Garner v. Jones – Oral Argument – January 11, 2000

Media for Garner v. Jones

Audio Transcription for Opinion Announcement – March 28, 2000 in Garner v. Jones

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William H. Rehnquist:

We’ll hear argument next in No. 99-137, J. Wayne Garner v. Robert Jones.

Mr. Brasher.

Christopher S. Brasher:

Mr. Chief Justice, and may it please the Court:

Parole in Georgia is a matter of grace.

Under Georgia’s parole system, no life sentenced inmate ever has any legal expectation of being paroled at any point during their… during their sentence.

Unlike in California, the discretion of Georgia’s parole board is based upon the ad hoc exercise of executive clemency power, and the board does not rely upon any statutory or regulatory standards to exercise that discretion.

Thus, the board can grant parole to any inmate within its jurisdiction for any reason at any time, including the interim between mandatory reconsideration dates.

Both the Federal courts and Georgia’s courts have agreed that because of its discretion, Georgia’s parole system creates no legitimate expectation of parole.

David H. Souter:

Well that’s… that’s fine for Fourteenth Amendment purposes, but that’s not the test under… under the Ex Post Facto Clause.

Christopher S. Brasher:

That’s correct, Your Honor.

David H. Souter:

All right.

Christopher S. Brasher:

However, this Court in Morales reviewed the… what… what has been later called the procedural safeguards inherent in California’s system to determine if that system, which does create an expectation of parole, changing the parole reconsideration dates had the effect of increasing the measure of punishment.

However–

David H. Souter:

Well, isn’t the… the test is whether… whether there is a so called sufficient risk that sentences will, in fact, be increased in duration by the change.

Do you agree that’s the test?

Christopher S. Brasher:

–Yes, Your Honor, that’s correct.

That’s this… this Court’s test in Morales.

David H. Souter:

Well, as I understand it… you correct me on the facts if I’m wrong, but as I understand it, before the statutory change here, the average sentence served by someone under a life sentence was something in the neighborhood of 12 years, 12 years and some months.

Christopher S. Brasher:

Your Honor, I… I take issue with that statistic.

That statistic is misleading.

It comes from statistics in 1992, and it deals only with inmates who were actually released on parole.

In 1992, less than 50 inmates out of a population of 4,000 life sentenced inmates were actually released on parole.

And of those–

David H. Souter:

Okay.

Well, let’s… let’s take the narrower… let’s take the narrower figure, as… as you describe it.

I also understand that, in fact, following the… the change in the statute, somewhere in the neighborhood of about 70 percent of those who are given ultimate reconsideration for parole are not given it until after 8 years, so that we’re talking about a period of 8 years that follows the initial 7-year period.

And, therefore, if anyone in Georgia, subject to parole reconsideration, is going to be paroled… and… and I guess we can assume some will be… those people at least are not going to be considered for 15 years as against the 12-year sentence for those who go… who got parole on some reconsideration theory under the old law.

Isn’t that enough to say, yes, the risk of… of a longer sentence is present here?

Christopher S. Brasher:

–No, Your Honor.

First of all, that presumes that the board does not… well, first of all, it presumes that the board does not know and does not have the power to decide ultimately whether any inmate is ever released on parole.

Christopher S. Brasher:

It’s the board that makes that determination.

David H. Souter:

Well, I don’t… I don’t think… I don’t think that matters one way or the other.

The… the question under the test is… is whether there is a risk of an increased sentence, the sentence actually served.

And it seems to me to follow… I think it follows from those numbers that there is such a risk.

Christopher S. Brasher:

Well, Your Honor–

David H. Souter:

Regardless of what the board can do, what in fact is going to happen is that if those who will be released on… following a first reconsideration, 70 percent of those are… are, in fact, going to wait for 15 years as against a… a prior scheme in which there was an average of 12 years.

Now, that doesn’t, by any means, demonstrate just how many are going to get longer sentences, but it does demonstrate, it seems to me, a… a risk.

Christopher S. Brasher:

–But, Your Honor, that again presumes that the board does not have the ability nor the knowledge to determine which inmates it’s going to release because these statistics are merely an accumulation of individualized determinations by the board.

The board ultimately has the… the discretion to determine whether any inmate is released and, more importantly–

David H. Souter:

But how does that… how does that affect the fact that there is a… a demonstration of some increased risk or… or some risk of an increased sentence?

Christopher S. Brasher:

–Your Honor, I don’t believe there is–

David H. Souter:

Regardless… I mean, the board… sure, the board might act differently.

The board might reduce that risk.

But all we’ve got are gross numbers, and the gross numbers seem to support the inference that there is an increased risk.

Christopher S. Brasher:

–But, Your Honor, that assumes that those inmates would have gotten out during that interim, but it’s the board that makes the determination when they deny parole and set it off.

David H. Souter:

It assumes… it assumes… yes.

It assumes that some would have gotten out because of the average that existed before.

Christopher S. Brasher:

But that average is fallacious, Your Honor.

David H. Souter:

And the… no.

The… you corrected the average.

We’re taking the average subject to the limitation that… that you just told us we… we should in order to be accurate.

Christopher S. Brasher:

But, Your Honor, with all due respect, I believe that the average only applies to inmates that are actually released.

It takes… it does not take account of the other inmates, the other 99 percent of those–

David H. Souter:

And what the numbers… and what the new numbers show is that of those who are released on reconsideration, there is a 70 percent chance that they will be released only after 15 years.

Christopher S. Brasher:

–Well, Your Honor, and also that ignores the fact that… that in fact the board does have the ability to… to extraordinarily reconsider inmates and the lodged documents, the first set of lodged documents, demonstrates that, in fact, the board is exercising their discretion to review inmates extraordinarily.

David H. Souter:

It… it may well do so, and in point of fact, it may do a very good job of it.

But the question under the Ex Post Facto Clause is whether there is in fact a risk of a longer sentence, and it seems to me that those numbers demonstrate that there is some risk.

Christopher S. Brasher:

Well, Your Honor, again I think that assumes that the inmates would have gotten out and that the parole board doesn’t know–

David H. Souter:

No, it doesn’t assume… it… it assumes necessarily, from the fact that there was an average release date of 12-some-odd years for those who are released, that… that, of course, some will have gotten out.

That’s what the average figure shows.

David H. Souter:

Some did.

Christopher S. Brasher:

–Your Honor, again that average is only of the inmates that were released and not of the inmates that were denied parole.

That… in order to get a true picture of how long inmates serve in prison, you have to consider three numbers.

You have to consider, first of all, how many inmates of the… of the… the inmates that are quoted in the misleading 12-year figure, how many of those inmates were released at their initial consideration date, which is not indicated, which would have been 7 years.

So, for every inmate that’s released at 7 years, we have an inmate that’s serving 19 years in incarceration.

That… that demonstrates the fallacy of that 12-year number.

In addition to that number, you also have to have how many inmates died in prison and ultimately served their life sentence.

And then finally, you have to know how many of those inmates are still in prison.

That… that number is… is fallacious because it leads one to believe–

David H. Souter:

Have you… have you given us… has the State given us any of those numbers that you feel we should look at?

Christopher S. Brasher:

–Your Honor, I believe that the numbers ultimately do not matter, and the reason is because again this is an accumulation of individualized determinations by the board.

Each inmate is reviewed individually.

David H. Souter:

Well, that’s true… that’s true of… of every application of the Ex Post Facto Clause to a parole eligibility scheme.

So, if that were going to be the answer, we’d never even be applying the Ex Post Facto Clause to parole eligibility.

Christopher S. Brasher:

Well, Your Honor, I believe that in… in Morales this Court looked at the system that was in place in… in California and determined whether there was a sufficient likelihood that it would have the impact of increasing the sentences.

In Georgia what the respondents want is an overlay of the Morales factors that were determined to be important for California onto Georgia’s system.

David H. Souter:

But in any case, with respect to the numbers, your position is the numbers are really irrelevant.

Christopher S. Brasher:

That’s correct, Your Honor.

And, in fact, this Court in Connecticut Board of Pardons v. Dumschat said that no matter how frequently a form of executive clemency is exercised, that does not give rise to a constitutional protection.

And in that case, 75 percent of inmates–

David H. Souter:

But we… we have… but we have a… we have an ex post facto standard that relies upon risk of increased sentence.

And your position is that the numbers are irrelevant.

Christopher S. Brasher:

–Your Honor, my position is that there… there are no numbers that can give rise to… under this system because the board retains the ultimate discretion to determine whether the inmate gets out, that any accumulation of numbers is fallacious because–

Ruth Bader Ginsburg:

Mr. Brasher, let… let me try it another way.

The California statute, as the Court pointed out, dealt with a very small category of people, double murderers, and the interval was 1 year to 3 years.

Here it’s a much larger group.

It’s anyone who gets life.

Christopher S. Brasher:

–Well, Your Honor, I take issue with that, first of all.

And that was… that was a point that the Eleventh Circuit got wrong, and that is they said that it… it includes people that must necessarily expect to be paroled.

Well, of course, inmates in California have a legal expectation of parole.

Ruth Bader Ginsburg:

But let’s just take it with people who… it does cover people who get life sentences.

Right?

Christopher S. Brasher:

It… it… yes, the… the–

Ruth Bader Ginsburg:

And… and that is a much broader class than people who commit double murders.

Christopher S. Brasher:

–Correct.

Ruth Bader Ginsburg:

And–

Christopher S. Brasher:

It includes life sentenced inmates who have been denied parole.

Ruth Bader Ginsburg:

–It… we’re dealing with a much larger population and a much longer interval.

Doesn’t it just stand to reason that there are going to be people who would have gotten out if it were only 3 years who won’t get out if it’s 8?

Christopher S. Brasher:

No, Your Honor, because the… the idea of the 8-year rule that’s been… that’s been advanced by respondents is again fallacious because the rule is only what it is to each individual inmate.

As the numbers that Justice Souter referred to demonstrate, the rule is not an 8-year rule because then 100 percent of the inmates would be set off for 8 years.

In fact, it’s… it’s a rule that applies an 8-year cap to the reconsideration interval and allows the board, the same board that makes the determination if that inmate ever gets out, to determine how frequently they should consider it.

Under that theory, what we’re… ultimately what we’re doing is the board has made a… this… made a determination that this person is not getting out of prison, but yet, the… to read it this way, it’s going to force the board to reconsider that inmate unnecessarily for three times when the board has already made the determination that they’re not going to get out.

John Paul Stevens:

May I ask just one question on your view?

Am I correct in understanding that you would say it would be perfectly all right if, instead of changing the system which had an initial hearing after 7 years and subsequent hearings every 3 years… now they changed it to an 8-year interval.

It would have been okay simply to say after your first hearing, no more hearings?

Christopher S. Brasher:

No, Your Honor, because that would foreclose the exercise of the board’s discretion, and ultimately that’s–

John Paul Stevens:

No more hearings unless the board decides to… of its own motion, no… no more routine hearings.

Christopher S. Brasher:

–Your Honor, I believe that the… that the board–

John Paul Stevens:

That’s my… my example.

Would that be okay?

Christopher S. Brasher:

–Well, Your Honor, I believe that the board could extend the reconsideration time table as long as it wants to because–

John Paul Stevens:

No, not… not the board.

I’m asking you about a rule.

The new rule is just like the one we’ve got except and instead of saying they’re entitled to a hearing every 8 years, they say they’re not entitled to any hearing unless the board decides to grant them one.

Christopher S. Brasher:

–Well, Your Honor, I said the board because this is the board’s rule.

This is a… a rule that’s promulgated by the board.

John Paul Stevens:

Right.

Christopher S. Brasher:

Yes, I believe that’s… I believe that’s perfectly appropriate.

And the reason is because ultimately, it’s the discretion of the board that… that this relies upon, unlike in California where these rules were statutes imposed upon the board by the… by the legislature in California.

Christopher S. Brasher:

Here, obviously the difference between the two systems is that–

John Paul Stevens:

Well, under that view, since it’s a board imposed rule, they could simply say, we’ll give you one hearing and that’s the end of the ball game.

Christopher S. Brasher:

–No, Your Honor, I don’t believe that’s so because, again, that would foreclose the board’s opportunity to exercise its discretion.

John Paul Stevens:

They could always change their mind and adopt a new rule.

Christopher S. Brasher:

Your Honor, I… I’m not saying that the… that the rule doesn’t have the force and effect of law.

Of course, it does.

However, I think that under your hypothetical, Your Honor, that is foreclosing the discretion of the board, unlike here where the board’s discretion is not foreclosed.

And in… and in Morales, this Court–

John Paul Stevens:

Well, what was accomplished by the change to 8 years then?

Did they accomplish anything?

Christopher S. Brasher:

–Yes, Your Honor.

The board freed itself to review inmates that in its determination… since it makes the decision as to whether these inmates are ever released, it freed the board to review those inmates that do have a near term likelihood for success unlike inmates like Respondent Jones who doesn’t.

John Paul Stevens:

Why couldn’t they do that… why couldn’t they do that under my hypothetical?

No more automatic review.

No review unless we decide in a particular case we want to have it.

Christopher S. Brasher:

Your Honor, I do believe that’s correct, but I… I understood… I understood Your Honor to amend the hypothetical to say that they wouldn’t review, and that would foreclose discretion.

In this particular circumstance, under the rule as it exists, their discretion is not foreclosed.

John Paul Stevens:

No, it would never foreclose discretion because if you… you’ve explained… the very heart of your argument I think is that the board has ultimate discretion.

It made the rules.

Therefore, it could change the rule tomorrow.

Christopher S. Brasher:

Yes, Your Honor, it could but if it foreclosed discretion, it… it could only apply that prospectively.

It could not apply that retrospectively because that would change the availability of the discretion and that would impact the Ex Post Facto Clause, as opposed to here where ultimately any inmate that’s sentenced to life sentence, the only thing that will ever get that inmate out of prison is a decision by the parole board that he should be paroled.

And in Morales, this Court said that it was the fact that… that extraordinary reconsideration was not foreclosed by the statute that saved it and not the fact that it was specifically provided for, as it is here.

It is explicit in the… in the procedure that the board can do that, and in fact the lodged documents demonstrate that they are doing that in fact.

Furthermore, that procedure is merely a reflection–

John Paul Stevens:

Are you relying on the policy statement that was issued in 1996?

Christopher S. Brasher:

–Your Honor, that policy statement was, in fact, issued at the time that the board began to apply those retroactively.

That’s been–

John Paul Stevens:

First answer my question.

Are you relying on that policy statement?

Christopher S. Brasher:

–Yes, I am.

John Paul Stevens:

Now, my second question is, was it in effect at the time he had his first parole hearing?

Christopher S. Brasher:

Yes, it was.

And, Your Honor, that was addressed in the–

John Paul Stevens:

So, the… the respondent has misrepresented the facts on page 2 and 3 of his brief.

Christopher S. Brasher:

–Your Honor, the… the fact of the matter is that that policy was in place.

The one that was presented in our motion for summary judgment–

John Paul Stevens:

Well, wait a minute.

Christopher S. Brasher:

–had a date on it of 1996.

John Paul Stevens:

You’re going pretty fast and I’m kind of slow.

Christopher S. Brasher:

I’m sorry.

John Paul Stevens:

The 1996 policy didn’t change anything?

Christopher S. Brasher:

Correct.

The 1996 policy did not change anything.

The same substantive policy was in effect when Mr. Jones was set off in 1995.

And that was explained in our briefs before the Eleventh Circuit.

What… what occurred was that the board, when they produced a copy, a… a verified copy, produced the most recent one which had a 1996 date on it.

In fact, I represent to the Court that… that that, as we represented to the Eleventh Circuit, was in effect at the time.

However, that policy is merely a reflection of the board’s previously existing discretion to review any inmate at any time.

John Paul Stevens:

Why did they issue the 1996 statement if it didn’t change anything?

Christopher S. Brasher:

Your Honor, I… I don’t know why they… why they… perhaps it changed some irrelevant verbiage in… in the policy, but the fact of the matter is that the policy regarding the ability and the availability of reconsideration, extraordinary reconsideration, was in effect at that time.

John Paul Stevens:

And what is that policy of extraordinary reconsideration?

Does that mean that any time a prisoner says I’d like a hearing, he’ll get it?

Christopher S. Brasher:

No.

What it means is that the board, which ultimately has the discretion to determine whether they get out, can determine whether the facts and circumstances which they present–

John Paul Stevens:

Well, what triggers… what triggers that kind of a decision by the board?

It can’t be triggered by an application by the inmate.

What else would trigger it?

Christopher S. Brasher:

–Well, it can be… it can be triggered by an application of the inmate, but perhaps… perhaps I haven’t made myself clear.

John Paul Stevens:

You haven’t.

Christopher S. Brasher:

The… the fact of the matter is that the board makes the determination whether the inmate has demonstrated the… the kind of… of change in circumstances particular to that inmate.

John Paul Stevens:

But does it do it on its own initiative?

The board goes out and examines what’s going on in the prison population and–

Christopher S. Brasher:

Certainly, it could do that as well based on–

John Paul Stevens:

–Does it in fact do that?

Is that what you’re telling me?

Christopher S. Brasher:

–Yes, it does, because the… because the board has parole officers at many of the prisons throughout the State, in addition to the fact that the… that the parole board constantly receives information from the Department of Corrections.

William H. Rehnquist:

Well, does the board… under the procedure you describe, does it on its own motion bring up cases and say, well, the… we’ll move this guy ahead or we’ll hold this guy back?

Christopher S. Brasher:

Yes, Your Honor, based upon information that they might receive from someone other than… than the inmate.

Perhaps the Department of Corrections might communicate to the board that an inmate… his circumstances have changed.

Now, that can be a lot of different things, and whether it’s important enough–

William H. Rehnquist:

I don’t know if I’d want to wait too long, if I were the inmate, for… for the guard to tell them that my circumstances had changed.

Christopher S. Brasher:

–Well, Your Honor, I believe that that ignores the fact that… that the inmate is always free to bring to the… bring to the board’s attention any change in circumstances which he or she feels are sufficient to warrant reconsideration.

William H. Rehnquist:

So, the… the inmate on his own can make an application.

Christopher S. Brasher:

Yes, most assuredly, Your Honor.

And in fact, that happens constantly.

Inmates are bringing information to the board’s attention.

However–

John Paul Stevens:

Is there anything in the record to show that any inmate has been released at one of these intermediate inmate requested hearings?

Christopher S. Brasher:

–Yes, Your Honor.

In fact, the first set of lodged documents demonstrates that 10 inmates were extraordinarily reconsidered… excuse me… during fiscal year 1999 and 5 of those inmates were actually released based upon that extraordinary reconsideration.

That’s exactly… that’s exactly the scenario–

Ruth Bader Ginsburg:

On the prisoner’s petition?

John Paul Stevens:

1999, which was after the decision of the court of appeals… the court of appeals?

Christopher S. Brasher:

–Pardon me, Your Honor?

John Paul Stevens:

In 1999, after the decision of the court of appeals, that happened?

Christopher S. Brasher:

Your Honor, I believe that the decision of the court of appeals was rendered in January of ’99 and–

John Paul Stevens:

Later on they… there are some of these.

But before the decision of the court of appeals, is there anything in the record to show that any inmate had been released pursuant to an inmate requested interview that was not on the automatic date?

Christopher S. Brasher:

–No, Your Honor.

Christopher S. Brasher:

And the reason is because the case was decided on summary judgment.

Summary judgment motions were filed by both the plaintiff, Mr. Jones, and by the board.

Cross motions for summary judgment is the basis upon which this was decided.

John Paul Stevens:

Did that prevent you from putting in such evidence, if it existed?

Christopher S. Brasher:

No, Your Honor, it did not because as the court… as the district court below found and as the Eleventh Circuit below found that the case could be decided as a matter of law.

We put this… we put this before the Court because of the information that respondents put in their brief trying to indicate that this was a mere pipe dream, that in fact it never happened.

In fact, it does happen, and these numbers are not intended, by any stretch of the imagination, to demonstrate how it always happens because these are merely anecdotal… anecdotal examples that were recalled by the staff because they don’t keep the numbers to determine on an annual basis how many extraordinary reconsideration inmates are released because, again, we go back to the central point, and that is these are individual determinations.

William H. Rehnquist:

Just a minute, Mr. Brasher.

Christopher S. Brasher:

Yes, Your Honor.

William H. Rehnquist:

To what extent are we dealing here with information that has been supplied in briefs by the… either your side or the other side that wasn’t before the district court or the court of appeals?

Christopher S. Brasher:

Well, Your Honor, I think that there… there is information that’s before this Court that wasn’t before the court of appeals or the district court.

But ultimately none of that information matters because we have to go back to the fact that the law requires the board to engage in individualized determinations as to each inmate.

And any accumulation or agglomeration of statistics is merely that.

William H. Rehnquist:

Just… as to the material that you say is before us what wasn’t before the district court or the court of appeals, is there disagreement between you and your opponent as to any of the facts in… in that material?

Christopher S. Brasher:

Your Honor, that issue hasn’t specifically been addressed, but I would assume that–

William H. Rehnquist:

But so, you–

Christopher S. Brasher:

–Yes–

William H. Rehnquist:

–I take it you’re familiar with your brief.

Christopher S. Brasher:

–Yes, I am.

William H. Rehnquist:

And you’re familiar with your opponent’s brief–

Christopher S. Brasher:

I am, Your Honor.

William H. Rehnquist:

–and all the filings.

Christopher S. Brasher:

Yes.

William H. Rehnquist:

Is there any disagreement between you and your opponent as to any factual matters that are in that classification?

Christopher S. Brasher:

I do not disagree with the facts included in the 12-year average, for instance.

What I disagree with is the manner in which it’s… it has been represented to this Court, that that actually represents anything more than a snapshot from one group of… group of inmates that were actually released when they represented only 1 percent of the life sentenced inmate population.

So, yes, I… to answer the Court’s question, I don’t disagree with the facts, but that’s like saying, well, I may… may or may not disagree with a particular fact, but I do disagree with the way it has been portrayed.

And I think that’s where the… that’s where the fallacy is.

John Paul Stevens:

You disagree with the inferences to be drawn from the facts.

Christopher S. Brasher:

Correct.

Christopher S. Brasher:

And the inference that should be drawn from the fact is that it doesn’t matter because it doesn’t tell us anything.

As I… as I was… as I was answering previously, for every inmate that was released at the 7-year initial consideration date, another inmate had to have served 12 years to make an average of… excuse me… had to have served 19 years to make an average of 12 years.

And the… again, those numbers don’t tell us anything.

It… it would be possible for 50 inmates to be paroled in a single year with an average of 12 years served and not a one of them would have served 12 years.

So, what does that tell us?

That tells us that the board ultimately is making individualized determinations based upon the individual facts and circumstances of the inmates to determine whether they should be paroled.

David H. Souter:

Did I understand you to say a second ago that those who are… the figures from which the 12-year average was computed showed that only 1 percent of the total prison population is… of the total life sentence prison population is, in fact, released before the expiration of their lives?

Christopher S. Brasher:

Before the expiration of… of what–

David H. Souter:

Their lives.

Christopher S. Brasher:

–Their lives?

No, Your Honor.

David H. Souter:

You referred to 1 percent.

What does the 1 percent refer to?

Christopher S. Brasher:

Your Honor, the… the numbers… the number that has been put in respondent’s brief, the 12-year average number–

David H. Souter:

Yes.

Christopher S. Brasher:

–Less than 50 inmates were paroled in 1992 where these numbers came from.

In 1992, there were approximately 4,000 life sentenced inmates in Georgia.

So, therefore, it was approximately 1 percent of the life sentenced inmates that were released on parole that year.

David H. Souter:

During that year.

Christopher S. Brasher:

During that year.

David H. Souter:

During that one year.

Christopher S. Brasher:

That particular year.

I apologize if I… if I misrepresented that.

Anthony M. Kennedy:

You’ve stressed… it’s really the core of your argument… that the board has discretion.

Christopher S. Brasher:

Yes, Your Honor.

Anthony M. Kennedy:

When you look at this case, initially you think, well, of course, the inmate is better off if the board must exercise its discretion every 3 years than every 8.

But then your answer to that is, well, what we’re looking at is risk.

There’s just no… very slight probability that there’s going to be any difference.

Christopher S. Brasher:

In addition–

Anthony M. Kennedy:

And–

Christopher S. Brasher:

–Sorry, Your Honor.

Anthony M. Kennedy:

–But… but then you tell us that statistics are unimportant.

And it… it seems to me that… that that’s inconsistent with the defense that you must make, that what we’re talking about here is a matter of risk.

And then you say, we’re talking about a matter of risk, but statistics aren’t important.

I don’t understand that.

Christopher S. Brasher:

Well, Your Honor, I think that… that the… the key issue here is that it’s the board’s discretion exercised on an individual basis that leads to the determinations made by the board.

And in fact–

Anthony M. Kennedy:

But under the old rule, that discretion had to be exercised every 3 years.

Christopher S. Brasher:

–But doesn’t that reduce–

Anthony M. Kennedy:

And then your… but… and so the… the way you get out of that is to say, well, it’s not going to make any difference.

But you give us no statistics.

Christopher S. Brasher:

–But, Your Honor, doesn’t that reduce parole reconsideration to a war of attrition and assume that the board is… board’s will is going to be overborne merely by having to reconsider someone more frequently when they themselves had made the determination that that inmate is not going to get out and doesn’t have a legitimate expectation of parole at any time during the set off period, whether that set off period is 2 years, 7 years, or as in Mr. Jones’ case, 8 years?

That presupposes that the board doesn’t know what it’s doing with… with the cases.

And in fact, it does because the board is making that individualized determination.

It’s looking at Mr. Jones alone and saying–

Anthony M. Kennedy:

No, but the way we know what the board is going to do is to see how… A, how it exercises its discretion or, B, the statistical risk of its not granting parole during the extended period.

And you say that the latter is completely irrelevant.

I don’t understand that.

Christopher S. Brasher:

–Well, Your Honor, again that trivializes the fact that the board makes individualized determinations.

The board–

Antonin Scalia:

I am really… I’m getting impatient with hearing that response, individualized… it seems to me, you know, the science of statistics is based upon the proposition that you could look at a series of individualized determinations and draw a… a general conclusion from the agglomeration of those individualized determinations.

Now, do you disagree with the science of statistics?

Christopher S. Brasher:

–I do not, Your Honor, but–

Antonin Scalia:

Well, then it… then it does no good to keep responding these are all individualized determinations.

We know that.

But the fact is, when you look at… at the span of them over a number of years, you can draw some generalized conclusions.

And if, before this change was put into effect, the individualized determinations let out 50 percent of the lifers before their term was up and afterwards it let out only 5 percent of the lifers before their term was up, that would be significant despite the fact that they’re all individual determinations.

Christopher S. Brasher:

–But, Your Honor, because of the individualized determination, there is no way to know that it was the change that had anything to do with that.

William H. Rehnquist:

But there were individualized determinations in Morales too, and we paid attention to the statistics there I think.

Christopher S. Brasher:

Well, Your Honor, I think that… I don’t recall the particular statistics that this Court paid attention to except that the… the key in Morales was that the burden was placed on the inmate to demonstrate that there had been an increase in the measure of punishment.

Christopher S. Brasher:

And that’s why this Court was careful to say that it was the availability, for instance, of… it was the fact that extraordinary reconsideration was not foreclosed which allowed that… allowed that statute to be okay.

Again, if we compare California’s statute with Georgia’s statute, we’re comparing a system that creates an expectation of parole with one that does not.

And there… that is important not because it’s a due process case but because in California’s system something was being taken away.

Something that was protected by the Constitution was being taken away, and that is the expectation of parole by possibly delaying a reconsideration.

However, in Georgia’s that is not being taken away.

So, therefore, the existence of the same safeguards in Georgia, of course, militates toward finding that Georgia’s statute is… passes muster on the… under the Ex Post Facto Clause just like California’s did.

Your Honor, ultimately the only change that has taken place in this case is how frequently the… the board must reconsider Mr. Jones after denying him parole and determining that it is not reasonable to conclude that he will be paroled in the interim of the set off.

Any conclusion that this change increases the quantum of punishment is merely speculative.

We would ask this Court to reverse the decision of the Eleventh Circuit.

I’d ask that I… that I could keep the remainder of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Brasher.

Ms. Kertscher, we’ll hear from you.

Elizabeth S. Kertscher:

Mr. Chief Justice, and may it please the Court:

In order to understand why the retroactive application of Georgia’s 8-year rule does pose a significant risk to inmates of increased confinement, I think it is important to first focus on the facts of the system.

And there are a number of facts about this system, none of which are disputed by petitioners, that really illustrate where the risk is inherent in the system.

First of all, we know that in Georgia consideration is an absolute prerequisite to… to parole release.

If an inmate is not considered for parole or reconsidered for parole, that inmate will not be released on parole.

Second of all, we know that in Georgia when the board considers or reconsiders an inmate for parole, the board makes not one but two determinations.

The first determination is whether that inmate is entitled to parole today, and the board is correct, that over that determination they have broad discretion.

But the board also makes a second determination that’s the determination that we’re talking about today, and that is what is the maximum possible interval that should take place between the present consideration and the next one.

And it is that determination that is the problem here.

In Georgia, these–

William H. Rehnquist:

But the board surely has a good deal of discretion in making that judgment too, does it not?

Elizabeth S. Kertscher:

–Mr. Chief Justice, you’re correct that they do have discretion over the number of years, but that discretion is limited by the maximum number of years that they can defer the decision.

Under the 3-year rule, they can set the next consideration any time during that 3 years, but must set it at least within the next 3 years.

Under the 8-year rule, they have discretion to add an additional 5 years onto–

Antonin Scalia:

You said they have discretion.

Who created these rules?

Elizabeth S. Kertscher:

–Your Honor, the board created the rules.

Antonin Scalia:

The board itself, right?

Elizabeth S. Kertscher:

That’s correct.

Antonin Scalia:

So, this is unlike a system in which you have a board that’s operating under a… under a prescribed rule that’s established by the legislature.

Presumably the same board that said we’re not going to consider these things automatically except at 8-years intervals could have said, yes, we’ll… we’ll let them apply every 8 years, but you know, we’ve been too lenient and we are not… we’re just not going to allow paroles as readily as we have allowed them in the past.

Would… would that have violated your… your client’s constitutional rights?

Elizabeth S. Kertscher:

I believe so if that’s applied retroactively–

Antonin Scalia:

Really.

Elizabeth S. Kertscher:

–as opposed to prospectively.

Antonin Scalia:

So, I mean, who appoints the board?

Who appoints the board?

Elizabeth S. Kertscher:

The board… I believe the… the Governor appoints the board members to serve 7-year terms.

Antonin Scalia:

Suppose the Governor… you have a law and order Governor, and he says, we have a board of paroles under my predecessor that was just letting… it was just… you know, the jail… the jail gates were open for life termers to get out.

I’m a law and order Governor, and when I get in, I’m going to appoint a tough parole board.

And he does that.

He appoints a tough parole board.

That violates a prisoner’s constitutional rights?

Elizabeth S. Kertscher:

No, not to appoint a tough parole board, but to change the policies retroactively in a way that would pose an increased risk of confinement–

Antonin Scalia:

It isn’t retroactively.

It’s… it’s just in the future.

I mean, from now on, we’re just not going to listen to you every 8 years.

Why is that any different from saying from now on we’re going to be tougher?

We’re not going to let lifers out as… as much as we did in the past.

Elizabeth S. Kertscher:

–There is a distinction, Your Honor.

That… that distinction is under the hypothetical you proposed, you may have a less receptive board, but you still have a board that is going to consider you.

Antonin Scalia:

No.

I would say my… mine is even worse.

You know for sure.

I mean, you’re just saying, well, there’s less of a chance that you’ll get out.

But under my hypothetical, it’s for sure that… that you’re not going to get out as readily as you did before.

We are going to be tougher.

This board has just said, well, you know, we’re going to let you come and bring things to us.

Antonin Scalia:

We’re just not going to automatically reconsider it as often as we used to.

I… I fail to see how the one does not constitute a violation and the other one does.

And… and I certainly don’t think the former does.

I think if you want a tough parole board, that’s up to the people.

Elizabeth S. Kertscher:

Well, Your Honor, I think there is a distinction, and the distinction is in this case the board is depriving the inmates of the ability to present their case to the board altogether, and that’s a very different situation.

Antonin Scalia:

Well, but that’s… that’s not true.

He can… as we’ve heard, he can present the fact that he has changed circumstances and say on the basis of that, please reconsider him.

Elizabeth S. Kertscher:

I think there’s… I don’t believe that that’s a meaningful process that’s an adequate substitute for an automatic consideration.

And… and there are a number of things that I’d like to say about this exceptional review process that the board relies so heavily on.

First of all, that process is not in the rules.

It’s only in a policy statement.

Stephen G. Breyer:

Well, so what.

William H. Rehnquist:

What difference… what difference does it make?

Elizabeth S. Kertscher:

The Eleventh Circuit found that it made a very significant–

William H. Rehnquist:

But I’m not asking the Eleventh Circuit.

I’m asking you.

Elizabeth S. Kertscher:

–That’s correct, Your Honor.

I… I apologize.

The difference is that the board is bound to follow its rules.

It’s not bound to follow its policy statements and, in fact, has argued in cases such as Sultenfuss that the policy statements are completely unenforceable.

Stephen G. Breyer:

What has that to do with us?

William H. Rehnquist:

What difference does it make?

Elizabeth S. Kertscher:

I… I think it makes a significant difference because, first of all, inmates can enforce the rules.

Second of all, the rule itself tells the inmates what’s going to happen.

The existence of a policy statement that’s not published with the rules, that can only be obtained by going through the board and asking for it, really shows that inmates are not going to have a good opportunity to–

William H. Rehnquist:

Well, does… does bear on the ex post facto claim?

Elizabeth S. Kertscher:

–I think it does because the petitioners have relied so heavily on this as a substitute for automatic consideration.

We know that inmates are entitled to automatic consideration under the 3 and 8-year rules.

Providing a substitute of exceptional reconsideration changes the equation dramatically.

It puts a burden on the… on… on the prisoners to articulate persuasively to the board why they think they should get the consideration that they would have been–

William H. Rehnquist:

Well, no.

That certainly can be a part of your ex post facto argument, but I thought you were arguing because the policy statement wasn’t readily available, that makes it less, somehow, of a policy statement.

I… I don’t see why that has any bearing on the ex post facto argument.

Elizabeth S. Kertscher:

–I… I think it’s important because I think we need to consider whether or not that inmates will be able to take meaningful advantage of this process.

William H. Rehnquist:

Where do we find in our ex post facto jurisprudence any statement like that?

Elizabeth S. Kertscher:

Well, I’m not sure the Court has specifically addressed anything like–

William H. Rehnquist:

I’m quite sure it hasn’t.

Elizabeth S. Kertscher:

–Well, I still think it’s relevant to the determination.

We need to look at whether or not this system provides inmates with a way of minimizing the risk that if they’re deprived of their 3-year considerations, that they’ll–

Antonin Scalia:

Is… is it a risk or is it an opportunity of… of grace?

This is a board not just of paroles, but it’s a board of pardons and paroles.

Isn’t it?

Elizabeth S. Kertscher:

–That’s correct, Your Honor.

Antonin Scalia:

And it has entire discretion to pardon or to parole.

Right?

Elizabeth S. Kertscher:

That’s correct.

Antonin Scalia:

Now, when your client committed a crime, he knew he was going to get life, that… that that was, you know, the… the sentence for it.

It seems to me he goes to jail knowing, you know, I… I did the crime, I… I do the time.

If I get lucky, someone will be generous and give me the grace of a pardon or, if less than that, the grace of a parole.

But, you know, many States… the… the pardon power resides with the Governor.

And I ask you the same kind of a question.

If… if the people elect a… a hard nosed Governor who says he’s not going to give any… any pardons in the future, can someone who… who committed a crime under the previous bleeding heart Governor come in and say, ah, constitutional violation because all of a sudden my chances of getting a pardon are less?

Elizabeth S. Kertscher:

Your Honor, again, I… I think that that’s a very different question–

Antonin Scalia:

Why is it different?

Parole is a matter of grace.

Nobody is entitled to any parole just as nobody is entitled to any pardon under this system, and it’s the very same board that gives the pardon and that gives the paroles.

Elizabeth S. Kertscher:

–Well, it’s true–

Antonin Scalia:

What is your client entitled to?

I… I don’t understand–

Elizabeth S. Kertscher:

–My client… my client is entitled to be considered.

Elizabeth S. Kertscher:

And parole… it may be an act of grace and it may be a decision over which this board has a lot of discretion, but parole is no less a part of the inmate’s sentence because there’s discretion inherent in that decision.

This Court has–

David H. Souter:

–May I… may I interrupt you there and just follow up on that?

Why is your client… why is the inmate entitled to be considered?

What is the source of that entitlement?

Elizabeth S. Kertscher:

–Your Honor, I… I think the source of that entitlement is because my client’s sentence carries with it the right to be considered for parole.

There’s a–

David H. Souter:

How?

Elizabeth S. Kertscher:

–Well, we can start from the proposition that there’s a very big difference between a life sentence and a life sentence without possibility of parole.

If you accept that those two sentences are different and that the board could not retroactively change a life sentence into one without possibility of parole–

David H. Souter:

What do… what do the statutes of Georgia say about entitlement to consideration for parole if one has a life sentence subject to parole?

Elizabeth S. Kertscher:

–That the inmate is entitled to have his first consideration after 7 years and is entitled to automatic reconsiderations thereafter at a period of time that the board shall define.

David H. Souter:

Okay.

Elizabeth S. Kertscher:

The board defined it prior to 1985 as 3 years.

After 1985, it changed it to 8.

David H. Souter:

So, in… in effect, the legislature sets a kind of minimal scheme and… and then it… I guess it’s fair to say, it mandates that the board set the terms of the scheme beyond that 7… beyond the period of that first 7-year consideration.

Elizabeth S. Kertscher:

That’s correct.

And… and the… the legislature does tell the board that it has to have periodic reconsiderations after an initial… initial denial of parole.

Ruth Bader Ginsburg:

So, then I think Mr. Brasher was not correct in saying that under the legislation the board can simply say we won’t… our rule is that after the initial 7 years, which we must do by legislation, then the rest is up to us and we can have a rule that says no automatic periods.

You say under the statute they couldn’t do that.

Elizabeth S. Kertscher:

That’s correct.

The statute does require the board to set reconsiderations at intervals that it… it can determine.

So–

Ruth Bader Ginsburg:

So, it’s a kind of delegation to fill in the detail to the… which is quite different from saying, board, you have discretion to either have intervals or not have intervals.

Elizabeth S. Kertscher:

–That’s correct, Your Honor.

The board’s discretion is significantly more limited than they have portrayed it to this Court.

They do have discretion over the ultimate determination of whether an inmate should be paroled, but–

William H. Rehnquist:

Well, they also have determination, I take it from your answer to Justice Ginsburg, to decide the intervals after the 7 years.

Elizabeth S. Kertscher:

–Right.

That’s correct, Your Honor.

Elizabeth S. Kertscher:

And the… the issue is what… is not whether they can prospectively change those intervals.

It’s going back to retrospectively whether or not by changing those intervals, the statutes pose an increased risk of confinement.

Antonin Scalia:

Why is that element of discretion any more subject to control by the prisoner than is the more significant element of discretion, namely, whether to be lenient or strict in the substantive decision of parole or not?

You… you can’t seriously argue… I don’t think you can… that… that if you get a tougher parole board, your client has suddenly been… been subjected to an ex post facto law.

That’s just the luck of the draw, you know.

Some people happen to be sentenced with a lenient parole board.

I have a tough one.

Too bad.

Elizabeth S. Kertscher:

That’s correct, Your Honor.

Antonin Scalia:

And because that’s within the discretion of the board, the substantive decision whether to release or not.

Here, it’s a much less significant thing subject to the discretion of the board.

How often are we going to automatically reconsider this… this person?

I mean, gee, compared to the other one, this is insignificant.

Elizabeth S. Kertscher:

I… I think it’s very significant, Your Honor.

It’s… it’s certainly significant to my client and to the other 70 percent of inmates who are being deferred over such a long period of time on a very cursory review.

What the board is doing here is… is predicting over an 8-year span of time, based solely on a review of the inmate’s files, that there’s no way that the inmate will become suitable for parole in the meantime.

David H. Souter:

But–

–Isn’t… isn’t your… your… isn’t your argument that the Ex Post Facto Clause comes into it because there is a change in the rule and the rule, in effect, is what the Ex Post Facto Clause means by law?

Elizabeth S. Kertscher:

That’s correct, Your Honor.

David H. Souter:

I mean, that… that’s what I was sort of getting at by my earlier question.

And I… I understood your… your answer to be that… or at least I took the significance of your answer to be that because the legislature mandates the board to set these rules, I presume these rules have, in effect, the significance of law for purposes of the Ex Post Facto Clause.

Elizabeth S. Kertscher:

That’s correct, Your Honor.

And the Eleventh Circuit, in a separate case, had already addressed that issue and it found that these rules do have the force of law in the State of Georgia.

Stephen G. Breyer:

Well, that being so, I mean, I… I didn’t understand the Eleventh Circuit at all, that part of their opinion dealing with the rule.

David H. Souter:

I didn’t understand it because I’ve never heard of a constitutional principle that says that it’s unconstitutional to have a constitutional rule because maybe you’d change it.

I mean, that… that… so… so I take it that the issue in front of us is the old policy was the policy, every 3 years no matter what.

The new law or rule or policy or reg is that you don’t get considered for 8 years automatically but we postpone it only if we decide that earlier consideration would do you no good, and if there’s either a change in circumstance or any new information, tell us and we will decide whether to give you the hearing sooner.

Okay?

Now, that is what, I take it, we’re trying to decide.

Now, you… now, the question is why is that harsher?

Stephen G. Breyer:

And number one, you say maybe the person won’t know about it.

Well, I haven’t found anything in the record here that suggests anybody doesn’t know about it.

Number two, because there’s a burden of inertia.

I agree with you on that.

You’re right.

Now, is there a number three, a number four, a number five, and are there any statistics?

Because despite the theory of it, I would be impressed if previously half the people got out and now only 5 percent get out.

So, what’s the situation?

What’s argument three, four, and five?

I mean, frankly, number two by itself doesn’t seem that strong because–

Elizabeth S. Kertscher:

Certainly.

Stephen G. Breyer:

–you know, they’re… they’re going to make a conscious determination to… so, I want to get your other points.

Elizabeth S. Kertscher:

All right.

We’ll start with argument number three.

Argument number three involves some of this new evidence that the board has submitted in connection with its reply brief.

And I do need to remind the Court that my client was pro se at the court below, moved for leave to conduct discovery, and was denied.

The board filed an early motion for summary judgment.

So, my client has never had the opportunity to conduct discovery from the board and to get the kind of statistical evidence that Justice Breyer is talking about.

But–

Stephen G. Breyer:

If there’s no statistical evidence, I think that would be the end of it for your client for the reason that common sense suggests it doesn’t make that much difference whether you get a hearing every 3 or 8 years as long as there’s a clear determination that a hearing wouldn’t do you any good.

Elizabeth S. Kertscher:

–Well, I think… I think we have got some very good and… and concrete evidence of why these determinations are important, and I’d like to draw the Court’s attention to the case of Gary Newberry.

You’ll find a summary of his case at the appendix page 4 to the petitioner’s reply brief in this case.

Mr. Newberry is 1 of these 10 inmates who somehow secured this exceptional reconsideration process that the board relies so heavily on.

We–

William H. Rehnquist:

Where… where is this information coming from, Ms. Kertscher?

Elizabeth S. Kertscher:

–It’s… it’s attached to the petitioner’s reply brief at appendix page 4.

We don’t know why Mr. Newberry got this exceptional consideration.

Antonin Scalia:

Is this record information or is this–

Elizabeth S. Kertscher:

It’s not in the record below.

It’s… it’s something… it’s new evidence that the board has gotten from its own files that we’ve never had the… the opportunity to review.

Elizabeth S. Kertscher:

But I think it… it illustrates exactly why this system does pose a risk to inmates.

We don’t know why Mr. Inmate got this exceptional review, but what we know about him is he was first considered for parole in January 1996.

At that time the 8-year rule was applied to him.

His next year… his next reconsideration was set a full 8 years later for January of 2004.

Something happened to Mr. Newberry, and 3 and a half years later, he somehow managed to secure this exceptional reconsideration.

He was reconsidered in July of 1999, and at that point the board found that he was suitable for parole and released him at that time.

And what I see in the case of Mr. Newberry is a situation in which if Mr. Newberry was suitable for parole in July of 1999, he might very well have also been suitable for parole in January 1999, which is when the reconsideration would have automatically taken place if the 3-year rule had been applied to him, a full 6 months earlier.

William H. Rehnquist:

–The Eleventh Circuit in this case reversed the judgment of… of the district court.

The district court had ruled against you and the Eleventh Circuit ruled in your favor.

And it… it remanded the case to the district court for further proceedings, but it… it decided, did it not, that… that the Georgia parole system was violating the Ex Post Facto Clause?

Elizabeth S. Kertscher:

That’s correct.

William H. Rehnquist:

So, what were the… what was the purpose of the remand rather than entry of judgment outright?

Elizabeth S. Kertscher:

My client had also brought damages claims.

William H. Rehnquist:

Ah.

Elizabeth S. Kertscher:

And I believe that was the purpose of the remand, to determine whether or not those were appropriate.

William H. Rehnquist:

I… I take it then that the court of appeals thought it could decide the ex post facto question without any more statistics than it had.

And I don’t believe it had much of anything.

Elizabeth S. Kertscher:

That’s correct, that it did not have statistics.

I think the Eleventh Circuit thought that it could look at the system and see risk inherent in the system.

And I… I think that that’s entirely appropriate here.

The… the Court has always said that in ex post facto cases, you know, we don’t… the Court has never required statistical proof.

In the latest case, Martin v. Haddox, this Court’s opinion authored by… by Justice O’Connor said that when we’re trying to figure out whether or not the law should be applied retroactively, we’re supposed to make a common sense, functional judgment.

And I think that’s exactly what the Eleventh Circuit did here.

They looked at the rules, used the common sense to see that there was risk inherent in these rules–

Stephen G. Breyer:

Well, there’s going to be risk… what’s actually bothering me that I haven’t worked out is that if I agreed with you on this and if the only reason would be because instead of you getting it automatically, they say… they say, look, we’re only not going to give it to people we’ll never let out, and we have this system where we get new information.

If I were to agree with you on that, then would we start having to go into all kinds of procedural rule changes?

I mean, suppose for example, they say summary judgment now is going to be possible, and somebody would argue, oh, you know, if you didn’t have a summary judgment rule, then we would have presented the evidence more thoroughly at the parole hearing.

Or if they say certain witnesses couldn’t come in.

I mean, once we get into these procedural businesses, are we going to have to start looking at every one and working out just how… is there some conceivable disadvantage or… do you see my problem?

Elizabeth S. Kertscher:

–I think the Court–

Stephen G. Breyer:

I’d like you to address it.

Elizabeth S. Kertscher:

–addressed that when it decided the Morales case, and it said there are a lot of… of little rules that we could invalidate under the same theory if we agree with the respondent in that case who was trying to… to advocate the Court to say that… that there was… that any conceivable risk, no matter how attenuated, would be an ex post facto violation.

The Court in Morales was not willing to go that far, and instead, the Court said, we’re going to look at see whether there’s something more than that, whether there’s a… a sufficient risk, you know, a meaningful risk.

And… and I think that… that that provides a basis to distinguish those types of procedural cases.

Looking at what the Court considered in Morales I think provides us with a very clear contrast that can really help us see why there is risk inherent in the system.

In Morales, the Court was looking at a case that, because of the procedural way these statute operated… the statutes operated and because of the protections that were given to the inmates under that system, both before the initial determination was made and after, the Court was able to say, with a very high level of confidence, that it was… that there was no reason to conclude that the amendment would have any effect on any prisoner’s term of confinement.

John Paul Stevens:

May I ask you one question about the… you called our attention to the material at the appendix to their reply brief.

I notice that the court of appeals decision was in January of 1999.

And I notice that every one, if I read it correctly, of these reconsiderations was after January of 1999, each of those in the appendix.

Do you think there’s any causal connection between the decision of the court of appeals and those statistics?

Elizabeth S. Kertscher:

Your Honor, I don’t know the answer to that question.

John Paul Stevens:

Do you know if there are any reconsiderations comparable to these before January 1999?

Elizabeth S. Kertscher:

I don’t know the answer to that question because we were never able to conduct discovery to try to look and… and see whether or not any reconsiderations were… were being given prior to the Eleventh Circuit’s opinion in this case.

But I think we can look at the way the system operates, and we can see the risk inherent in it.

And we can contrast the… the way this statute operates to the ones that the… the Court was considering in Morales.

First of all, when this board is trying to predict over an 8-year period of time whether or not an inmate is going to become suitable for parole in the intervening years, it’s doing so on a very scant review.

It’s only looking at the inmate’s file.

The inmate does not get a hearing, does not get counsel.

And based solely on that limited review, the board decides… you know, makes an individualized determination… that the prisoner will not become suitable for parole during the intervening 8 years.

That–

William H. Rehnquist:

Was that what was… was that procedure different when it was a 3-year… I mean, did the inmate get counsel then?

Elizabeth S. Kertscher:

–No, Your Honor.

It did not.

William H. Rehnquist:

So, that hasn’t changed.

Elizabeth S. Kertscher:

That has not changed, but it’s still important because when you consider what the board is trying to do here, it’s trying to predict basically an inmate’s future, and the longer the period of time that the… the board has to do this over, you know, the… when you’re talking about a period of time as long as 8 years, then I think it’s a harder question and I think that the board might have to do a little bit more in order to accurately predict the consequences to an inmate over an 8-year period of time.

Stephen G. Breyer:

Suppose they say, which is also true, time is limited, resources are limited, there are a lot of prisoners, and we want to allocate our time better.

We want to spend more time with the people who really have a chance of getting out and less time with those who have no chance.

Elizabeth S. Kertscher:

Well, Your Honor, there… the Court has considered and rejected a number of attempts to do the same thing under other scenarios.

The Court has never held that you can violate the Constitution just because it’s going to be less expensive to do so.

In this case the petitioners have not given us any information about–

Anthony M. Kennedy:

Well, I’m not… I’m not sure that meets the gravamen of the question, which also concerns me.

The board has serious responsibilities and it says we’d rather have a system in which we take the most likely candidates and look at them and rather than be required to sit in routine hearings that are going to amount to nothing.

So, we’re going to go to an individualized determination in which we’ll see whether there is some information that comes up to us that makes these people look like they’re really eligible for parole.

That… that’s sensible to me, and that has to do with risk.

With risk.

Elizabeth S. Kertscher:

–Your Honor, that is sensible, and that’s why it’s appropriate for the board to do this on a prospective basis.

But the Court… the board cannot sacrifice other inmates in order to focus better attention–

Stephen G. Breyer:

No, but the argument is that it’s not sacrificing them.

The argument is that everybody knows what it is if we have to consider it every 3 years.

We’ll consider it.

I considered it.

Okay?

Next one.

Denied.

And we can do better for each individual, rather than going through that pro forma basis, to really take the ones that do have some chance, not zero chance, and looking at them carefully.

We all know what it is to say no, no, no, no, no in 2 seconds.

But also when you really consider something, a guy who has a chance to get out sometimes will get out where he wouldn’t have with pro forma consideration.

So, they’re saying we’re doing it for everybody.

Elizabeth S. Kertscher:

–Well, Your Honor, and again prospectively I think that might very well make sense.

But when you’re talking about retrospective application of this rule, by depriving these inmates of… of consideration over a period of up to 5 years, that does pose a risk to these inmates that if their circumstances change and if during that 5-year period, if somebody were to look at them and… and consider the facts of their case, that that board might very well vote to release them.

By depriving them of that consideration, then you have harmed the inmate, you have extended the time period in jail.

And that’s… for that reason, even if it would be cost effective to do that, we can’t go back retrospectively and implement this rule in such a way that inmates will be harmed in the process.

Going back to–

Sandra Day O’Connor:

But the policy does say that in the event of a change in circumstance, the information can be given to the board and they say they consider it.

Elizabeth S. Kertscher:

–The policy does say that they’ll consider it.

However, as we see in the case of Gary Newberry, that doesn’t necessarily mean that you’re going to get the consideration and that you’re going to get out at the same time that you would have had the review been conducted at the… the 3-year interval.

John Paul Stevens:

Was that policy statement in effect at the time of the decision in this case?

Elizabeth S. Kertscher:

Your Honor–

John Paul Stevens:

The decision concerning this… this inmate.

Elizabeth S. Kertscher:

–The date of that policy is 1996.

Elizabeth S. Kertscher:

My client’s decision… my client was considered in 1994… 5.

The board tells us today that there was a previous version of this policy statement in effect.

Whether or not that’s the case or what that–

John Paul Stevens:

Before the… you heard your opponent argue today, were you aware of the fact that there was a… the 1996 policy statement was… really repeated something that had been long in effect?

Elizabeth S. Kertscher:

–No, Your Honor, and although counsel for petitioners said that came up at the Eleventh Circuit, that… that never was addressed at the Eleventh Circuit level.

I’m willing to… to accept counsel’s representations that there was such a rule in 1995 because this policy statement and… and the ability of inmates to request this expedited consideration has been shown not to be a sufficient safeguard to really prevent these inmates from spending longer times in jail under the 8-year rule than they would under the 3-year rule.

What’s also noticeably absent in this system is a safeguard that this Court relied on very heavily in the Morales case, and that was the ability of the California board, after the fact, to go back and advance the ultimate release date in the event that there had been an error or some unforeseen change in circumstances.

And it… that finding allowed this Court to find that there was basically no way an inmate in the California system was going to slip through the cracks and wind up spending more time in jail as a result.

We don’t have anything like this here.

If the… if the inmate is considered and found appropriate… found to be an appropriate candidate for release, then the inmate is released at that time.

There’s no opportunity after the fact to go back and correct for it.

And if we have an inmate like we have with Gary Newberry, who’s considered 6 months later than he would have been under the 3-year rule, there’s no opportunity to go back and give Mr. Newberry or anybody like that the 6 months that he’s lost under this… under the application of the new rule.

In conclusion, Your Honor, the Georgia system on its face provides far too great a risk for inmates to serve an increased term of confinement under the 3… under the 8-year rule than they would under the 3-year rule.

We know that in the… the State of Georgia, regardless of the precise number of years of an average life sentence, we know that inmates are regularly released that are serving life sentences.

Last year the board tells us that they released 14.4 percent of the life sentenced inmates that they considered under this rule.

My client, who is 71 years old and has served 22 years in prison for his crimes, despite the severity of his crimes, is entitled to the consideration that the legislature provided for and entitled to a full and fair considerations of all the… all the relevant facts that might bear on a determination of whether or not he’s suitable for parole.

By… by pushing his determination back for an 8-year period when he would have been entitled to review every 3 years under the old rule my client and others similarly situated to him are at a very significant, very meaningful level of risk of an increased sentence.

And for that reason, the decision of the Eleventh Circuit should be affirmed.

Thank you.

William H. Rehnquist:

Thank you, Ms. Kertscher.

Mr. Brasher, you have 1 minute left.

Christopher S. Brasher:

Your Honor, very briefly.

The protections in Morales existed only because that system created an expectation of parole.

It created a liberty interest.

Ruth Bader Ginsburg:

Mr. Brasher, may I ask you… I wasn’t clear on your argument whether you were making a distinction between a statute… say, a statutory change from 3 years to 8 years and the rule change.

Christopher S. Brasher:

I was not, Your Honor.

However, I think that it’s important to note that contrary to counsel’s argument, the board is not required to set periodic reconsiderations by the statute.

The statute merely calls on the board, if it adopts rules, to have rules regarding consideration and reconsideration.

The board could, therefore–

Ruth Bader Ginsburg:

Do we have the text of the statute someplace?

Christopher S. Brasher:

–Pardon?

Ruth Bader Ginsburg:

Do we have the text of the statute someplace?

Christopher S. Brasher:

No, Your Honor, I don’t believe so, but I believe that the… that the citation is Official Code of Georgia Annotated, 42-9-42 I believe.

But it’s very close to that statute that is the rule that… the law that gives the board the ability to adopt these and promulgate these rules.

It doesn’t require periodic reconsideration as has been argued by respondents.

Finally, as to Mr. Newberry’s case, Mr. Newberry’s case was well publicized in the news media.

William H. Rehnquist:

Thank you, Mr. Brasher.

The case is submitted.