Garner v. Jones, 529 U.S. 244, 16 (2000)

Page:   Index   Previous  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  Next

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

Scalia, J., concurring in part in judgment

any reason (except, of course, an unlawful one such as race), or for no reason. And where, as here, the length of the reconsideration period is entrusted to the discretion of the same body that has discretion over the ultimate parole determination, any risk engendered by changes to the length of that period is merely part of the uncertainty which was inherent in the discretionary parole system, and to which respondent subjected himself when he committed his crime.

It makes no more sense to freeze in time the Board's discretion as to procedures than it does to freeze in time the Board's discretion as to substance. Just as the Ex Post Facto Clause gives respondent no cause to complain that the Board in place at the time of his offense has been replaced by a new, tough-on-crime Board that is much more parsimonious with parole, it gives him no cause to complain that it has been replaced by a new, big-on-efficiency Board that cuts back on reconsiderations without cause. And the change in policy is irrelevant, in my view, whether or not the preexisting policy happens to have been embodied in a policy statement or regulation. To make the constitutional prohibition turn upon that feature would be to ignore reality and to discourage measures that promote fairness and consistency. Such a policy statement or regulation, in the context of a system conferring complete discretion as to substance and as to the timing of hearings upon the Board, simply creates no reasonable expectation of entitlement, except perhaps among prisoners whose parole hearings are held (or are scheduled to be held) while the regulation is in effect. This is not an expectation of the sort that can give rise to ex post facto concerns.

In essence, respondent complains that by exercising its discretion (as to the frequency of review), the Board has deprived him of the exercise of its discretion (as to the question of his release). In my view, these are two sides of the same coin—two aspects of one and the same discretion—and respondent can have no valid grievance.


Page:   Index   Previous  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  Next

Last modified: October 4, 2007