Court Below: 164 F. 3d 589.
SUPREME COURT OF THE UNITED STATES
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
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,
The opinion of the court was delivered by: Justice Kennedy
On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit
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.
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. §42-9-45(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 475-3-.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" 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 42 U. S. C. §1983, Rev. Stat. §1979, 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 (CA11 1999). In finding the Georgia law violative of the Ex Post Facto 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 ...