Lead Opinion
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 Fasto 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 Ms 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 placе,” Ga. Code . Ann. §42-9-45(a) (1982), amended its Rules to provide that “Reconsideration 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,
In 1995 the Parole Board determined that our decision in California Dept. of Corrections v. Morales,
The Court of Appeals reversed, finding the amended Georgia Rule distinguishable in material respects from the California law sustained in Morales.
We granted certiorari,
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
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.”
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
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 nоt 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
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 parоle. 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).
The presence of discretion does not displace the protections of the Ex Post Facto Clause, however. Cf. Weaver,
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
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.
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 hоw 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,
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.
Concurrence Opinion
concurring in part in the judgment.
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 wоuld 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
Any sensible application of the Ex Post Facto Clause, and any application faithful to its historical meaning, must draw a distinction between thе 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 minimum-maximum 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
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 timé 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.
Dissenting Opinion
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,
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 cоnsidering 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
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
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
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-
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 reconsider-ations before the mandatory reconsideration date. But every instance occurred after the Eleventh Circuit had ruled against the State.
Notes
In the first instance, at leаst, our eases 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,
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.
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
Georgia insists thаt 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,
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 Brief for 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.
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