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EX POST FACTO CLAUSE — CHANGES IN THE FREQUENCY OF PAROLE HEARINGS

Case: Garner v. Jones

Issue: Does retroactive application of state parole board rules, permitting an increase (from three to eight years) in intervals between parole considerations, violate the Ex Post Facto Clause?

Facts: In 1974, respondent Robert L. Jones began serving a life sentence for murder. In 1979, he escaped and lived as a fugitive for over two years. He then committed another murder, was apprehended and convicted. He was sentenced to a second life term in 1982.

Georgia law requires a prisoner serving a life sentence to be considered for parole seven years after his conviction. At the time of Jones’s second conviction, Georgia Parole Board Rules further required that prisoners denied parole initially be reconsidered every three years. In 1985, this rule was changed to require review every eight years.

In 1989, seven years after his sentence, Jones was denied parole during his first review. The Parole Board, operating under the assumption that application of the eight year rule to Jones would violate the Ex Post Fact Clause, reconsidered him for parole every three years until 1995. Each time, he was denied parole.

In 1995, however, the Parole Board determined that  California Dept. of Corrections v. Morales, 514 U.S. 499 (1995), which upheld California’s retroactive application of changes in parole rules, allowed the Parole Board to reconsider Jones for parole under the 1985 rules (i.e., every eight years). Jones subsequently filed suit, alleging violation of the Ex Post Facto Clause. The United State Court of Appeals for the Eleventh Circuit, reversing the decision of the lower federal court, held that the rule did in fact violate the Ex Post Facto Clause and was therefore unconstitutional.

Holding: The Georgia rule did not increase the risk that prisoners would face longer punishments for their crimes simply because it increased the maximum time between reconsideration for parole. Applying it retroactively to Jones, therefore, does not violate the Ex Post Facto Clause.

Reasoning: Justice Kennedy, writing for the Court, noted that under Morales, the test governing whether a change in the frequency of reconsideration for parole may be applied retroactively, consistent with the Ex Post Facto Clause, is whether such application creates "a sufficient risk of increasing the measure of punishment attached to the covered crimes."

In applying this test to the Georgia rule, the Court found two important qualifications to the eight year rule that minimized the risk that an affected prisoner’s punishment would be increased by application of the rule. First, the rule places the frequency of parole reconsideration hearings at the discretion of the Board, with a maximum of eight years. Second, the rule permits expedited reviews in the event of a change in an inmate’s circumstances or when the Board receives new information that would warrant an earlier review. Thus, there is nothing in the rule that mandates eight years time before reconsideration for parole. Indeed, the rule allows the Parole Board to put its scarce resources to better use and carefully evaluate those prisoners who are more likely to deserve parole. Thus, under the rule, some prisoners might actually receive parole earlier than under the old rule of three years for all prisoners. There is consequently no basis for concluding that the new rule is certain to increase the punishment served by some prisoners.

Additionally, the Court held that for Jones to prevail, he most demonstrate that "as applied to his own sentence the law created a significant risk of increasing his punishment." Because there was little information on this point in the record of the Court of Appeals, the Court concluded that Jones’s claim rested only upon speculation concerning a longer sentence.

Finally the Court emphasized the Parole Board’s internal policy statement that it would set dates for reconsideration more than three years after a denial of parole only in cases in which it was not reasonable to expect that parole would be granted any earlier. Given this commitment to tying the length of time between reconsideration with the likelihood of parole being granted, the Court held that the Georgia rule did not create a significant risk of increased punishment.

Other Opinions: Justice Scalia concurred in part in the judgment, stating that no amendment to a parole board’s rules by the board itself would violate the Ex Post Facto Clause. Scalia distinguished between the penalty a person can expect for the commission of a crime, which is subject to the Ex Post Facto Clause, and an opportunity for mercy or clemency to reduce that penalty, which is not subject to the Clause. Here the defendant questioned the Parole Board’s use of discretion in deciding whether his punishment should be reduced. To argue that this is a violation of the Ex Post Facto Clause is the same as saying that a prisoner who commits a crime in a district presided over by a compassionate judge has an ex post facto claim when, after the commission of the crime but before trial, that judge is replaced by "a hanging judge."

Justices Souter, Stevens and Ginsburg dissented, arguing that the law created a significant risk of increased punishment. Before the amended new rule, a prisoner would be considered for parole a second time after 10 years in prison. Because the average prisoner sentenced to life serves 12 years in prison before being paroled, the dissent argued that many prisoners are paroled after the second or third reconsideration for parole. Under the Georgia rule, however, the second and third considerations are pushed back to 15 and 23 years of prison time respectively. Thus, the dissent argues, there is good reason to suspect that punishment will be increased for many prisoners. This analysis, coupled with Georgia’s failure to present evidence that the parole board’s "occasional willingness" to examine cases in less than eight years mitigates this potential impact on prisoners, is enough to show that the retroactive application of the rule significantly increases the risk of greater punishment for prisoners.

Comments: Justice Kennedy noted that the Morales test, for determining whether retroactive alteration of parole rules violates the Ex Post Facto Clause, "is a matter of degree." He also reiterated Morales’ warning 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.’" These are mutually exclusive concepts. The Morales test by its very nature will spawn a rash of heavily fact-specific case-by-case adjudications of state parole systems.