Akins v. Snow

• Decision Date: 07 February 1991
• Docket Number: No. 89-8622,89-8622
• Parties: C.T. AKINS, Jay M. Fate, Plaintiffs-Appellants, Michael Schroeder, Plaintiff, v. Wayne SNOW, Jr., Chairman State Board of Pardons & Paroles, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1558

922 F.2d 1558

C.T. AKINS, Jay M. Fate, Plaintiffs-Appellants, Michael Schroeder, Plaintiff, v. Wayne SNOW, Jr., Chairman State Board of Pardons & Paroles,

Defendant-Appellee.

No. 89-8622.

United States Court of Appeals, Eleventh Circuit.

Feb. 7, 1991.

Howard O. Hunter, Dean, Emory Law School, Atlanta, Ga., for plaintiffs-appellants.

Michael J. Bowers, Atty. Gen., William Bradley Hill, Jr., Herman Perry Michael, Daryl Alan Robinson, Carlton LaTain Kell, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern of Georgia.

Before EDMONDSON and COX, Circuit Judges, and WISDOM ^*, Senior Circuit Judge.

COX, Circuit Judge:

I. FACTS AND PROCEDURAL HISTORY

In October 1988, C.T. Akins and Jay Fate ¹ filed this action under 42 U.S.C. Sec. 1983 seeking declaratory and injunctive relief or in the alternative compensatory and punitive damages, against Wayne Snow, chairman of the Georgia State Board of Pardons and Paroles (the Board). ² As the basis for their section 1983 action, Akins and Fate allege that the Board's application of the 1986 parole rules and regulations to their cases violates their substantive due process rights under the Fourteenth Amendment and the ex post facto clause of the United States Constitution, art. I, Sec. 10, cl. 1.

Both appellants in this case are inmates serving life terms at the Georgia State Prison in Reidsville, Georgia. The crime for which Akins was convicted was committed in 1972; the crime for which Fate was convicted was committed in 1977. When these crimes were committed, the Board's rules required the Board to initially consider an inmate serving a life term for parole after serving seven years of his life sentence. ³ If the Board denied an inmate parole at this initial hearing, the rules required the Board thereafter to hold an annual hearing to reconsider its parole decision. ⁴

In September 1980, the Board held Akins's initial parole hearing and denied him parole. The Board reconsidered Akins for parole annually through 1986. In September 1986, the Board, pursuant to new rules, scheduled Akins for another parole reconsideration hearing in 1994. ⁵ These new rules only require the Board to reconsider an inmate for parole once every eight years after the denial of parole. ⁶

Fate received his first parole consideration hearing in July 1984. The Board refused to grant him parole at that time and deferred reconsideration of this decision until the following year. At the subsequent reconsideration hearing the Board again denied Fate parole but this time, pursuant to the new rules, did not schedule another reconsideration hearing until 1993.

After the Board failed to hold a number of annual reconsideration hearings for Akins and Fate, they filed this action alleging a due process and ex post facto clause violation. The district court, in ruling on cross-motions for summary judgment, denied Akins's and Fate's motion but granted Snow's summary judgment motion. On the due process claim, the court held that Akins and Fate did not have, under the original or revised rules, a "liberty interest nor a protectable expectation of release." R.1-13-3. On the ex post facto claim, the court held that "as a matter of law, the postponement of reconsideration for parole is not a punishment subject to the ex post facto clause." Id. The district court based its ex post facto ruling upon Damiano v. Florida Parole and Probation Commission, 785 F.2d 929 (11th Cir.1986), in which this court held that parole postponement is "merely a disappointment rather than a punishment...." Id. at 933. ⁷ Akins and Fate only appeal the district court's ruling relating to their ex post facto claim.

II. DISCUSSION

An appellate court reviews summary judgment decisions de novo. Tackitt v. Prudential Ins. Co., 758 F.2d 1572, 1574 (11th Cir.1985). Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).

The Constitution provides that "[n]o State shall ... pass any ... ex post facto Law...." U.S. Const. art. I, Sec. 10, cl. 1. At the time the Constitution was drafted, the phrase "ex post facto law" was a term of art with a well-established meaning. See Calder v. Bull, 3 U.S. (Dall.) 386, 1 L.Ed. 648 (1798). Justice Chase's opinion in Calder v. Bull, 3 U.S. (Dall.) 386, 1 L.Ed. 648 (1798), identified several legislative acts that clearly implicated the core concerns of the various ex post facto clauses that existed at the time of the Constitution's framing. One such legislative act he noted was: "Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed." Id. at 390, 1 L.Ed. at 650 (opinion of Chase, J.) (emphasis in original). The Supreme Court's ex post facto rulings have been faithful to the original principle that "every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed," violates the ex post facto provision. See Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351 (1987); Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977); Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937); Rooney v. North Dakota, 196 U.S. 319, 324-325, 25 S.Ct. 264, 265-266, 49 L.Ed. 494 (1905); In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 387, 33 L.Ed. 835 (1890); Cummings v. Missouri, 71 U.S. 277, 325-326, 18 L.Ed. 356, 363-364 (1867); Calder v. Bull, 3 U.S. (Dall.) 386, 390, 1 L.Ed. 648, 650 (1798).

Before addressing the substantive issue of whether the Board's action violates the ex post facto clause, three preliminary issues must be discussed. First, are the Board's rules laws within the meaning of the ex post facto clause? Second, are parole reconsideration hearings a part of parole eligibility? Third, are the ex post facto clause's restrictions applicable to a change in parole eligibility?

Regarding the first preliminary issue, the Georgia legislature has delegated to the Board the authority to enact "rules and regulations" concerning parole. Ga.Code Ann. Sec. 77-525 (Harrison 1969); O.C.G.A. Sec. 42-9-45 (1989). This delegation mandates that the Board's rules and regulations "contain an eligibility requirement for parole which shall set forth the time when the automatic initial consideration for parole of inmates under the jurisdiction of the Department of Corrections shall take place and also the times at which periodic reconsideration thereafter shall take place." Id.

If the Georgia legislature had passed the parole reconsideration rule at issue, the rule clearly would be a law and the ex post facto clause would obviously apply. The inquiry is whether the Board's rule is the equivalent of a law for ex post facto purposes.

The effect of the legislature's delegation is to grant the Board quasi-legislative power. The Board's rules and regulations have the force and effect of law. Since the legislature delegated to the Board the power to enact rules and regulations concerning parole reconsideration, the rules or regulations enacted by the Board are subject to the ex post facto clause's prohibitions. Decisions in other circuits, involving similar circumstances, support this conclusion. See Rodriguez v. United States Parole Comm'n, 594 F.2d 170, 174 (7th Cir.1979) ("This rule must be viewed as tantamount to a statute for the purpose of determining whether its application to Rodriguez runs afoul of the ex post facto clause."); Love v. Fitzharris, 460 F.2d 382, 385 (9th Cir.1972), vacated, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973) (a state parole authority's change in the interpretation of a parole eligibility provision is subject to ex post facto constraints because the agency's interpretation had the effect of law).

The second preliminary issue concerns whether a parole reconsideration hearing is a part of a prisoner's parole eligibility. Under the Georgia parole system, an inmate serving a life sentence becomes eligible for parole consideration after serving seven years of his sentence. This means that the inmate is given a parole consideration hearing, ⁸ and the Board then determines if he is suitable for release based on a number of factors. If the inmate is denied parole at this initial hearing the Board schedules a parole reconsideration hearing at a later date. ⁹ If the inmate is denied parole at the reconsideration hearing, the Board schedules the inmate for another reconsideration hearing at a later date. Since the Board is required to hold some type of parole reconsideration hearing before granting parole, ¹⁰ an inmate is effectively ineligible for parole between two parole reconsideration hearings. Because an inmate is not paroled without a parole reconsideration hearing, the hearing must be considered an essential part of parole eligibility.

The conclusion that a parole reconsideration hearing is an essential part of parole eligibility under Georgia's parole system is supported by the language of the statute delegating to the Board the power to enact rules and regulations concerning parole. The statute provides that "[s]uch rules and regulations shall contain an eligibility requirement for parole which shall set forth the time when the automatic initial consideration of inmates ... shall take place and also the times at which periodic reconsideration thereafter shall take place...." Ga.Code Ann. Sec. 77-525 (Harrison 1969) (emphasis added); see also O.C.G.A. Sec. 42-9-45 (1989). This language indicates that the legislature considers a parole reconsideration hearing an essential and important part of parole eligibility.

The Seventh Circuit's decision in Rodriguez v. United States Parole Commission, 594 F.2d 170 (7th Cir.1979), also supports our conclusion. Rodriguez was...