Garner v. Jones, 529 U.S. 244, 10 (2000)

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Cite as: 529 U. S. 244 (2000)

Opinion of the Court

See also 42-9-43 (listing information the Board should consider, including wardens' reports, results of physical and mental examinations, and reports regarding prisoners' performance in educational programs). These provisions illustrate the broad discretion the Parole Board possesses in determining whether an inmate should receive early release. Accord, Sultenfuss v. Snow, 35 F. 3d 1494, 1501-1502 (CA11 1994) (en banc) (describing the discretion Georgia law vests with Parole Board). Only upon a showing that the Board engaged in a "gross abuse of discretion" can a prisoner challenge a parole denial in the Georgia courts. Lewis v. Griffin, 258 Ga. 887, 888, n. 3, 376 S. E. 2d 364, 366, n. 3 (1989).

The presence of discretion does not displace the protections of the Ex Post Facto Clause, however. Cf. Weaver, 450 U. S., at 30-31. The danger that legislatures might disfavor certain persons after the fact is present even in the parole context, and the Court has stated that the Ex Post Facto Clause guards against such abuse. See Miller v. Florida, 482 U. S. 423, 429 (1987) (citing Calder v. Bull, 3 Dall. 386, 389 (1798) (Chase, J.)). On the other hand, to the extent there inheres in ex post facto doctrine some idea of actual or constructive notice to the criminal before commission of the offense of the penalty for the transgression, see Weaver, supra, at 28-29, we can say with some assurance that where parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender's release, along with a complex of other factors, will inform parole decisions. See, e. g., Justice v. State Board of Pardons and Paroles, 234 Ga. 749, 751-752, 218 S. E. 2d 45, 46-47 (1975) (explaining, by illustration to one prisoner's circumstances, that parole decisions rest upon the


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