Garner v. Jones - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 99-137, Garner against Jones will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: After escaping from a Georgia prison where he was serving a life sentence for a murder conviction, the respondent committed a second murder; he was apprehended and again sentenced to a life term.

At the time he committed the second murder, the Georgia Law required that respondent first be considered for parole after seven years, and then assuming parole was denied every three years thereafter.

The parole Board acting under statutory authority lengthened the interval between reconsideration’s date.

Its new rule took effect after the respondent was convicted and sentenced.

Under the new rule, parole reviews take place at least every eight years.

Under a policy of the parole board however, a prisoner can receive early review upon a showing of a change in circumstances or upon the Parole Board’s receipt of new information bearing on his suitability for release.

In 1995 after the Parole Board decided not to consider him for release for another eight years, respondent brought suit in the Federal Court.

He claimed that the Parole Board’s retroactive application of this new rule violated the Ex Post Facto Clause of the United States Constitution.

Respondent asserted that the less frequent parole reviews would result in a lengthened period of incarceration, and therefore that increased the punishment, a result that is prohibited by the Ex Post Facto Clause.

The District Court rejected the respondent’s claim; it determined that the new rule changed only the timing between reconsideration hearings, thereby relieving the Parole Board of the necessity of conducting parole hearings for inmates with no reasonable chance of early release.

The United States Court of Appeals for the Eleventh Circuit reversed; it relied upon differences between the Parole Board’s new rule and the California Law sustained in our decision in the Department of Corrections versus Morales.

The Eleventh Circuit concluded that permitting an eight year interval between parole review seems certain to increase some inmates period of incarceration.

The Court of Appeals gave no regard to the Parole Board’s internal policies which do permit expedited reviews upon showing of changed circumstances as I have indicated.

We now reverse and remand for further proceedings, a prisoner alleging that a law changing the frequency of parole reviews violates the Ex Post Facto Clause must demonstrate that the new law creates a significant risk of prolonging his incarceration.

Today’s opinion outlines the broad discretion Georgia Law vests with the Parole Board.

Our analysis rest upon the premise that the Board will exercise its discretion in accordance with each inmate’s likelihood of release between reconsideration dates.

Respondent’s personal circumstances, is having committed two murders well illustrates how the new rule will enable the Parole Board to put its resources to better use; to concentrate on those prisoners having a good possibility of early release.

It’s difficult to see how the Board increased the risk of respondent serving a longer time, when it decided that his parole review should be exercised after an eight-year, and not a three-year interval.

Yet, if such a risk develops, respondent may invoke the Board’s internal policies to request expedited review.

It was error for the Court of Appeals to say that Parole Board’s policies were of no relevance in the case.

The Parole Board’s statements at a minimum provide important instruction as to how the Board exercises its discretion in making parole decisions.

Respondent claims he is not been permitted sufficient discovery to demonstrate a violation, and this matter can be addressed on remand by either the Court of Appeals or as need be by the District Court in the first instance.

Justice Scalia has filed an opinion concurring in part and concurring in the judgment; Justice Souter has filed a dissenting opinion, which Justices Stevens and Ginsburg join.