Jones v. Georgia State Bd. of Pardons and Paroles

• Decision Date: 28 July 1995
• Docket Number: No. 92-9166,92-9166
• Citation: 59 F.3d 1145
• Parties: James Huston JONES, and all others similarly situated, Plaintiff-Appellant, v. GEORGIA STATE BOARD OF PARDONS AND PAROLES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1145

59 F.3d 1145

James Huston JONES, and all others similarly situated Plaintiff-Appellant, v. GEORGIA STATE BOARD OF PARDONS AND PAROLES, et al Defendants-Appellees.

No. 92-9166.

United States Court of Appeals Eleventh Circuit.

July 28, 1995.

Donald F. Samuel, Atlanta, GA, for appellant.

William F. Amideo, State Law Dept., Atlanta, GA, for appellees.

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

Before KRAVITCH and CARNES, Circuit Judges, and HAND ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

This is a class action, brought under 42 U.S.C. Sec. 1983, on behalf of certain Georgia state prisoners classified as Level V offenders under the Georgia Parole Decision Guidelines System (the "Guidelines"). The class contends that a recent change in the method for calculating the Tentative Parole Month ("TPM") of Level V offenders under the Guidelines has been applied retroactively in violation of the Ex Post Facto Clause of the United States Constitution. The class also challenges this modification on substantive due process grounds, contending that class members were sentenced on the basis of inaccurate information because state trial judges were unaware of the impending change in parole rules. Concluding that the use of the new method did not result in any constitutional violations, the district court granted summary judgment in favor of the Georgia State Board of Pardons and Paroles (the "Board"). We DISMISS the appeal in part as moot, and AFFIRM in part.

I.

The Board adopted the Guidelines in the late 1970's to promote consistency and rationality in its parole decisionmaking. See Sultenfuss v. Snow, 35 F.3d 1494, 1496-97 (11th Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1254, 131 L.Ed.2d 134 (1995). "The Guidelines establish a step-by-step procedure for the Board to follow in making parole determinations for eligible inmates." Id. at 1497. The Board assigns each inmate a Crime Severity Level ("CSL") ranging from I to VII and a Parole Success Likelihood Score ("PSLS") of excellent, good, average, fair, or poor. See id. ¹ The Parole Decision Grid (the "Grid") supplies a months-to-serve recommendation for each CSL/PSLS combination. See id. The actual TPM, however, is not necessarily set at the time recommended by the Grid--the Board exercises significant discretion in making its parole decisions and freely may depart up or down from the Guidelines "benchmark" recommendation in fixing the TPM. See id. at 1497, 1500-03.

During the entire period that the Board has utilized the Guidelines, O.C.G.A. Sec. 42-9-45(b) has required that "[a]n inmate serving a felony sentence or felony sentences shall only be eligible for consideration for parole after the expiration of nine months of his sentence or one-third of the time of the sentences, whichever is greater." In Charron v. State Board of Pardons & Paroles, 253 Ga. 274, 319 S.E.2d 453, 455 (1984), however, the Georgia Supreme Court construed this provision as precatory rather than mandatory, thus avoiding its invalidation on state constitutional grounds. ² Consequently, between 1983 and 1991, the Board, to alleviate prison overcrowding, chose not to comply fully with Sec. 42-9-45(b).

Rather, during this period, the Board maintained a two-tiered parole regime. The benchmark for the TPM of prisoners with CSLs of VI or VII was supplied, prior to any discretionary departure, by choosing the greater of (i) the existing grid recommendation or (ii) one-third of the court-imposed sentence. By contrast, the benchmark for the TPM of prisoners with CSLs of I through V was determined, prior to any discretionary departure, solely by reference to the Grid. For CSL V offenders, ³ the Grid recommended serving 20 months imprisonment for a PSLS of excellent, 25 months for a PSLS of good, 30 months for a PSLS of average, 40 months for a PSLS of fair, and 52 months for a PSLS of poor.

On January 22, 1991, the Board adopted a new rule, extending the one-third-of-sentence method for calculating the benchmark TPM already used for CSL VI and VII prisoners to CSL V offenders as well. The class filed suit, challenging retroactive application of the new rule. For the purpose of the ex post facto claim, the class in the district court consisted of all incarcerated CSL V offenders whose crimes were committed prior to January 22, 1991 and who were potentially disadvantaged by the application of the new rule--i.e. those prisoners whose court-imposed sentence was of such duration that one-third of that sentence exceeded the existing grid recommendation and consequently constituted their new benchmark TPM. ⁴ For the purpose of the due process claim, the plaintiff class consisted of a subclass of the ex post facto class--i.e. those prisoners who also were both convicted and sentenced prior to January 22, 1991.

The district court reasoned that because the Board's ultimate parole authority remained discretionary both before and after January 22, 1991, and TPMs were, by definition, only tentative, retroactive application of the new rule did not constitute an ex post facto violation. The district court also rejected the class's due process argument. Accordingly, the court granted summary judgment in favor of the Board.

II.

Resolution of this appeal was held in abeyance pending our en banc decision in Sultenfuss and then again pending the Supreme Court's decision in California Dep't of Corrections v. Morales, --- U.S. ----, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). In the meantime, this case has become moot as to a portion of the plaintiff class. For some, the case is moot simply because they by now have been paroled. See United States ex rel. Graham v. United States Parole Commission, 732 F.2d 849, 850 (11th Cir.1984) (where prisoner challenged change in parole regulations as ex post facto and sought parole determination under previous rules, appeal was mooted by parole). ⁵ The case also is moot as to others who have served one-third or more of their sentence but have not been paroled. The relief sought by the class was not actual release on parole but simply the setting of a tentative parole date pursuant to the old rather than the new rules--and to those few class members who have reached the new benchmark TPM date without having been paroled, that relief is now of no use. Accordingly, the appeal of this portion of the class is DISMISSED.

III.

We next consider the merits of the remaining class members' ex post facto argument. ⁶ Article I, Sec. 10, clause 1 of the United States Constitution provides that "[n]o State shall ... pass any ... ex post facto Law." This clause incorporates "a term of art with an established meaning at the time of the framing of the Constitution," prohibiting:

'1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of commission of the offence, in order to convict the offender.'

Collins v. Youngblood, 497 U.S. 37, 41-42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990) (quoting, in part, Calder v. Bull, 3 U.S. (Dall.) 386, 390, 1 L.Ed. 648 (1798)) (emphasis omitted). In this case, we consider the potential applicability of the third proscription, inquiring whether the TPM rule change retroactively ⁷ "increases the 'punishment' attached to [appellants'] crime[s]." Morales, --- U.S. at ----, 115 S.Ct. at 1601. ⁸

The Supreme Court repeatedly has held that a prisoner need not show that he definitely would have served a lesser sentence under the previous legal regime in order to demonstrate an ex post facto violation. See Miller, 482 U.S. at 432, 107 S.Ct. at 2452; Weaver, 450 U.S. at 33, 101 S.Ct. at 966; Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). In other words, the mere presence of some discretion both before and after the change in the law does not in and of itself foreclose an ex post facto claim. See Miller, 482 U.S. at 432-33, 107 S.Ct. at 2452-53. ⁹ At the same time, however, the Court has emphasized that the Ex Post Facto Clause does not "forbid[ ] any legislative change that has any conceivable risk of affecting a prisoner's punishment." Morales, --- U.S. at ----, 115 S.Ct. at 1602. The pertinent question, then, is whether the change in the method for calculating the TPM "produce[d] a sufficient risk of increasing the measure of punishment attached to the covered crimes." Id. (emphasis added). ¹⁰

In our view, the key to answering this question lies in the undisputed fact that, both before and after the January 22, 1991 rule change, the Board retained and in fact exercised virtually unfettered discretion to deviate both above and below the Guidelines-recommendation in setting the TPM. The statistics proffered by the plaintiff class demonstrate nothing more. Given this fact, the outcome of this appeal is dictated by the Supreme Court's recent decision in Morales. In that case, the Court noted that the parole rule change under consideration was unlikely to "extend any prisoner's actual period of confinement," id. at ----, 115 S.Ct. at 1605, as "[t]he amendment ... left unchanged the substantive formula for securing any reductions to [the applicable] sentencing range," id. at ----, 115 S.Ct. at 1602, instead "simply 'alter[ing] the method to be followed' in fixing a parole release date under identical substantive standards." Id. (quoting in part Miller, 482 U.S. at 433, 107 S.Ct. at 2452-53). The same is true of the TPM rule modification at issue in this case. Consequently, here, as in Morales, the degree of the Board's...