Garner v. Jones, 529 U.S. 244, 12 (2000)

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

Opinion of the Court

the discretion it had from the outset. Given respondent's criminal history, including his escape from prison and the commission of a second murder, it is difficult to see how the Board increased the risk of his serving a longer time when it decided that its parole review should be exercised after an 8-year, not a 3-year, interval. Yet if such a risk develops, respondent may, upon a showing of either "a change in [his] circumstance[s]" or the Board's receipt of "new information," seek an earlier review before the 8-year interval runs its course.

We do not accept the Court of Appeals' supposition that Rule 475-3-.05(2) "seems certain" to result in some prisoners serving extended periods of incarceration. 164 F. 3d, at 595. The standard announced in Morales requires a more rigorous analysis of the level of risk created by the change in law. Cf. 514 U. S., at 506-507, n. 3 ("After Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of 'disadvantage' . . . but on whether any such change . . . increases the penalty by which a crime is punishable"). When the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule. The litigation in Morales concerned a statute covering inmates convicted of more than one homicide and proceeded on the assumption that there were no relevant differences between inmates for purposes of discerning whether retroactive application of the amended California law violated the Ex Post Facto Clause. In the case before us, respondent must show that as applied to his own sentence the law created a significant risk of increasing his punishment. This remains the issue in the case, though the general operation of the Georgia parole system may produce relevant evidence and inform further analysis on the point.


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