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No Liberty Interest in GA Parole Rules

In the April, 1994, issue of PLN we reported Sultenfuss v. Snow, 7 F.3d 1543 (l1th Cir 1993).  Stephen Sultenfuss is a Georgia state prisoner serving sentences for two drug convictions. Under the rules of the Georgia Board of Pardons and Parole (GBPP) he should have served 10 months in prison. Disregarding their own rules the GBPP imposed a period of 62 months of incarceration before parole.

Sultenfuss filed suit under § 1983 with several other Georgia prisoners alleging that the GBPPs actions, not following their own rules, violated the plaintiffs rights to due process and equal protection of the law. The district court dismissed the suit as being frivolous under 28 U.S.C. § 1915(of). The court of appeals for the eleventh circuit reversed and remanded holding that Georgia parole board rules created a due process liberty interest. The court of appeals for the eleventh circuit granted a rehearing en banc and in its new 6 to 5 ruling reversed itself, holding that Georgia parole rules do not create a liberty interest. This case represents a major setback for Georgia state prisoners.

The appeals court gave an extensive discussion of state created liberty interests and cites extensive case law where state parole rules have been found to create a due process liberty interest. This is in the context that prisoners have no fundamental right to parole and parole boards have wide discretion, unless channeled by statute, to grant or deny parole.

The court gave an extensive explanation of the Georgia parole system and the rules used to calculate a prisoners actual term of confinement.  The court held that Georgia parole guidelines do not substantially limit the parole boards discretion as to whether or not they grant parole. "... we find that Georgias parole system does not place limitations on the Boards discretion sufficient to create a liberty interest in parole." Likewise, the parole statutes and regulations do not mandate release if certain predicates are met. Quite the opposite, "the Georgia statutes actually create a presumption against parole."  "Thus, while the legislature has required the Board to adopt a guideline system to be used as a framework for making more consistent parole decisions, it also preserved the Boards authority to use its discretion in making final parole decisions. The statute and regulations, therefore, do not mandate that release be granted if the Guidelines criteria is met."

While the Georgia parole statutes are replete with mandatory language, the appeals court held that it did not create a due process liberty interest because no mandatory language expressly dictates the outcome of a parole hearing even if all the relevant criteria are met.

"Viewing Georgias parole system in its entirety, we conclude that no protected liberty interest in parole is created. To give rise to a liberty interest in parole, the statutes and regulations must meaningfully limit the discretion of state officials. Here, the substantial discretion reserved by the Board belies any claim to a reasonable expectation of parole. Although the Board is required to follow some relatively strict procedures, the statutes and the Guidelines, acting in conjunction, do not mandate the grant of parole if specified criteria are satisfied. Instead, the system contains a statutory presumption against parole and an explicit reservation of authority to depart from the grid recommendation, negating any reasonable claim to parole." The court also relied on the parole boards statement that it did not intend its rules to create any type of liberty interest, in essence, a statement to the effect that they are not bound to follow the rules they have made.

While the majority opinion, which is binding, affirmed the lower courts dismissal of the suit five judges gave two dissenting opinions giving detailed reasons why they would have affirmed the previous appeal court ruling to the effect that Georgias parole statutes and guidelines create a due process liberty interest enforceable in federal court. See: Sultenfuss v. Snow, 35 F 3d 1494 (11th Cir. 1994) (en banc). [Readers should not cite the earlier ruling because it is no longer valid.]

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Related legal case

Sultenfuss v. Snow

Sultenfuss v. Snow, 14 F.3d 572 (11th Cir. 02/04/1994)

[1] U.S. Court of Appeals, Eleventh Circuit

[2] No. 91-8002

[4] February 04, 1994


[6] Appeal from the United States District Court for the Northern District of Georgia. (No. 1:88-CV-1563-GET), G. Ernest Tidwell, Judge. {Judge}{Q}Judges{/Q}{/Judge}

[7] Before Tjoflat, Chief Judge, Kravitch, Hatchett, Anderson, Cox, Birch, Dubina, Black and Carnes, Circuit Judges.*fn*

[8] Author: BY The Court


[10] A member of this court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges of this Court in active service having voted in favor of granting a rehearing en banc,

[11] IT IS ORDERED that the above cause shall be reheard by this court en banc. The previous panel's opinion is hereby VACATED.


Judges Footnotes


[12] *fn* Judge J.L. Edmondson has recused himself and will not participate. Senior U.S. Circuit Judge Thomas A. Clark has elected to participate in further proceedings in this matter pursuant to 28 U.S.C. § 46(c).