Garner v. Jones: Restricting Prisoners' Ex Post Facto Challenges to Changes in Parole Systems - Robert A. Renjel

• Jurisdiction: United States,Federal
• Publication year: 2001
• Citation: Vol. 52 No. 2

CASENOTE

Garner v. Jones: Restricting Prisoners' Ex

Post Facto Challenges to Changes in Parole

Systems^*

In Garner v. Jones,¹ the United States Supreme Court laid out rules for lower courts to determine whether granting parole boards the discretion to change retroactively the frequency of parole reconsideration hearings would violate the Ex Post Facto Clause. The Court held that a prisoner challenging one of these statutes must produce certain evidence that the statute "created a significant risk of increasing his punishment."²

I. Factual Background

In July 1974, Robert L. Jones was convicted of murder and sentenced to life in prison in the Superior Court of Fulton County, Georgia.³ At the time of Jones' first conviction, the Official Code of Georgia Annotated

("O.C.G.A.") section 42-9-45(b)⁴ provided that the State Board of Pardons ("Board") must consider those serving life sentences for initial parole consideration after seven years.⁵ Under Georgia Rules & Regulations, Rule 475-3-.05(2), subsequent reconsideration hearings were to take place every three years.⁶

However, five years after being sentenced to life in prison and prior to Jones' initial parole consideration hearing, Jones escaped from prison. While a fugitive, Jones committed a second murder. After he was recaptured in 1982, Jones was sentenced to a second life term.⁷ Before his initial parole consideration hearing, the Board amended Rule 475-3-.05(2) and applied the amendment retroactively.⁸ Parole boards were granted the discretion to increase the time to eight years between subsequent parole reconsideration hearings for those denied initial consideration and serving life sentences.⁹

Jones was first considered for parole in 1989, seven years after his 1982 conviction. At that time, Jones was denied parole and his subsequent parole reconsideration hearing was set, under the 1985 amendment, for eight years later in 1997.¹⁰ However, the Board subsequently amended its rules again in response to the 1991 decision of Akins v. Snow¹¹ by the Eleventh Circuit. The Eleventh Circuit held that the retroactive application of the Georgia Rules changing the time between reconsideration hearings violated the Ex Post Facto Clause of the United States Constitution.¹² Jones' reconsideration hearings were again set for three-year intervals, in 1992 and in 1995.¹³ The Board denied parole each time, citing the "multiple offenses" and "circumstances and nature of the second offense."¹⁴ But, in 1995 the Board read the subsequent decision of California Department of Corrections v. Morales¹⁵ from the United States Supreme Court to overrule Akins.¹⁶ After Jones' 1995 review and denial, the Board scheduled Jones' next parole reconsideration hearing in conformity with its amended rules for eight years later, in 2003.¹⁷

Jones brought an action under 42 U.S.C. Sec. 1983¹⁸ in the Northern District of Georgia alleging that the amendment to Rule 475-3-.05(2) violated the Ex Post Facto Clause of the United States Constitution.¹⁹ He sought a motion for leave to discover evidence for his claim. Citing Morales, the district court granted the petitioner's motion for summary judgment and dismissed Jones' claim.²⁰ Because the amended Rules created "only the most speculative and attenuated possibility" of increasing a prisoner's punishment, the court held that there was no ex post facto violation.²¹

However, on appeal the Eleventh Circuit reversed and distinguished Morales.²² The court of appeals stated that determining whether retroactive application of the Georgia rules violated the Ex Post Facto Clause must focus on the effect on the "prisoner's ultimate date of release."²³ In Morales the Court relied on several factors that the Supreme Court believed safeguarded against producing a "sufficient risk of increasing the measure of punishment attached to covered crimes."²⁴ However, those safeguards were absent from the present case. Unlike in Morales, the Georgia law applies to "all those inmates serving life sentences," does not require a particularized finding of fact as to the reasons for denial, increases the time between parole reconsideration from one to eight years, and grants too much discretion for board review.²⁵ The court also noted that while the purpose behind a statute would never "be a sufficient basis for concluding that a law violated the Ex Post Facto Clause," a change for the purpose of increasing a prisoner's punishment could support that conclusion.²⁶ Furthermore, the Policy Statement of the Board allowing inmates to request an expedited review is insufficient to mitigate the effect on the inmate's punishment because those statements do not carry the weight of law and enforcement is left entirely to the discretion of the Board.²⁷ The Supreme Court granted certiorari and reversed, holding that states are not required to adopt the exact procedures in Morales to satisfy the Ex Post Facto Clause.²⁸

II. Legal Background

The doctrine of holding ex post facto criminal laws void originated several centuries prior to the adoption of the United States Constitution and is deeply rooted in our legal history. During the debate over the Constitution, Alexander Hamilton wrote that "the prohibition of ex post facto laws . . . are perhaps the great[est] securities to liberty and republicanism than any [the Constitution] contains."²⁹ As applied to the states, the Ex Post Facto Clause states, "No State shall. . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts____"³⁰

Colder v. Bull³¹ is the primary case interpreting the meaning and scope of the Ex Post Facto Clause. Justice Chase believed that the purpose of the Ex Post Facto Clause was to prevent abuses by the legislature by giving advance notice to citizens of what actions constitute a crime.³² Chase stated that those laws that are ex post facto laws fall within four categories:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, [sic] in order to convict the offender.³³

Because the ex post facto doctrine is one of the "vital principles in our free Republican governments," any act contrary to the doctrine would be considered an invalid exercise of legislative authority.³⁴

In In re Medley,³⁵ the Supreme Court reiterated its interpretation of the Ex Post Facto Clause to include those laws that are retrospective and "which [alter] the situation of the accused to his disadvantage."³⁶ Petitioner challenged the retroactive application of a statute that required those being held for capital crimes to be held in solitary confinement. The former law, in effect at the time petitioner committed the crime, contained no requirement of this sort.³⁷ The Court held that, because the new statute imposed "additional punishment of the most important and painful character," the act was void under the United States Constitution.³⁸

Beazell v. Ohio³⁹ demonstrates the Court's twentieth-century approach to the Ex Post Facto Clause and assesses the degree to which a retrospective application of a law disadvantages the offender.⁴⁰ Beazell involved an Ohio statute that made discretionary the granting of separate trials for those jointly indicted of felonies, amending an earlier statute that required felons to be tried separately.⁴¹ The Court denied defendant's ex post facto challenge.⁴² The Court explained that determining whether a procedural change violates the Ex Post Facto Clause requires an analysis of the degree to which the person was disadvantaged and cannot be established in a definitive set of rules or propositions.⁴³ Statutory changes that affect a method of trial or deprive an accused of a defense "in a limited or unsubstantial manner to his disadvantage, are not prohibited."⁴⁴

This analysis became the basis for the Court's decision in Lindsey v. Washington*⁴⁵ in which the Court had to determine whether the Ex Post Facto Clause applied to a retroactive application of a statute that removed the possibility of a shorter sentence and made the possibility of parole revocable at will.⁴⁶ The Court held that this sort of statute was ex post facto because it increased the possibility of a penalty by lengthening the required sentence.⁴⁷ "The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer."⁴⁸ Because the petitioners were denied an opportunity to gain their freedom from custody under the shorter term mandated at the time they committed the crime, the new statute was to their "substantial disadvantage."⁴⁹

The Supreme Court would later rely on several lower court opinions utilizing this method of analysis in determining the constitutionality of various changes in parole procedures. In Greenfield v. Scafati⁵⁰ a United States district court held that the retroactive application of a statute that forfeited good conduct deductions for those who violated parole conditions to those already under sentence was to the disadvantage of the accused and violated the Ex Post Facto Clause.⁵¹ The court recognized that statutory reductions in the amount of good conduct allowances after incarceration could be invalidated because they deprived the prisoner of time off he deserved.⁵² The availability of good conduct time is considered an essential element of the crime.⁵³ Furthermore, the fact that parole is discretionary does not mean that depriving a prisoner of parole could never be found ex post facto. The court concluded that entirely...