Garner v. Jones, 529 U.S. 244, 18 (2000)

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

Souter, J., dissenting

roled before 12 years. But those who would have been paroled when considered a second time at year 10 or a third time at year 13 will now be delayed to year 15. While the average helps to show the effects Georgia's new Rule is likely to have on some prisoners who would be released at the early end of the parole spectrum, the changed Rule threatens to increase punishment for all life-sentenced prisoners, not just those who would have been paroled at or before the average time. If a prisoner who would have been paroled on his fourth consideration in year 16 under the old Rule has to wait until his third consideration in year 23 under the new Rule, his punishment has been increased regardless of the average.

Georgia, which controls all of the relevant information, has given us nothing to suggest the contrary. It has given us no basis to isolate any subclass of life prisoners subject to the change who were unlikely to be paroled before some review date at which consideration is guaranteed under the new Rule. On the contrary, the terms of the Rule adopted by the State define the affected class as the entire class of life-sentenced prisoners, and the natural inference is that the Rule affects prisoners throughout the whole class. This is very different from the situation in Morales, in which it was shown that 85% of the affected class were found unsuited for parole upon reconsideration. Morales, supra, at 511. At some point, common sense can lead to an inference of a substantial risk of increased punishment, and it does so here.

The significance of that conclusion is buttressed by statements by the board and its chairman, available at the board's official website, indicating that its policies were intended to increase time served in prison. See Georgia State Board of Pardons and Paroles, News Releases, Policy Mandates 90% Prison Time for Certain Offenses (Jan. 2, 1998), http:// 98.html ("Since 1991 the Board has steadily and consistently amended and refined its guidelines and policies to provide for lengthier prison service for


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