (11th Cir.

1991). In 1995, after this Court decided California Dep't of

Corrections v. Morales, 514 U.S. 499 (1995), the Georgia

State Board of Pardons and Paroles concluded that Akins

had been overruled and again began to apply the eight-

year rule retroactively to inmates whose offenses

occurred before 1986. Reaffirming Akins, in Jones v. Gar-

ner, the United States Court of Appeals for the Eleventh

Circuit carefully applied Morales to the Georgia regula-

tion and again prohibited its retroactive application. Jones

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

The Petitioners ask the Court to reverse the Eleventh

Circuit and to hold that a Georgia law retroactively

extending the time between parole reconsiderations from

three years to eight years for all Georgia inmates serving

life sentences does not violate the Ex Post Facto Clause.

They ask the Court to do so despite the fact that the result

3

of this retroactive change in the law will certainly be an

increase in jail time for a significant number of inmates,

since Georgia law contains virtually no procedural safe-

guards to ensure that inmates whose parole reconsidera-

tion is set off would not otherwise have a chance of

release in the interim.

Petitioners rely entirely on Morales, in which the

Court examined a California statute permitting the state

parole board to delay parole reconsideration hearings

from every year to up to every three years, but only for

inmates convicted of multiple murders and only where

the board made an individual, particularized finding that

the inmate had no reasonable chance of parole in the

intervening years. Petitioners’ reliance on Morales is mis-

placed and overlooks the critical distinctions between the

Georgia law at issue here and the California law consid-

ered in Morales. These distinctions include the following:

the class of prisoners affected by the change in the law is

much broader in Georgia; the true purpose of the Georgia

amendment is to maximize time served for the affected

class; the Georgia law contains no procedural safeguards,

such as the right to a hearing and particularized findings

that the chance of the inmate being found suitable for

release before the next review is highly unlikely; the

duration of Georgia’s allowable setoff is much greater;

and there are insufficient mechanisms under Georgia law

to remedy any impermissible effect of retroactive applica-

tion of the amendment.

These distinctions go to the heart of the Ex Post Facto

Clause, which the Framers of the U.S. Constitution

believed essential to protect citizens’ settled expectations

regarding the punishment attached to crimes at the time

4

they are committed and to protect against arbitrary, vin-

dictive, and politically inspired legislation. The Court has

always understood the Clause to prevent state legisla-

tures from retroactively increasing punishment beyond

what it was at the time of the crime’s commission. The

Court has always understood, too, that the retroactive

deprivation of opportunities for release on parole is a

form of increased punishment and is therefore uncon-

stitutional under the ex post facto prohibition.

The Eleventh Circuit correctly applied Morales to the

Georgia amendment, which poses a sufficient risk of ret-

roactively increasing time served for a broad class of

inmates to violate the Ex Post Facto Clause. The Eleventh

Circuit's opinion should therefore be affirmed.

ARGUMENT

RETROACTIVE APPLICATION OF THE GEORGIA

REGULATION SETTING OFF PAROLE RECON-

SIDERATION FOR EIGHT YEARS, FOR PRISONERS

WHO HAD BEEN ENTITLED TO RECONSIDERATION

EVERY THREE YEARS, VIOLATES THE EX POST

FACTO CLAUSE.

An examination of the history and purposes of the Ex

Post Facto Clause, the Court’s consistent application of

the Clause to forbid laws that retroactively increase pun-

ishment, and the Court's recent opinions in Morales and

Lynce v. Mathis, 519 U.S. 433 (1997), compels the conclu-

sion that the Georgia regulation permitting an eight-year

delay in parole reconsideration is an ex post facto viola-

tion.

ee

5

A. The History and Purposes of the Ex Post Facto

Clause Demonstrate Its Enduring Importance.

The Framers of the U.S. Constitution adopted

the Ex Post Facto Clause to protect future Amer-

icans against oppressive, retroactively imposed

legislative enactments. The enduring promi-

nence of the clause stems as much from its loca-

tion in Article I, a position otherwise reserved

for structural issues of broad democratic gover-

nance, as from its empathic prohibition:

“No state shall . . . pass any . . . ex post facto

law.”?

Wayne A. Logan, The Ex Post Facto Clause and the Jurispru-

dence of Punishment, 35 Am. Crim. L. Rev. 1261, 1275

(1998) (quoting U.S. Const., art. 1, § 10, I 1). At its

essence,

[t]he ex post facto prohibition forbids the Con-

gress and the States to enact any law “which

imposes a punishment for an act which was not

punishable at the time it was committed; or

imposes additional punishment to that then pre-

scribed.”

Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cum-

mings v. Missouri, 71 U.S. (4 Wall.) 277, 325-326 (1867)).

The strength of the Framers’ fears over ex post facto

laws can scarcely be exaggerated. They considered retro-

active laws to be “contrary to the first principles of the

2 The Framers prohibited Congress, as well as the states,

from passing ex post facto laws. U.S. Const. art. I, § 9, | 3; see

Weaver v. Graham, 450 U.S. 24, 28 n.8 (1981) (“ ‘So much

importance did the [c]onvention attach to [the ex post facto

prohibition], that it is found twice in the Constitution.’ ”)

(quoting Kring v. Missouri, 107 U.S. 221, 227 (1883)).

6

social compact, and to every principle of sound legisla-

tion.” The Federalist No. 44, at 282 (James Madison)

(Clinton Rossiter ed., 1961); see The Federalist No. 84, at

511 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (ex

post facto prohibition is among the three “greate[st] secu-

rities to liberty and republicanism [the Constitution] con-

tains.”).

For the Framers, the first or fundamental principles

of republicanism included the idea that government must

have both reliability and regularity.* Reliability in gov-

ernment means that citizens must have fair notice of the

law and be able to rely on it to protect their settled

expectations. Regularity encompasses the idea that laws

should be prospective, general, and impartial.‘ It is from

these concepts that the Framers’ distrust of ex post facto

laws derived.°

First, “[t]hrough [the ex post facto] prohibition, the

Framers sought to assure that legislative Acts give fair

warning of their effect and permit individuals to rely on

their meaning until explicitly changed.” Weaver v.

Graham, 450 U.S. at 28-29; see Calder v. Bull, 3 U.S. (3 Dall.)

3 See Laurence H. Tribe, American Constitutional Law at

629 (2d ed. 1988).

* As Chief Justice John Marshall eloquently stated these

principles, “a government of laws, and not of men” is the “very

essence of civil liberty.” Marbury v. Madison, 5 U.S. (1 Cranch)

137, 163 (1803).

5 This Court has observed that “[t]he ex post facto

prohibition also upholds the separation of powers by confining

the legislature to penal decisions with prospective effect and the

judiciary and executive to applications of existing penal law.”

Weaver, 450 U.S. at 29 n.10.

7

386, 388 (1798). In the parole context, retroactive lawmak-

ing evokes this concern because, as the Court has long

recognized, a “ ‘prisoner’s eligibility for reduced

imprisonment is a significant factor entering into both the

defendant's decision to plea bargain and the judge’s cal-

culation of the sentence to be imposed.’ ” Lynce v. Mathis,

519 U.S. at 445-446 (quoting Weaver, 450 U.S. at 32); Wolff

v. McDonnell, 418 U.S. 539, 557 (1974); Warden v. Marrero,

417 U.S. 653, 658 (1974).

A second but no less significant concern giving rise

to the Ex Post Facto Clause was the fear of “arbitrary and

potentially vindictive legislation” and the questionable

motives and passing political forces that can give rise to

it. Weaver v. Graham, 450 U.S. at 29. As Chief Justice John

Marshall observed:

Whatever respect might have been felt for the

state sovereignties, it is not to be disguised that

the Framers of the Constitution viewed, with

some apprehension, the violent acts which

might grow out of the feelings of the

moment... .

Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137-38 (1810).°

Retroactive parole laws have many of the earmarks of

¢ This Court has applied the Clause relatively infrequently

since its origin, most often, as Chief Justice Marshall predicted,

in response to legislative enactments directed towards maligned

persons “of the moment.” Fletcher, 10 U.S. (6 Cranch) at 138.

Thus, for example, the Court has addressed ex post facto

challenges to retroactive legislation resulting in deportation on

the basis of political sympathies during “red scares,” see Glavan

v. Press, 347 U.S. 522 (1953); changes in resident alien status

during times of ethnic distrust, Chae Chan Ping v. United States,

130 U.S. 581 (1889); and revocation of professional privileges

enjoyed by those sympathetic to the cause of the Confederacy in

the wake of the Civil War. See Ex parte Garland, 70 U.S. (4 Wall.)

333 (1867); Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867).

8

politically motivated legislation feared by the Framers

because such laws, by definition, affect society’s most

despised and least politically powerful element.

In striking down a law that delayed inmates’ eligi-

bility for early release, this Court recently reaffirmed the

vitality of the ex post facto prohibition in the parole

context:

The specific prohibition of ex post facto laws is

only one aspect of the broader constitutional

protection against arbitrary changes in the law.

In both the civil and the criminal context, the

Constitution places limits on the sovereign’s

ability to use its law-making power to modify

bargains it has made with its subjects. The basic

principle is one that protects not only the rich

and powerful, . . . but also the indigent defen-

dant engaged in negotiations that may lead to

an acknowledgement of guilt and a suitable

punishment.

Lynce, 519 U.S. at 440 (citations omitted).

B. The Framework Established by Morales and Its

Precedents Absolutely Forbids Retroactive

Application of Laws That Pose a Risk of

Increasing Punishment.

In Calder v. Bull, the Supreme Court interpreted the

Ex Post Facto Clause to encompass not only every law

that criminalizes an act that was not criminal at the time

the act was done, but also “[e]very law that changes the

punishment, and inflicts a greater punishment, than the

law annexed to the crime, when committed.” 3 U.S. (3

Dall.) at 390. In Beazell v. Ohio, 269 U.S. 167 (1925), the

Court noted that it “is settled, by decisions of this Court

so well known that their citation may be dispensed with,

that any statute . . . which makes more burdensome the

i Te

9

punishment for a crime, after its commission, . . . is

prohibited as ex post facto.” 269 U.S. at 169-170. Recently,

in Collins v. Youngblood, 497 U.S. 37, 43 (1990), the Court

held that: “(T]he Beazell formulation is faithful to our

best knowledge of the original understanding of the Ex

Post Facto Clause: Legislatures may not retroactive-

ly . . . increase the punishment for criminal acts.”7

In California Dept. of Corrections v. Morales, the Court

applied this formulation to determine whether retroactive

alteration of a law governing the frequency of parole

consideration hearings violated the Ex Post Facto Clause,

holding, “the focus of the ex post facto inquiry is... on

whether any such change . . . increases the penalty by

which a crime is punishable.” 514 U.S. at 506 n.3; see

Lynce v. Mathis, 519 U.S. at 443.8

In Morales, the Court expressed wariness of an

approach that might require invalidation of “minor

. . mechanical [legislative] changes” that “might create

some speculative, attenuated risk of affecting a prisoner’s

actual term of confinement by making it more difficult for

him to make a persuasive case for early release,” 514 U.S.

at 508, 509; such as, for example, “restrictions on the

hours that prisoners may use the prison law library.” 514

7 In the criminal context, a law is retroactive if it “applies to

prisoners convicted for acts committed before the [law’s]

effective date.” Weaver v. Graham, 450 U.S. at 31. Petitioners have

not challenged that the regulation at issue here is retroactive.

8 In Lynce, the Court squarely held what was implicit in

Morales, that “retroactive alteration of parole . . . provisions, like

the retroactive application of provisions that govern initial

sentencing, implicates the Ex Post Facto Clause. ...” Lynce, 519

U.S. at 445.

10

U.S. at 508. The Court therefore refined the test as fol-

lows: “In evaluating the constitutionality of the [change

at issue], we must determine whether it produces a suffi-

cient risk of increasing the measure of punishment

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

In determining whether the amendment produces “a

sufficient risk of increasing the measure of punishment,”

the Court held that “what legislative adjustments ‘will be

held to be of sufficient moment to transgress the constitu-

tional prohibition’ must be a matter of ‘degree.’ ” 514 U.S.

at 509 (quoting Beazell, 269 U.S. at 171). In Morales, how-

ever, it was clear to the Court that the amendment at

issue created “only the most speculative and attenuated

possibility of producing the prohibited effect of increas-

ing the measure of punishment for covered crimes”

which, the Court held, was “insufficient under any

threshold we might establish under the Ex Post Facto

Clause.” 514 U.S. at 509. Subsequently, in Lynce v. Mathis,

the Court emphasized that its holding in Morales “rested

squarely on the conclusion that ‘a prisoner’s ultimate

date of release would be entirely unaffected by the change

in the timing of [parole] suitability hearings.’ ” Lynce, 519

* The requirement of more than a de minimus risk of

increasing the punishment appears to be the Morales majority's

reformulation of the principle that “merely procedural” changes

that substantively do not increase punishment do not violate the

Ex Post Facto Clause. Weaver v. Graham, 450 U.S. at 31 n.12

(quoting Hopt v. Utah, 110 U.S. 574, 590 (1884)). The

“procedural” test was difficult to apply because, as the Court

recognized, substantial rights may be altered by statutes taking

a “seemingly procedural form.” Weaver, 450 U.S. at 31 n.12; see

Lynce, 519 U.S. at 447 n.17. The “procedural” language therefore

“imported confusion into the interpretation of the Ex Post Facto

Clause.” Collins v. Youngblood, 497 U.S. at 45-46.

11

U.S. at 444 (quoting Morales, 514 U.S. at 513) (emphasis

added).!°

C. Disregard of the Morales Analysis, as Urged by

the Petitioners, Renders Morales Meaningless.

Morales’ “conclusion that ‘a prisoner’s ultimate date

of release would be entirely unaffected by the change in

the timing of suitability hearings,’ ” Lynce, 519 U.S. at 444

(quoting Morales, 514 U.S. at 513), was based on the

application of two major factors: First, the change in the

law affected only a very limited class of prisoners for

whom the likelihood of release was found to be “quite

remote” (i.e., multiple murderers). Second, after applying

a number of individual factors, the Court concluded that

under the California amendment, the parole board's

authority was carefully tailored to achieve the amend-

ment’s purpose of eliminating futile hearings for those

who have no chance of release in the interim. Thus, in

Morales, the Court engaged in a very fact-specific inquiry

leading to its conclusion that there was virtually no risk

that the prisoner’s ultimate release date would be

10 Morales reaffirmed that to establish a sufficient risk of

prohibited effect, “a party asserting an ex post facto claim need

not carry the burden of showing that he would have been

sentenced to a lesser term under the measure or range of

punishments in place under the previous statutory scheme. ...”

Morales, 514 U.S. at 510; see Miller v. Florida, 482 U.S. 423, 432

(1987) (“One is not barred from challenging a change in the

penal code on ex post facto grounds simply because the

sentence he received under the new law was not more onerous

than that which he might have received under the old.” ); Weaver

v. Graham, 450 U.S. at 33 (“The inquiry looks to the challenged

provision, and not to any special circumstances that may

mitigate its effect on the particular individual.”).

12

affected by the amendment. See also Lynce, 519 U.S. at

443-444.

In Morales the Court declined to articulate a general

proposition or “formula” for identifying ex post facto

violations beyond the extreme unlikelihood of harm pre-

sent in Morales, 514 U.S. at 509, and specifically, the Court

“express[ed] no view as to the constitutionality of any of

the number of other statutes that might alter the timing of

parole hearings under circumstances different from those

present” in Morales. 514 U.S. at 510 n.5.

Despite Lynce’s reemphasis of Morales’ case-by-case,

fact-specific approach, some courts have read Morales too

broadly, essentially discarding its analysis to conclude

that no retroactive deferral of parole reconsideration pre-

sents an Ex Post Facto Clause problem. For example, in

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

Jackson, 64 F.3d 163 (4th Cir. 1995), the Fourth Circuit

upheld the retroactive application of state laws decreas-

ing the frequency of parole reconsideration hearings. In

both cases, the class of inmates to which the amendments

applied was considerably broader than the class in

Morales. And, in both cases, there was virtually no discus-

sion of the absence of the procedural safeguards that

Morales deemed essential to protect inmates against the

possibility of an increase in punishment.'! See also Shabazz

v. Gabry, 123 F.3d 909 (6th Cir. 1997) (Michigan law at

issue decreased the frequency of mandatory parole recon-

sideration interviews for a very broad class - all inmates

'! Neither the South Carolina amendment considered in

Roller nor the Virginia statute at issue in Hill required any

factual findings regarding the likelihood that parole would be

granted in the intervening years. See Roller, 107 F.3d at 234-237;

Hill, 64 F.3d at 169.

13

serving parolable life or long indeterminate sentences -

and required no findings regarding parolability).'?

Petitioners argue here that Morales stands for the

general proposition that any law decreasing the fre-

quency of parole reconsiderations can be applied retroac-

tively consistently with the Ex Post Facto Clause.

Petitioners’ interpretation, if accepted, leads to the inex-

orable conclusion that a state legislature or parole board’s

power to increase the time between parole considerations

12 Other cases cited by Petitioners likewise selectively

embrace portions of the Morales inquiry and ignore other

portions, instead of considering the effect of the parole scheme

as a whole, as Morales commands. See, e.g., Furnari v. Zavaras,

914 P.2d 508, 510 (Colo. Ct. App. 1996) (retroactive statute

affected much larger class than in Morales and required no

express finding regarding likelihood of parole during the

intervening years); Jordan v. Tennessee Board of Paroles, 1997

Tenn. App. LEXIS 27, * 3 (Jan. 16, 1997) (court engaged in no

analysis of Morales factors but merely stated conclusively that

earlier release under the prior rule was “highly speculative”);

Tuff v. State, 732 So.2d 461 (Fla. 3 DCA 1999) (statute at issue

applied to a much broader class of inmates than in Morales,

including all inmates convicted of murder, sexual battery,

attempted sexual battery, or whose sentences were 25 years

minimum mandatory); Fletcher v. Williams, 688 N.E.2d 635 (Ill.

1997) (retroactive statute affected all state prisoners).

The Eleventh Circuit’s opinion below is not necessarily at

odds with the cases cited here because the Georgia amendment

goes so far beyond what the Court found acceptable in Morales.

The Georgia regulation not only applies to the broadest of

classes and contains virtually no safeguards, but it also permits

the longest setoff between parole reconsiderations of all the

statutes considered in the cases cited here. Cf. Roller, 107 F.3d at

236 (noting that the South Carolina law only decreased the

frequency of parole hearings by one year, while the California

statute considered in Morales potentially changed the frequency

by two years).

14

is unlimited; therefore, the state could retroactively effec-

tively deny parole altogether by simply delaying recon-

sideration. For example, the state could retroactively

require that an inmate who is first considered for and

denied parole a few years into a ten-year sentence need

not be reconsidered for another ten years, thus forcing

these inmates to serve the entire sentence, even though

the inmate was eligible for parole and entitled to annual

parole reconsideration when convicted. The central hold-

ing of Morales and Lynce, that laws delaying parole recon-

sideration do implicate the Ex Post Facto Clause, is

meaningful only if the Morales inquiry is strictly applied.

D. Under Morales, the Georgia Regulation Poses a

Sufficient Risk of Increasing the Measure of

Punishment to Violate the Ex Post Facto Clause.

The Georgia regulation differs from the California

statute examined in Morales in several significant ways:

(1) the class of affected inmates is much broader; (2) the

purpose behind the Georgia regulation is to increase the

length of confinement for life-sentenced inmates; (3) the

Georgia scheme does not require a hearing and partic-

ularized written findings to support a setoff; (4) the setoff

under the Georgia regulation is of much longer duration;

(5) there is no mechanism to rectify a delayed parole

suitability decision; (6) the possibility of Board discretion

to expedite reviews, standing alone, is insufficient and

too speculative to prevent a sufficient risk of increased

punishment; and (7) there is no opportunity for an

administrative appeal. Thus, unlike the California

amendment, the Georgia amendment poses a constitu-

tionally significant risk of increasing the measure of pun-

ishment.

TPO

a “ee 45 ght

15

1. The Georgia Regulation Covers Inmates

Sentenced for a Vast Array of Crimes for

Whom Release on Parole Is Likely.

First, unlike the California amendment, which

allowed the parole board to extend the time between

parole reconsideration hearings only for those prisoners

who had been convicted of “more than one offense which

involves the taking of a life,” 514 U.S. at 511, the Georgia

regulation applies to all inmates serving life sentences.

Presumably multiple murderers constitute a very small

number of prisoners; in contrast, the Georgia Board of

Pardons and Paroles has announced that this case affects

some 1400 Georgia inmates. See State of Georgia Board of

Pardons and Paroles, News Releases, “Parole Board Pur-

sues Appeal” (visited Dec. 8, 1999), <http://

www.pap.state.ga.us / NewRelea.nsf> (press release dated

June 2, 1999).13 Inmates serving life sentences in Georgia

include prisoners convicted not only of (one) murder, but

also rape, armed robbery, more than one count of child

molestation, and more than one count of possession or

13 Indeed, the affected number could be much higher

because the 1400 might not include life-sentenced inmates

convicted before 1979, who were entitled to annual parole

reconsideration. See Akins, 922 F.2d at 1560. Also, the 1400 might

include only the “limited” subset of life-sentenced inmates to

which the Board claims to be retroactively applying the

regulation. See Petitioners’ Brief at 18 n.2. That claim is

contradicted by the Board’s own written policy, however, which

states that the policy is applicable to “all Life Sentence Cases.”

(J.-A. 56). Therefore, the number affected could be much higher,

since, according to last year’s figures, there were over 5,000

inmates serving parolable life sentences in Georgia prisons.

James Salzer, Managing Prison Overflow; Commission Formed to

Develop Guidelines, The Fla. Times-Union, Georgia Ed., June 2,

1998, at Al. :

16

use of certain types of firearms during the commission or

attempted commission of a series of enumerated offenses

(such as robbery, involuntary manslaughter, sale or pos-

session of controlled substances, influencing witnesses,

and criminal gang activity). See Jones v. Garner, 164 F.3d

at 593-594 and statutes cited therein. Inmates serving life

sentences also include inmates convicted of more than

one count of any offense involving the manufacture,

delivery, sale, or distribution of certain controlled sub-

stances. See O.C.G.A. § 16-13-30 (1999). Violence is not an

element of these drug-related offenses. Id.

As the Eleventh Circuit concluded, because Georgia

law does not impose a sentence of life in prison without

parole for each of these offenses, the set of inmates whose

parole will be affected by the regulation must include

many inmates who can expect to be paroled at some

point. Jones, 164 F.3d at 594. Indeed, according to recent

statistics, the average Georgia inmate serving a life sen-

tence was released on parole after serving twelve years.

See JoAnne D. Spotts, Sentence and Punishment: Provide for

the Imposition of Life Sentence Without Parole, 10 Ga. St. U.

L. Rev. 183, 183 (1993). Thus, in contrast to the statute

considered in Morales, the Georgia regulation is not lim-

ited “only to a class of prisoners for whom the likelihood

of release on parole is quite remote.” 514 U.S. at 510. To

the contrary, it broadly applies to a class of prisoners who

have been released historically after serving an average

of twelve years.

144 The enumerated offenses are set forth in O.C.G.A.

§ 16-11-160 (1999).

—_ -_——— —— —_——

17

2. The Georgia Regulation’s Purpose Is to

Maximize the Length of Confinement for

Life-Sentenced Inmates.

Unlike Morales, in which the record contained an

articulated legislative purpose of saving time and money,

the record here contains no evidence whatsoever of the

purpose behind the amended regulation.'5 The Peti-

tioners’ unsubstantiated assertion that there could be no

other purpose than to save time and expense, in the

absence of evidence of the legislative purpose, is insuffi-

cient. See Lynce, 519 U.S. at 445.16 Here, the Board’s own

statements demonstrate that the amendment was not

intended to save time and expense that would otherwise

be incurred in reviewing inmates who have only the

remotest chance of making parole, as was the case in

California.’7 Rather, as in Lynce, the regulation was

15 In Lynce, the Court recognized that it had never had the

occasion to decide whether a legislative change with the

purpose, but not the effect, of increasing punishment would be a

sufficient basis for concluding that the law violated the Ex Post

Facto Clause. Lynce, 519 U.S. at 444. The Court nevertheless

emphasized the need to assess the purpose behind the change in

the sentencing scheme as well as the possible effect on

offenders’ sentences. Id. at 444-445; see Jones, 164 F.3d at 593.

16 The Court concluded in Lynce:

Here, unlike in Morales, there is no evidence that the

legislature’s change in the sentencing scheme was

merely to save time or money. Rather, it is quite

obvious that the retrospective change was intended to

prevent the early release of prisoners convicted of

murder-related offenses... .

Id.

17 Indeed, since Georgia inmates are not entitled to formal,

in-person hearings as they would be in California, there has

18

changed to increase the time life-sentenced inmates actu-

ally serve and thereby to avoid criticism (and defeat

political efforts to abolish parole) by impressing upon the

public and the legislature that the Board is doing every-

thing in its power to keep offenders in prison as long as

possible. See, e.g., Effects of 2-Strikes Law Eyed, Chat-

tanooga Free Press, June 20, 1998, at A3 (“The Board of

Pardons and Paroles is already limiting the number of

violent criminals being freed. . . . ‘We want the public to

realize . . . [o}btaining parole on a life sentence case is

increasingly rare,’ said Walter Ray, the board’s chair-

man.”); see State of Georgia Board of Pardons and Paroles,

News Releases, “It’s a Fact” (visited Dec. 8, 1999), <http:/ /

www.pap.state.ga.us / NewRelea.nsf> (press release dated

Oct. 7, 1998) (“It’s a fact: In Georgia, parole has already

been abolished for the seven most violent crimes. . . .

Under current Georgia law and parole board policy, the

majority of violent criminals must serve all or very close

to all of their court-imposed sentences. .. . ”).

Furthermore, the California statute in Morales was

carefully designed to permit a brief setoff only for as long

as an inmate could not reasonably expect to be paroled.

Here, in contrast, the Board’s own policy states that its

goal is “to establish the maximum possible interval, in a

Life Sentence Case, between a decision to deny parole

and the time at which reconsideration for parole will

occur,” State Board of Pardons and Paroles Policy No.

been no showing that holding reviews at least every three years,

as the Board was required to do under prior law, imposed any

real burden on the Board.

19

4.110 (J.A. 56), without regard to any reasonable likeli-

hood that the inmate might be released.

This evidence entitles the Court to find, as the Court

found in Lynce, that “it is quite obvious” that the retro-

spective change in Georgia law was intended to keep

prisoners convicted of certain offenses in prison longer.

Lynce, 519 U.S. at 445; see Jones, 164 F.3d at 593. This

purpose supports the conclusion that the Georgia amend-

ment violates the ex post facto prohibition.

3. The Georgia Regulation Does Not Afford

Inmates a Hearing and Particularized, Writ-

ten Findings to Ensure That No Delay in

Parole Release Results, Whether Inten-

tionally or Through Error.

The Georgia regulation contains no mandatory pro-

cedural safeguards to ensure that the delaying of parole

reconsideration does not increase the time actually served

by any inmate.'® Crucial to the Court’s decision in

Morales was the fact that the California statute required

that the parole board (1) conduct “a full hearing and

review” of all facts relevant to the prisoner’s eligibility

for parole, 514 U.S. at 511; (2) make “particularized find-

ings,” 514 U.S. at 512, that “it is not reasonable to expect

that parole would be granted at a hearing during the

following years,” 514 U.S. at 511; and (3) state in writing

the basis for those findings. Id. The “full hearing and

18 See Tuff, 432 So.2d at 466 (concluding that, because of its

mandatory procedures and findings, the Florida law at issue

was much more like the California statute in Morales than the

Georgia regulation considered in Akins and Jones: “[The Florida

law] does not share the defects of the Georgia rule noted by the

Eleventh Circuit.”).

20

review” afforded by the California statute gives the

inmate the right to review his or her file and to enter a

written response to anything contained in the file; to “be

present, to ask and answer questions, and to speak on his

or her own behalf;” to request and receive a transcript of

all proceedings; and to have legal counsel or another

designated person present at the hearing to ensure that

“all facts relevant to the decision” are presented. Cal.

Penal Code § 3041.5 (West 1999). Moreover, the California

parole board must send the prisoner a written statement

of the reasons for the denial and also suggest activities in

which the prisoner might participate while in prison to

increase his or her chances for parole the next time. Id.

In contrast, the Georgia regulation provides in its

entirety:

Reconsideration of those inmates serving life

sentences 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 confidential

sources of information or possible discouraging

diagnostic opinions.

Ga. Comp. R. & Regs. r. 475-3-.05(2) (1995). The prisoner

gets no hearing; the “reconsideration” is merely a paper

review by the individual Board members of the inmate’s

file. Jones, 164 F.3d at 594-595; see State of Georgia Board

of Pardons and Paroles, Frequently Asked Questions, “How

is a decision reached by Board Members?” (visited Dec. 8,

1999), <http://www.pap.state.ga.us/FQFrames.htm>.

Georgia law does not require the Board to make any

findings that the inmate will not be suitable for parole

before the next reconsideration and the Board is not

required to state the reasons for any setoff between recon-

siderations up to eight years. See Jones, 164 F.3d at 594,

—

21

595; see, e.g., J.A. 52-54 (Jones’ notices of parole denial and

setoff giving no reason for the setoff). Indeed, the Board

gives only the most conclusory and general reasons for

the parole denial itself. See J.A. 54 (“The main reasons for

the [Board’s] decision [to deny parole at this time] cited

by the Board members during their individual study of

your case are circumstances and nature of the offense,

and multiple offenses.”). The inmate has no right even to

review his parole file to see if it includes incomplete or

erroneous information. See O.C.G.A. § 42-9-53 (1997).

Petitioners’ argument, that because Georgia law does

not require a hearing or any procedural safeguards when

the Board considers an inmate for parole, it should not

have to hold a hearing or extend any procedural safe-

guards simply to delay reconsideration, misses the point.

The procedural safeguards essential to the Court’s deci-

sion in Morales served to ensure that, in fact, the “quan-

tum of punishment” would not be increased by the

retroactive application of the amendment. 514 U.S. at 508

(quoting Dobbert v. Florida, 432 U.S. 282, 293-294 (1977)).

Put differently, retroactive application of the California

law was, on its face, violative of the Ex Post Facto Clause.

However, the stringent procedural safeguards California

law imposed saved that particular law by reducing the

probability of an impermissible effect (i.e., increasing the

prisoner’s length of confinement) arising from the retro-

active application to virtually zero. In Georgia, there is

simply nothing to save the retroactive application of the

regulation by limiting its effect to a constitutionally insig-

nificant possibility of increasing the inmate’s jail time.

22

4. The Length of the Setoff Permitted by the

Georgia Regulation Is Much Greater and,

Therefore, the Harm Is Not as Speculative

or Easily Cured.

The change in the timing of parole consideration

authorized by the Georgia regulation is much more dras-

tic than in Morales. The California amendment entitles the

inmate to a reconsideration hearing every year by

default, but permits the parole board to depart from the

default and delay hearings for one to two years upon

specified, individual findings. The Georgia regulation, in

contrast, increases the allowable time between recon-

siderations in all cases to eight years, an interval five

years longer than was permitted before the amendment.

See Ga. Comp. R. & Regs. r. 475-3-.05(2) (1995) (recon-

sideration “shall take place at least every eight years.”).19

This drastic increase in the time between parole

reconsiderations places the Georgia regulation well

beyond the “micromanagement” of “innocuous” legisla-

tive adjustments that the Court sought to avoid in

Morales. 514 U.S. at 508. As the Eleventh Circuit con-

cluded in Akins after careful analysis of the Georgia

parole statutes and regulations, inmates are effectively

ineligible for parole between such reviews:

19 For inmates convicted before 1979, who were eligible for

annual parole reconsideration under the regulation in effect at

that time, the change in the law increased their allowable setoff

by seven years. See Akins, 922 F.2d at 1560; Ga. Comp. R. & Regs.

r. 475-3-.05(2) (1969).

The length of the allowable setoff, as well as the change in

the allowable setoff, is greater under the Georgia amendment

than under any of the state laws delaying parole reconsideration

that have been upheld by other courts. See cases cited supra at 13

n.12.

23

Under the Georgia parole system, an inmate

serving a life sentence becomes eligible for

parole consideration after serving seven years of

his sentence. This means that the inmate is given

a parole consideration hearing, and the Board

then determines if he is suitable for release

based on a number of factors. If the inmate is

denied parole at this initial hearing the Board

schedules a parole reconsideration hearing at a

later date. If the inmate is denied parole at the

reconsideration hearing, the Board schedules

the inmate for another reconsideration hearing

at a later date. Since the Board is required to

hold some type of parole reconsideration hear-

ing before granting parole, an inmate is effec-

tively ineligible for parole between two parole

reconsideration hearings. Because an inmate is

not paroled without a parole reconsideration

hearing, the hearing musi be considered an

essential part of parole eligibility.

Akins, 922 F.2d at 1561.7 Thus, an eight-year setoff in

parole reconsideration is effectively an eight-year delay

in parole unless it could somehow be shown that the

inmate had “no reasonable chance” of parole during that

eight years. Morales, 514 U.S. at 507. Such a showing is

impossible when the setoff is eight years long.

While it is true that the Board of Pardons and Paroles

exercises complete discretion in determining whether or

not to parole any individual inmate,*) the statutory

20 In using the terms “parole consideration hearing” and

“parole reconsideration hearing,” the Eleventh Circuit did not

imply that the inmate receives an actual hearing. See id. at 1561

n.8.

21 This Court has repeatedly rejected the Board’s argument

that because it enjoys broad discretion whether to parole any

24

scheme clearly contemplates parole for the affected class,

prisoners serving life sentences. O.C.G.A. § 42-9-45(f)

(1997). Recent statistics show that, in fact, the average

term actually served on a life sentence was twelve years.

While the Board makes light of the Eleventh Circuit's

observation that “eight years is a long time,” Petitioner's

Brief at 27 (quoting Jones v. Garner, 164 F.3d at 595), the

average life sentence actually served puts this number in

context. Contrary to the Board’s unsupported assertion

that no one serving a life sentence has other than the

remotest chance of release on parole, see Petitioner's Brief

at 18 n.2; statistically, under the law in effect when Mr.

Jones and other inmates were sentenced, the average life-

sentenced inmate could reasonably expect to be paroled

sometime between his second parole consideration,

which would have occurred at ten (7 + 3) years, and his

third, at thirteen years. Under the amended regulation,

however, if an inmate is turned down for parole at his

first consideration, he will have served fifteen years

before the Board is even required to reconsider him.??

individual inmate under Georgia law, no ex post facto claim is

cognizable against it. See Weaver, 450 U.S. at 29-30 (“a law need

not impair a ‘vested right’ to violate the ex post facto

prohibition. . . . Thus, even if a statute merely alters penal

provisions accorded by the grace of the legislature, it violates

the Clause if it is both retrospective and more onerous than the

law in effect on the date of the offense.”).

22 In contrast, Morales noted that in California, 85 percent of

inmates were found to be unsuitable for release at the second

reconsideration hearing, which, under the amended California

law, would occur after the inmate had served 12 years, at the

latest. See 514 U.S. at 510-511.

25

The Eleventh Circuit’s conclusion that eight years is

too long is supported by its finding that under the Geor-

gia parole scheme, “[m]uch can happen in the course of

eight years to affect the determination that an inmate

would be suitable for parole.” 164 F.3d at 595. For exam-

ple, Georgia law dictates that the Board,

in considering any case within its power, shall

cause to be brought before it all pertinent infor-

mation on the person in question. Included

iherein shall be:

(1) A report... upon the conduct of record

of the person while in such jail or state or

county correctional institution;

(2) The results of such of physical and men-

tal examinations as may have been made

of the person;

(3) The extent to which the person appears to

have responded to the efforts made to

improve his social attitude;

(4) The industrial record of the person while

confined, the nature of his occupations

while so confined .. . ; and

(S) The educational programs in which the

person has participated and the level of

education which the person has attained

based on standardized reading tests.

O.C.G.A. § 42-9-43 (1997) (emphasis added). Moreover,

“[glood conduct, achievement of a fifth grade level or

higher . . . and efficient performance of duties by an

inmate shall be considered by the board in his favor... . ”

O.C.G.A. § 42-9-42 (1997). These statutes, passed by the

Georgia legislature and binding on the Board, contradict

the Board’s assertion that only the nature and circum-

stances of the offense are relevant to parole decisions for

life-sentenced inmates. See Petitioners’ Brief at 19-20, 26

26

n.8. Moreover, by their very nature, each one of these

factors is likely to change substantially over an eight-year

period.

Oddly, the Board argues that the delay in parole

reconsideration from every three to eight years will some-

how have the effect of encouraging inmates’ attempts at

rehabilitation. Petitioners’ Brief at 16-17. The Board offers

absolutely no support for what is not even a logical

proposition since, according to the Board, the primary

factors in parole decisions for inmates like Mr. Jones, who

are most likely to suffer the longest setoffs, are the nature

and circumstances of the crime and criminal history,

which the inmate cannot change. The Board's bold asser-

tion that a setoff for eight years, without giving the

prisoner any reasons for the setoff and without any indi-

cation of what the Board expects the prisoner to do to

improve himself (unlike the California statute, which

requires both), somehow “provides an indication of how

extensive [the prisoner’s] efforts [at self-improvement]

must be” is nonsensical. Petitioner’s Brief at 17.

23 By Georgia law, an inmate may not obtain parole until he

receives the favorable vote of a majority (three) of the five

member Board. See O.C.G.A. § 42-9-42(a) (1997). The Board

serves seven-year, staggered terms by appointment of the

Governor. Ga. Const. art. IV, § 2, 1. The composition of the

Board therefore can change greatly during an eight-year setoff,

which is longer even than the term of the Board members.

Indeed, three of the five Board members, including the

chairman, have changed since Jones filed his lawsuit in

November 1995. See Petitioners’ Brief at ii. Not only wil! the

composition of the Board change during such a long setoff, but

attitudes about punishment and the role of education,

rehabilitation, occupation, and retribution are likely to change

as well.

'

27

5. In Georgia, There Is No Mechanism to Rec-

tify the Harmful Effect of a Delay in an

Inmate’s Parole Suitability Finding.

Morales concluded that the California statute had a

negligible risk of increasing any inmate’s punishment

because, under the California parole scheme, an inmate’s

actual release date often comes years after a finding of

suitability. The Court therefore reasoned that any delay in

the finding of suitability could be rectified by an earlier

release date. There is no analog to this factor in Georgia

law; if there were, the Board clearly would have made

such an argument, but it did not.

6. The Remote Possibility of an Expedited

Review, Not Enshrined in Georgia Law, is

Insufficient Protection Against Increased

Punishment.

In Morales, the Court also considered that under Cali-

fornia law, in the years between reconsideration hearings,

a prisoner could cure any possible delay through the

opportunity to request an expedited hearing in the event

of new information or a change in the inmate’s circum-

stances. Even assuming that the same opportunity is

available in Georgia, the Court did not hold that the

opportunity for an expedited hearing, in the absence of any

other safeguards, is sufficient to prevent an impermissible

delay in parole, and it is not sufficient here.

Despite its internal policy statement,?4 which states

that inmates “may receive expedited parole reviews in

24 Unlike the statute passed by the California legislature,

this internal operating policy does not have the force of law - as

the Board implicitly acknowledges by characterizing the policy

merely as the Board’s “own interpretation of the requirements

28

the event of a change in their circumstance or where the

Board receives new information that would warrant a

sooner review” (J.A. 56), the Board offers no evidence

that any inmate ever has or will be released on parole

between regular reconsiderations. To the contrary, the

Georgia statutory scheme and regulations indicate that

Board members do not vote on whether to parole an

inmate other than during formal reconsiderations; and an

inmate cannot be released on parole except by a majority

vote. O.C.G.A. § 42-9-42(a); see Akins, 922 F.2d at 1561.

Furthermore, Georgia law requires the Board to make

a regulation setting periodic parole reconsideration, at

which time reconsideration shall be “automatic.”

O.C.G.A. § 42-9-45. In contrast, the fact that inmates “may

receive” an expedited review under the Board’s internal

“policy” based on changed circumstances or new infor-

mation shifts the burden to the inmate to request, subject

to the Board’s absolute discretion, what previously came

upon it.” Petitioners’ Brief at 27 n.10. Indeed, the Board has

consistently maintained that its own policies and procedures are

not binding upon it, a position which the courts have repeatedly

affirmed. See, e.g., Sultenfuss v. Snow, 35 F.3d 1494, 1500-1503

(11th Cir.), cert. denied, 513 U.S. 1191 (1995). In addition, an

internal operating policy like the one cited by the Board has

been held to be incapable of creating a right protectable by the

Ex Post Facto Clause because of its purely discretionary and

unenforceable nature, see Shabazz v. Gabry, 123 F.3d at 915; Ruip

v. United States, 555 F.2d 1331, 1335 (6th Cir. 1977); Bailey v.

Gardebring, 940 F.2d 1150, 1156-1157 (8th Cir. 1991); Smith v.

United States Parole Commission, 875 F.2d 1361, 1367 (9th Cir.

1988); therefore, such a policy should not be capable of curing

an ex post facto violation.

29

to him automatically.> Indeed, the denial and setoff

notice given to inmates does not even inform them of

their right to petition for an expedited review based on

changed circumstances. See, e.g., J.A. 52-54.

7. There is No Opportunity for an Administra-

tive Appeal Under the Georgia Parole

Scheme.

In addition to the opportunity for expedited interim

review, in Morales the Court also suggested that the possi-

bility of an administrative appeal “would remove any

possibility of harm.” 514 U.S. at 513. Petitioners do not

contend here that any administrative appeal is available.

In sum, it simply cannot be said that there is “only

the most speculative and attenuated possibility” of

increased punishment in this case. The amended regula-

tion applies to a large, broad class of prisoners. No hear-

ing or particularized findings of any kind, including that

the inmate is unlikely to be suitable for parole before the

next reconsideration, are required. The length of the set-

off is five years longer, more than two and one-half times

greater, than the longest setoff permitted under the Cali-

fornia law at issue in Morales. Eight years can pass with-

out any requirement that the Board consider the inmate’s

case. Given the large class of affected inmates, this eight-

year interval seems certain to ensure that a significant

25 This Court has held that an ex post facto violation is

cognizable when a prisoner is deprived of automatic benefits or

advantages even where they are replaced by “purely

discretionary” ones. Weaver, 450 U.S. at 35-36 & n.20; Lindsey v.

Washington, 301 U.S. 397, 401 (1937). Thus, the Board’s purely

discretionary application of its policy cannot cure the ex post

facto violation here.

number of inmates will find the length of their confine-

ment extended in violation of the Ex Post Facto Clause.

30

See Jones, 164 F.3d at 595.

CONCLUSION

For the foregoing reasons, the amici curiae respect-

fully pray that the Court affirm the decision of the United

States Court of Appeals for the Eleventh Circuit.

Respectfully submitted,

Jut A. Pryor

Counsel of Record

BONDURANT, Mixson & Et_more, LLP

1201 W. Peachtree Street, N.W.

3900 One Atlantic Center

Atlanta, Georgia 30309-3417

(404) 881-4100

Steven R. SHAPIRO

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

GERALD WEBER

Rosert L. Tsai

American Civil Liberties Union

Foundation of Georgia, Inc.

142 Mitchell Street, Suite 301

Atlanta, Georgia 30303

(404) 523-6201