Garner, J. Wayne, et al. v. Jones, Robert L. (03/28/2000)

By: Heidi N. Morales, Medill News Service

Questions presented

Does the Constitution's ex post facto clause bar a state from applying its amended regulation governing the release of inmates sentenced to life in prison without parole, when the amendment has no effect on the sentence imposed, on the formula for considering parole, or on the determination of the prisoner's eligibility for parole?

Brief

Robert Jones is a convicted felon serving two consecutive life sentences in the state of Georgia, the first following a murder conviction in 1974, the second from a murder conviction in 1982.

At the time of Jones' second offense, Georgia's parole regulations required that he be considered for parole after seven years, and if it was not granted at that time, that he be considered every three years thereafter.

Jones was initially considered for parole in 1989, seven years after his 1982 conviction, and parole was denied. After Jones was incarcerated but before his first parole hearing, the Georgia pardon and parole board amended its rules to require that parole reconsideration take place only once every eight years. 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, because a federal appeals court held that such board actions could not be applied retroactively, Jones was reconsidered for parole in three year intervals, in 1992 and again in 1995. In 1995, however, a U.S. Supreme Court decision was read to allow for retroactive adjustments in parole, so rather than scheduling Jones' next consideration for 1998, the board scheduled Jones for reconsideration in 2003 (eight years later).

Jones filed suit pro se 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. An 11th Circuit Court of Appeals Jones reversed in part, finding Jones' allegation of an Ex Post Facto Clause violation not to be frivolous.

On remand, the district court again denied Jones' motion. A unanimous 11th Circuit panel again disagreed and reversed, holding that to apply the eight year rescheduling to Jones was an unconstitutional enhancement of punishment in violation of the Ex Post Facto Clause of the Constitution.

The ex post facto clause protects ""inmates"" from any state law that ""changes the punishment and inflicts a greater punishment"" than the law appropriates for the crime, the appeals panel concluded. According to this definition, the appeals court found that by delaying parole hearings [for every eight years], the retroactive application of the law ""substantially disadvantages a prisoner.""

The court directed that each case be analyzed by asking if the board's regulations regarding parole produces a risk of increasing the sentence of a specific crime.

In so finding, the appeals panel took another look at California Dept. of Corrections v. Morales, the 1995 Supreme Court case that held that a parole change in California did not create an ex post facto problem. In distinguishing Morales, the appeals court noted that the California law in Morales was intended to cut down on the amount of time and money it would cost the state for scheduling parole hearings for prisoners with no chance of release.

Unlike California, Georgia's law does not only apply to prisoners with a remote chance of parole, it applies to all inmates serving life sentences. In Georgia, the law applies to people charged with murder, rape, armed robbery, kidnapping for ransom, child molestation, possession of a weapon or controlled substances. Aside from the eight-year interval for parole reconsideration for inmates serving a life sentence, the corrections board in Georgia does not have an obligation to explain the reasons why someone was denied parole. They are also not required to have a hearing on this question, as was required by California in Morales.

The appeals panel stated that the right to parole in the years between reconsideration hearings would be able to ""cure"" the delay through petitioning for an earlier release date. There is therefore a risk that the amended Georgia law would increase the measure of punishment attached to class act crimes because Georgia's law on parole hearings focuses on its effect on a prisoner's date of release.

The Supreme Court granted certiorari on Sept. 28, 1999 and allowed Jones to continue his appeal in forma pauperis.

On March 28, 2000, the Court, divided 6-3, reversed, holding that retroactive application of the Georgia law on the time the state parole board would reconsider Jones' petition was not a violation of the Constitution's ex post facto clause.

Writing for the majority, Justice Anthony Kennedy found that the retroactive application did not create a sufficient risk of increasing the measure of punishment attached to the crime Jones committed, in part because the parole board had discretion as to how often to set an inmates date for reconsideration, and in part because the board's policies permitted expedited reviews.

Justices David Souter, John Paul Stevens and Ruth Bader Ginsburg dissented.