Garner v. Jones, 529 U.S. 244, 17 (2000)

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Souter, J., dissenting

Justice Souter, with whom Justice Stevens and Justice Ginsburg join, dissenting.

I think the Court of Appeals made no error here and so respectfully dissent from the reversal. A change in parole policy violates the Ex Post Facto Clause if it creates a "sufficient," California Dept. of Corrections v. Morales, 514 U. S. 499, 509 (1995), or substantial risk that the class affected by the change will serve longer sentences as a result.1 To determine the likelihood that the change at issue here will lengthen sentences, we need to look at the terms of the new Rule, and then at the possibility that the terms are mitigated by a practice of making exceptions.

Before the board changed its reconsideration Rule, a prisoner would receive a second consideration for parole by year 10, whereas now the second consideration must occur only by year 15; those who would receive a third consideration at year 13 will now have no certain consideration until year 23, and so on. An example of the effect of the longer intervals between mandatory review can be seen by considering the average term served under the old Rule. In 1992, a member of the Georgia Legislature stated that the average life-sentenced inmate served 12 years before parole. See Spotts, Sentence and Punishment: Provide for the Imposition of Life Sentence Without Parole, 10 Ga. St. U. L. Rev. 183, 183, and n. 4 (1993). Some prisoners must have been pa-1 In the first instance, at least, our cases have traditionally evaluated the effect of the change on the class subject to the new rule, rather than focusing solely on the individual challenging the change, Weaver v. Graham, 450 U. S. 24, 33 (1981). It can be difficult, if not impossible, for one person to prove that a change in penal policy has increased the quantum of punishment beyond what he would previously have received, since a sentencing decision is often a mix of rules and discretion. See Lindsey v. Washington, 301 U. S. 397, 401 (1937). At the same time, when one looks at the affected class it can be quite clear that punishment has increased overall. That is proof enough that the new Rule applied retroactively violates the Ex Post Facto Clause and, as an invalid rule, should not be applied to anyone within the class.

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