Hamm v. Ray

Hunstein, Justice,

dissenting.

A state may . . . establish a parole system, but it has no duty to do so. Moreover, to insure that the state-created parole system serves the public-interest purposes of rehabilitation and deterrence, the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority.

Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U. S. 1, 7-8 (99 SC 2100, 60 LE2d 668) (1979). Georgia has chosen to afford broad discretionary power and authority in the Board with respect to the grant of parole and the supervision of paroled prisoners. OCGA §§ 42-9-20, 42-9-21, 42-9-40. This includes the determination of an inmate’s ultimate fitness for parole relief, the discretion to impose terms of parole without the additional requirement that there exist a direct relationship between the instruction and the criminal offense, and the authority to supervise all persons placed on parole. This process is clearly designed to serve the parole statute’s primary goal to protect society, OCGA § 42-9-40 (a), while fostering individualized decision making in parole actions.

A standard condition of parole required Hamm to “carry out the instructions of his or her parole supervisor, and, in general, so comport himself or herself as the parolee’s supervisor shall determine.” OCGA § 42-9-44 (a). It is the majority’s characterization of these instructions to which I dissent. Although the instructions are misleadingly entitled “sex offender instruction sheet,” it is without dispute that Hamm was never expected to comply with the OCGA § 42-9-44.1 mandatory sexual offender registration requirement. The remaining instructions which included, inter alia, violence counseling and supervision, and limits on, accessibility to pornography, alcohol, controlled substances, and underage children were justified given Hamm’s history of multiple kidnapping, armed robbery, aggravated assault, and motor vehicle theft convictions.

While I agree with Division 1 of the majority opinion that the *662trial court correctly ruled that the special conditions attached to Hamm’s parole by the Board are not subject to mandamus, I disagree that the instructions provided to Hamm constitute a “condition” which can only be imposed directly by the Board, rather than under the general powers delegated by the Board to carry out the intent of the parole statute. It is my opinion that there existed an absence of any showing by Hamm that the challenged instructions were imposed in an arbitrary or punitive manner so as to constitute the gross abuse of discretion required for mandamus to issue. Vargas v. Morris, 266 Ga. 141 (2) (465 SE2d 275) (1996). Accordingly, I dissent.

Decided May 30, 2000 Reconsideration denied July 28, 2000. George Hamm, pro se. Thurbert E. Baker, Attorney General, Christopher S. Brasher, Assistant Attorney General, for appellees. I am authorized to state that Justice Thompson joins in this dissent.