OCTOBER TERM, 1999
Syllabus
GARNER, FORMER CHAIRMAN OF THE STATE BOARD OF PARDONS AND
PAROLES OF GEORGIA, ET AL.
v. JONES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 99-137. Argued January 11, 2000-Decided March 28, 2000
Respondent escaped while serving a life sentence for murder,
committed another murder, and was sentenced to a second life term.
Georgia law requires the State's Board of Pardons and Paroles
(Board) to consider inmates serving life sentences for parole after
seven years. At the time respondent committed his second offense,
the Board's Rule 475-3-.05(2) required that reconsiderations for
parole take place every three years. Acting pursuant to statutory
authority, the Board subsequently extended the reconsideration
period to at least every eight years. The Board has the discretion
to shorten that interval, but declined to do so when it applied the
amended Rule in respondent's case, citing his multiple offenses and
the circumstances and nature of his second offense. Respondent sued
petitioner Board members, claiming that retroactive application of
the amended Rule violated the
Ex Post Facto Clause. The
District Court denied respondent's motion for discovery and awarded
petitioners summary judgment. The Eleventh Circuit reversed. It
found that the amended Rule's retroactive application was
necessarily an
ex post facto violation and that the Rule
differed in material respects from the change in California parole
law sustained in
California Dept. of Corrections v.
Morales, 514
U. S. 499. It did not consider the Board's internal policies
regarding its implementation of the Rule, finding, among other
things, that such policies were unenforceable and easily
changed.
Held:
1. The Court of Appeals' analysis failed to reveal whether
retroactive application of the amendment to Rule 475-3-.05(2)
violated the
Ex Post Facto Clause. The controlling inquiry
is whether such application creates a sufficient risk of increasing
the measure of punishment attached to the covered crimes.
Morales, supra, at 509. Here, the question is whether
amended Rule 475-3-.05(2) creates a significant risk of prolonging
respondent's incarceration. That risk is not inherent in the
amended Rule's framework, and it has not otherwise been
demonstrated on the record. While
Morales identified several
factors convincing this
245
Court that California's law created an insignificant risk of
increased punishment for covered inmates, the Court was careful not
to adopt a single formula for identifying which parole adjustments
would survive an
ex post facto challenge. States must
have due flexibility in formulating parole procedure and addressing
problems associated with confinement and release. This case turns
on the amended Rule's operation within the whole context of
Georgia's parole system. Georgia law gives the Board broad
discretion in determining whether an inmate should receive early
release. Such discretion does not displace the
Ex Post Facto
Clause's protections, but the idea of discretion is that it has the
capacity, and the obligation, to change and adapt based on
experience. The statutory structure, its implementing regulations,
and the Board's unrefuted representations regarding its operations
do not support respondent's conclusion that the Board will not
exercise its discretion in the period between parole reviews. The
Georgia law is qualified in two important respects. First, it vests
the Board with discretion as to how often to set an inmate's date
for reconsideration, with an 8-year maximum. Second, the Board's
policies permit expedited reviews in the event of a change in
circumstance or new information. These qualifications permit the
Board to set reconsideration dates according to the likelihood that
a review will result in meaningful considerations as to whether an
inmate is suitable for release. The Board's policy of providing
reconsideration every eight years when it does not expect that
parole would be granted during the intervening years enables the
Board to ensure that those prisoners who should receive parole come
to its attention. Given respondent's criminal history, it is
difficult to see how the Board increased his risk of serving a
longer time when it set an 8-year, not a 3-year, interval. Yet,
even he may seek earlier review upon showing changed circumstances
or new information. The Eleventh Circuit's supposition that the
Rule seems certain to result in increased incarceration falls short
of the rigorous analysis required by the
Morales standard.
When the rule does not by its own terms show a significant risk,
the respondent must demonstrate, by evidence drawn from the rule's
practical implementation by the agency charged with exercising
discretion, that its retroactive application will result in a
longer period of incarceration than under the earlier rule. On the
record in this case, it cannot be concluded that the change in
Georgia law lengthened respondent's actual imprisonment time. Pp.
249-256.
2. The Eleventh Circuit erred in not considering the Board's
internal policy statement regarding how it intends to enforce its
Rule. At a minimum, such statements, along with the Board's actual
practices, provide important instruction as to how the Board
interprets its enabling
246
statute and regulations, and therefore whether the amended Rule
created a significant risk of increased punishment. Absent a
demonstration to the contrary, it is presumed that the Board
follows its statutory commands and internal policies. pp.
256-257.
3. The Eleventh Circuit's analysis failed to reveal whether the
amended Rule, in its operation, created a significant risk of
increased punishment for respondent. He claims that he has not been
permitted sufficient discovery to make this showing. The matter of
adequate discovery is one for the Court of Appeals or, as need be,
for the District Court in the first instance. P. 257.
164 F.3d
589, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, THOMAS, and BREYER, JJ., joined.
SCALIA, J., filed an opinion concurring in part in the judgment,
post, p. 257. SOUTER, J., filed a dissenting opinion, in
which STEVENS and GINSBURG, JJ., joined,
post, p. 260.
Christopher S.
Brasher, Senior Assistant Attorney
General of Georgia, argued the cause for petitioners. With him on
the briefs were
Thurbert E. Baker, Attorney General,
Mary
Beth Westmoreland, Deputy Attorney General, and
Jacqueline
F. Bunn, Assistant Attorney General.
Elizabeth Thompson Kertscher argued the cause for
respondent. With her on the brief were
William v:
Custer and
LeeAnn Jones. *
JUSTICE KENNEDY delivered the opinion of the Court. We granted
certiorari to decide whether the retroactive application of a
Georgia law permitting the extension of intervals between parole
considerations violates the
Ex Post Facto Clause. The Court
of Appeals found that retroactive application of the change in the
law was necessarily an
ex post facto violation. In
disagreement with that determination, we reverse its judgment and
remand for further proceedings.
* Jill A. Pryor, Steven R. Shapiro, and
Gerald
Weber filed a brief for the American Civil Liberties Union et
al. as
amici curiae urging affirmance.
247
I
In 1974 respondent Robert L. Jones began serving a life sentence
after his conviction for murder in the State of Georgia. He escaped
from prison some five years later and, after being a fugitive for
over two years, committed another murder. He was apprehended,
convicted, and in 1982 sentenced to a second life term.
Under Georgia law, at all times relevant here, the State's Board
of Pardons and Paroles (Board or Parole Board) has been required to
consider inmates serving life sentences for parole after seven
years. Ga. Code Ann. § 42-9-45(b) (1982). The issue in this case
concerns the interval between proceedings to reconsider those
inmates for parole after its initial denial. At the time respondent
committed his second offense, the Board's Rules required
reconsiderations to take place every three years. Ga. Rules &
Regs., Rule 475-3.05(2) (1979). In 1985, after respondent had begun
serving his second life sentence, the Parole Board, acting under
its authority to "set forth ... the times at which periodic
reconsideration [for parole] shall take place," Ga. Code Ann. §
429-45(a) (1982), amended its Rules to provide that
"[r]econsideration of those inmates serving life sentences who have
been denied parole shall take place at least every eight years,"
Ga. Rules & Regs., Rule 475-3-.05(2) (1985).
The Parole Board considered respondent for parole in 1989, seven
years after the 1982 conviction. It denied release and, consistent
with the 1985 amendment to Rule 4753-.05(2), reconsideration was
set for 1997, eight years later. In 1991, however, the United
States Court of Appeals for the Eleventh Circuit held that
retroactive application of the amended Rule violated the
Ex Post
Facto Clause.
Akins v.
Snow, 922 F.2d
1558, cert. denied, 501 U. S. 1260 (1991). In compliance with
that decision, in effect reinstating its earlier 3-year Rule, the
Parole Board reconsidered respondent's case in 1992 and in 1995.
Both times parole was denied, the Board citing for its action
respondent's "multiple offenses"
248
and the "circumstances and nature of" the second offense.
App.53-54.
In 1995 the Parole Board determined that our decision in
California Dept. of Corrections v.
Morales, 514 U. S. 499 (1995), had
rejected the rationale underlying the Eleventh Circuit's decision
in
Akins. The Board resumed scheduling parole
reconsiderations at least every eight years, and so at respondent's
1995 review it set the next consideration for 2003. Had the Board
wished to do so, it could have shortened the interval, but the
8-year period was selected based on respondent's "multiple
offenses" and the "circumstances and nature of" his second offense.
App. 54. Respondent, acting
pro se, brought this action
under Rev. Stat. § 1979, 42 U. S. C. § 1983, claiming,
inter
alia, the amendment to Rule 475-3-.05(2) violated the
Ex
Post Facto Clause. The suit was filed against individual
members of the Parole Board, petitioners in this Court. Respondent
requested leave to conduct discovery to support his claim, but the
District Court denied the motion and entered summary judgment for
petitioners. The court determined the amendment to Rule
475-3-.05(2) "change[d] only the timing between reconsideration
hearings" for inmates sentenced to life in prison, thereby
"relieving the Board of the necessity of holding parole hearings
for prisoners who have no reasonable chance of being released."
App. to Pet. for Cert. 27a. Because the Parole Board's policies
permit inmates, upon a showing of "a change in their circumstance
or where the Board receives new information," App. 56, to receive
expedited reconsideration for parole, the court further concluded
the amendment created" 'only the most speculative and attenuated
possibility''' of increasing a prisoner's measure of punishment,
App. to Pet. for Cert. 27a (quoting
Morales, supra, at
509).
The Court of Appeals reversed, finding the amended Georgia Rule
distinguishable in material respects from the California law
sustained in
Morales. 164 F.3d
589 (CA111999). In finding the Georgia law violative of
the
Ex Post Facto
249
Clause, the court posited that the set of inmates affected by
the retroactive change-all prisoners serving life sentences-is
"bound to be far more sizeable than the set ... at issue in
Morales"-inmates convicted of more than one homicide.
Id., at 594. The Georgia law sweeps within its coverage, the
court continued, "many inmates who can expect at some point to be
paroled,"
ibid., and thus "seems certain to ensure that some
number of inmates will find the length of their incarceration
extended in violation of the
Ex Post Facto Clause of the
Constitution,"
id., at 595. "Eight years is a long time,"
the court emphasized, and "[m]uch can happen in the course of eight
years to affect the determination that an inmate would be suitable
for parole."
Ibid. The Court of Appeals recognized that the
Parole Board would set a new parole review date three years or more
into the future (up to eight years) only where it concludes that"
'it is not reasonable to expect that parole would be granted'"
sooner.
Ibid. (quoting policy statement of Parole Board).
The court thought this policy insufficient, however, because,
unlike the statute in
Morales, it does not require the Board
"to make any particularized findings" and is not "carefully
tailored." 164 F. 3d, at 594-595. The court also recognized that
the Board's policy permitted it to reconsider any parole denials
upon a showing of a "change in circumstance[s]" or upon the Board's
receipt of "new information." The court deemed the policy
insufficient, however, stating that "[p]olicy statements, unlike
regulations are unenforceable and easily changed, and adherence to
them is a matter of the Board's discretion."
Id., at
595.
We granted certiorari, 527 U. S. 1068 (1999), and we now
reverse.
II
The States are prohibited from enacting an
ex post facto
law. U. S. Const., Art. I, § 10, cl. 1. One function of the
Ex
Post Facto Clause is to bar enactments which, by retroactive
operation, increase the punishment for a crime after its com-
250
mISSIOn.
Collins v.
Youngblood, 497 U. S. 37, 42 (1990)
(citing
Beazell v.
Ohio, 269 U. S. 167, 169-170
(1925)). Retroactive changes in laws governing parole of prisoners,
in some instances, may be violative of this precept. See
Lynce v.
Mathis, 519 U. S. 433, 445-446
(1997) (citing
Weaver v.
Graham, 450 U. S. 24, 32 (1981));
Morales, 514 U. S., at 508-509. Whether retroactive
application of a particular change in parole law respects the
prohibition on
ex post facto legislation is often a question
of particular difficulty when the discretion vested in a parole
board is taken into account.
Our recent decision in
Morales is an appropriate
beginning point. There a California statute changed the frequency
of reconsideration for parole from every year to up to every three
years for prisoners convicted of more than one homicide.
Id., at 503. We found no
ex post facto violation,
emphasizing that not every retroactive procedural change creating a
risk of affecting an inmate's terms or conditions of confinement is
prohibited.
Id., at 508-509. The question is "a matter of
'degree.'''
Id., at 509 (quoting
Beazell, supra, at
171). The controlling inquiry, we determined, was whether
retroactive application of the change in California law created "a
sufficient risk of increasing the measure of punishment attached to
the covered crimes." 514 U. S., at 509.
The amended California law did not violate this standard.
It did not modify the statutory punishment imposed for any
particular offenses. Nor did the amendment alter the standards for
determining either the initial date for parole eligibility or an
inmate's suitability for parole.
Id., at 507. The amendment
did not change the basic structure of California's parole law. It
vested the California parole board with discretion to decrease the
frequency with which it reconsidered parole for a limited class,
consisting of prisoners convicted of more than one homicide.
Id., at 507, 510. If the board determined a low likelihood
of release existed for a member within that class, it could set the
prisoner's next consider-
251
ation date three years hence. The change in California law did
not, however, prohibit requests for earlier reconsideration based
on a change of circumstances.
Id., at 512-513. Historical
practices within the California penal system indicated "about 90%
of
all prisoners are found unsuitable for parole at the
initial hearing, while 85% are found unsuitable at the second and
subsequent hearings."
Id., at 510-511 (citing
In re
Jackson, 39 Cal. 3d 464, 473, 703 P. 2d 100, 105 (1985)). On
these facts we determined the
Ex Post Facto Clause did not
prohibit California from conserving and reallocating the resources
that would otherwise be expended to conduct annual parole hearings
for inmates with little chance of release. 514 U. S., at 511-512.
The sum of these factors illustrated that the decrease in the
frequency of parole suitability proceedings "create[d] only the
most speculative and attenuated possibility of producing the
prohibited effect of increasing the measure of punishment for
covered crimes."
Id., at 509.
Consistent with the Court of Appeals' analysis, respondent
stresses certain differences between Georgia's amended parole law
and the California statute reviewed in
Morales. The
amendment to Rule 475-3-.05(2), respondent urges, permits the
extension of parole reconsiderations by five years (not just by two
years); covers all prisoners serving life sentences (not just
multiple murderers); and affords inmates fewer procedural
safeguards (in particular, no formal hearings in which counsel can
be present). These differences are not dispositive. The question is
whether the amended Georgia Rule creates a significant risk of
prolonging respondent's incarceration. See
ibid. The
requisite risk is not inherent in the framework of amended Rule
475-3-.05(2), and it has not otherwise been demonstrated on the
record.
Our decision in
Morales did not suggest all States must
model their procedures governing consideration for parole after
those of California to avoid offending the
Ex Post Facto
Clause. The analysis undertaken in
Morales did identify
252
factors which convinced us the amendment to California law
created an insignificant risk of increased punishment for covered
inmates. Our opinion was careful, however, not to adopt a single
formula for identifying which legislative adjustments, in matters
bearing on parole, would survive an
ex post facto challenge.
Ibid. We also observed that the
Ex Post Facto Clause
should not be employed for "the micromanagement of an endless array
of legislative adjustments to parole and sentencing procedures."
Id., at 508. These remain important concerns. The States
must have due flexibility in formulating parole procedures and
addressing problems associated with confinement and release.
The case turns on the operation of the amendment to Rule
475-3-.05(2) within the whole context of Georgia's parole system.
Georgia law charges the Parole Board with determining which
prisoners "may be released on pardon or parole and [with] fixing
the time and conditions thereof." Ga. Code Ann. § 42-9-20 (1997).
In making release decisions, the same law, in relevant part,
provides:
"Good conduct, achievement of a fifth-grade level or higher on
standardized reading tests, and efficient performance of duties by
an inmate shall be considered by the board in his favor and shall
merit consideration of an application for pardon or parole. No
inmate shall be placed on parole until and unless the board shall
find that there is reasonable probability that, if he is so
released, he will live and conduct himself as a respectable and
law-abiding person and that his release will be compatible with his
own welfare and the welfare of society. Furthermore, no person
shall be released on pardon or placed on parole unless and until
the board is satisfied that he will be suitably employed in
self-sustaining employment or that he will not become a public
charge." § 42-9-42(c).
253
See also § 42-9-43 (listing information the Board should
consider, including wardens' reports, results of physical and
mental examinations, and reports regarding prisoners' performance
in educational programs). These provisions illustrate the broad
discretion the Parole Board possesses in determining whether an
inmate should receive early release. Accord,
Sultenfuss v.
Snow, 35 F.3d
1494, 1501-1502 (CAll 1994) (en banc) (describing the
discretion Georgia law vests with Parole Board). Only upon a
showing that the Board engaged in a "gross abuse of discretion" can
a prisoner challenge a parole denial in the Georgia courts.
Lewis v.
Griffin, 258 Ga. 887, 888, n. 3, 376
S. E. 2d 364, 366, n. 3 (1989).
The presence of discretion does not displace the protections of
the
Ex Post Facto Clause, however. Cf.
Weaver, 450 U.
S., at 30-31. The danger that legislatures might disfavor certain
persons after the fact is present even in the parole context, and
the Court has stated that the
Ex Post Facto Clause guards
against such abuse. See
Miller v.
Florida, 482 U. S. 423, 429 (1987)
(citing
Calder v.
Bull, 3 Dall. 386, 389 (1798)
(Chase, J.)). On the other hand, to the extent there inheres in
ex post facto doctrine some idea of actual or constructive
notice to the criminal before commission of the offense of the
penalty for the transgression, see
Weaver, supra, at 28-29,
we can say with some assurance that where parole is concerned
discretion, by its very definition, is subject to changes in the
manner in which it is informed and then exercised. The idea of
discretion is that it has the capacity, and the obligation, to
change and adapt based on experience. New insights into the
accuracy of predictions about the offense and the risk of
recidivism consequent upon the offender's release, along with a
complex of other factors, will inform parole decisions. See,
e.
g., Justice v.
State Board of Pardons and Paroles, 234
Ga. 749, 751-752, 218 S. E. 2d 45, 46-47 (1975) (explaining, by
illustration to one prisoner's circumstances, that parole decisions
rest upon the
254
Board's consideration of numerous factors specific to an
inmate's offense, rehabilitative efforts, and ability to live a
responsible, productive life). The essence of respondent's case, as
we see it, is not that discretion has been changed in its exercise
but that, in the period between parole reviews, it will not be
exercised at all. The statutory structure, its implementing
regulations, and the Parole Board's unrefuted representations
regarding its operations do not lead to this conclusion.
The law changing the frequency of parole reviews is qualified in
two important respects. First, the law vests the Parole Board with
discretion as to how often to set an inmate's date for
reconsideration, with eight years for the maximum. See Ga. Rules
& Regs., Rule 475-3-.05(2) (1985) ("Reconsideration ... shall
take place at least every eight years"). Second, the Board's
policies permit "expedited parole reviews in the event of a change
in their circumstance or where the Board receives new information
that would warrant a sooner review." App. 56. These qualifications
permit a more careful and accurate exercise of the discretion the
Board has had from the outset. Rather than being required to review
cases
pro forma, the Board may set reconsideration dates
according to the likelihood that a review will result in meaningful
considerations as to whether an inmate is suitable for release. The
Board's stated policy is to provide for reconsideration at 8-year
intervals "when, in the Board's determination, it is not reasonable
to expect that parole would be granted during the intervening
years."
Ibid. The policy enables the Board to put its
resources to better use, to ensure that those prisoners who should
receive parole come to its attention. By concentrating its efforts
on those cases identified as having a good possibility of early
release, the Board's Rules might result in the release of some
prisoners earlier than would have been the case otherwise.
The particular case of respondent well illustrates that the
Board's Rule changes are designed for the better exercise of
255
the discretion it had from the outset. Given respondent's
criminal history, including his escape from prison and the
commission of a second murder, it is difficult to see how the Board
increased the risk of his serving a longer time when it decided
that its parole review should be exercised after an 8-year, not a
3-year, interval. Yet if such a risk develops, respondent may, upon
a showing of either "a change in [his] circumstance[s]" or the
Board's receipt of "new information," seek an earlier review before
the 8-year interval runs its course.
We do not accept the Court of Appeals' supposition that Rule
475-3-.05(2) "seems certain" to result in some prisoners serving
extended periods of incarceration. 164 F. 3d, at 595. The standard
announced in
Morales requires a more rigorous analysis of
the level of risk created by the change in law. Cf. 514 U. S., at
506-507, n. 3 ("After
Collins, the focus of the
ex post
facto inquiry is not on whether a legislative change produces
some ambiguous sort of 'disadvantage' ... but on whether any such
change ... increases the penalty by which a crime is punishable").
When the rule does not by its own terms show a significant risk,
the respondent must demonstrate, by evidence drawn from the rule's
practical implementation by the agency charged with exercising
discretion, that its retroactive application will result in a
longer period of incarceration than under the earlier rule. The
litigation in
Morales concerned a statute covering inmates
convicted of more than one homicide and proceeded on the assumption
that there were no relevant differences between inmates for
purposes of discerning whether retroactive application of the
amended California law violated the
Ex Post Facto Clause. In
the case before us, respondent must show that as applied to his own
sentence the law created a significant risk of increasing his
punishment. This remains the issue in the case, though the general
operation of the Georgia parole system may produce relevant
evidence and inform further analysis on the point.
256
The record before the Court of Appeals contained little
information bearing on the level of risk created by the change in
law. Without knowledge of whether retroactive application of the
amendment to Rule 475-3-.05(2) increases, to a significant degree,
the likelihood or probability of prolonging respondent's
incarceration, his claim rests upon speculation.
On the record in this case, we cannot conclude the change in
Georgia law lengthened respondent's time of actual imprisonment.
Georgia law vests broad discretion with the Board, and our analysis
rests upon the premise that the Board exercises its discretion in
accordance with its assessment of each inmate's likelihood of
release between reconsideration dates. If the assessment later
turns out not to hold true for particular inmates, they may invoke
the policy the Parole Board has adopted to permit expedited
consideration in the event of a change in circumstances. App.
56.
The Court of Appeals erred in not considering the Board's
internal policy statement. At a minimum, policy statements, along
with the Board's actual practices, provide important instruction as
to how the Board interprets its enabling statute and regulations,
and therefore whether, as a matter of fact, the amendment to Rule
475-3-.05(2) created a significant risk of increased punishment. It
is often the case that an agency's policies and practices will
indicate the manner in which it is exercising its discretion. Cf.
INS v.
Yueh-Shaio Yang, 519 U. S. 26, 32 (1996)
(observing that the reasonableness of discretionary agency action
can be gauged by reference to the agency's policies and practices).
The Court of Appeals was incorrect to say the Board's policies were
of no relevance in this case. Absent a demonstration to the
contrary, we presume the Board follows its statutory commands and
internal policies in fulfilling its obligations. Cf.
United
States ex rel. Accardi v.
Shaugnessy, 347 U. S. 260,266-268
(1954). In
Morales, we relied upon the State's
representation that its parole board had a practice of grant-
257
ing inmates' requests for early review. See 514 U. S., at
512-513 (citing Reply Brief for Petitioner, O. T. 1994, No.
93-1462, p. 3, n. 1). The policy statement here, by contrast, is a
formal, published statement as to how the Board intends to enforce
its Rule. It follows
a fortiori from
M
0rales that the Court of Appeals should not have
disregarded the policy. Absent any demonstration to the contrary
from respondent, we respect the Board's representation that
inmates, upon making a showing of a "change in their
circumstance[sJ" or upon the Board's receipt of "new information,"
may request expedited consideration. App. 56.
The Court of Appeals' analysis failed to reveal whether the
amendment to Rule 475-3-.05(2), in its operation, created a
significant risk of increased punishment for respondent. Respondent
claims he has not been permitted sufficient discovery to make this
showing. The matter of adequate discovery is one for the Court of
Appeals or, as need be, for the District Court in the first
instance. The judgment of the Court of Appeals is reversed, and the
case is remanded for proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, concurring in part in the judgment.
I would agree with the Court's opinion if we were faced with an
amendment to the frequency of parole-eligibility determinations
prescribed by the Georgia Legislature. Since I do not believe,
however, that a change in frequency prescribed by the Georgia State
Board of Pardons and Paroles (Board) would violate the
Ex Post
Facto Clause even if it did pose a sufficient "risk" of
decreasing the likelihood of parole, I would reverse the decision
of the Eleventh Circuit without the necessity of remand.
The Court treats this case as a mere variation on the
Morales theme, whereas in reality it contains a critical
difference: In
Morales, the frequency of parole suitability
hearings had been fixed by law, and a legislative change had
given
258
SCALIA, J., concurring in part in judgment
California's Board of Prison Terms discretion to decrease the
frequency. See
California Dept. of Corrections v.
Morales, 514
U. S. 499, 503 (1995);
ante, at 250. Here, there has
been no such change. Today, as at the time of respondent's offense,
the Georgia statute requires only that the Board provide for
automatic "periodic reconsideration," Ga. Code Ann. § 42-9-45
(1982). The length of the period, like the ultimate question of
parole, was and is entrusted to the Board's discretion.
Any sensible application of the
Ex Post Facto Clause, and
any application faithful to its historical meaning, must draw a
distinction between the penalty that a person can anticipate for
the commission of a particular crime, and opportunities for mercy
or clemency that may go to the reduction of the penalty. I know of
no precedent for the proposition that a defendant is entitled to
the same degree of mercy or clemency that he could have expected at
the time he committed his offense. Under the traditional system of
minimummaximum sentences (20 years to life, for example), it would
be absurd to argue that a defendant would have an
ex post
facto claim if the compassionate judge who presided over the
district where he committed his crime were replaced, prior to the
defendant's trial, by a so-called "hanging judge." Discretion to be
compassionate or harsh is inherent in the sentencing scheme, and
being denied compassion is one of the risks that the offender
knowingly assumes.
At the margins, to be sure, it may be difficult to distinguish
between justice and mercy. A statutory parole system that reduces a
prisoner's sentence by fixed amounts of time for good behavior
during incarceration can realistically be viewed as an
entitlement-a reduction of the prescribed penalty-rather than a
discretionary grant of leniency. But that is immeasurably far
removed from the present case. In Georgia parole, like pardon
(which is granted or denied by the same Board), is-and was at the
time respondent committed his offense-a matter of grace. It may be
denied for
259
any reason (except, of course, an unlawful one such as race), or
for no reason. And where, as here, the length of the
reconsideration period is entrusted
to the discretion of the
same body that has discretion over the ultimate parole
determination, any risk engendered by changes to the length of
that period is merely part of the uncertainty which was inherent in
the discretionary parole system, and to which respondent subjected
himself when he committed his crime.
It makes no more sense to freeze in time the Board's discretion
as to procedures than it does to freeze in time the Board's
discretion as to substance. Just as the
Ex Post Facto Clause
gives respondent no cause to complain that the Board in place at
the time of his offense has been replaced by a new, tough-on-crime
Board that is much more parsimonious with parole, it gives him no
cause to complain that it has been replaced by a new,
big-on-efficiency Board that cuts back on reconsiderations without
cause. And the change in policy is irrelevant, in my view, whether
or not the preexisting policy happens to have been embodied in a
policy statement or regulation. To make the constitutional
prohibition turn upon that feature would be to ignore reality and
to discourage measures that promote fairness and consistency. Such
a policy statement or regulation, in the context of a system
conferring complete discretion as to substance and as to the timing
of hearings upon the Board, simply creates no reasonable
expectation of entitlement, except perhaps among prisoners whose
parole hearings are held (or are scheduled to be held) while the
regulation is in effect. This is not an expectation of the sort
that can give rise to
ex post facto concerns.
In essence, respondent complains that by
exercising its
discretion (as to the frequency of review), the Board has
deprived him of the exercise of its discretion (as to
the question of his release). In my view, these are two sides of
the same coin-two aspects of one and the same discretion-and
respondent can have no valid grievance.
260
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG
join, dissenting.
I think the Court of Appeals made no error here and so
respectfully dissent from the reversal. A change in parole policy
violates the
Ex Post Facto Clause if it creates a
"sufficient,"
California Dept. of Corrections v.
Morales,
514 U. S. 499, 509 (1995), or substantial risk that the class
affected by the change will serve longer sentences as a result.1 To
determine the likelihood that the change at issue here will
lengthen sentences, we need to look at the terms of the new Rule,
and then at the possibility that the terms are mitigated by a
practice of making exceptions.
Before the board changed its reconsideration Rule, a prisoner
would receive a second consideration for parole by year 10, whereas
now the second consideration must occur only by year 15; those who
would receive a third consideration at year 13 will now have no
certain consideration until year 23, and so on. An example of the
effect of the longer intervals between mandatory review can be seen
by considering the average term served under the old Rule. In 1992,
a member of the Georgia Legislature stated that the average
life-sentenced inmate served 12 years before parole. See Spotts,
Sentence and Punishment: Provide for the Imposition of Life
Sentence Without Parole, 10 Ga. St. U. L. Rev. 183, 183, and n. 4
(1993). Some prisoners must have been pa-
1 In the first instance, at least, our cases have traditionally
evaluated the effect of the change on the class subject to the new
rule, rather than focusing solely on the individual challenging the
change,
Weaver v.
Graham,
450 U. S. 24, 33 (1981).
It can be difficult, if not impossible, for one person to prove
that a change in penal policy has increased the quantum of
punishment beyond what he would previously have received, since a
sentencing decision is often a mix of rules and discretion. See
Lindsey v.
Washington, 301 U. S. 397,401 (1937).
At the same time, when one looks at the affected class it can be
quite clear that punishment has increased overall. That is proof
enough that the new Rule applied retroactively violates the
Ex
Post Facto Clause and, as an invalid rule, should not be
applied to anyone within the class.
261
roled before 12 years. But those who would have been paroled
when considered a second time at year 10 or a third time at year 13
will now be delayed to year 15. While the average helps to show the
effects Georgia's new Rule is likely to have on some prisoners who
would be released at the early end of the parole spectrum, the
changed Rule threatens to increase punishment for all
life-sentenced prisoners, not just those who would have been
paroled at or before the average time. If a prisoner who would have
been paroled on his fourth consideration in year 16 under the old
Rule has to wait until his third consideration in year 23 under the
new Rule, his punishment has been increased regardless of the
average.
Georgia, which controls all of the relevant information, has
given us nothing to suggest the contrary. It has given us no basis
to isolate any subclass of life prisoners subject to the change who
were unlikely to be paroled before some review date at which
consideration is guaranteed under the new Rule. On the contrary,
the terms of the Rule adopted by the State define the affected
class as the entire class of life-sentenced prisoners, and the
natural inference is that the Rule affects prisoners throughout the
whole class. This is very different from the situation in
Morales, in which it was shown that 85% of the affected
class were found unsuited for parole upon reconsideration.
Morales, supra, at 511. At some point, common sense can lead
to an inference of a substantial risk of increased punishment, and
it does so here.
The significance of that conclusion is buttressed by statements
by the board and its chairman, available at the board's official
website, indicating that its policies were intended to increase
time served in prison. See Georgia State Board of Pardons and
Paroles, News Releases, Policy Mandates 90% Prison Time for Certain
Offenses (Jan. 2, 1998), http://
www.pap.state.ga.us/pr_98.html
("Since 1991 the Board has steadily and consistently amended and
refined its guidelines and policies to provide for lengthier prison
service for
262
violent criminals"); Georgia State Board of Pardons and Paroles,
Violent-Crime Lifers Who Died in Prison (June 4, 1998),
http://www.pap.state.ga.us/pr_98.html
(quoting Chairman Walter Ray as stating that "'obtaining parole on
a life-sentence is increasingly rare'" and reporting that
"[b]ecause of strict sentencing laws as well as the Board's
conservative paroling policy, agency officials predict successive
fiscal years will reflect a rising number of inmates for whom a
life sentence does indeed mean just that").2 If respondent had ever
been allowed to undertake discovery, further statements of punitive
intent may well have been forthcoming. Although we have never
decided that a purpose to increase punishment, absent a punitive
effect, itself invalidates a retroactive policy change, see
Lynce v.
Mathis, 519 U. S. 433, 443 (1997), evidence
of purpose certainly confirms the inference of substantial risk of
longer sentences drawn above. It is, after all, reasonable to
expect that members of a parole board acting with a purpose to get
tough succeed in doing just that.
On the other side, there is no indication that the board adopted
the new policy merely to obviate useless hearings or save
administrative resources, the justification the Court accepted in
Morales. See 514 U. S., at 511. Indeed, since a parole board
review in Georgia means that one board member examines an inmate's
file without a hearing and makes a decision, and no specific
findings are required to deny parole, any interpretation of the
rule change as a measure to conserve resources is weak at best, and
insufficient to counter the inference of a substantial risk that
the prisoners who will get subsequent mandatory parole
considerations years after
2 As Georgia's punitiveness increased, the number of persons on
parole decreased. See Georgia State Board of Pardons and Paroles,
Georgia's Criminal Justice Population Increased by 9% in 1998; Only
Decrease Was in Persons on Parole (Feb. 1, 1999),
http://www.pap.state.ga.us/
pr_99.html. News releases available in Clerk of Court's case
file.
263
the reviews that the old Rule would have guaranteed will in fact
serve longer sentences.3
Thus, I believe the Eleventh Circuit properly granted summary
judgment for respondent. Although Georgia argues that the board
freely makes exceptions to the 8-year Rule in appropriate cases,
the State provided no evidence that the board's occasional
willingness to reexamine cases sufficiently mitigates the
substantial probability of increased punishment. While the majority
accepts the argument that, even without evidence of practice, the
board's discretion to revisit its assignment of a reconsideration
date may be suffi-
3 The majority suggests,
ante, at 252, that the Court
required no particular procedural safeguards in
California Dept.
of Corrections v.
Morales, even though the Court
mentioned those safeguards as an important factor in its conclusion
that there was no increase in the quantum of punishment in that
case, see 514 U. S., at 511-512. This is true, but it does not
address the problem with Georgia's virtually unbounded scheme. Once
the risk of increased punishment exists, the board's nearly
nonexistent safeguards provide no way of reducing that risk.
Georgia insists that its lack of procedural safeguards is
irrelevant to this case, because due process does not require much
in the way of procedural safeguards for parole. But that is beside
the point. The challenge here is to the retroactive increase in the
quantum of punishment. Unlike the California procedure for delaying
parole reconsideration in
Morales, the Georgia procedure
here includes no actual hearing for the prisoner whose
reconsideration is delayed five extra years, and the board is not
required to explain itself. Georgia's procedural minimalism
increases the likelihood that prisoners will get rubberstamp
treatment, and decreases the likelihood that the exceptions to the
policy on which the majority relies will actually be applied in a
way that diminishes the significant probability of increased
punishment. Cf.
Penson v.
Ohio, 488 U. S. 75, 81-82, n. 4
(1988) (stating that a requirement to give written reasons provides
an inducement to make careful decisions in cases that might
otherwise be summarily ignored);
Smith v.
Robbins,
528 U. S. 259,
290-291 (2000) (STEVENS, J., dissenting) (noting that the process
of writing out reasons for decision improves the quality of the
decision and can reveal error). Parole need not operate under
rigidly defined procedures, but if the board decides to make
changes retroactive, it must do something to prevent those changes
from increasing punishment in violation of the
Ex Post Facto
Clause.
264
cient standing alone to preclude an
ex post facto
challenge, this is surely wrong. The policy statement on which the
majority is willing to rely, see App. 56, gives a prisoner no
assurance that new information or changed circumstances will
matter, even assuming that prisoners are aware (and able to take
advantage) of their limited ability to ask the board to change its
mind. Because in the end the board's ability to reconsider based on
a "change in [a prisoner's] circumstance or where the Board
receives new information,"
ibid., is entirely discretionary,
free of all standards, an 8-year period before further
consideration of parole made solely upon review of an inmate's file
has to create a real risk of longer confinement.
A further word about the absence of record evidence of practice
under the new Rule is in order. One reason that there is none is
that Georgia resisted discovery. In this Court, it sought to
compensate for the absence of favorable evidence by lodging
documents recounting parole reconsiderations before the mandatory
reconsideration date. But every instance occurred after the
Eleventh Circuit had ruled against the State.4 These examples of
reconsiderations are the parole equivalent of fixing the broken
front steps after the invited guest has slipped, fallen, and seen a
lawyer; they do nothing to show that the board's own interpretation
of its policy mitigated the risk of increased punishment.5
4 Georgia's statistics show only that, in fiscal year 1999,
about 20% of inmates received reconsideration dates of three years
or less; about 10% got reconsideration dates more than three years
but less than eight, and 70% got 8-year dates. See App. to Reply
Brieffor Petitioners 9. Eighty percent were therefore at least
potentially negatively affected by the change from a 3-year to an
8-year delay in reconsideration. Even on their own terms, then, the
statistics do not show that board policies mitigate the substantial
risk of increased punishment.
5 Indeed, as the board explains its decisionmaking procedures,
"[t]he overriding factor in determining whether or not to parole a
person under life sentence is the severity of the offense." Georgia
Board of Pardons
265
I also dissent from the Court's failure to require discovery on
remand. At the very least, the record gives reason to expect that
discovery could show that the affected class has been subjected to
the risk of increased sentences.
Morales stressed that the
question of what changes will be "'of sufficient moment to
transgress the constitutional prohibition'
must be a matter
of 'degree,'" 514 U. S., at 509 (citation omitted) (emphasis in
original). Even if I am wrong and respondent cannot prevail on this
record, it is plain that further discovery is justified to
determine the degree to which the change at issue here altered
sentence lengths.
and Paroles, Parole Decisions (visited Mar. 2, 2000),
http://www.pap. state.ga.us/Decisions.htm. If
we accept the board's statements, changed circumstances or new
information would rarely make a difference.
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