*1 SULTENFUSS, Stephen
Plaintiff-Appellant, McMulling, al., Plaintiffs,
Charles et
Wayne SNOW, Jr., Morris, James T. Mob
ley Howell, Wing, Bettye Michael H. O.
Hutchings, Bowers, Michael J. Defen
dants-Appellees.
No. 91-8002. Appeals,
United States Court of
Eleventh Circuit.
Oct. *2 Sultenfuss, Maria, FL,
Stephen G. Anna Elmore, Pryor, Jill A. Bondurant Mixon & Atlanta, GA, appellant. Webster, Hewes, At- A. Sumner &
David lanta, GA, for amicus—ACLU Ga. Bowers, Gen., Atty. Daryl Michael J. Alan Atlanta, Robinson, GA, Terry Long, L. appellees. TJOFLAT, Judge,
Before Chief ANDERSON, KRAVITCH, HATCHETT, COX, BIRCH, DUBINA, BLACK, CARNES BARKETT, Judges,* Circuit CLARK**, Judge. Circuit Senior BIRCH, Judge: Circuit case, In this we must decide whether system, as embodied current Constitution, Georgia Georgia stat- in the utes, guidelines promulgat- and the rules and statutes, pursuant to the creates a ed Pro- parole protected the Due cess of the Fourteenth Amendment. Clause protected no court found district interest, affirm. and we
I. BACKGROUND
A The
Parole Guidelines
Georgia parole system is set out
Constitution,
Georgia stat-
several
**
*
Judge
A. Clark elect-
U.S. Circuit
Thomas
Judge
and did
Senior
J.L. Edmondson recused himself
pursuant
participate
to 28
ed
in this decision
participate
in this decision.
46(c).
U.S.C.
utes,
regulations promul-
respectable
and the rules and
as a
law-abiding person
compatible
and that his release will be
gated by
Board of
the state
Pardons and
his own
society.
welfare and the welfare of
“Board”)
(the
pursuant
Paroles
to those stat-
Furthermore,
person
no
shall be released
utes. The
Constitution vests the
pardon
placed
unless and
power
grant
Board with the exclusive
*3
until the board is satisfied that he will be
Const,
reprieves, pardons,
paroles.
and
Ga.
suitably employed in self-sustaining em-
¶
IV, 2,
§
art.
2. In
Georgia legis-
ployment or that he will not become a
requiring
lature enacted a law
the Board to
public charge.
implement
parole guidelines system.
That
42-9-42(c).
§
Id.
provides
pertinent
part:
provisions,
Pursuant
to these
the Board
adopted
and maintains the
Parole
adopt,
implement,
The board shall
and
(the
System
Decision Guidelines
“Guide-
parole guidelines system
maintain a
for
lines”).1
That
is embodied in the
determining parole
guidelines
action. The
regulations passed by
rules and
the Board
determining parole
shall be used in
pursuant
§
to O.C.G.A. 42-9-40 and in accor-
inmates, except
serving
actions on all
those
dance
with the
Administrative Pro-
sentences,
life
statutorily
who will become
Act,
cedure
seq.
O.C.G.A. 50-13-1 et
eligible
parole
sys-
consideration. The
purpose
stated
of the Guidelines is as follows:
tem shall be consistent with the board’s
“In the
process,
decision
the Board
primary goal
protecting society
and
guidelines
shall
utilize
set of
which consider
severity
shall take into consideration
severity
of both the
of an individual’s offense
and the likelihood of the
offense,
individual success-
the current
prior
the inmate’s
fully completing a term
supervision
on
history,
conduct,
criminal
the inmate’s
and
parole.” Parole Decision
System
Guidelines
the social factors which the board has
¶ 8-1.01.
predicting
found to have value in
prob-
regulations
Other rules and
of the Board
ability of further criminal behavior and
light
purpose
also shed
on the
and function of
adjustment
successful
super-
under
system.
475-3-.05,
instance,
Chapter
vision.
provides as follows:
42-9-40(a).
Section 42-9-40 is
System
Parole Decision Guidelines
an aid to
qualified, however,
making
42-9-42,
more consis-
section
tent, soundly
explainable
based
and
provides in
part:
relevant
decisions and
does not create a
No
placed
inmate shall be
on
until
interest.
specifically
The Board
reserves
and unless the board shall find that there
right
to exercise its discretion under
that,
probability
is reasonable
if he is so
disagree
Law to
with the recom-
released, he will live and conduct
resulting
himself
mendation
application
from
of the
parties
There is
appeal.
some debate between the
Apparently,
as to
on
part
that document is
properly part
what documents are
of the record
operating
the Board's internal
manual. The
appeal.
In order to derive the contents of the
proper-
Board contends that this document
Guidelines,
primarily
the district court relied
ly part
appeal.
of the record on
For two rea-
Hamilton,
Christopher
the affidavit of
the Di-
sons,
judicial
economy,
in the interest of
we
Legal
rector of
Services for the Board. Rl-32
First,
appeal.
will consider the document in this
affidavit,
Ex. 3. That
attached to the Board's
the Board has never contended that this docu-
summary judgment,
motion for
functioning
describes the
copy
ment is not a
guide-
true and correct
of the
guidelines system
and contains
Snow,
system.
lines
See
7 F.3d
Sultenfuss
a document entitled "State Board of Pardons
(11th Cir.1993) (panel opinion
1548 n. 21
and Paroles Parole Decision Guidelines.” Rl-32
reason),
considering document for same
vacated
Ex. Attach. B. The district court also relied
reh'g
granted,
(11th
en banc
ty.” Id.
(emphasis
specific analysis, we
are bound
certain
omitted) (first
original).
alteration in
Ac- principles.
reviewing
After
the relevant
Court,
cording to
placed
the statute
“sub-
caselaw from
Supreme
Court and this
predicates”
stantive
on the discretion of the
circuit, we
three,
conclude that
sometimes
decisionmakers and used mandatory lan-
overlapping, factors are crucial in determin
guage to create a presumption that release
ing
(1)
whether a
interest is created:
would be granted
designated
unless the
find-
whether
places
substantive limita
ings
377-80,
are
Id. at
made.
107 S.Ct. at
tions on the
decisionmakers;
discretion of the
Therefore,
2420-21.
(2)
found that
whether the
mandates
out
liberty interest existed.
come that must follow if the substantive
predicates
(3)
met;
are
whether
cases,
In
however,
other
the Court has
relevant
regulations
statutes
contain ex
penal
regulations
found
plicitly mandatory language dictating the
guidelines
implicate
do not
the Due Process
procedures that must be followed and the
Clause where no
interest exists.
result that must be
if
reached
the relevant
*7
instance,
Thompson, for
analyzed
Court
criteria are satisfied.
explain
We
these fac
Kentucky prison regulations to determine
tors in more detail below as we examine their
whether
had
inmates
a
interest
in
application
Georgia’s parole
system.
There,
visitation.
the Court focused on the
discretion vested in state decisionmakers:
C. The
simply,
“Stated
‘a State
protected
a
creates
by placing
interest
substantive limita-
In examining these three factors in
”
tions on
Thompson,
official discretion.’
490
relation to the
parole system, we
462,
at
U.S.
109
(quoting
S.Ct. at 1909
Olim
keep
must
in
analysis
mind that our
is inher
Wakinekona,
238, 249,
v.
461 U.S.
103 S.Ct.
ently subjective..
Supreme
Court has
1741, 1747,
(1983)).
plicit in
decisions,
our earlier
regula-
that the
reduced to an exact science.” Thompson,
‘explicitly
tions
mandatory
contain
language,’
462,
1501
disagree;
20-21.
First,
the En Banc Brief at
We
whether
we must determine
predicates
language
with the substantial
substantive
is consistent
system places
Olim v.
officials. See
state
reserve for the
discretion
discretion
Guidelines
238, 249,
Wakinekona,
103 S.Ct.
461 U.S.
depart
The Board’s decision to
from
Board.
1747,
in
1741,
1503
LIBERTY
CREATE A
INTEREST OF
interpretation of the Guide
own
the Board’s
of statuto
rule
THE TYPE
IN
It is a well-established
DESCRIBED
GREEN-
lines.
interpre
Georgia that the
ry construction
HOLTZ
NEBRASKA PENAL IN-
V.
by
regulation
an admin
(1979).
a statute or
tation of
xure 2 to the Parole Decision Guidelines
the last five
we have certified state
validity
System.
questions
Georgia Supreme
state law
of those two
law
to the
Court
Board-adopted provisions
premise
ais
essen-
frequent
no fewer than 19 cases.* As our
majority’s
evidences,
tial to the
conclusion that
resort to certification
it
ais useful
has not created a
adjudication
Only through
tool.
certification
Likewise,
in-
interest.
the state law
get
can federal courts
definitive answers to
validity
provisions
premise
of those two
is a
questions. Only
unsettled state law
a state
Judge
essential to
Clark’s conclusion that a
supreme
provide
court can
what we can be
liberty interest has been created. The com-
assured are “correct” answers to state law
peting syllogisms
logical:
are each
each one’s questions,
highest
because a state’s
court is
,
I
premises.
agree
conclusionfollows from its
the one true and final arbiter of state law.
majority
provisions
that if
with the
the two
perspective,
From our
state law is what the
law,
question
valid
are
under state
so that
is,
supreme
says
state
court
it
and a state
the Board does have the substantial discre-
supreme
pronouncements
court’s
on the sub
claims,
tion it
then no
interest has
ject
binding
every
are
state and federal
agree
I
Judge
been created.
also
Clark
contrast,
judge. By
when we write to a state
provisions
that if the two
are not valid under
issue,
disappearing
law
we write in faint and
law,
state
so that the Board lacks the sub-
ink: what we write does not bind
state
claims,
stantial discretion it
then a
judge,
court
and even as to the federal
interest has been created.
Circuit,
judges in
supreme
this
once the state
speaks
anything
court
effect of
we have
accuracy
competing
It is the
of the
state
proverbial
written vanishes like the
bat in
premises
dispute. Only
law
that is in
one of
only
daylight,
every
faster. For
reason that
correct,
them can be
and the case turns on
important
it
controlling
is
to decide
issues
majority
strong
which one is. The
makes a
correctly
definitively,
certification of un
argument
adoption
that the Board’s
of Rule
questions
important.
settled state law
2
475-3-.05 and Annexure
was within its
authority
Clark,
Judge
under
law.
here,
especially important
Certification is
joined by
judges
Court,
three other
of this
“presentís]
because this
ques
case
difficult
equally strong argument
makes an
bearing
policy problems
tions of state law
contrary.
majori-
I
do
know whether the
public import
impor
of substantial
whose
ty
Judge
right
Clark is
about the
tance transcends the result
case.”
[this]
can,
question,
law
I
but
do know where we
Colorado River Water Conservation District
should,
turn for the answer.
States,
800, 814,
v. United
1236, 1244,
certify
We have discretion to
The diffi
culty
questions
questions
but unanswered
unsettled state law
law to
Georgia Supreme
Court.
See
this case is evident from the fact that
GA.
CONST,
VI,
4;
para.
sharply
art.
ques
divided over those
(1994);
§ 15-2-9
judges
GA.SUP.CT.lt. 37.
tions.
ques
We
Six
answer the state law
past.
way,
have not hesitated to do so in
judges
tions one
and four
answer those
*
Thomas,
(11th Cir.1994);
Metter, Ga.,
(11th
Echols v.
City
1505 injured was in a Likewise, erage because the insured pub- way. the other questions the by policy. the questions transcends vehicle not covered the importance of lic inmate case. The in this one result the Bourgault, v. Insurance Co. Amica Mutual anyway, already, been plaintiff has released Cir.1992). (11th 187, Every 190 979 F.2d 5, but the op. n. decision majority at 1498 see parties, we should to the and case matters do scores, if not when will determine in this case correctly. every case to decide our utmost hundreds, Georgia prison inmates other of so, questions involved the state law in Even of Geor- operation the be released. will case, proper decision of this and the this the system including determina- prison gia — most, ease, greater public import than of are will be released of which inmates tion all, questions that we if have im- utmost matter of parole and when —is Georgia Supreme Court in to the certified its Georgia and all of of the State portance to past. the people. allow the Geor- reason we should Another certify the unwillingness to The Court’s the gia Supreme Court to answer unsettled in case questions state important law upon which this of state law case questions willingness to sharp to in contrast stands the questions involve divi- turns is public importance less certify questions far authority power and between the sion of following some are cases. previous Georgia Georgia Legislature and the thought has this Court examples questions Paroles, agency. and an executive of Pardons certify to Geor- sufficiently important to the powers a state allocates way which cases: in recent gia Supreme Court legislative branch- the executive and between case, when facts of this Under of the most government is a of its es application established policy insurance state; goes it sort fundamental by acceptance delivery policy’s govern- representative very “‘heart precedent as a condition applicant ” Ashcroft, 501 Gregory v. U.S. ment.’ contract, but of the insurance formation 2400-01, 458-61, 115 111 L.Ed.2d S.Ct. certain specified a date policy the issued (1991) Dougall, Sugarman v. (quoting 410 coverage said to be effective was on which 2842, 2850, 634, 647, 37 payments premium which from future (1973)). “Through structure L.Ed.2d calculated, is the failure to be were of those government, and character of its delivery policy of insurance actual authority, a State governmental who exercise as to render so fatal to contract formation sovereign.” Id. 501 U.S. at aas defines itself coverage ineffective? ought to leave to at 2400. We Neurological Specialists Georgia Middle the business Supreme Georgia Co., F.2d Insurance Southwestern Life may, Georgia legislation interpreting Cir.1991). (11th 776, 779-80 power of an not, effectively curtail forwarding tardy the insured’s Whether provided specifically agency that executive plaintiffs papers is cured of suit Georgia We need Constitution. refiling of iden- voluntary dismissal not, not, get involved decid- we should or, rely on lawsuit; insurer can the tical sovereign distributed its ing how has first suit to forwarding in the tardy govern- of its among the powers branches im- though liability the insured even avoid majority other dissenters and the ment. The mediately papers served forwarded venturing answer just unsettled do second suit. the two Board- about whether questions v. Nord Bitumi Insurance Co. Granite State relevant with the adopted provisions conflict Cir.1992). (11th U.S., Inc., F.2d implications statute, has matter which Whether, respect automobile law. constitutional sounding covers policy which vehicles insurance parole guidelines statute If the garaged and used another principally adopting Rule prohibit the Board from does to a sold and delivered state but four members as and Annexure 475-3-.05 Georgia, 38-7-11 resident believe, question arises then of this Court cover- an underinsured to invalidate acts legislative restriction on as to whether attempts to cov- limit age exclusion which *12 Georgia’s the Board’s discretion violates supreme Con- It court. sometimes seems as Georgia stitution. The Constitution autho- though judges we federal treat federalism grant paroles, rizes the to but allows it, flag. like the pledge allegiance We salute legislature to limit Board’s discretion it, to important like to talk about how it circumstances, in certain enumerated none of However, popular parlance: is. easy it’s CONST, are relevant GA. art. here. talk, to talk the but the time has come to ¶ 4, 2,§ may 2. It that legisla- other walk the walk. Because Court fails to do discretion, tive limitation on the Board’s such so, I dissent. requiring as it adopt employ to a set of parole guidelines legislatively enu- based CLARK, Judge, Senior Circuit dissenting, criteria, separation merated violates of KRAVTTCH, in which HATCHETT and powers Georgia clauses of the Constitution. BARKETT, Judges, join: Circuit ¶3. 4, 7, ¶2; 1, 2, § id. art. See id. art. Maybe Georgia not. The courts have not Introduction squarely constitutionality addressed the majority The denying process errs in due parole guidelines Compare statute. Georgia prisoners to entitled to con- Paroles, Charron v. State Bd. Pardons & sideration. The court fails to follow control- 274, (1984) (hold- 253 Ga. 319 S.E.2d ling Supreme precedent. United States ing independent that “an Board of Pardons Then, it holds that a administrative and Paroles is envisioned under our State (the Board) agency ignore Parole can a con- Constitution,” and suggesting that substan- trolling passed by Georgia legisla- statute legislative tive limits on the Board’s discre- ture. unconstitutional) tion would be Stephens State, Ga.App. Supreme Court, The 428 S.E.2d as will be discussed (1993) (holding below, that a sentencing unequivocally court’s at- has by held that a state tempt impose conditions on a criminal legislative may action process create a due defendant’s unconstitutionally infring- right in parole system. A state does not authority) ed with Freeman v. parole system; have to establish a when it State, (1994) 264 Ga. 440 S.E.2d does, may it provide elect whether for due (holding that a authorizing a sentence process protection or leave parole” of “life without did not unconstitu- unguided discretion paroling authority, discretion). tionally infringe on the Board’s Governor, who be the agency ap- The existence of that state constitutional pointed by Governor, agency or an question, which lurks in the shadows of this prescribed staffed by legislature. as case, is another reason we should let the process protects prisoners Due entitled to Georgia Supreme Court decide the state law par- consideration from decisions of a issues. oling authority made, mistakenly by infected To the appear casual reader it will discrimination equal protection, or lack of Sultenfuss, or the inmates for whom he is a resulting bribery influence, from political proxy, are, are the They losers in this case. or from some other unjustifiable cause. Due they but only are not the ones who have lost. process provides protection from unaccounta- people Georgia The principles and the arbitrary ble part action govern- on the federalism also people have lost. The (invisible people), ment which is what this Georgia have lost some measure of their country is all about. right govern themselves, because close- Some of these evils led the Governor and important issues of their state law have legislature change in 1980 to by been decided not they the court have existing system. clear, For reasons not supreme matters, established as in such but majority of the ignore court decides to instead a federal court which should have unequivocal change made in the 1980 law supreme deferred to their court. Federalism (O.C.G.A. 42-9-40). majority has lost well-meaning because holds some federal judges important have determined the Parole Board matters has the same unbri- involving Georgia’s government arbitrary that could dled and discretion that it had be- and should have been left to the legislation. state and its fore the 1980 Progeny, the and Its Greenholtz I. Under implementation mandates 1980 statute Scheme Creates mandates system, guidelines aof In Parole Liberty Interest take system must criteria specified consideration, use of and mandates into protected creates a A state actions. determining parole on official limitations “by placing substantive § 42- of O.C.G.A. the mandates response means most common discretion.”4 9-40, promulgated “by such an interest which state creates *13 criteria, gov- predicates’ to particularized establishing application of ‘substantive require and, further, by decisionmaking, Pa- official Tentative ern an inmate’s which determine upon a mandating to be reached the outcome the describe The Guidelines role Month. have been criteria that the relevant finding month “dur- the Month as Tentative explicitly Thus, use of repeated met.”5 “the be may expect to ing which the offender with re- mandatory language connection mandatory Notwithstanding the released.”1 predicates de- specific substantive quiring that criteria particularized language, the the has creat- that State a conclusion mands explicit lan- the decisionmaking, and guide “sub- The protected interest.”6 ed a release, majority the expectancy of guage of necessary a create predicates” stantive Georgia parole scheme concludes “ ‘par- as been described liberty interest have liberty interest to a give rise does not guide [that] or criteria standards ticularized majority makes concluding, the parole. so decisionmakers.’”7 the State’s mistakes, which I discuss fundamental three is the seminal case Greenholtz First, majority fails to below. separately parole. The Nebraska interests Georgia parole scheme with compare the provided, in Greenholtz at issue statute the two seminal at issue parole schemes part: pertinent cases, v. Inmates Greenholtz Supreme Court considers of Parole “Whenever Com- Penal and Correctional Nebraska of who is committed offender of a the release Allen.3 Such v. plex,2 Board Pardons parole, shall order it eligible for release comparison demonstrates opinion it is of his release unless necessarily creates parole scheme because: should be deferred his release Second, er- majority he “(a) substantial risk There is a as a 42-9-42 roneously interprets O.C.G.A. pa- to the conditions conform will not than as against parole, rather presumption role; legislative intent further indication “(b) depreciate would His release Finally, Board. cabin discretion promote disre- crime or seriousness his defers erroneously majority law; spect for of unfettered reservation purported Board’s a substan- “(c) would have His release for ignore Guidelines discretion disci- institutional effect on tially adverse all. The no reason at or for reason pline; nonsensical, patently unreason- position is treatment, pur- medical history, “(d) able, contrary to the His continued training in the care, or other 42-9- or vocational mandates of O.C.G.A. pose, his ca- substantially enhance facility will Accordingly, I dissent. 40. Thomp- v. Department ¶ Kentucky Corrections 5. 8-27.01 1. Parole Decision 1909, 462, 1904, 454, son, 109 S.Ct. added). 490 U.S. (emphasis omitted). (citation (1989) 506 104 L.Ed.2d 2100, 1, 668 60 L.Ed.2d 99 S.Ct. 2. 442 U.S. 460, 472, Helms, 103 S.Ct. U.S. (1979). v. 459 6. Hewitt (1983). 864, 871, 675 74 L.Ed.2d 2415, 369, 303 96 L.Ed.2d 107 S.Ct. 482 U.S. 249, (quot- Olim, (1987). S.Ct. 1747 461 U.S. at Dumschat, v. Pardons ing Connecticut 2465, 458, 467, Wakinekona, 452 U.S. 4. Olim J., (Brennan, concurring)). (1981) L.Ed.2d 75 L.Ed.2d parity law-abiding to lead a life Georgia statute, when re- which is entitled “Parole leased at a later date.”8 guidelines system,” provides: (a) provided statute further a list of 15 The board shall adopt, implement, factors obligated that the Board was to con- maintain a guidelines system reaching sider in decision. Factor determining parole action. guide- “Any number 15 read: other factors the lines shall be used in determining board determines to be relevant.”9 The Su- inmates, actions on all except those preme Court concluded that this gave serving sentences, life who will become “expectancy rise to an protect- in release”10 statutorily eligible consideration. ed process the due clause. shall consistent with the years later, Some in Board Pardons v. primary goal board’s of protecting society Allen, Supreme passed upon and shall take into consideration the sever- parole statute, Montana provided, ity offense, of the current the inmate’s pertinent part: prior criminal history, the inmate’s con- eligible (1) “Prisoners for parole. Sub- *14 duct, and the social which factors the ject restrictions, following the the board board has found to have value in predicting shall parole release on ... person probability the of further criminal behavior in confined the prison Montana state or adjustment and successful parole under su- the women’s correction ... center when in pervision. opinion there is probability reasonable (b) guidelines system required by that the prisoner can be released without (a) subsection this Code shall section prisoner to the detriment or to the commu- adopted by regulations rules or nity!;.] board. The regulations rules or shall be adopted conformity Chapter with 13 of “(2) parole A shall only be ordered 50, “Georgia Title Administrative Pro- the best society interests of and not as an cedure Act.”13 clemency award of or a reduction of sen- Certainly the language of this statute is no pardon. tence or A prisoner shall be “mandatory” less than that of the Nebraska placed parole only when the board be- or Montana at statutes issue in Greenholtz lieves he is willing that able and to fulfill and Allen. The Georgia statute mandates the obligations of a law-abiding citizen.”11 implementation guidelines sys- Relying on the use “mandatory language” tem, mandates use in making and predicates,” “substantive the Supreme parole decisions, and mandates the criteria statute, concluded that like the must take into consideration. Nebraska Greenholtz, statute at issue cre- Likewise, the criteria guide ated a interest in As further support decisionmaking conclusion, for its under pointed the Court legislative history scheme “particularized”14 are no less stat- Montana quoted ute: the statute than the criteria in above was enacted in or Nebraska Montana replace 1955to a 1907 statute that had statutes at issue grant- in Greenholtz and Allen. ed absolute discretion to the Georgia scheme, Board. The Under the the Board must Court saw the 1955 change the law as an at arrive each decision by following a legislative “indication aof intent to cabin the step-by-step procedure. First, the Board discretion of the Board.”12 must assign the inmate a Severity Crime It Level, is inconceivable that the which is Nebraska and determined reference to a Montana at statutes issue table that specific lists crimes, Greenholtz dozens of Allen create a interest in each assigned while crime a level between I and the Georgia parole scheme does not. Second, The VII.15 assign the Board must 8. 442 U.S. at S.Ct. 2106 (quoting at Neb. at Id. 107 S.Ct. at 2422. 12. 83-1,114(1) (1976)). § Rev.Stat. (1991) added). 42-9-40 (emphasis 13. 18-19, Id. at (appendix). S.Ct. at 2109
9.
Id. at
PAROLE at issue in Green- Montana ka and statutes component of the is the final Decision Grid in the provisions Other and Allen. holtz Guidelines, application Decision of re- “expectancy Parole confirm this Guidelines months-to-serve setting which determines the out example, in a section For lease.” system, recommendation.18 the Guidelines benefits uncertainty eliminating the demonstrates, “By provide: procedure detailed As this dates, par- and sincere morale inmate release the Geor- the Board under guide criteria is en- programs ticipation in rehabilitation partic- and detailed are far more gia scheme 23 uncer- eliminate The Guidelines hanced.” limiting the ularized, go much farther inmate’s Tenta- that an tainty by mandating discretion, the criteria than may Month, he during which tive at issue Montana statutes Nebraska 377-78, Alien, at 2420 ¶ 107 S.Ct. U.S. 482 at 20. 8-17.03. Guidelines Decision 16. Parole Greenholtz, at 442 U.S. at (quoting 2106). ¶ ¶ through 8-25.02. Id. at 8-17.02 17. ¶ System 8-27.01 Decision Guidelines 21. Parole added). (emphasis ¶ ¶ (emphasis add- and 8-26.01 at 8-17.02 18. Id. ed). 2106. S.Ct. at at 99 22. 442 U.S. 8-2.01(b) 18-19, System V Greenholtz, S.Ct. at Parole Decision Guidelines 442 U.S. at added). (emphasis (appendix). released, expect by to be be set applying question.” Dworkin, R. Taking Rights Parole Decision Grid to the Crime inmate’s Seriously sense, In this officials Severity Level and Parole Success Likeli- who have been parole told to whomever Thus, hood Score. like the statutes at issue they Greenholtz, wish have discretion. Allen, in Greenholtz the Court determined that a scheme procedures mandatory language written use awarding type officials this of discretion requires apply particular- the Board to does not create a interest in ized criteria to arrive at a decision. release. But the term discretion in- Allen, Greenholtz and Under signify stead that “an official must use scheme creates a interest judgment applying the standards set majority’s reasoning grounded is not by him authority”; words, [or her] in other in the Greenholtz and Allen give decisions. I an official has discretion when the stan- specific First, examples. three majority set a statutory dards regulatory begins its discussion scheme “cannot be applied mechanically.” system with the statement: keep “we must Dworkin, supra, 31, 32; id., see also analysis in mind that our inherently sub- (“[W]e say that a man has discretion if jective.” majority does not cite and I duty his is defined standards that rea- am any authority not aware of to support the [people] interpret sonable can in different proposition that a Greenholtz-tjpe analysis is ways”). The Court determined in Green- “inherently subjective.” Under Greenholtz presence holtz that the of official discretion progeny, and its must we look to lan- in this sense is not incompatible with the guage of the state scheme deter- existence of a mine language whether that places “substan- release when required release is after the tive limitations on official I discretion.”25 (in discretion) Board determines its broad nothing “inherently subjective” see in this necessary prerequisites exist.28 analysis. upon discretion majority which the relies Second, majority concedes that “the in concluding that the “particularized crite- provide particularized a set of cri- *16 ria” in the Guidelines do not indicate the teria that the must making Board consider in of liberty existence a clearly interest is the parole Nevertheless, determinations.”26 the type second of by discretion described the majority concludes that this “set of particu- Court majority in Allen. The fails to recog- larized criteria” does not indicate the exis- type nize that this of discretion is not incom- tence of a liberty interest because “the patible with the liberty existent aof interest. Guidelines significant leave the discre- Just may as a interest exist when “the applying tion in the various factors.... The by statutory standards set a or regulatory Guidelines do not applica- envision the rote ”29 applied scheme ‘cannot mechanically,’ be specific tion of predetermined and a criteria so a also exist when outcome if those criteria are met.”27 In so “[t]he do not envision the rote concluding, majority ignores the teaching the application specific of criteria....”30 Allen, of in Supreme which the distin- Court guished types between Finally, two of majority discretion: the recognize fails to the essence, significance In the of the change in [in Greenholtz the ] Geor- Allen, gia
made a
law. In
entirely
distinction between
the Supreme
two
Court relied
distinct uses of
on a change
the term
in
parole
In
the
discretion.
Montana
statute to
word,
one sense of the
support
an official has
its
dis-
conclusion
the
that
new statute
cretion when he or she “is simply not
created a
parole.
interest in
Noting
by
bound
standards set
authority
in that the
granted
old statute
absolute discre-
Majority Op.
Allen,
24.
375-76,
207.
28.
15U obligations of a law- willing to fulfill Board, found the Court tion leg- abiding citizen.34 of a “indication an provided new statute of the the discretion to cabin intent islative part: in provides, further § 42-9-42 O.C.G.A. in Geor- Similarly, prior Board.”31 pardon or on released person shall be [N]o that statutory requirement no there was gia, and until board parole on unless placed in ac- powers Board exercise suitably be em- he will satisfied is reg- or guidelines any specific with cordance employment or self-sustaining in ployed place not did Georgia statutes The ulations. public charge. will not become he determine Board’s discretion on the limits provided, statute Montana Similarly, the released to be was eligible inmate when however, part: parole. 42-9-40, § O.C.G.A. legislature only enacted for the be ordered best parole shall A determi- such mandating that thereby an award of society not as interests accordance be made nations or sentence clemency a reduction Allen, change this system. Under guidelines pardon.35 some indication at least law is not read the Allen did Supreme Court the discretion “cabin intent legislative creating presumption as statute Montana Board.”32 it read the contrary, To against the conclu- to reach majority is able immediately quoted statute portions the stat- both only by ignoring does it sion on the discre- constraint as a above fiirther and the and Allen in Greenholtz at issue utes Board, a decision preventing of the tion Green- cases. Under two teachings of those “to is unable prisoner when a of release favor progeny, and its holtz law-abiding citi- of a obligations fulfill expectancy rise to an gives scheme § can Likewise, 42-9-42 O.C.G.A. zen.”36 process clause. due protected is constraint a further interpreted as only Board, pre- as a discretion Is § 42-9-42 Consistent II. O.C.G.A. Consistent with sumption against release. Liberty Interest with a of the and intent purpose heavily on O.C.G.A. relies majority pro- § 42-9-42 O.C.G.A. system, guidelines creating a interprets 42-9-42, as it prisoner releasing a from hibits cursory A parole.”33 against “presumption himself as conduct “live cannot who Supreme Court’s review Thus, law-abiding person.” respectable and is interpretation indicates Allen compatible with 42-9-42 O.C.G.A. very similar § 42-9-42 flawed. by the parole created liberty interest at issue of the Montana portion to a *17 conclu- Any other scheme. Georgia parole provides, § 42-9-42 in Allen. Supreme Court’s face of in the flies sion part: in Allen. parole until placed on be inmate shall No that there find board shall unless and It Retains Position Board’s III. that, so if he is probability reasonable is Ignore the Authority Guide- Absolute himself released, live and conduct he will History, Contrary to the lines person law-abiding respectable and aas the Geor- Mandates and the Purpose, compatible with will be release that his and Guidelines gia Parole society. the welfare and own welfare his 42-9-42, the ma- to O.C.G.A. addition at issue Similarly, Montana heavily Rule relies jority also part: provided, Allen the Guide- 05(5) portion of on a and only 475-3- placed on shall be prisoner A Annexure to as majority refers lines able that he is believes the board when (quoting at at 34. 2422. S.Ct. at 31. 482 U.S. (1985)). § 46-23-201 Ann. Mont.Code Id. 32. Id. 35. at 2421. Id. at 36. Majority Op. 2. Relying solely on provisions, these two simply declare, Guidelines in Annexure- majority states “several the rules that “the may depart Board from the Guide- regulations expressly provide depar- for lines recommendation and indepen- make an ture grid [from the recommendation].”37 decision_” dent It is inconceivable that majority is correct to the extent that legislature intended to establish 3—.05(5) Georgia Rule purports to re- 475— a particularized detaüed and system for ar- serve the Board’s to “disagree” discretion riving at an inmate’s Month, Tentative Parole Guidelines,
with the 2 pur- Annexure “during which the may expect offender to be ports to reserve the Board’s decision to “de- released,”40 only grant the Board the un- part” from the Nevertheless, Guidelines.38 fettered discretion to completely disregard neither provisions of these nor other system. provision in the Guidelines even mention ei- procedure ther a to follow or criteria to provisions Other of the Guidelines are in- consider in effecting such departure. a consistent with the position that it Thus, purports the Board to reserve for itself has unfettered depart. discretion to For ex- the discretion to make a decision indepen- ample, the provide Guidelines procedure Guidelines, dent is, to simply which an may inmate request reconsideration ignore Guidelines, for any reason or for of his months-to-serve calculation.41 The no reason at all. I cannot accept, as the specifically provide, Guidelines however, that does, majority expansive the Board’s inter- requests such “are alleged limited to errors pretation of its own discretionary powers. Severity Crime Level the Pa- and/or position, The Board’s when considered in role Success Factor Thus, scores.”42 under the context of scheme as Guidelines, may inmate request recon- whole, is nonsensical. legisla- sideration of the two factors that determine ture, 42-9-40, with O.C.G.A. mandated his Month, Tentative Parole but he that the Board implement use request reconsideration or otherwise contest that take into consideration specified certain the Board’s decision to depart from this Ten- factors. The Guidelines promulgated pursu- tative Parole Month. It makes no sense to ant to this mandate set out a proce- detañed provide procedure for contesting dure, deter- including application of numerous mination of the particularized Tentative criteria, Parole Month but by which the Board not provide for must contesting arrive at an the decision inmate’s Tentative Parole depart Month. therefrom. The Guidelines also proce- out a set dure may adjust example Another of the Guidelines’ incom- prior Tentative Month to an inmate’s patibility ¶ position the Board’s 8- release; adjustments such may based 12.01, which provides that an inmate’s Crime the inmate’s institutional behavior or on new Severity Level shall be determined “based on information not previously avaüable.39 The record, actual convictions of without refer- not, however, Guidelines do provide proce- ence original arrest booking or charges, or departures. dure is, That there is abso- allegations in accusations lutely nothing in indictments the Guidelines to indicate which an when actual or how the conviction was not ob- go is to about dis- *18 43 with, tained.” agreeing from, Notwithstanding or departing provision, this it Tenta- tive Parole is the position Month. Neither do Board’s may it Guide- consider lines indicate what factors or criteria information in deciding, its unfettered Board should consider in determining discretion, wheth- depart whether to from the Guide- departure er appropriate. is Rather, lines. is Sultenfuss a in point. ease On 202; Majority 37. Op. at ¶ see id. at also 209. 40. at Id. 8-27.01. 38. provisions These two also out set the Board’s ¶¶ 41. Id. at through 8-29.01 8-29.04. opinion Sys- Parole Guidelines tem not does a create interest in ¶ 42. at Id. 5.2.
39. ¶¶ 8-4.01, Parole Decision 8-8.01(c), through ¶ 8-30.01 8-32.01. added). 43. (emphasis Id. 8-12.01
1513 completely at odds is position Board’s The are summary sheet rating Sultenfuss’s 1980 of the purpose history and following comments: deci- governing law change in Macon cocaine of drug dealer [Mjajor helpful.45 background here is A bit of sions. entrapment. always claims and years investigation disclosed for 1978, federal a telling us he’s lawyers pa- numerous Tennessee corruption have widespread Will charges cocaine the Gov- reached Paroled scandal great system. fellow. role Blanton, re- charge three individuals ernor, and Ray new cocaine based revoked of eventually convicted years to office were of 15 from his sentence maximum ceived influencing granting for accepting which bribes quantity case is a small This serve. As this scandal paroles.46 pardons of for him.44 character out of is pa- of news, the institution national became “accu- certainly considered Thus, the Board suggested siege.”47 Some “under came role conviction actual which for ... sations while others altogether, abolishing parole reaching its decision obtained” not standards strengthening was suggested in Sultenfuss’s operate.48 the Guidelines boards way parole from depart govern the from consider- the Board prevent To case. of 1979, Georgia Board later, in yearA during the calculation information ing certain widely criticized was Paroles Pardons Month, when Parole Tentative of the of the One its decisions.49 of a number information, but challenge the jury a grand inmate even led decisions Board’s very and, consider la- the Board actions permit Board’s then of the investigation deci- departure Board during the certain ruling that ter, court information state to a same recourse, Specifi- defies has no were unconstitutional.50 sion, proceedings inmate when the Board held inter- cally, the state court sense. and common logic conducting secret of practice contrary to must cease own discretion of its pretation proceedings.51 a whole. as of the Guidelines construction Barbara heiress kidnapping Florida of convicted A. 1 Exh. Attach. 44. Rl-33 hours); 83 burying alive for her Mackle Jane Parole, ‘Spider’Sus- Epstein, Morris Gail references to which Defends newspaper articles 45. Constitution, May ’76, Atlanta part pect Released not are 47-53 footnotes made in are charges Cl, rape 1979, (reporting 16, C4 at legislature does case. The record from had released suspect Board History. against whom It is not Legislative maintain earlier); Angry to Prose- DA years newspaper prison to a three to refer a court uncommon Constitution, Atlanta, Paroles, subject Board about State news writing. cute contains which article upon of attorney’s 1979, 21, (reporting district Cipollonev. B3 at the court Oct. anger which Cf. 11, sen- Inc.,-U.S.-,-n. 112 to commute decision Board's Group, over Liggett (1992), theft). 11, 407 2608, 120 L.Ed.2d convicted prisoner n. 2616 tence S.Ct. states: Paroles, Senate State example, Board the California State Angry For to Prosecute DA 1979, (re- 21, print Constitution, electronic at B3 on both Oct. passed total ban Atlanta Senate prosecute “California attorney’s cigarette advertisements. intent porting district Washing- Advertising,” Cigarette On to commute Ban Votes over of the Board members 1969, 26, Johnson, p. Post, A9. Hubbard); June Steve ton William sentence 337, McGregor, F.2d City 980 Yeager Board, v. Constitu- also See Atlanta Jury Pardons Probe Will denied.,-U.S. Cir.) (5th 2, cert. Cl, grand 4 & 5 1979, (reporting 30, 341 nn. tion, C2 Oct. (1993). 79, 47 -, 126 L.Ed.2d reducing S.Ct. of Board investigation action jury Hubbard); Erase of William sentence Thompson, F.2d States United 46. See Constitution, Powers, Urges, Atlanta D.A. 1072, denied, banc), (en Cir.) (6th cert. 1979, filed 16, (reporting motion at C2 Nov. L.Ed.2d judge to asking court superior attorney district unconstitutional); actions declare a Workable Still Ragghianti, Is Parole Marie F. Authority, Consti- Atlanta Judge Panel’s Questions Times, at A31. April Concept, N.Y. Cl, (reporting hear- tution, C2 Nov. *19 attor- judge on district superior court ing before See id. motion). ney’s Misunderstood,’ Pa- Hopkins, ‘We’re Sam See Secrecy,Extensive Stripped Shroud Constitution, 51. Board May of of Complains, Atlanta role Chief Panel, Atlanta Ruling on Parole Likely in Cl, of Board's criticism (reporting C3 Effect at Constitution, at Bll. March Krist, who was Gary Steven parole to wake Publicly, Tennessee least, at purported Board scandal and the controversies over the Geor- embrace guidelines the new system as a gia decisions, Board’s Georgia legislature repair means to its tainted image. Another 42-9-40, enacted O.C.G.A. mandating that contemporaneous newspaper report reads: Board establish and guide- ause repair To image, its the board set about system rendering lines parole decisions. codifying parole procedures. Reviews This new was touted as a “scientific past cases had revealed disparities wide approach” decisions. A contempo- in the board’s decisions. were “We not the raneous newspaper report reads: most consistent people in making deci- George Gov. Busbee announced Thurs- sions,” [board director] said. Morris “As day that a approach” new “scientific will be we looked at that, eases we find would implemented help determine whether example, person serving for an offense inmates in Georgia prisons ought to be paroled. would be Four later, months paroled, avoiding thus the controversy person serving for the same offense with surrounded such paroles as the recent re- the same background would not pa- lease of convicted kidnapper Gary Steven roled.” Krist. To charges deal with of capriciousness, longer,” “No Busbee, said pa- “will the the board and its staff ... began develop- role decision-making process board’s be a ing way a new dealing with the cases. myth public.... (new) Advertised as a way “scientific” of manag- rating guidelines bring will the Pardons ing parole, plan took effect in Janu- and Paroles Board into 20th Century.” ary.53 Thus, by mandating implementation “The rating guidelines fulfill will guidelines use of the system, legisla- two critical needs in justice the criminal ture prevent intended to perversion system,” governor. said the “It bring will that had occurred in Tennessee greater fairness, about consistency and public and instill confidence in the Georgia openness in decisions-making insuring decisions were process and will allow expand us to the use made equitably, objectively, openly. paroles as an alternative to incarcera- This intent is embodied in the Guidelines. tion.” ¶ example, For provides, 8-1.02 pertinent part: The new program will involve “the care- The Parole Decision development ful of two grids,” charts as shall promote be utilized to following explained. Busbee policy goals of this Board: “One chart —the crime-severity index— (a) Objective equitable use of the will rank in fine detail the seriousness or clemency power in determining appro- severity of each category of crime as de- priate lengths imprisonment for indi- termined by input from board members. inmates; vidual The second chart takes into account social (b) Equitable and factors, consistent including terms of im- work history and crimi- prisonment for history, all sharing nal inmates which serve simi- as indicators of personal lar behavior offender’s histories and con- chance for pa- success role,” victions for he similar said. crimes.... place, Once the criteria used in mak- The position it retains unfet- ing decisions will be public available for tered discretion depart from the Guide- review, governor said. This will in- lines for reason or for no reason at all is crease credibility “the system,” he at odds with goals. these stated Rather than said.52 encouraging equitable, objective, and consis- Cutts, 52. Beau Aired, Goolrick, Plan 53. Chester Way, “Scientific" Either Potts Decision Constitution, 18, 1979, Atlanta May Cl, Likely C4. Constitution, Controversy, to Stir Atlanta 30, 1980, April Cl, C2. *20 the It is obtained.” may be copies thereof system, guidelines the under decisions tent are Guidelines the that depar- position arbitrary Board’s permits position Board’s the that manual”57 operating “internal part of tures. court to this available made not has been 42-9-40, Geor- the § enacting O.C.G.A. By the Guidelines failing to By make review. im- Board the mandated legislature gia law, by mandated public as the to available the and use guidelines the plement the stereo- dispel nothing to does The Board actions. the determining in body shadowy as a position parole board of the type the Board’s concludes majority decisions capricious arbitrary because and making this mandate inconsistent is not scrutiny. the depart from public to realm the Board’s outside “[t]he mean not does recommendation grid a stat- interpretation agency’s anWhile pa- determining not used were Guidelines is enti- implementing charged with it is ute ac- to majority fails The role action.”54 construc- deference, “administrative to tled Board’s however, the under knowledge, in which eases to be restricted should tion meaning- are the Guidelines interpretation, really doubtful is meaning of the the discre- the unfettered has If less. invalidity its where disregarded must be and Guide- the depart from arbitrarily to tion Here, self-serv- Board’s the meaningful apparent.”58 is no play Guidelines lines, the then Georgia of the decision; interpretation if the and ing final role Georgia statute the contrary to role meaningful is no scheme play Guidelines majority errs determining therefore, and, invalid. “used decision, they not are following statute. instead Board deferring as mandated to actions” legisla- Georgia of unfet- by the retention purported law Board’s established from arbitrarily depart to discretion tered ture. response or notice Guidelines, without than nothing inmate, more is from, the Conclusion IV. of the the mandate avoid to attempt cavalier legislature. lan- progeny, the and Greenholtz Under and statutes Georgia parole is guage of discretion retention purported This pa- liberty interest Board has creates response only cavalier not scheme Nothing O.C.G.A. mandate. role. legislature’s had ex- liberty interest requires 42-9-40(b) specifically inconsistent with § re- attempt rules or self-serving adopted system be Board’s cept guidelines rules these and that discretion unfettered of the regulations itself serve conformity with adopted in “be the Guidelines. regulations from depart arbitrarily ‘Georgia basis; Adminis- Title Chapter without interpretation ” Under the Act.’ Procedure mandates contrary indeed, trative isit Secretary Act, the therefore, Procedure is, entitled Administrative legislature index, publish all compile, “shall of State I dissent. no deference. Rules agency....”55 by each adopted rules Secretary of State’s from the omitted may be “compilation provided compilation official subject general stating the notice contains stating how so omitted of rules matter Notwith- obtained.”56 copies thereof the Guidelines requirements, standing these published opinion are in this discussed compilation official Secretary of State’s “stating how notice is no rules, there n. 1. Op. Majority 57. Op. at 207. Majority
54. 50-13-7(a). Blackmon, Atlanta, Inc. Mousetrap of 201 S.E.2d Ga.App. 50-13-7(c). 56. O.C.G.A.