# Amicus Curiae Brief — Garner v. Jones > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0323%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 529 U.S. 244 ## Text 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), ... Georgia State Board of Pardons and Paroles, Fre- quently Asked Questions, “How is a decision reached by Board Members?” (visited Dec. 8, 1999) (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), (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), . 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0323%3A8. Public record. Not legal advice.