264
Souter, J., dissenting
cient standing alone to preclude an ex post facto challenge, this is surely wrong. The policy statement on which the majority is willing to rely, see App. 56, gives a prisoner no assurance that new information or changed circumstances will matter, even assuming that prisoners are aware (and able to take advantage) of their limited ability to ask the board to change its mind. Because in the end the board's ability to reconsider based on a "change in [a prisoner's] circumstance or where the Board receives new information," ibid., is entirely discretionary, free of all standards, an 8-year period before further consideration of parole made solely upon review of an inmate's file has to create a real risk of longer confinement.
A further word about the absence of record evidence of practice under the new Rule is in order. One reason that there is none is that Georgia resisted discovery. In this Court, it sought to compensate for the absence of favorable evidence by lodging documents recounting parole reconsiderations before the mandatory reconsideration date. But every instance occurred after the Eleventh Circuit had ruled against the State.4 These examples of reconsiderations are the parole equivalent of fixing the broken front steps after the invited guest has slipped, fallen, and seen a lawyer; they do nothing to show that the board's own interpretation of its policy mitigated the risk of increased punishment.5
4 Georgia's statistics show only that, in fiscal year 1999, about 20% of inmates received reconsideration dates of three years or less; about 10% got reconsideration dates more than three years but less than eight, and 70% got 8-year dates. See App. to Reply Brief for Petitioners 9. Eighty percent were therefore at least potentially negatively affected by the change from a 3-year to an 8-year delay in reconsideration. Even on their own terms, then, the statistics do not show that board policies mitigate the substantial risk of increased punishment.
5 Indeed, as the board explains its decisionmaking procedures, "[t]he overriding factor in determining whether or not to parole a person under life sentence is the severity of the offense." Georgia Board of Pardons
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