Robert L. JONES, Plaintiff--Appellant, v. J. Wayne GARNER, Employed as Chairman, State Board of Pardons and Paroles, et al., Defendants--Appellees.
No. 97-9009.
United States Court of Appeals, Eleventh Circuit.
Jan. 6, 1999.
589
Before BIRCH and BARKETT, Circuit Judges, and HANCOCK*, Senior District Judge.
Robert L. Jones, Trion, GA, pro se.
Elizabeth B. Thompson, Powell, Goldstein, Frazier & Murphy, Atlanta, GA, for Plaintiff-Appellant.
* Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.
BARKETT, Circuit Judge:
Robert Jones appeals the district court‘s order granting summary judgment to defendants J. Wayne Garner and other former and current members of the Georgia Board of Pardons and Paroles (“the Board“) on Jones’ claim that the retroactive application of amendments to the Georgia regulations governing parole consideration,
I. Background
The facts of this case are not in dispute. In July 1974, Jones was sentenced in the Superior Court of Fulton County, Georgia, to
Jones was initially considered for parole in 1989, seven years after his 1982 conviction, and parole was denied. At that time, rather than scheduling Jones for a rehearing after three years as provided for by the Board rules at the time of the offense, the Board scheduled Jones for reconsideration eight years later, in 1997. In the meantime, however, this Court decided Akins v. Snow, 922 F.2d 1558 (11th Cir.1991), in which it held that the retroactive application of r. 475-3-.05.(2) violated the Ex Post Facto Clause of
In 1995, following the Board‘s rescheduling of his next parole reconsideration for 2003, Jones filed a pro se § 1983 action in the Northern District of Georgia, alleging that the Board‘s action violated several of his constitutional rights. The district court dismissed his complaint as frivolous on all counts. Jones appealed the dismissal, and a panel of this Court reversed in part, finding Jones’ allegation of an Ex Post Facto Clause violation not to be frivolous. On remand, both parties filed motions for summary judgment. The district court granted defendant‘s motion for summary judgment and denied Jones’ motion on the ground that Morales had overruled Akins. Jones now appeals.
II. Discussion
The Constitution provides that “[n]o State shall . . . pass any . . . ex post facto Law. . . .”
In Akins, this Court considered an ex post facto challenge to the retroactive application of the amendments to Georgia‘s regulations governing parole consideration at issue here, see
B. California Dep‘t of Corrections v. Morales and Lynce v. Mathis
Four years later, the Supreme Court entertained an ex post facto challenge to retroactive application of an amended California Department of Corrections regulation governing parole eligibility. See California Dep‘t of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). At the time that Morales committed the crime for which he was incarcerated, the California parole consideration regulations specified that, once an inmate became eligible for an initial parole consideration hearing, if the inmate was denied parole at that time, he or she would be eligible for annual reconsideration. See id. at 503, 115 S.Ct. 1597. Subsequent to Morales’ sentencing, however, the California legislature amended the regulation to authorize the Board of Prison Terms “to defer subsequent suitability hearings for up to three years if the prisoner has been convicted of ‘more than one offense which involves the taking of a life’ and if the Board ‘finds that it is not reasonable to expect that parole would be granted at a hearing during the following [two] years and states the bases for the findings.‘” Id. (quoting
In Morales, the Supreme Court rejected an expansive reading of the Ex Post Facto Clause as forbidding any and all legislative change having any conceivable risk of affecting a prisoner‘s punishment. See id. at 508, 115 S.Ct. 1597. Instead, the Court found it to be “a matter of ‘degree‘” as to which “legislative adjustments ‘will be held to be of sufficient moment to transgress the constitutional prohibition [on ex post facto laws].‘” Id. at 509, 115 S.Ct. 1597 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Declining to provide a universal formula for identifying legislative changes that violate the ex post facto prohibition, id., the Court directed that each case be analyzed by asking “whether [the law at issue]
First, the Court noted that the regulation as amended applies “only to a class of prisoners for whom the likelihood of release on parole is quite remote“: those prisoners “who have been convicted of ‘more than one offense which involves the taking of a life.‘” Id. at 510, 115 S.Ct. 1597 (quoting
Second, the Court found that the California amendment was intended only “as a means ‘to relieve the [state‘s Board of Prison Terms] from the costly and time-consuming responsibility of scheduling parole hearings for prisoners who have no chance of being released,‘” id. at 511, 115 S.Ct. 1597 (quoting In re Lawrence A. Jackson, 39 Cal.3d 464, 473, 216 Cal.Rptr. 760, 703 P.2d 100 (1985) (quoting legislative history))—and not to increase the punishment of the affected offenders. The Court found the measure to be “carefully tailored” to the end of saving time and money, id., and to incorporate several safeguards to ensure that its application does not result in extending the sentence of a prisoner who would be eligible for parole in the intervening two years. See id. Specifically, the Court noted that “the amendment has no effect on any prisoner unless the Board has first concluded, after a hearing, not only that the prisoner is unsuitable for parole, but also that ‘it is not reasonable to expect that parole would be granted at a hearing during the following years.‘” Id. at 511, 115 S.Ct. 1597 (quoting
Finally, the Morales Court noted that, under the amended regulation, the California Board of Prison Terms retains “the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner.” Id.; see also id. (“The default is an annual hearing but the Board may defer the next hearing up to two years more depending on the circumstances.“) (citing
On the basis of the safeguards in place in the amended California regulation, the Morales Court concluded that the regulation as amended “creates only the most speculative and attenuated risk of increasing the measure of punishment attached to the covered crimes.” Id. at 514, 115 S.Ct. 1597. As the Court put it,
[i]n light of the particularized findings required under the amendment and the broad discretion given to the Board, the narrow class of prisoners covered by the amendment cannot reasonably expect that their prospects for early release on parole would be enhanced by the opportunity of annual hearings. For these prisoners, the amendment simply allows the Board to avoid the futility of going through the motions of reannouncing its denial of parole suitability on a yearly basis.
Id. at 512, 115 S.Ct. 1597. The Court therefore found no ex post facto violation. See id. at 514, 115 S.Ct. 1597.
Second, the Lynce Court emphasized the need to assess the legislature‘s purpose behind the change in the sentencing scheme as well as the possible effect of the change on offenders’ sentences. In Lynce, the Court pointed out that Morales never addressed the question as to whether a legislative purpose to “increas[e] the quantum of punishment” would alone “be a sufficient basis for concluding that a law violated the Ex Post Facto Clause when it actually had no such effect.” Id. at 444, 117 S.Ct. at 897. However, the Court underscored that in Morales, where no ex post facto violation was found, “the change at issue had neither the purpose nor the effect of increasing the quantum of punishment.” Id. In Lynce, on the other hand, the Court saw no evidence that the Florida legislature effected the change at issue in that case “merely to save time or money” in those cases in which the ultimate date of release would remain entirely unaffected. Rather, the Court found “it [to be] quite obvious that the retrospective change was intended to prevent the early release of prisoners convicted of murder-related offenses who had accumulated overcrowding credits.” Lynce, 519 U.S. at 445-46, 117 S.Ct. at 897-98. This finding supported the Court‘s conclusion that the Florida provision violated the prohibition on ex post facto laws.
C. The Amended Georgia Regulation
As Morales and Lynce make clear, our inquiry regarding the retroactive application of Georgia‘s regulation governing parole reconsideration, r. 475-3-.05.(2), must focus on its effect on “‘a prisoner‘s ultimate date of release,‘” id. at 444, 117 S.Ct. at 897 (quoting Morales, 514 U.S. at 513, 115 S.Ct. 1597), in order to determine whether the change constitutes a “sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. at 444 n. 14, 117 S.Ct. at 897 n. 14 (quoting Morales, 514 U.S. at 509, 115 S.Ct. 1597). To determine whether the retroactive application of the Georgia regulation gives rise to such a risk, we examine the regulation in light of the factors discussed in Morales, and find it to be wholly distinguishable from the statute at issue in that case.
First, unlike the California statute, it cannot be said of Georgia‘s r. 475-3-.05.(2) that it applies “only to a class of prisoners for whom the likelihood of release on parole is quite remote.” Morales, 514 U.S. at 510, 115 S.Ct. 1597. The California statute at issue in Morales applied only to those inmates “who have been convicted of ‘more than one offense which involves the taking of a life.‘” Id. (quoting
Second, unlike the California statute, the Georgia regulation cannot be said to be “carefully tailored” so as to support a finding that the measure was intended only to further the legitimate end of saving time and money and not to “increas[e] the quantum of punishment.” Lynce, 519 U.S. at 444, 117 S.Ct. at 897. The Morales Court emphasized that safeguards built into the California provision would ensure that retroactive application would not extend the sentences of those 6 prisoners who would be otherwise eligible for parole in the years between hearings. In particular, the Court noted the statutory requirement that “the [California Board of Prison Terms] must conduct ‘a full hearing and review’ of all relevant facts, and state the bases for its finding” that “‘it is not reasonable to expect that parole would be granted at a hearing during the following [two] years.‘” Morales, 514 U.S. at 511, 115 S.Ct. 1597 (quoting
The same cannot be said for the Georgia regulation. It reads, in its entirety,
Reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years. The Board will inform inmates denied parole of the reasons for such denial without disclosing confidential sources of information or possible discouraging diagnostic opinions.
Unlike the California provision at issue in Morales, which established an annual hearing as a default but conferred on the Board of Prison Terms the authority to “defer the next hearing up to two years more depending on the circumstances,” the Georgia regulation simply sets the default for affected inmates at reconsideration “at least every eight years.” Eight years is a long time. Much can happen in the course of eight years to affect the determination that an inmate would be suitable for parole. The Morales Court emphasized that, because an inmate‘s “parole release date [often] comes at least several years after a finding of suitability,” and because the Board “retains the discretion to expedite the release date of such a prisoner,” a prisoner affected by the amended California statute who can demonstrate “that he was ‘suitable’ for parole two years prior to such a finding by the Board might well be entitled to secure a[n earlier] release date that reflects that fact.” Morales, 514 U.S. at 513, 115 S.Ct. 1597. The eight-year period specified in r. 475-3-.05.(2), however, is simply too long to allow us to say that an inmate who would have been able to demonstrate suitability for parole in the years between reconsideration hearings would be able to “cure” this delay through petitioning for an earlier release date. There is therefore a “sufficient risk” that the amended Georgia regulation would “increas[e] the measure of punishment attached to the covered crimes.” Id. at 509, 115 S.Ct. 1597.
We are not persuaded by the Board‘s argument that the policy statement it issued in October 1996 cures the constitutional defects of r. 475-3-.05.(2) identified here. See State Board of Pardons and Paroles Policy Statement No. 4.110. The relevant language of the policy statement provides that
Policy: It is the policy of the Board that all Life Sentence Cases denied parole may be set for reconsideration up to a maximum of eight years from the date of the last denial when, in the Board‘s determination, it is not reasonable to expect that parole would be granted during the intervening years. Inmates set-off under this policy may receive 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.
Procedures: At the time the Members vote to deny parole in a Life Sentence Case, the Members will indicate the number of years the inmate must serve prior to being next considered.
See
This policy does not sufficiently mitigate the defects in the regulation itself to defeat an ex post facto challenge. Policy statements, unlike regulations, are unenforceable and easily changed, and adherence to them is a matter of the Board‘s discretion. These are qualities that caution against treating their contents as if they had the authority of officially promulgated statutes or regulations. Moreover, even notwithstanding these limitations, this particular policy statement still does not require the Board to make particularized findings or even to provide clear reasons for its decision regarding the scheduling of subsequent hearings. And it also, of course, continues to allow an interval of eight years between hearings without any requirement that the Board consider an inmate‘s case during that time. Given the large class of affected inmates, this eight-year interval 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.
The Board also argues that we should follow the Fourth Circuit, which in the wake of Morales upheld against ex post facto challenges the retroactive application of both South Carolina‘s and Virginia‘s amended parole reconsideration statutes. See Roller v. Gunn, 107 F.3d 227 (4th Cir.1997) (South Carolina); Hill v. Jackson, 64 F.3d 163, 169-70 (4th Cir.1995) (Virginia). We do not find in these cases, however, any discussion or analysis of the absence in the statutes at issue of the procedural safeguards deemed essential in Morales to protect inmates against an increase in the “quantum of punishment” attached to their crimes. See Roller, 107 F.3d at 238-40 (dissent of Judge Hall). Moreover, the South Carolina statute
Whether a particular provision violates the prohibition on ex post facto laws is a “matter of ‘degree.‘” Morales, 514 U.S. at 509, 115 S.Ct. 1597 (quoting Beazell, 269 U.S. at 171, 46 S.Ct. 68). Given the length of time that the Georgia provision requires inmates to wait between parole consideration hearings and the absence of safeguards such as a “full hearing and review of all the relevant facts” and an obligation on the part of the Board to state particularized facts relating to the inmate‘s likely future parole eligibility, we cannot conclude—as we must, to find no ex post facto violation—that the amended regulation “ha[s] neither the purpose nor the effect of increasing the quantum of punishment.” Lynce, 519 U.S. at 444, 117 S.Ct. at 897.
For the foregoing reasons, we conclude that Akins has not been overruled. Indeed, we find that the Supreme Court‘s reasoning in Morales and Lynce reaffirms the correctness of our holding in that case. Thus, pursuant to Morales, Lynce, and Akins, we REVERSE the district court‘s grant of the defendant‘s motion for summary judgment on the plaintiff‘s ex post facto claim, and REMAND the case to the district court for proceedings consistent herewith.