Garner v. Jones, 529 U.S. 244, 20 (2000)

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

Souter, J., dissenting

the reviews that the old Rule would have guaranteed will in fact serve longer sentences.3

Thus, I believe the Eleventh Circuit properly granted summary judgment for respondent. Although Georgia argues that the board freely makes exceptions to the 8-year Rule in appropriate cases, the State provided no evidence that the board's occasional willingness to reexamine cases sufficiently mitigates the substantial probability of increased punishment. While the majority accepts the argument that, even without evidence of practice, the board's discretion to revisit its assignment of a reconsideration date may be suffi-3 The majority suggests, ante, at 252, that the Court required no particular procedural safeguards in California Dept. of Corrections v. Morales, even though the Court mentioned those safeguards as an important factor in its conclusion that there was no increase in the quantum of punishment in that case, see 514 U. S., at 511-512. This is true, but it does not address the problem with Georgia's virtually unbounded scheme. Once the risk of increased punishment exists, the board's nearly nonexistent safeguards provide no way of reducing that risk.

Georgia insists that its lack of procedural safeguards is irrelevant to this case, because due process does not require much in the way of procedural safeguards for parole. But that is beside the point. The challenge here is to the retroactive increase in the quantum of punishment. Unlike the California procedure for delaying parole reconsideration in Morales, the Georgia procedure here includes no actual hearing for the prisoner whose reconsideration is delayed five extra years, and the board is not required to explain itself. Georgia's procedural minimalism increases the likelihood that prisoners will get rubberstamp treatment, and decreases the likelihood that the exceptions to the policy on which the majority relies will actually be applied in a way that diminishes the significant probability of increased punishment. Cf. Penson v. Ohio, 488 U. S. 75, 81-82, n. 4 (1988) (stating that a requirement to give written reasons provides an inducement to make careful decisions in cases that might otherwise be summarily ignored); Smith v. Robbins, 528 U. S. 259, 290-291 (2000) (Stevens, J., dissenting) (noting that the process of writing out reasons for decision improves the quality of the decision and can reveal error). Parole need not operate under rigidly defined procedures, but if the board decides to make changes retroactive, it must do something to prevent those changes from increasing punishment in violation of the Ex Post Facto Clause.


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