Garner v. Jones, 529 U.S. 244, 14 (2000)

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

Scalia, J., concurring in part in judgment

ing inmates' requests for early review. See 514 U. S., at 512-513 (citing Reply Brief for Petitioner, O. T. 1994, No. 93-1462, p. 3, n. 1). The policy statement here, by contrast, is a formal, published statement as to how the Board intends to enforce its Rule. It follows a fortiori from Morales that the Court of Appeals should not have disregarded the policy. Absent any demonstration to the contrary from respondent, we respect the Board's representation that inmates, upon making a showing of a "change in their circumstance[s]" or upon the Board's receipt of "new information," may request expedited consideration. App. 56.

The Court of Appeals' analysis failed to reveal whether the amendment to Rule 475-3-.05(2), in its operation, created a significant risk of increased punishment for respondent. Respondent claims he has not been permitted sufficient discovery to make this showing. The matter of adequate discovery is one for the Court of Appeals or, as need be, for the District Court in the first instance. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Scalia, concurring in part in the judgment.

I would agree with the Court's opinion if we were faced with an amendment to the frequency of parole-eligibility determinations prescribed by the Georgia Legislature. Since I do not believe, however, that a change in frequency prescribed by the Georgia State Board of Pardons and Paroles (Board) would violate the Ex Post Facto Clause even if it did pose a sufficient "risk" of decreasing the likelihood of parole, I would reverse the decision of the Eleventh Circuit without the necessity of remand.

The Court treats this case as a mere variation on the Morales theme, whereas in reality it contains a critical difference: In Morales, the frequency of parole suitability hearings had been fixed by law, and a legislative change had given


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