OCTOBER TERM, 1999
certiorari to the united states court of appeals for the eleventh circuit
No. 99-137. Argued January 11, 2000—Decided March 28, 2000
Respondent escaped while serving a life sentence for murder, committed another murder, and was sentenced to a second life term. Georgia law requires the State's Board of Pardons and Paroles (Board) to consider inmates serving life sentences for parole after seven years. At the time respondent committed his second offense, the Board's Rule 475-3-.05(2) required that reconsiderations for parole take place every three years. Acting pursuant to statutory authority, the Board subsequently extended the reconsideration period to at least every eight years. The Board has the discretion to shorten that interval, but declined to do so when it applied the amended Rule in respondent's case, citing his multiple offenses and the circumstances and nature of his second offense. Respondent sued petitioner Board members, claiming that retroactive application of the amended Rule violated the Ex Post Facto Clause. The District Court denied respondent's motion for discovery and awarded petitioners summary judgment. The Eleventh Circuit reversed. It found that the amended Rule's retroactive application was necessarily an ex post facto violation and that the Rule differed in material respects from the change in California parole law sustained in California Dept. of Corrections v. Morales, 514 U. S. 499. It did not consider the Board's internal policies regarding its implementation of the Rule, finding, among other things, that such policies were unenforceable and easily changed.
1. The Court of Appeals' analysis failed to reveal whether retroactive application of the amendment to Rule 475-3-.05(2) violated the Ex Post Facto Clause. The controlling inquiry is whether such application creates a sufficient risk of increasing the measure of punishment attached to the covered crimes. Morales, supra, at 509. Here, the question is whether amended Rule 475-3-.05(2) creates a significant risk of prolonging respondent's incarceration. That risk is not inherent in the amended Rule's framework, and it has not otherwise been demonstrated on the record. While Morales identified several factors convincing thisPage: Index 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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