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Editorial & Opinion

July 18 - COMMENTARY: Is Georgia Board of Pardons and Paroles, in effect, Rewriting and Re-sentencing” Inmates?

Category: Editorial & Opinion

By Atty. James L. Coursey Jr., Savannah, GA.

July 18, 2016 – A number of relevant questions have been raised by Rep. Jesse Petrea, District Attorney Meg Heap, and Police Chief Jack Lumpkin about decisions being made by the Georgia Board of Pardons and Parole (BPP), and their resultant impact on our local area.

As a student of the law, a practicing attorney, a for Sr. Asst. U.S. Attorney, and a resident of the Savannah metro area which is experiencing significant crime, I would like to add some additional questions for the consideration of our elected representatives. 

I have been studying the GA Board of Pardons and Paroles constitutional, statutory authority and how it operates.  Having worked in the federal system where parole was abolished completely in the early 1980's and replaced with mandatory sentencing guidelines, I wonder whether the discretionary authority granted to a group of 5 non-elected individuals in Georgia is necessarily correct. 

Is it time to discuss whether something similar to the federal system should replace the highly discretionary authority given to the GA Pardon’s and Parole Board?  The federal system is simple by comparison.  The judges have the final say over a sentence, not a BPP, which leads me to one of my larger concerns:  the BPP is, in effect, rewriting or “re-sentencing” inmates.  In the federal system, the inmate must spend his entire time in prison, but can “earn” up to 15% of “good time” credits on his sentence as an incentive to not cause trouble.  The “good time” credits are given and taken away by the Bureau of Prisons as needed. 

I have to say that I am uncertain of everything I have read on BPP’s website.  Since the work of the Board seems to be rather non-transparent, does the Board have an electronic records system which coordinates with other agencies to measure its performance, for example?

Although the BPP says it uses evidence, from what I have read on its website, the BPP members don’t rely upon evidence as much as they rely upon their professional judgment and experience in making parole decisions.  If this is so, how can its decisions not lead to bias?  Is there any study or audit of BPP cases with similar facts and circumstances which have widely different outcomes?  

It is also interesting to note that the public has access to basic information about a parolee once he has been paroled, but no information about what the BPP is reviewing when it is considering an inmate for parole in the first instance!  (See Statute 42-9-43 below.)

And, the statute states, “It shall be the duty of the director of the Office of Planning and Budget to prepare an annual report on prison inmates who are paroled pursuant to this Code section. Such report shall summarize each such former inmate's behavior since parole and generally evaluate the former inmate's success or lack of success in becoming a law-abiding member of society.”  I wonder whether any of the State Representatives or Senators have requested this report?

I don’t see anything in the statute which says that it is confidential for any reason, so I wonder why it is only made available to elected Reps?  It would be interesting to see what this report says about paroled inmates every year.  Wouldn’t this be a good measure of how well the BPP is doing in deciding who to parole?  Is there any independent agency that “audits” the BPP’s success rate or does it make its own rules, enforce its own rules and also judge its own successes and failures?    

Why couldn’t an elected Rep request the annual reports and then share it with the public?  Surely privacy could not be the stated reason.  There is a significant body of case law which says that convicted felons lose their civil rights upon conviction, that they have no right to privacy while they are in custody or still being supervised on parole, so why should an inmate or parolee’s privacy be of any concern at all? 

You might also want to review an analysis of recidivism rates of paroled inmates in all 50 states by the Pew Trusts.  The data is a little dated (about 10 years old) but it is instructive.  How effective is  the BPPs’ decision-making if nearly 40% of its parolees are recidivists within 3 years?    http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2011/pewstateofrecidivismpdf.pdf

Repeating an earlier made point, I wonder whether it is a good thing for an enforcement body like the BPP to also be able to write its on regulations and procedures?   The BPP’s “guidelines” now used can be found at https://pap.georgia.gov/sites/pap.georgia.gov/files/ParoleConsideration/Notice%20of%20Action%202013%20Oct%20CSL%20Revision.pdf. 

And, the point system the BPP uses to determine an inmates risk of recidivism is called the ‘Risk to Re-Offend Score Chart.’  The Parole Board will use the following factors to compute a Risk to Re-Offend Score for each inmate it considers for parole using its Parole Guidelines System:

- Number of Felony Convictions: (none = 0 pts.), (1-2 = 1 pt.), (3 = 2 pts.), (4-5 = 3 pts.), (6-7 = 4 pts.), (8 = 5 pts.), (9 or more = 6 pts.).

- Number of Prior Prison Incarcerations: (none = 0 pts.), (1 = 1 pt.), (2 = 3 pts.), (3 = 4 pts.), (4 or more = 6 pts.).

- Current Prison Sentenced Offenses (score is cumulative) includes: (offense(s) not listed = 0 pts.), (burglary = 1 pt.), (drug possession = 1 pt.), (forgery = 2 pts.), (felony obstruction of an officer = 3 pts.), (theft = 5 pts.).

- Age at Current Prison Admission: (20 or less = 0 pts.), (more than 20 to 40 = minus 1 pt.), (more than 40 = minus 2 pts.).

- History of drug or alcohol abuse: (no = 0 pts.), (yes = 2 pts.).

- Employed at time of current arrest: (no = 0 pts.), (yes = minus 3 pts.).

Then, based upon where they fall on this point scale, the inmate is assigned a low-medium-high risk assessment. See the Parole Decision Guidelines, Time to Serve GRID at https://pap.georgia.gov/sites/pap.georgia.gov/files/ParoleConsideration/webpage_update.pdf.  It may all seem rather simplistic and subjective to the outside observer. 

And, another issue is that many times an inmate pleads to a less severe charge and is not convicted of more serious or violent offenses.  For instance, felony obstruction of an officer could have also involved an assault on an officer, making a defendant’s actions more severe in terms of his potential to be violent. So how does a simple point system take a person’s predilection to violence into account? 

In the 1970's and 80's, legislatures throughout the country tried to reduce discretion in judicial and executive decision-making to ensure more equitable sentencing and post-prison releases.  To accomplish this, they implemented mandatory minimum sentencing and “truth in sentencing” acts.   The belief was that these new laws would reduce disparate sentences and parole determinations based on inappropriate considerations, such as race or age.  But it can be argued that they have failed to achieve their intended effect, as judges and parole boards continue to employ discretion contrary to the stated goals of the new laws.

A number of states have abolished discretionary parole and have completely removed the role of the parole board in determining when a prisoner’s release should occur; inmates serve their full sentence. Among these are Arizona, Minnesota, Delaware, New Mexico, Illinois, North Carolina, Indiana, Ohio, Kansas, Oregon, Maine, Virginia, Mississippi, and Washington. 

Instead of a parole board deciding to make a release based on the likelihood of recidivism and prospects of rehabilitation, the release date is determined by statute, in other states.  Georgia is a so called ‘Truth-in-Sentencing’ state which reduces the role of its BPP by requiring that an inmate serve a certain percentage of their sentence before parole officials even have the discretion to consider release.  So, by restricting early parole, truth-in-sentencing laws reduce the discretion of parole officials.  However, Georgia’s statutes allow parole to be considered at a lower percentage of time awarded, than in many other states.

Some legal academics have expressed concern that discretionary parole release allows correctional officials to manage the prison population.  In Georgia, the BPP may take into consideration prison population when an emergency is declared for overcrowding, but the BPP appears to also be considering other “non-statutory” factors such as cost to the taxpayer for the daily costs of inmate incarceration, as outlined in the BPP 2015 Annual Report, pgs. 31-32. Why else would the BPP be concerned about costs of incarceration?  Nowhere in the statutory scheme is that a factor for BPP consideration that I have found. 

On the other hand,  when release dates are set by statute, parole boards are incapable of controlling prison overcrowding by releasing low-risk and well-behaved inmates.

Finally, I suppose my overall question is whether the BPP is taking discretion away from judges and juries in many cases.  Judges and juries hear the evidence and consider the extent and severity of an inmate’s crimes closer in time to the commission of the offense.  So shouldn’t they be given deference when deciding that a person will receive 10 or 15 years?  Why should that inmate be given discretionary mercy at a later date?  Many states do not provide the level of later discretion to parole boards as currently exists in Georgia.

I cannot point to the BPP as the only problem, however.  The legislature could raise the percentages of time to be served by an inmate before allowing an inmate to be considered for parole. I currently don’t see any strong movement in that direction.

Editor’s Note:  Atty. Coursey is a former Senior Asst. United States Attorney with 25 years of federal litigation experience; Chief of the Affirmative Civil Enforcement, Asset Forfeiture and Financial Litigation Sections of the U.S. Attorney’s Office; and has litigated and handled hundreds of civil and criminal investigations and cases, including numerous trials in the Federal and State Courts across Georgia. He is also an Adjunct instructor for new and experienced federal agents at the Federal Law Enforcement Training Center at Glynn County, Georgia, and has been an Instructor for many law enforcement groups including Assistant U.S. Attorneys, agents of the FBI, DEA, BATF, Secret Service, IRS CID, ICE CID, U.S. Marshals Service, U.S. Probation Officers, GBI agents, and numerous city and county police officers in Georgia and beyond.  In his career, he has received numerous awards from federal law enforcement agencies for successful case outcomes. He can be reached at www.mcdr-law.com. We are sure you will agree, that this scholarly effort to inform the public is well worth reading and sharing – Lou Phelps, Publisher.

NOTE:  After presenting legislation last year, Rep. Petrea was able to negotiate a change in Georgia where the BPP is now giving local law enforcement six-months notice of its intention to parole an inmate, to allow them time to comment.  Previously, across Georgia, the local DA and law enforcement officials only had three-days notice.

ADDITIONAL INFORMATION RESEARCHED by Atty. Coursey:

My view of the relevant Georgia statutory and Constitutional authority of the BPP follows:

§ 42-9-1. Declaration of legislative policy

In recognition of the doctrine contained in the Constitution of this state requiring the three branches of government to be separate, it is declared to be the policy of the General Assembly that the duties, powers, and functions of the State Board of Pardons and Paroles are executive in character and that, in the performance of its duties under this chapter, no other body is authorized to usurp or substitute its functions for the functions imposed by this chapter upon the board.

§ 42-9-2. Creation of board

Pursuant to Article IV, Section II, Paragraph I of the Georgia Constitution, there shall be a State Board of Pardons and Paroles, which shall consist of five members appointed by the Governor, subject to confirmation of the Senate.

1975 Op. Att'y Gen. No. 75-72.

The State Board of Pardons and Paroles retains the board's quasi-judicial functions and powers as a result of the Executive Reorganization Act of 1972 (Ga. L. 1972, p. 1015).

§ 42-9-20. 

General duties of board

(a)  In all cases in which the chairperson of the board or any other member designated by the board has suspended the execution of a death sentence to enable the full board to consider and pass on same, it shall be mandatory that the board act within a period not exceeding 90 days from the date of the suspension order. In the cases which the board has power to consider, the board shall be charged with the duty of determining which inmates serving sentences imposed by a court of this state may be released on pardon or parole and fixing the time and conditions thereof. The board shall also be charged with the duty of determining violations of parole and taking action with reference thereto and making such investigations as may be necessary. It shall be the duty of the board personally to study the cases of those inmates whom the board has power to consider so as to determine their ultimate fitness for such relief as the board has power to grant. The board by an affirmative vote of a majority of its members shall have the power to commute a sentence of death to one of life imprisonment.(b)  The board shall provide The Council of Superior Court Clerks of Georgia the data set forth in Code Section 15-12-40.1, without charge and in the electronic format requested. O.C.G.A. § 42-9-20

CONSTITUTION OF THE STATE OF GEORGIA

ARTICLE IV. CONSTITUTIONAL BOARDS AND COMMISSIONS SECTION

II. STATE BOARD OF PARDONS AND PAROLES

PARAGRAPH II. Powers and authority

(a)  Except as otherwise provided in this Paragraph, the State Board of Pardons and Paroles shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction.

(b)

(1)  When a sentence of death is commuted to life imprisonment, the board shall not have the authority to grant a pardon to the convicted person until such person has served at least 25 years in the penitentiary; and such person shall not become eligible for parole at any time prior to serving at least 25 years in the penitentiary.

(2)  The General Assembly may by general law approved by two-thirds of the members elected to each branch of the General Assembly in a roll-call vote provide for minimum mandatory sentences and for sentences which are required to be served in their entirety for persons convicted of armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery and, when so provided by such Act, the board shall not have the authority to consider such persons for pardon, parole, or commutation during that portion of the sentence.

(3)  The General Assembly may by general law approved by two-thirds of the members elected to each branch of the General Assembly in a roll-call vote provide for the imposition of sentences of life without parole for persons convicted of murder and for persons who having been previously convicted of murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery or having been previously convicted under the laws of any other state or of the United States of a crime which if committed in this state would be one of those offenses and who after such previous conviction subsequently commits and is convicted of one of those offenses and, when so provided by such Act, the board shall not have the authority to consider such persons for pardon, parole, or commutation from any portion of such sentence.

(4)  Any general law previously enacted by the General Assembly providing for life without parole or for mandatory service of sentences without suspension, probation, or parole is hereby ratified and approved but such provisions shall be subject to amendment or repeal by general law.

(c)  Notwithstanding the provisions of subparagraph (b) of this Paragraph, the General Assembly, by law, may prohibit the board from granting and may prescribe the terms and conditions for the board's granting a pardon or parole to:

(1)  Any person incarcerated for a second or subsequent time for any offense for which such person could have been sentenced to life imprisonment; and

(2)  Any person who has received consecutive life sentences as the result of offenses occurring during the same series of acts.

(d)  The chairman of the board, or any other member designated by the board, may suspend the execution of a sentence of death until the full board shall have an opportunity to hear the application of the convicted person for any relief within the power of the board.

(e)  Notwithstanding any other provisions of this Paragraph, the State Board of Pardons and Paroles shall have the authority to pardon any person convicted of a crime who is subsequently determined to be innocent of said crime or to issue a medical reprieve to an entirely incapacitated person suffering a progressively debilitating terminal illness or parole any person who is age 62 or older.

§ 42-9-20.1.

Public access to information regarding paroled felons residing within state

Notwithstanding the provisions of Article 4 of Chapter 18 of Title 50 or any provisions of this chapter relating to the confidentiality of records, the State Board of Pardons and Paroles shall develop and implement a system whereby any interested citizen of this state shall be permitted to contact the board through an electronic calling system or by other means and receive information relating to persons who have been convicted of a felony, who have been paroled, and whose current addresses are within the State of Georgia. With respect to each parolee, the board shall provide the parolee's name, sex, date of birth, current address, crime or crimes for which the parolee was convicted, and the beginning and ending dates of such person'  parole. The board shall be authorized to charge a reasonable fee to cover the costs of providing such information. The board shall be authorized to promulgate rules and regulations to carry out the provisions of this Code section.

(Interesting to note that the public has access to basic information about a parolee once he has been paroled, but no information about what the BPP is reviewing when it is considering an inmate for parole in the first instance!!   See 42-9-43 below.)

§ 42-9-21.

Supervision of persons placed on parole or other conditional release; contracts for services and programs; collection of sums for restitution.

(a)  The department shall have the function and responsibility of supervising all persons placed on parole or other conditional release by the board.

(b)  The department shall be authorized to maintain and operate or to enter into memorandums of agreement or other written documents evidencing contracts with other state agencies, persons, or any other entities for transitional or intermediate or other services or for programs deemed by the board to be necessary for parolees or others conditionally released from imprisonment by order of the board and to require as a condition of relief that the offender pay directly to the provider a reasonable fee for such services or programs.

(c)  In all cases where restitution is applicable, the department shall collect during the parole period those sums determined to be owed to the victim.

§ 42-9-40.

Parole guidelines system

(a)  The board shall adopt, implement, and maintain a parole guidelines system for determining parole action. The guidelines system shall be used in determining parole actions on all inmates, except those serving life sentences, who will become statutorily eligible for parole consideration. The system shall be consistent with the board's primary goal of protecting society and shall take into consideration the severity of the current offense, the inmate's prior criminal history, the inmate's conduct, and the social factors which the board has found to have value in predicting the probability of further criminal behavior and successful adjustment under parole supervision.

(b)  The guidelines system required by subsection (a) of this Code section shall be adopted by rules or regulations of the board. The rules or regulations shall be adopted in conformity with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

NOTE:  The BPP is able to enact its own rules, regulations and policies…..…and then enforce them????

§ 42-9-43.

Information to be considered by board generally; conduct of investigation and examination; determination as to grant of relief

(a)  The board, in considering any case within its power, shall cause to be brought before it all pertinent information on the person in question. Included therein shall be:

(1)  A report by the superintendent, warden, or jailer of the jail or state or county correctional institution in which the person has been confined upon the conduct of record of the person while in such jail or state or county correctional institution;

(2)  The results of such physical and mental examinations as may have been made of the person;

(3)  The extent to which the person appears to have responded to the efforts made to improve his or her social attitude;

(4)  The industrial record of the person while confined, the nature of his or her occupations while so confined, and a recommendation as to the kind of work he or she is best fitted to perform and at which he or she is most likely to succeed when and if he or she is released;

(5)  The educational programs in which the person has participated and the level of education which the person has attained based on standardized reading tests;

(6)  The written statements or oral testimony, if any, of the district attorney of the circuit in which the person was sentenced expressing views and making any recommendation as to a pardon for a serious offense, as such term is defined in Code Section 42-9-42, or commutation of a death sentence;

(7)  The written, oral, audiotaped, or videotaped testimony of the victim, the victim's family, or a witness having personal knowledge of the victim's personal characteristics, including any information prepared by the victim or any individual offering or preparing information on behalf of the victim, for the purpose of the board's consideration of a pardon or commutation of a death sentence if the victim has provided such information to the board; and

(8)  If the person is or was required to register pursuant to Code Section 42-1-12, any court order issued releasing the person from registration requirements or residency or employment restrictions.

(b)  (1) As used in this subsection, the term:

(A)  "Debilitating terminal illness" means a disease that cannot be cured or adequately treated and that is reasonably expected to result in death within 12 months.

(B)  "Entirely incapacitated" means an offender who:

(i)  Requires assistance in order to perform two or more necessary daily life functions or who is completely immobile; and

(ii)  Has such limited physical or mental ability, strength, or capacity that he or she poses an extremely low risk of physical threat to others or to the community.

(C)  "Necessary daily life function" means eating, breathing, dressing, grooming, toileting, walking, or bathing.

(2)  The board may issue a medical reprieve to an entirely incapacitated person suffering a progressively debilitating terminal illness in accordance with Article IV, Section II, Paragraph II of the Constitution.

(c)

(1)  The board shall give at least 30 days' advance written notification to the district attorney of the circuit in which the person was sentenced whenever it considers making a final decision on a pardon for a serious offense, as such term is defined in Code Section 42-9-42, and shall provide the district attorney an opportunity to submit information and file a written objection to such action.

(2)  Within 72 hours of receiving a request to commute a death sentence, the board shall provide written notification to the district attorney of the circuit in which the person was sentenced of the date set for hearing such request and shall provide the district attorney an opportunity to submit information and file a written response to such request.

(3)  The board may also make such other investigation as it may deem necessary in order to be fully informed about the person.

(d)

(1)  Before releasing any person on parole, granting a pardon, or commuting a death sentence, the board may have the person appear before it and may personally examine him or her and consider any information it deems relevant or necessary. When objections to relief have been tendered, the board may hold a hearing and consider oral testimony. Upon consideration of the records, papers, documents, and oral testimony submitted, the board shall make its findings and determine whether or not such person shall be granted a pardon, parole, or other relief within the power of the board and determine the terms and conditions thereof.

(2)  Notice of the board's determination shall be given to the person being considered, the correctional official having him or her in custody, if applicable, the district attorney who submitted any information or objection, and the victim in accordance with Code Section 17-17-13.

(e)  If a person in custody is granted a pardon or a parole, the correctional official having such person in custody, upon notification thereof, shall inform him or her of the terms and conditions thereof and shall, in strict accordance therewith, release the person.

§ 42-9-45.

General rule-making power

(a)  The board may adopt and promulgate rules and regulations, not inconsistent with this chapter, touching all matters dealt with in this chapter, including, among others, the practice and procedure in matters pertaining to paroles, pardons, and remission of fines and bond forfeitures. The rules and regulations shall contain an eligibility requirement for parole which shall set forth the time when the automatic initial consideration for parole of inmates under the jurisdiction of the Department of Corrections shall take place and also the times at which periodic reconsideration thereafter shall take place. Such consideration shall be automatic, and no written or formal application shall be required.

(. . . . .)

(c)  The board shall adopt rules and regulations governing the granting of other forms of clemency, which shall include pardons, reprieves, commutation of penalties, removal of disabilities imposed by law, and the remission of any part of a sentence, and shall prescribe the procedure to be followed in applying for them. Applications for the granting of such other forms of clemency and for exceptions to parole eligibility rules established by statute or promulgated by the board shall be made in such manner as the board shall direct by rules and regulations.

§ 42-9-60.

Overcrowding of prison system as creating state of emergency; paroling inmates to reduce prison system population to capacity; annual report of inmates paroled

(a)  As used in this Code section, the term:

(1)  "Capacity" shall mean the actual bed space in the prison system of the State of Georgia now or in the future, as certified by the commissioner of corrections and approved by the director of the Office of Planning and Budget.

(2)  "Dangerous offender" means a state prison inmate who is imprisoned for conviction of any one or more of the following crimes as defined by Title 16, the "Criminal Code of Georgia": murder, voluntary manslaughter, kidnapping, armed robbery, rape, aircraft hijacking, aggravated sodomy, aggravated battery, aggravated assault, incest, child molestation, child abuse, or enticing a child for indecent purposes, or any felony punishable under Code Section 16-13-31, relating to prohibited acts regarding marijuana, cocaine, and illegal drugs. The term "dangerous offender" shall also include an inmate who is incarcerated for a second or subsequent time for the commission of a crime for which the inmate could have been sentenced to life imprisonment.

(3)  "Population" shall mean the actual number of inmates present in the correctional institutions of the state prison system and shall not include state inmates assigned to county operated correctional institutions.

(b)  The Governor, upon certification by the commissioner of corrections and approval by the director of the Office of Planning and Budget that the population of the prison system of the State of Georgia has exceeded the capacity for 30 consecutive days, may, within five days of receipt of the commissioner's certification, declare a state of emergency with regard to jail and prison overcrowding.

(c)  Upon the declaration of a state of emergency with regard to the jail and prison overcrowding by the Governor, the board shall select sufficient state prison inmates to reduce the state prison population to 100 percent of its capacity and issue such selected inmates a parole, but no dangerous offender shall be eligible for selection by the board. The board shall give special consideration for early release under this Code section to inmates who have participated in educational programs and who have achieved a fifth-grade level or higher on standardized reading tests. The selection of state prison inmates to be released under the authority contained in this Code section may be made without regard to limitations placed upon the service of a portion of the prison sentence provided by Code Section 42-9-45.

(d)  It shall be the duty of the director of the Office of Planning and Budget to prepare an annual report on prison inmates who are paroled pursuant to this Code section. Such report shall summarize each such former inmate's behavior since parole and generally evaluate the former inmate's success or lack of success in becoming a law-abiding member of society. The annual report shall be filed with the Clerk of the House of Representatives and the Secretary of the Senate on or before December 31, with the first such report submitted by December 31 of the first year that prison inmates are paroled pursuant to this Code section. A notice of the filing of this report shall be submitted to each member of the General Assembly when the annual report is filed with the Clerk of the House of Representatives and the Secretary of the Senate. Copies of this report shall be made available to members of the General Assembly upon their request. The board, the Department of Corrections, and other departments and agencies of the state government shall cooperate with and assist the director of the Office of Planning and Budget in developing the information necessary to prepare the annual reports required by this subsection.

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