Filed: Jan. 06, 1999
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Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 97-9009 ELEVENTH CIRCUIT _ 1/06/99 THOMAS K. KAHN D. C. Docket No. 1:95-cv-3012-CAM CLERK ROBERT L. JONES, Plaintiff-Appellant, versus J. WAYNE GARNER, Employed as Chairman, State Board of Pardons and Paroles, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Georgia _ (January 6, 1999) Before BIRCH and BARKETT, Circuit Judges, and HAN
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 97-9009 ELEVENTH CIRCUIT _ 1/06/99 THOMAS K. KAHN D. C. Docket No. 1:95-cv-3012-CAM CLERK ROBERT L. JONES, Plaintiff-Appellant, versus J. WAYNE GARNER, Employed as Chairman, State Board of Pardons and Paroles, et al., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Georgia _ (January 6, 1999) Before BIRCH and BARKETT, Circuit Judges, and HANC..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
U.S. COURT OF APPEALS
No. 97-9009 ELEVENTH CIRCUIT
________________________ 1/06/99
THOMAS K. KAHN
D. C. Docket No. 1:95-cv-3012-CAM CLERK
ROBERT L. JONES,
Plaintiff-Appellant,
versus
J. WAYNE GARNER, Employed as Chairman,
State Board of Pardons and Paroles, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 6, 1999)
Before BIRCH and BARKETT, Circuit Judges, and HANCOCK*, Senior District Judge.
___________________________
* 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, Ga. Comp. R. & Regs. r. 475-3-.05.(2)
(1986), violated the Ex Post Facto Clause of Article I, § 10 of the United States Constitution. In
Akins v. Snow, 922 F.2d 1558 (11th Cir. 1991), we held that retroactive application of r. 475-3-
.05(2) violated this clause’s prohibition on ex post facto laws. After the Supreme Court decided
California Dep’t of Corrections v. Morales,
514 U.S. 499 (1995), in which it held that the
retroactive application of a legislative amendment to the California parole regulations that
decreased the frequency of parole suitability hearings in certain circumstances did not represent
an ex post facto violation, the Board concluded that Akins had been overruled and scheduled
Jones’ next hearing for 2003 pursuant to the rule promulgated in 1986. The district court agreed
that Morales overruled Akins, and granted summary judgment to the defendants. We find that
Morales reinforced our holding in Akins, and pursuant to Morales and Akins, we REVERSE.
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 life in prison for murder. In August of 1982 he
was again sentenced in the same court to life in prison for murder on subsequent charges. At the
time of Jones’ second offense, the state regulations governing parole consideration required that
he first be considered for parole after seven years and, if parole was not granted at that time, that
he be considered every three years thereafter. After Jones was incarcerated but before he was
2
initially considered for parole, the Board amended its rules to require that parole reconsideration
take place only once every eight years. See Ga. Comp. R. & Regs. r. 475-3-.05.(2).1
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 Article I, § 10 of the United States
Constitution. As a result, Jones was reconsidered for parole in three year intervals, in 1992 and
again in 1995. In 1995, however, the Supreme Court decided California Dep’t of Corrections v.
Morales,
514 U.S. 499 (1995). The Board read Morales to overrule Akins, and as a
consequence, rather than scheduling Jones' next consideration for 1998, the Board scheduled
Jones for reconsideration in 2003 (eight years later).
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,
1
As amended, the regulation relating to frequency of parole reconsideration reads as
follows:
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.
Ga. Comp. R. & Regs. r. 475-3-.05.(2).
3
finding Jones’s 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. . . .”
U.S. Const. art. I, § 10, cl. 1. At the time of the drafting of the Constitution, the phrase “‘ex post
facto law’ was a term of art with a well-established meaning.” Akins v. Snow, 922 F.2d at 1560.
In Calder v. Bull, 3 U.S. (Dall.) 386 (1798), the Supreme Court “identified several legislative
acts that clearly implicated the core concerns” with respect to ex post facto laws that existed at
the time the Constitution was written.
Akins, 922 F.2d at 1560-61. Included in such legislative
acts was any law “...that changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed.”
Akins, 922 F.2d at 1560-61 (quoting Calder, 3 U.S.
(Dall.) at 390 (emphasis in original)). The Supreme Court's ex post facto rulings have continued
to adhere to the original principle that laws with this effect violate the Constitution’s ex post
facto prohibition. See
id. (collecting cases).2
Akins v. Snow
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 Ga.
2
Miller v. Florida, 482 U.S. 423, 429 (1987); Weaver v. Graham,
450 U.S. 24, 28 (1981);
Dobbert v. Florida,
432 U.S. 282, 292 (1977); Lindsey v. Washington,
301 U.S. 397, 401
(1937); Rooney v. North Dakota,
196 U.S. 319, 324-325 (1905); In re Medley,
134 U.S. 160,
171 (1890); Cummings v. Missouri,
71 U.S. 277, 325-326 (1867); Calder v. Bull, 3 U.S. (Dall.)
386, 390 (1798).
4
Comp. R. & Regs. r. 475-3-.05.(2), and held such application to violate the proscription against
laws “‘that change[] the punishment, and inflict[] a greater punishment than the law annexed to
the crime when committed.’” Akins, 922 F.2d at 1560-61 (quoting Calder, 3 U.S. (Dall.) at 390
(emphasis in original)). When the crimes for which the petitioners in Akins were convicted were
committed, “the Board’s rules required the Board to initially consider an inmate serving a life
term for parole after serving seven years of his life sentence.”
Id. at 1560. If the inmate was
denied parole at that time, he would receive reconsideration every year thereafter. See
id. The
regulation was subsequently amended so that “[parole r]econsideration of those inmates serving
life sentences who have been denied parole shall take place at least every eight years.” Ga.
Comp. R. & Regs. r. 475-3-.05.(2). Applying the two-pronged test for Ex Post Facto Clause
violations established by the Supreme Court in Weaver v. Graham,
450 U.S. 24, 29 (1981),3 we
found both that the Georgia regulation was retroactive and that, by creating significant delays
between parole reconsideration hearings, the application of the regulation “substantially
disadvantages a prisoner.”
Akins, 922 F.2d at 1564.4
California Dep’t of Corrections v. Morales and Lynce v. Mathis
3
First, the law must be “retrospective, that is, it must apply to events occurring before its
enactment. . . .” Weaver, 450 U.S. at 29. Second, the law must “disadvantage the offender
affected by it.”
Id. (quoted in Akins, 922 F.2d at 1563).
4
In Akins, we addressed three preliminary questions as a predicate to making the ultimate
ex post facto determination. Specifically, we found that: (1) Georgia’s administrative regulation
governing parole reconsideration is a “law” for purposes of the Ex Post Facto Clause, see Akins,
922 F.2d at 1561; (2) that a parole reconsideration hearing is part of a prisoner’s parole
eligibility,
id. at 1561-62; and (3) that, because parole eligibility is part of an offender’s
punishment, “for ex post facto purposes, parole eligibility must be considered part of any
sentence.”
Id. at 1563. None of these holdings has been called into question either by the
Supreme Court’s decision in Morales,
514 U.S. 499 (1995), or by the parties on appeal.
5
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 (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. 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 Cal. Penal Code Ann. § 3041.5(b)(2) (West
1982)).
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. 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 (quoting Beazell v. Ohio,
269 U.S. 167, 171
(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] produces a sufficient risk of increasing the measure of punishment
6
attached to the covered crimes,” id., and proceeded to apply this standard to the California statute
at issue in Morales.
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 (quoting
Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982)).
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
(quoting In re Lawrence A. Jackson,
39 Cal. 3d 464, 473 (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 (quoting § 3041.5(b)(2)). In this regard, the Court particularly emphasized 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.”
Id. (quoting § 3041.5(b)(2)).5
5
The Court added that “[t]hough California law is not entirely clear on this point, the
reliability of the Board’s determination may also be enhanced by the possibility of an
administrative appeal.” Morales, 115 S. Ct. at 511 (citing Tit. 15 Cal. Code of Regulations, §
7
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 § 3041.5(b)(2)). In particular, the Court found no
reason to fear that a prisoner who would have been found qualified for release one or two years
previous would suffer a later actual release date than he would have under the old annual review
system. The Court noted that in California, it is often the case that an inmate’s actual release
date will come several years after a finding of suitability by the Board. See
id. at 513. It
therefore reasoned that, because the Board retained the discretion to expedite the release date of
an inmate who is able to demonstrate “that he was ‘suitable’ for parole two years prior to such a
finding by the Board,” such an inmate “might well be entitled to secure a release date that
reflects that fact.”
Id.
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. 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.
2050 (1994)).
8
Id. at 512. The Court therefore found no ex post facto violation. See
id. at 514.
Subsequently, in Lynce v. Mathis, 519 U.S. 433 (1996), the Supreme Court found
Florida’s attempt to cancel retroactively the accumulated overcrowding credits awarded to
inmates convicted of murder and attempted murder to be a violation of the prohibition on ex post
facto laws, and in the course of so doing, provided some guidance to courts applying the
standards established in Morales. The Lynce Court emphasized in particular two features of the
Court’s reasoning in that case. First, it underscored that the “bulk of [the Court’s analysis in
Morales] focused on the effect of the law on the inmate’s sentence” and that the holding in
Morales “rested squarely on the conclusion that ‘a prisoner’s ultimate date of release would be
entirely unaffected by the change in the timing of suitability hearings.’”
Lynce, 117 S. Ct. at 897
(quoting
Morales, 514 U.S. at 513); see also
id. at 898 n.16 (“Simply put, we rejected the
inmate’s claim in Morales, because it could not be said with any certainty that the amended
statutory scheme was more ‘onerous’ than at the time of the crime.”).
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 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
9
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, 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.
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 897 (quoting
Morales, 514 U.S. at 513), in
order to determine whether the change constitutes a “sufficient risk of increasing the measure of
punishment attached to the covered crimes.”
Id. at 897 n.14 (quoting
Morales, 514 U.S. at 509).
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. 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 Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982)). The set of affected
inmates is thus likely to be extremely small. The Georgia provision, in contrast, applies to all
“those inmates serving life sentences,” r. 475-3-.05.(2). In Georgia, it turns out, this group can
include prisoners convicted of murder, see GA. CODE ANN. § 16-5-1; felony murder, see id.;
10
rape, see GA. CODE ANN. § 16-6-1; armed robbery, see GA. CODE ANN. § 16-8-41; kidnapping
for ransom, see GA. CODE ANN. § 16-5-40; hijacking an aircraft, see GA. CODE ANN. § 16-5-44;
more than one count of child molestation, see GA. CODE ANN. § 16-6-4; perjury that was the
cause of someone else being sentenced to death, see GA. CODE ANN. § 16-10-70; more than one
count of possession or use of a machine gun, sawed-off rifle, sawed-off shotgun, or a firearm
equipped with a silencer during the commission or attempted commission of a series of
enumerated offenses,6 see GA. CODE ANN. §16-11-160; and more than one count of a series of
prohibitions on the manufacture, possession, sale, or distribution of certain controlled
substances, see GA. CODE ANN. § 16-13-30. The set of inmates whose parole consideration will
be affected by r. 475-3-.05.(2) is thus bound to be far more sizeable than the set of inmates
affected by the California provision at issue in Morales. This set must also – unless we are to
believe that the state of Georgia imposes a sentence of life in prison without parole for the entire
6
This list includes:
(1) Aggravated assault as defined in Code Section 16-5-21;
(2) Aggravated battery as defined in Code Section 16-5-24;
(3) Robbery as defined in Code Section 16-8-40;
(4) Armed robbery as defined in Code Section 16-8-41;
(5) Murder or felony murder as defined in Code Section 16-5-1;
(6) Voluntary manslaughter as defined in Code Section 16-5-2;
(7) Involuntary manslaughter as defined in Code Section 16-5-3;
(8) Sale, possession for sale, transportation, manufacture, offer for sale,
or offer to manufacture controlled substances in violation of any provision
of Article 2 of Chapter 13 of [Title 16], the “Georgia Controlled Substances
Act”;
(9) Terroristic threats or acts as defined in Code Section 16-11-37;
(10) Arson as defined in Code Sections 16-7-60, 16-7-61, and 16-7-
62;
(11) Influencing witnesses as defined in Code Section 16-10-93; and
(12) Participation in criminal gang activity as defined in Code Section
16-15-4.
GA. CODE ANN. §16-11-160.
11
set of offenses just enumerated – be comprised of many inmates who can expect at some point to
be paroled. For this reason, we are unable to conclude that r. 475-3-.05.(2) will apply “only to a
class of prisoners for whom the likelihood of release on parole is quite remote.”
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, 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 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 (quoting Cal. Penal Code Ann. § 3041.5(b)(2)
(West 1982)).
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.
Ga. Comp. R. & Regs. r. 475-3-.05.(2). The Board is not required to make any particularized
findings supporting its conclusion that, as to the inmate under consideration,“it is not reasonable
to expect that parole would be granted” during the intervening eight years before the next
hearing – indeed, as the facts of this case indicate, the Board would be within its discretion to say
12
next to nothing.7 Nor is the Board required to have any sort of hearing on this question, much
less the “full hearing” required by the California statute approved by the Supreme Court in
Morales.
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. 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
7
The letter Jones received from the Board in 1995 illustrates the minimal burden the
regulation places on the Board to justify its scheduling decisions. In its entirety, this letter reads:
Dear Mr. Jones,
You have been thoroughly and carefully considered for parole. The Board's
decision is to deny parole at this time. The main reasons for the decision cited by the
Board members during their individual study of your case are circumstances and nature
of the offense, and multiple offenses.
The board has decided to consider you again for parole during August 2003.
Sincerely,
[signature].
R.1-18-Ex.3
13
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.
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 id. §§ 1.105-06.
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
14
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 as amended
provides that affected inmates “only have [their] case[s] reviewed every two years after an initial
negative parole determination rather than every year,”
Roller, 107 F.3d at 229 (citing S.C. CODE
ANN. § 24-21-645 (Law. Co-op. 1997)), while the Virginia amendments authorize the extension
of the period between parole reconsiderations from one year to three years.
Hill, 64 F.3d at 166
(citing VA. CODE ANN. § 53.1-154 (Michie 1988)). The respective time-frames created for the
subsequent parole reconsideration of inmates by the South Carolina and Virginia statutes are
thus considerably shorter than the lengthy eight-year gap between parole reconsiderations
authorized by the Georgia provision, thus creating less of a risk than the Georgia statute that “the
measure of punishment” imposed on affected inmates will be “increased.”
Morales, 514 U.S. at
513.
Whether a particular provision violates the prohibition on ex post facto laws is a “matter
of ‘degree.’” Morales, 514 U.S. at 509 (quoting
Beazell, 269 U.S. at 171). Given the length of
15
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, 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.
16
