Garner v. Jones, 529 U.S. 244, 15 (2000)

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258

GARNER v. JONES

Scalia, J., concurring in part in judgment

California's Board of Prison Terms discretion to decrease the frequency. See California Dept. of Corrections v. Morales, 514 U. S. 499, 503 (1995); ante, at 250. Here, there has been no such change. Today, as at the time of respondent's offense, the Georgia statute requires only that the Board provide for automatic "periodic reconsideration," Ga. Code Ann. 42-9-45 (1982). The length of the period, like the ultimate question of parole, was and is entrusted to the Board's discretion.

Any sensible application of the Ex Post Facto Clause, and any application faithful to its historical meaning, must draw a distinction between the penalty that a person can anticipate for the commission of a particular crime, and opportunities for mercy or clemency that may go to the reduction of the penalty. I know of no precedent for the proposition that a defendant is entitled to the same degree of mercy or clemency that he could have expected at the time he committed his offense. Under the traditional system of minimum-maximum sentences (20 years to life, for example), it would be absurd to argue that a defendant would have an ex post facto claim if the compassionate judge who presided over the district where he committed his crime were replaced, prior to the defendant's trial, by a so-called "hanging judge." Discretion to be compassionate or harsh is inherent in the sentencing scheme, and being denied compassion is one of the risks that the offender knowingly assumes.

At the margins, to be sure, it may be difficult to distinguish between justice and mercy. A statutory parole system that reduces a prisoner's sentence by fixed amounts of time for good behavior during incarceration can realistically be viewed as an entitlement—a reduction of the prescribed penalty—rather than a discretionary grant of leniency. But that is immeasurably far removed from the present case. In Georgia parole, like pardon (which is granted or denied by the same Board), is—and was at the time respondent committed his offense—a matter of grace. It may be denied for

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