745 S.E.2d 110
S.C.2013Background
- Appellant Thalma Barton pled guilty to murder in 1982 and was sentenced to life imprisonment.
- Under SC law at the time, life prisoners with murder could seek parole after 20 years.
- Appellant first sought parole in 1997 and was denied; subsequent hearings followed with mixed votes.
- In 2012, six board members participated; four favored parole, two did not.
- The Parole Board now required two-thirds of seven members to grant parole for violent crimes, per amended S.C. Code § 24-21-645(A).
- Appellant challenged retroactive application of the two-thirds rule as ex post facto and argued that the board’s interpretation and application of the rule at her hearing were incorrect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retroactive application of § 24-21-645 violates ex post facto | Appellant—Jemigan control; retroactive two-thirds increases punishment | DPPPS—Morales and Roller II distinguish; not punishment increase | Ex post facto violation found; retroactive two-thirds rule invalid |
| Meaning of “two-thirds of the board” for violent crimes | Appellant argues two-thirds means two-thirds of all seven members | DPPPS argues two-thirds of those present at hearing | Two-thirds refers to two-thirds of members participating in the hearing |
| Whether ALC erred in interpreting quorum and nonparticipating votes | Nonparticipating members cannot count as ‘no’ votes; must treat quorum properly | ALC rationale consistent with statutory language | ALC erred; votes must be two-thirds of participating members, not seven full-board members |
Key Cases Cited
- Morales v. California, 514 U.S. 499 (1995) (ex post facto analysis; speculative risk not enough to violate)
- Roller v. Gunn, 107 F.3d 227 (4th Cir. 1997) (two-thirds requirement analyzed; speculation rejected)
- Roller v. Cavanaugh (Roller I), 984 F.2d 120 (4th Cir. 1993) (retroactive amendments increased review frequency; remanded for relief)
- Jernigan v. State, 340 S.C. 256, 531 S.E.2d 507 (2000) (ex post facto analysis; biannual review deemed retroactive and punitive)
- Griffin v. State, 315 S.C. 285, 433 S.E.2d 862 (1993) (biannual review deemed more than procedural (antecedent authority))