# Opposition Brief — Sultenfuss v. Snow

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1191

## Text

Bes Cm, Y.°

2 Bee
5 JAN 3 1 1995
| RAK
No. 94-1178 oes ee —
In The

Supreme Court of the United States
October Term, 1994
o--
STEPHEN G. SULTENFUSS,

Petitioner,

WAYNE SNOW, JR.,
(FORMER) CHAIRMAN OF THE GEORGIA STATE
BOARD OF PARDONS AND PAROLES, et al.,

Respondents.

4

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit

’

BRIEF IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI

+

Terry L. LONG

Assistant Attorney General
Attorney of Record for
Respondents

Please Serve: MicHaet J. Bowers
ne ae ee Attorney General
40 Capitol Square, S.W. Daryt A. Rosrnson
Atlanta, GA 30334-1300 Senior Assistant
(404) 656-5161 Attorney General

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY ©

QUESTION PRESENTED

Whether the Georgia parole system creates an expec-

tation of release protected by the due process clause of
the Fourteenth Amendment?

TABLE OF CONTENTS

Page

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SEATEMSEIS GFF SPUR CABG oc occ ccc cde cred ecewaey 2
REASONS FOR DENYING THE WRIT............. 6

I. THE ELEVENTH CIRCUIT CORRECTLY

APPLIED THIS COURT’S PRECEDENT ....... 6

Il. THE DECISION BELOW IS CONSISTENT
WITH LEGISLATIVE INTENT, GEORGIA
SUPREME COURT PRECEDENT AND ADMIN-

ISTRATIVE INTERPRETATION................ 12
ee Me ee 12
DB. Gentle COW i. 5 cos ccctsnsceesssreessew 14
C. Administrative Interpretation ............. 15

Il. THE DECISION BELOW IS CONSISTENT
WITH THE SUPREME COURT’S EQUITABLE
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iii
TABLE OF AUTHORITIES

CASsEs:
Ardestani v. I.N.S., 502 U.S. 129 (1991).............-. 13

Board of Pardons v. Allen, 482 U.S. 369 (1987) ..7, 8, 11, 14

Chapman v. U.S., 500 U.S. 453 | ee 14
Charron v. State Board of Pardons and Paroles, 253
I cs hava css sccserssssecescrcccccess 14
Connecticut Nat. Bank v. Germain, 503 U.S. 249
ee ee eee oe 13
Department of Treasury v. Federal Labor Relations
Authority, 494 U.S. I i 65 66 sick ke escapees 15
Freeman v. The State, 264 Ga. 27 (1994)........... 14, 15
Georgia State Board of Pardons and Paroles v. Turner,
So os nn nee coe 14
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1
sda Ga whe csv asesavesscesseccesses passim
Hewitt v. Helms, 459 U.S. 460 (1982)...........---+55- 7
Inmates v. Ohio Parole Authority, 929 F.2d 233 (6th
EES ET ee ore ee eee 10
Jago v. Vancuren, DE SS) | ei 10

Kentucky Dept. of Corrections v. Thompson, 490 U.S.
WN aso corp cs ceeds eds eecwnescevessceces passim

Miles v. Apex Marine Corp., 498 U.S. 19 oe 13

Staton v. Wainwright, 665 F.2d 686 (11th Cir. 1982) .... 10

iV

TABLE OF AUTHORITIES - Continued

Page

Sultenfuss v. Snow, 894 F.2d 1277 (11th Cir. 1990)..... 3
Walters v. Nat. Assn. of Radiation Survivors, 468 U.S.

See SNES bins ike c pene cen reer aac dr Cec bee 14
STATUTES:
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Pent ee OS oo 8G oe he eae akin gana eee #1; 13
a es er Rs haces FRO Swale a hea 10, 11, 13, 14
Ru tes, REGULATIONS AND POLICIES:
Ga. Comp. KR. & Regs. r. 475-3-.G5(5) « . «1... 2 eo eee. 15
Guidelines System Manual,

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No. 94-1178
¢

In The

Supreme Court of the United States
October Term, 1994

4

STEPHEN G. SULTENFUSS,

Petitioner,

WAYNE SNOW, JR.,
(FORMER) CHAIRMAN OF THE GEORGIA STATE
BOARD OF PARDONS AND PAROLES, et al.,

Respondents.

¢

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit

¢

BRIEF IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI

S

Come now Respondents in the above-captioned mat-
ter and present this their Response to the Petition for Writ

of Certiorari and show reasons why the writ should be
denied.

SUMMARY OF ARGUMENT

The court below correctly applied the test for deter-
mining whether a state has created a liberty interest and
correctly held that the Georgia parole guidelines system
does not create an expectation of release on parole. Peti-
tioner focuses on irrelevant mandatory language and
irrelevant substantive predicates in an attempt to find
some promise of release.

Moreover, the Eleventh Circuit’s decision is consis-
tent with legislative intent as discerned by the rules of
statutory interpretation. The decision below is also con-
sistent with Georgia Supreme Court precedent and the
administrative agency’s interpretation of its obligations
under the guidelines statute. Finally, the decision below
is consistent with this Court’s equitable considerations
which encourage parole agencies to experiment in an
effort to create fairer parole systems. There is no reason
for further review by this Court.

+

STATEMENT OF THE CASE

As requested in Supreme Court Rule 15, Respondents
here focus on Petitioner’s mistatement of facts in the
Petition. Petitioner makes three fundamental misstate-
ments: 1) he suggests that the enactment of the guidelines
statute “replaced” former parole statutes; 2) he confuses a
grid recommended parole month with a Board recom-
mended parole month; and 3) he raises issues of alleged
false information in his parole which were not preserved
below.

Ee ee ee ae ——— ee

First, the guidelines statute did not “replace [Geor-
gia’s] parole statute” as suggested by Petitioner in his
question presented. The new provision was not a replace-
ment of any existing parole statute but amounted to a
new section of the Parole Act. Ga. Laws 1980, p. 404.
(Appendix one.)

Second, Petitioner confuses two phrases used by the
Board under the guidelines system; “guidelines grid rec-
ommendation” and “tentative parole month.” The grid
recommended number of months to serve is the result of
two factors: the crime severity level rating and the parole
success likelihood score. The crime severity rating is a
predetermined score which is based, except in excep-
tional circumstances, on the controlling crime of convic-
tion. Petitioner’s crime severity level was designated at
level Il.on a scale of I to VII with I being the least severe.

The parole success likelihood score is a total score
from eight weighted factors previously determined by the
Board to provide some indication of recidivism. Out of a
possible 20 points, Petitioner received a success score of
11. The success score and severity level are then applied
to an established grid which produces a grid recom-
mended months to serve. The grid recommended Peti-
tioner serve ten months of his fifteen-year sentence.
Petitioner’s allegation is that he had an expectation to be
released at ten months as recommended under the grid.

When it is convenient for his argument, Petitioner
confuses the grid recommended months to serve with the
tentative parole month. Petitioner ignores the next step in
the parole consideration process which is the routing of
the parole file to Board members for their votes. The

guidelines system calls for the grid recommendation to be
routed with the file to Board members for Board recom-
mendations. The Board members when voting may adopt
the grid recommendation but do not necessarily have to.
The Board’s recommended months to serve (which may
or may not be the same as the grid recommendation) is
then added to the inmate’s sentence computation date
resulting in a tentative parole month.

Petitioner relies on selected excerpts from the Guide-
lines System manual for support of his erroneous conclu-
sion that the tentative parole month is equivalent to the
grid recommendation. Petitioner mistakenly misquotes to
this Court Guidelines System Manual Chapter 8-27.01.
Petitioner adds the words “from the Guidelines Grid”
when quoting the policy statement to the Court. (Com-
pare Petitioner’s brief at pp. 5-6 with App. 107.)

These policy manual excerpts, do not support Peti-
tioner’s conclusions either that the tentative parole
month automatically follows from the grid recommenda-
tion or that the Board created a promise of parole. Chap-
ter 8-3.02 refers to the routing of the parole file to Board
members for their determination as part of the guidelines
system process. Chapters 8-26.01 and 8-27.01 define grid
recommended months to serve which is the last step in
the process by Board staff prior to routing the file for
Board member vote. The Chapter defining a “tentative
parole month,” which was misquoted by Petitioner,
expressly states that the tentative parole month calculation
follows and directly relates to the Board’s review and recom-
mendation. Chapter 8-27.01. The tentative parole month is
calculated from the “Board’s tentative release decision.”

Id. Thus, it is evident the tentative parole month is calcu-
lated from the Board’s recommendation and not neces-
sarily the grid recommendation. It follows from a proper
reading of these provisions that the tentative parole
month is not defined as an automatic computation from
pre-determined elements, but instead results only after
Board consideration of the guidelines grid and review of
the individual circumstances in each offender’s case.

The uncontradicted evidence is that this process was
followed in Petitioner’s case. The Board departed from the
grid recommendation of ten months in Petitioner’s case and
recommended 61 months to serve or approximately five
years of his fifteen-year sentence. The 61-month recommen-
dation was added to his sentence computation date to deter-
mine tentative parole month of January, 1992. Petitioner was
released on or about his tentative parole month.

Finally, Petitioner in his Statement of the Case attempts
to mislead this Court by repeatedly describing alleged false
information in his parole file. False information in Peti-
tioner’s parole file has never been an issue in this case. Nor
was this issue preserved on appeal to the Eleventh Circuit.
See, e.g., Sultenfuss v. Snow, 894 F.2d 1277 (11th Cir. 1990). The
Board denies that there is any false or inaccurate information
maintained in Petitioner’s parole file. Moreover, the Board
objects to any consideration of this allegation made for the
first time on appeal. This is another example of Petitioner’s
efforts to confuse the simple question in this case: whether
Petitioner had a reasonable expectation that he would be
released according to the grid recommendation.

o

REASONS FOR DENYING THE WRIT

I. THE ELEVENTH CIRCUIT CORRECTLY APPLIED
THIS COURT’S PRECEDENT.

The question presented in the instant petition is not
novel. The Supreme Court on several occasions articu-
lated the standard for determining when a state created a
liberty interest. A liberty interest is created where (1)
there are “substantive predicates to govern official deci-
sionmaking” and (2) the “outcome to be reached upon a
finding that the relevant criteria have been met” is “man-
dated.” Kentucky Dept. of Corrections v. Thompson, 490 U.S.
454, 462 (1989). This Court “articulated a requirement

. . that the [provisions] contain ‘explicitly mandatory

4

language; i.e., specific directives to the decision maker
that if the [provisions’] substantive predicates are pre-
sent, a particular outcome must follow, in order to create
a liberty interest.” Id., 490 U.S. at 463 (emphasis added).
The application of this standard is not an exact science, as
noted by the majority opinion below, but there are speci-
fic criteria which must be satisfied before due process is
implicated.

The focus is correctly on the language of the provi-
sion in question. Before constitutional protections are
invoked, there must be an articulated promise which
legitimately raises the inmate’s expectation. In Greenholtz
v. Nebraska Penal Inmates, 442 U.S. 1 (1979) this Court
found an entitlement to parole release or expectation of
liberty was created by the use of the words “shall order his
release.” Id., 442 U.S. at 11 (emphasis added). Release was
an expressly promised result.

In Hewitt v. Helms, this Court found a promise of
liberty was created due to “explicitly mandatory lan-
guage” which commanded to the decision maker that if
the “substantive predicates” are not met, then adminis-
trative confinement will not occur. Hewitt v. Helms, 459
U.S. 460 (1983). The Hewitt statute promised that “if no
behavior violation has occurred,” and “the security con-
cern is abated,” then “the inmate must be released.” Hewitt,
459 U.S. at 472 (emphasis added).

Again, this Court in Board of Pardons v. Allen, found
that the relevant statute “use[d] mandatory (‘shall’) to
‘create a presumption that parole release will be granted’
when the designated findings are made.” Board of Pardons
v. Allen, 482 U.S. 369, 377-78 (1987), quoting Greenholtz,
supra. The Allen parole statute directed that the Board
“shall release on parole” and “a prisoner shall be placed on
parole.” Allen, 482 U.S. at 376 (emphasis added).

The mandatory explicit language, however, creates a
promise of parole only if it is relevant. Thompson, 490 U.S.
at 454. In Thompson this Court found that although factors
limited the prison decision makers’ discretion and the
statute may have mandatory language, the regulations at
issue “lack[ed] the requisite relevant mandatory lan-
guage” promising a specific outcome. Id. at 464. In
Thompson, the regulations regarding visitation mandated
that specific factors must be considered in visitation deci-
sions. The regulation stopped short, however, of requir-
ing that a particular result be reached. ‘ne provision
stated that once these factors are considered the visitor
“may be excluded.” Id. at 456, n.1. (emphasis added).
Absent a mandated guaranteed outcome, the prisoner

cannot reasonably form an objective entitlement to any
interest.

In analyzing the provisions in the present case, the
court below correctly determined that no express promise
of release was stated in the Georgia parole system. There
simply is no expressed promise of parole in the Georgia
guidelines system which creates a reasonable expectation
that the inmate shall be released.

Petitioner, like the Plaintiff in Thompson, attempts to
point to an expectation of parole release not by showing
any mandated outcome or express promise of release, but
instead by focusing on “irrelevant” mandatory language.
Petitioner points to language which states the Board
“shall” adopt or use a guidelines system. The result of
Petitioner’s standard would require procedural due pro-
cess whenever a state adopted a guideline system; a
notion expressly rejected in Greerholtz and Allen which
held that the adoption of a parole system alone does not
implicate due process.

This Court warned in Thompson against hunting for
irrelevant mandatory language stating:

It should be obvious that the mandatory lan-
guage requirement is not an invitation to courts
to search regulations for any imperative that
might be found. The search is for relevant man-
datory language that expressly requires the
decisionmaker to apply certain substantive
predicates in determining whether an inmate
may be deprived of the particular interest in
question.

Id., 490 U.S. at 464, n.4. At page 21 of the Petition,
Petitioner states that the Georgia statute through use of

the word “shall” mandates implementation of a parole
guideline system, mandates that the system shall be used
in determining parole actions and mandates specific fac-
tors which must be considered. Petitioner fails to mention
any mandate of release or mandated liberty upon fulfill-
ment of specific factors. There is no such mandate in the
Georgia guidelines statute. Absent a promise of release
there is no expectation of release.

Likewise there is no “relevant mandatory language”
in the policy statements relied upon by Petitioner.! The
provision relied upon most heavily is Guidelines System
Manual Chapter 8-27.01, which defines for Board staff
how to calculate a tentative parole month. The provision
states:

The tentative parole month, during which the
offender may expect to be released, absent new
information or other cause to cancel the Board’s
tentative release decision, shall be calculated by
adding the recommended months to serve to the
compute-from date of the controlling sentence.

Guidelines System Manual, Chapter 8-27.01.2 The “expec-
tation” described in this statement is merely a date which
the Board and the inmate anticipate the inmate’s release.
It is in no sense a promise of parole since it can be
changed at any time based on “new information” or for

' The policy statements relied upon by ’etitioner are con-
tinually objected to by the Board as these are not a part of the
record.

2 Recommended months to serve here is the recommenda-
tion made by the Board and not the grid recommendation. This
provision was misquoted in Petitioner's brief by inserting the
words “from the Guidelines Grid.”

10

any “other cause” that the Board decides. This Court
previously held that a tentative parole release date does
not create a liberty interest. Jago v. Vancuren, 454 U.S. 14
(1981) (a promise to release date is insufficient to create a
liberty interest). See also Staton v. Wainwright, 665 F.2d 686
(11th Cir. 1982) and Inmates v. Ohio Parole Authority, 929
F.2d 233 (6th Cir. 1991). Such an expectation, even if
mutual, creates a mere hope of release and is not an
entitlement. This policy statement does not amount to a
promise of release on the tentative parole month.

Petitioner also focuses on irrelevant “substantive
predicates” in an effort to demonstrate a promise of
parole. As Thompson explains, any state provision which
is under scrutiny, usually has limits on discretion which
appear to either narrow or broaden discretion, or both.
These criteria for parole are referred to as substantive
predicates. Lists of specific factors that must be consid-
ered for parole appear to limit discretion; while broad
grants of discretion such as “release only if it would be
compatible with the inmate’s welfare or the welfare of
society,” appear to create unlimited discretion. O.C.G.A.
§ 42-9-42. This Court’s precedent is clear, however, that

3 Petitioner’s reliance on this policy statement further con-
fuses the issues since even assuming that this statement created
a promise of release at Petitioner’s tentative parole month, it
does not promise release on Petitioner’s grid recommended
months to serve. Petitioner was released on his tentative parole
month. Petitioner’s claim that he had an expectation to be
released on his tentative parole month does not support his
claim that he had an expectation to be released on the grid
recommendation date which is actually what the Petitioner
seeks in this case.

11

provisions may include detailed factors which limit dis-
cretion or broad grants of discretion; neither is conclusive
as to whether due process is implicated. Compare Allen
and Greenholtz (the presence of general criteria such as
“parole shall be ordered only for the best interest of
society” which provides broad discretion but does not
deprive the prisoner of the liberty interest) with
Thompson (presence of many specific factors which must
be considered does not, standing alone, create a liberty
interest.) This Court correctly avoids the gray area of
deciphering just how many limitations are enough to
create an expectation of release. Instead, this court
requires a clear promise of liberty upon the satisfaction of
factors before the Constitution is implicated.

The parole provisions here in issue have both broad
grants of discretionary authority as well as lists of speci-
fic factors for consideration. Compare O.C.G.A. § 42-9-40
(specific factors the Board must consider) with O.C.G.A.
§ 42-9-42(c) (broad discretion to parole only if in the best
interest of society). Petitioner contends that the broad
grant of discretion in O.C.G.A. § 42-9-42 is consistent
with a liberty interest in parole. This contention is correct.
However, Petitioner ignores the converse which is also
true; a liberty interest is not created simply because there
are detailed factors which limit discretion. Petitioner’s
focus on the number of factors which must be considered
under the Georgia guidelines system is. misplaced.
Thompson, supra. These limiting factors are irrelevant sub-
stantive predicates because satisfaction of the factors is
not an express precondition for parole release. The degree
or number of limitations on discretion is irrelevant
because there is no required release upon the fulfillment

12

of these factors. Adopting Petitioner’s position is tanta-
mount to concluding that whenever a guidelines system
(with detailed factors for consideration) is adopted, due
process is automatically implicated. Again, this position
was rejected by this Court. Despite detailed factors that
must be considered, there still remains no reasonable
expectation of parole upon the satisfaction of these fac-
tors.

The correct due process analysis leads to one control-
ling question: Where is the promise of release on parole
that an inmate is entitled to expect under the Georgia
parole guidelines? There is no such mandate. Like the
provisions in Thompson, the Georgia parole guidelines
system stops short of mandating release on parole.

Il. THE DECISION BELOW IS CONSISTENT WITH
LEGISLATIVE INTENT, GEORGIA SUPREME
COURT PRECEDENT AND ADMINISTRATIVE
INTERPRETATION.

A. Legislative Intent.

Contrary to Petitioner’s contentions, the decision
below is consistent with the legislative intent to preserve
Board discretion. In support of his position that the Geor-
gia legislature intended to remove Board discretion, Peti-
tioner relies upon various newspaper articles including
an article from Tennessee. Even assuming that these
newspaper articles were a part of the record, which they
are not, and that the articles had conclusive authority
concerning legislative intent, which they do not, a close
reading of the articles actually supports the Board's posi-
tion that the guidelines were enacted as an aid to making

13

more soundly based decisions and not as a substitute for
the decision-making process. For example, an article
quoted at page 11 of Petitioner’s brief states that the
guidelines “will be implemented to help determine
whether inmates in Georgia prisons ought to be
paroled. ...” Indeed, the Board’s position is that the
guidelines are helpful in their determination, but guide-
lines are not a substitute for the determination. Not a
single article quoted by Petitioner states that the guide-
lines were intended to be a substitute for the Parole
Board’s discretion.

The application of rules of statutory construction dis-
proves Petitioner’s theory of legislative intent. It is axi-
omatic that the first rule of statutory interpretation
requires a court to look only at the plain language of the
statute for its meaning. See, e.g., Ardestani v. I.N.S., 502
U.S. 129 (1991). Evidence outside the plain language is
considered only if there is some ambiguity. Id. As dis-
cussed in the previous section, none of the plain language
in the statute mandates release on parole. There is no
need to look further than the plain language to discern
legislative intent.

A second rule of statutory construction requires the
court to presume that legislators are aware of pre-existing
laws still in existence. See, e.g., Miles v. Apex Marine Corp.,
498 U.S. 19 (1990) and Connecticut Nat. Bank v. Germain,
503 U.S. 249 (1992). Newer statutes should be read consis-
tently with pre-existing law. Already in existence at the
time of the enactment of O.C.G.A. § 42-9-40 establishing
the guidelines system, were the Georgia Constitution at
Art. IV, Sec. II, Para. If and O.C.G.A. § 42-9-42. These
provisions were not repealed by the guidelines statute.

14

The Constitution grants complete authority of executive
clemency in the Parole Board. Likewise, O.C.G.A.
§ 42-9-42(c) provides a broad grant of discretionary
power stating that the Board shall not parole an inmate
unless his release will be compatible with his welfare and
the welfare of society. Because neither of these provisions
was repealed by the enactment of the guidelines statute,
it may be presumed that the legislature did not intend for
these broad grants of discretion to be replaced by the
guidelines statute.

Moreover, if the guidelines statute were construed to
limit Board discretion it would violate the Georgia Con-
stitution. See, e.g., Freeman v. The State, 264 Ga. 27 (1994).
The rules of statutory contruction require the courts to
avoid this result if logically possible. See, e.g., Chapman v.
U.S., 500 U.S. 453 (1991) and Walters v. Nat. Assn. of
Radiation Survivors, 468 U.S. 1323 (1984). The decision
below correctly construed the guidelines statute consis-
tent with the Georgia Constitution which presumably
was the intent of the Georgia legislature.

B. Georgia Courts.

The decision below is also consistent with the deci-
sions of Georgia’s Supreme Court which hold that the
Parole Board has constitutionally protected discretion in
parole decisions. See, e.g., Georgia State Board of Pardons
and Paroles v. Turner, 248 Ga. 767 (1982) (parole in Georgia
is not mandated by rules or statutes and therefore the due
process clause does not apply); and Charron v. State Board
of Pardons and Paroles, 253 Ga. 274 (1984) (any legislation
limiting the Board’s constitutionally conferred power of

35

executive clemency is unconstitutional). As recently as
1994, Georgia Supreme Court discussed the Board’s abso-
lute constitutionally conferred discretionary power of
parole which may not be legislatively infringed. Freeman
v. The State, 264 Ga. 27 (1994). The Eleventh Circuit's
decision is the only possible decision consistent with this
state’s interpretation of the Board’s authority.

C. Administrative Interpretation.

Deference should be given to an agency’s under-
standing of how it is required to operate. See, e.g., Depart-
ment of Treasury v. Federal Labor Relations Authority, 494
U.S. 922 (1990) (great deference should be given to an
administrative agency’s interpretation of its statute).
Georgia regulations unambiguously state the agency's
interpretation. The Board interprets the guidelines statute
as creating no promise of parole. The agency’s regulation
states:

The parole decision guidelines system is an aid
to the Board in making more consistent, soundly
based and explainable parole decisions and does
not create a liberty interest. The Board speci-
fically reserves the right to exercise its discre-
tion under Georgia law... .

Ga. Comp. R. & Regs. r. 475-3-.05(5). This is a clear
statement of the Parole Board’s interpretation of its state
regulation. The court’s decision below properly gives
deference to the Board’s interpretation.

16

III. THE DECISION BELOW IS CONSISTENT WITH
THE SUPREME COURT’S EQUITABLE CONSID-
ERATIONS.

Petitioner contends it is “inconceivable” that the
Board could adopt guidelines and then elect to depart
from the grid recommendation thereby “ignoring” its
own system. A review of various guidelines systems
demonstrates that it is common to reserve discretionary
power to depart from the grid recommendation whether
or not due process is implicated. See, e.g., 18 U.S.C. § 4206
(federal parole guidelines must be adopted but the Com-
mission is authorized to depart from them if it “deter-
mines there is good cause for doing so.”)

The Georgia guidelines system is an attempt to create
equality throughout the state both in sentencing and time
to serve. Guidelines System Manual Chapter 8-1.02.
While a system of factors creating a formula for predict-
ing parole success is anapplaudable goal, such will never
be completely obtained. Human circumstances are too
varied to be able to mathematically compute justice. The
system does provide, however, a rational basis for
thoughtful consideration of parole decisions in an
attempt to treat similar persons alike.

This Court recogmzes the injustice of burdening a
parole board with additional procedural requirements
where it has made attempts to create a fairer decision-
making process. This Court stated in Greenholtz:

No ideal, error-free way to make parole-released
decisions has beer developed; the whole ques-
tion has been and will continue to be the subject

17

of experimentation. . . . Our system of federal-
ism encourages this state experimentation. If
parole determinations are encumbered by pro-
cedures that states regard as burdensome and
unwarranted, they may abandon or curtail
parole.

Greenholtz, 442 U.S. at 14. The burdens of procedural due
process do not attach simply because a state has adopted
a parole system. There is only a need for procedural
protections where an inmate is provided a clearly
expressed promise of release. In the instant case, Peti-
tioner fails to point to any expressed promise which
formed an expectation of release, and, indeed, no such
promise or expectation exists. Thus, the burdens of due
process simply do not attach so as to require additional
procedures when the Parole Board departs from the
mechanical recommendation of the parole guidelines.

+

CONCLUSION

Respondents request that the instant Petition for Writ
of Certiorari be denied.

Respectfully submitted,

Terry L. LONG
m Assistant Attorney General
Attorney of Record for

Respondents |
Please Serve: MicHae- J. Bowers
On a EN General
40 Capitol Square, S.W. Daryt A. RosBINsON
Atlanta, GA 30334-1300 Senior Assistant

(404) 656-5161 Attorney General

App. 1

STATE BOARD OF PARDONS AND PAROLES -
PAROLE GUIDELINES.

No. 879 (Senate Bill No. 521).
AN ACT

To amend an Act creating the State Board of Pardons
and Paroles, approved February 5, 1943 (Ga. Laws 1943,
p. 185), as amended, so as to require the Board to adopt,

implement and maintain a parole guidelines system for

determining parole action; to provide for other matters
relative thereto; to repeal conflicting laws; and for other
purposes.

Be it enacted by the General Assembly of Georgia:

Section 1. An Act creating the State Board of Pardons
and Paroles, approved February 5, 1943 (Ga. Laws 1943,
p. 185), as amended, is hereby amended by adding a new
section between Sections 12 and 13, to be designated
Section 12A, to read as follows:

“Section 12A. (a) The Board shall adopt, implement
and maintain a parole guidelines system for determining
parole action. Such guidelines system shall be used in
determining parole actions on all inmates, except those
serving life sentences, who will become statutorily eligi-
ble for parole consideration. The system shall be consis-
tent with the Board’s primary goal of protecting society
and shall consider the severity of the current offense, the
prisoner’s prior criminal history, prison conduct and
social factors which the Board has found to have value in
predicting the probability of further criminal. behavior
and successful adjustment under parole supervision.

App. 2

(b) The guidelines system required by subsection
(a) hereof shall be adopted by rules or regulations of the
Board. Such rules or regulations shall be adopted in con-
formity with the Act known as the ‘Georgia Administra-
tive Procedure Act,’ approved March 10, 1964 (Ga. Laws
1964, p. 338), as amended.”

Section 2. All laws and parts of laws in conflict with
this Act are hereby repealed.

Approved March 20, 1980.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1099%3A2. Public record. Not legal advice.