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Georgia Parole Board's "90% Policy" Ruled Ex Post Facto

Georgia Parole Board's "90% Policy" Ruled Ex Post Facto

by John E. Dannenberg

The United States District Court (N.D. Ga.) held that the retroactive application by the Georgia Board of Pardons and Paroles ("Board") of its 1998 policy revision requiring specified violent felons to now do 90% (rather than 1/3) of their "time to serve" before becoming eligible for their first parole hearing _ even for crimes committed before 1998 - violated Constitutional ex post facto rights. While the injunctive relief ordered was only for the named plaintiff, the court's ruling could affect up to 2,300 other current Georgia prisoners.

Coleman Jackson was imprisoned in 1999 for an aggravated assault he committed in 1996, with a "time to serve" of five years. As of the time of his commitment offense, he was entitled under the Board's then existing rules to receive his initial parole hearing after completing one third of his "time to serve." However, in response to election-year politics, the Board amended its rules in 1998 to increase the initial-hearing ineligibility period (for 20 specified violent felonies) to 90% of the "time to serve." Worse yet, and applicable to Jackson, for those prisoners whose crime predated the 1998 rule, but who began serving their sentence after 1998, the new rule was applied retroactively. After sorting through Jackson's case factors, the court found that application of the new rule had prejudiced him by at least 20 months.

The tougher question was whether this retrospective policy application violated Constitutional protections against ex post facto laws. Jackson had filed both 28 USC §2241 habeas corpus and 42 USC §1983 civil rights actions in district court grounded in ex post facto legal theory, seeking both injunctive relief and damages. Only his § 1983 ex post facto claim for injunctive relief survived.

Reviewing the Board's application record of its post-90%-policy for fairness, the court grappled with the threshold question of whether the Board's ongoing procedure of computing a prisoner's Tentative Parole Month (TPM) amounted in fact to only a discretionary "policy" (which would lack the effect of law). If so, such a policy would not confer a Constitutionally protected liberty interest and thus be beyond the reach of ex post facto protection.

In a lengthy analysis, the court focused on the compelling statistics of the Board's record, finding their use of the 90% policy unevenhanded because they had departed downward from the 90% level only ten times in 8664 cases - and then only because those ten prisoners "had rendered substantial assistance to prosecutors." Thus, the Board's allegation that it made fair, individualized determinations in each of the cases brought before it was simply not credible, and the bias in post-1998 prisoners' TPM calculations, including Jackson's, was evident. Finding that because "the statistical evidence, the procedures in effect, the text of the resolution itself, and the Board's internal policy statements and guidelines provide overwhelming evidence, both direct and circumstantial, of this fact... ," the court held that the implementation of the 1998 policy produced a "sufficient risk" of retroactively lengthening the prisoner's period of incarceration (citing California Department of Corrections v. Morales, 514 US 499, 509 (1995)), and was therefore "constitutionally suspect."

The court rejected the Board's claim that the reviews by its own hearing examiners provided proper internal oversight of the TPM process, calling them purely "paper" exercises not amounting to any proper exercise of discretion, because the reviews were unilateral processes lacking any adversarial hearing or meaningful reconsideration.

Accordingly, the court held that the Board's 90% policy as applied to Jackson was unconstitutional and invalid, and granted his motion for equitable judgment. The Board was "restrained and enjoined from taking any actions of any kind, legal or otherwise, to carry out, assert and/or enforce the 90% time-served policy as it relates to this individual - plaintiff Coleman Jackson." The Board was further ordered to provide Jackson a parole eligibility hearing within 45 days, without regard to the 90% policy. Failing this, Jackson's request for an order for his immediate release from custody would be reconsidered. See: Jackson v. State Board of Pardons and Paroles, 2002 WL 1609804 (N.D. Ga.), Case No. 2:01-CV-068-WCO, Order, May 30, 2002.

Additional Source: Atlanta Journal-Constitution

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Related legal case

Jackson v. State Board of Pardons and Paroles

*10 The evidence presented at the April 10th hearing indicated that, from January 1, 1998 through June 30, 2001, the Board deviated below the 90% threshold in exactly 10 cases out of 8,664 (Def.'s Ex. 8). Because each of those cases involved highly unusual circumstances, however, the number of downward deviations really amounts to zero. Application of the 90% time-served policy is virtually automatic; the TPM calculation generated by the 90% time-served policy will inevitably reflect the highest number of months-to-serve submitted to the Board, a figure that the Board will always adopt. Thus, the change in the TPM formula at issue in this case is a far cry from the change examined by the Eleventh Circuit in Jones, where the court determined that the Board "retained and in fact exercised virtually unfettered discretion to deviate both above and below the Guidelines-recommendation in setting the TPM." Jones, 59 F.3d at 1149. Here, by contrast, the Board exercises unwavering adherence to the challenged 90% benchmark.

The TPM "reconsideration" process is further evidence that the Board blindly applies the 90% time-served policy. In truth, the hearing examiner who conducts this purely "paper" review exercises no discretion with respect to 90% cases. Unless an initial hearing examiner erroneously calculates the inmate's TPM date under the 90% time-served policy, when in fact the inmate's offense does not fall under that policy, hearing examiners will not re-submit recommendations to the Board even if the initial recommendations contain mathematical errors. He alone makes this decision, unilaterally ending the review process without any adversarial hearing or meaningful reconsideration.

b. The Board's Internal Policy Indicators

Likewise, the Board's December 9, 1997 resolution adopting the challenged policy, as well as the Board's related guidelines and policy statements, serve as circumstantial evidence that the 90% time-served policy is applied mandatorily. The pertinent text of the resolution provides:
WHEREAS: Since 1991, the Board has steadily and consistently amended and refined its guidelines to provide for lengthier time-served for violent and dangerous criminals while reducing the overall number of individuals released on parole; and,
WHEREAS: The Board believes that a further amendment to its statutorily mandated guidelines will further enhance public safety and make Georgia the toughest state in the nation for "time-served" for violent felonies and residential burglaries;
THEREFORE: Be it now hereby resolved by the [Board] that its statutorily mandated guidelines are hereby amended to provide that any offender who is convicted on or after January 1, 1998, of one or more of [20 enumerated offenses, including aggravated assault] ... will be required to serve a minimum of 90% of the court imposed term of incarceration in prison.
(90% time-served policy at 1). This language clearly expresses the Board's intent to lengthen the actual time certain inmates serve in prison, "mak[ing] Georgia the toughest state in the nation" in this regard, and declares that, with respect to covered offenders, service of a minimum of 90% of the court-imposed term of incarceration "will be required " (90% time-served policy at 1 (emphasis added)). [FN5]

FN5. Notably, in reviewing the parole procedures at issue in Garner, the Supreme Court declared: "Absent a demonstration to the contrary, we presume the Board follows its ... internal policies in fulfilling its obligations." 529 U.S. at 256 (emphasis added).

*11 The policy statement published on the Board's internet home page similarly declares that "[t]he Board requires all violent offenders ... to serve a minimum of 90 percent of their court-imposed terms of incarceration." State of Georgia Board of Pardons & Paroles, "90-Percent Policy," Parole Consideration and Eligibility (, visited on May 2, 2002) (emphasis added). Finally, the text accompanying the Guidelines Grid indicates:
"Board's 90% Resolution: Pursuant to Board policy, for persons CONVICTED on or after January 1, 1998, the Guidelines recommendation will be 90% of the court-imposed prison sentence or the Grid recommendation, whichever is greater....
(Guidelines Grid). In each of these examples, no discretion is implied. Instead, the Board's language is unambiguously mandatory, further supporting plaintiff's contention that the Board's enforcement of the 90% time-served policy has the force and effect of law for ex post facto purposes.

c. Plaintiff's Parole Success Likelihood

Given this determination, the challenged action violates the Ex Post Facto Clause if there is a substantial likelihood that plaintiff would have been paroled earlier had the Board not retroactively enforced its 90% time-served policy against him. As noted, the Guidelines Grid rates the range within which plaintiff's 14-point Parole Success Likelihood Score falls as "excellent." Yet, both Masters and Sullivan opined that plaintiff would not likely have been paroled even if the 90% time-served policy did not apply to his offense. Masters and Sullivan explained that, in their opinion, the Superior Court sentenced plaintiff to an unusually light term of confinement, anticipating that the Board would require plaintiff to serve at least 90% of it. Thus, they argued, the Board would not likely have recommended an October 2001 TPM even without the 90% requirement.

The statistical evidence presented at the April 10th hearing nonetheless established that although plaintiff received a shorter than average prison term, his term (5 years) was shorter than average as compared to all non-life aggravated assault sentences imposed during 1998 (6.3 years), a year in which Superior Court judges would have been aware of the new 90% requirement (Def.'s Ex. 12). It is fair to infer, therefore, that the sentencing court imposed a shorter than average term not because of its awareness of the 90% requirement, but because it did not regard plaintiff's crime as particularly egregious as compared to other aggravated assaults. Further, the court notes that plaintiff's June 2003 TPM would require him to serve 54 months, or 4.5 years, a prison term that greatly exceeds the average time-served attributable to all aggravated assault offenders released from 1996 through 2001 (Pl.'s Ex. 6 at 3; Def.'s Ex. 12). The court cannot reconcile this fact with plaintiff's 34-month grid score and his parole success rating of "excellent" without concluding that plaintiff would likely have received an earlier TPM date but for the Board's retroactive application of the 90% time-served policy. Accordingly, plaintiff has made the requisite showing of unconstitutionality under the Ex Post Facto Clause.

IV. Prerequisites for Injunctive Relief

*12 To prevail on a motion for injunctive relief, a plaintiff must establish the following four factors: (1) actual success on the merits; (2) a threat of irreparable injury; (3) that plaintiff's own injury would outweigh the injury to defendant; and (4) that an injunction would not disserve the public interest. See Tefel v. Reno, 180 F.3d 1286, 1295 (11th Cir.1999); Spottsville v. Barnes, 135 F.Supp.2d 1316, 1318 (N.D.Ga.2001) (citing Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n. 12 (1987)). See also Siegel v. LePore, 234 F.3d 1163, 1213 (11th Cir.2000) (Carnes, J., dissenting). With respect to plaintiff's ex post facto claim, the court concludes that plaintiff's showing justifies the injunctive relief he seeks. Accordingly, plaintiff's motion for equitable judgment is hereby GRANTED [7-1].

IV. Conclusion

Having determined that the Board's retroactive enforcement of its 90% time-served policy against plaintiff is unconstitutional and invalid for the reasons set forth herein, plaintiff's motion for equitable judgment is hereby GRANTED [7-1]. Defendant State Board of Pardons & Paroles, its officers, agents, servants, employees, attorneys, and all persons acting in concert or participation with the State Board of Pardons & Paroles who receive actual notice of this order by personal service or otherwise, are hereby RESTRAINED and ENJOINED from taking any actions of any kind, legal or otherwise, to carry out, assert and/or enforce the 90% time-served policy as it relates to this individual--plaintiff Coleman Jackson. Defendant is hereby ORDERED to provide plaintiff with an initial parole eligibility hearing within FORTY-FIVE (45) DAYS of the issuance of this order. Further, defendant is hereby ORDERED to consider plaintiff's parole eligibility without regard to the 90% time-served policy. To the extent that plaintiff's counsel has moved for an order directing plaintiff's immediate release from custody, said motion is hereby DENIED. Nevertheless, the court will reconsider plaintiff's request if defendant fails to comply with this order.

IT IS SO ORDERED, this __ day of May, 2002.

Not Reported in F.Supp.2d, 2002 WL 1609804 (N.D.Ga.)