Jones v. Garner

United States Court of Appeals,

Eleventh Circuit.

No. 97-9009.

Robert L. JONES, Plaintiff-Appellant,

v.

J. Wayne GARNER, Employed as Chairman, State Board of Pardons and Paroles, et al.,
Defendants-Appellees.

Jan. 6, 1999.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-cv-
3012-CAM), Charles A. Moy, Jr., Judge.

Before BIRCH and BARKETT, Circuit Judges, and HANCOCK*, Senior District Judge.

BARKETT, Circuit Judge:

Robert Jones appeals the district court's order granting summary judgment to defendants J.

Wayne Garner and other former and current members of the Georgia Board of Pardons and Paroles

("the Board") on Jones' claim that the retroactive application of amendments to the Georgia

regulations governing parole consideration, Ga. Comp. R. & Regs. r. 475-3-.05.(2) (1986), violated

the Ex Post Facto Clause of Article I, § 10 of the United States Constitution. In Akins v. Snow, 922

F.2d 1558 (11th Cir.1991), we held that retroactive application of r. 475-3-.05(2) violated this

clause's prohibition on ex post facto laws. After the Supreme Court decided California Dep't of

Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), in which it held that

the retroactive application of a legislative amendment to the California parole regulations that

decreased the frequency of parole suitability hearings in certain circumstances did not represent an

*
Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of
Alabama, sitting by designation.
ex post facto violation, the Board concluded that Akins had been overruled and scheduled Jones' next

hearing for 2003 pursuant to the rule promulgated in 1986. The district court agreed that Morales

overruled Akins, and granted summary judgment to the defendants. We find that Morales reinforced

our holding in Akins, and pursuant to Morales and Akins, we REVERSE.

I. Background

The facts of this case are not in dispute. In July 1974, Jones was sentenced in the Superior

Court of Fulton County, Georgia, to life in prison for murder. In August of 1982 he was again

sentenced in the same court to life in prison for murder on subsequent charges. At the time of Jones'

second offense, the state regulations governing parole consideration required that he first be

considered for parole after seven years and, if parole was not granted at that time, that he be

considered every three years thereafter. After Jones was incarcerated but before he was initially

considered for parole, the Board amended its rules to require that parole reconsideration take place

only once every eight years. See Ga. Comp. R. & Regs. r. 475-3-.05.(2).1

Jones was initially considered for parole in 1989, seven years after his 1982 conviction, and

parole was denied. At that time, rather than scheduling Jones for a rehearing after three years as

provided for by the Board rules at the time of the offense, the Board scheduled Jones for

reconsideration eight years later, in 1997. In the meantime, however, this Court decided Akins v.

Snow, 922 F.2d 1558 (11th Cir.1991), in which it held that the retroactive application of r. 475-3-

1
As amended, the regulation relating to frequency of parole reconsideration reads as follows:

Reconsideration of those inmates serving life sentences who have been denied
parole shall take place at least every eight years. The Board will inform inmates
denied parole of the reasons for such denial without disclosing confidential
sources of information or possible discouraging diagnostic opinions.

Ga. Comp. R. & Regs. r. 475-3-.05.(2).
.05.(2) violated the Ex Post Facto Clause of Article I, § 10 of the United States Constitution. As a

result, Jones was reconsidered for parole in three year intervals, in 1992 and again in 1995. In 1995,

however, the Supreme Court decided California Dep't of Corrections v. Morales, 514 U.S. 499, 115

S.Ct. 1597, 131 L.Ed.2d 588 (1995). The Board read Morales to overrule Akins, and as a

consequence, rather than scheduling Jones' next consideration for 1998, the Board scheduled Jones

for reconsideration in 2003 (eight years later).

In 1995, following the Board's rescheduling of his next parole reconsideration for 2003,

Jones filed a pro se § 1983 action in the Northern District of Georgia, alleging that the Board's

action violated several of his constitutional rights. The district court dismissed his complaint as

frivolous on all counts. Jones appealed the dismissal, and a panel of this Court reversed in part,

finding Jones's allegation of an Ex Post Facto Clause violation not to be frivolous. On remand, both

parties filed motions for summary judgment. The district court granted defendant's motion for

summary judgment and denied Jones' motion on the ground that Morales had overruled Akins. Jones

now appeals.

II. Discussion

The Constitution provides that "[n]o State shall ... pass any ... ex post facto Law...." U.S.

Const. art. I, § 10, cl. 1. At the time of the drafting of the Constitution, the phrase " "ex post facto

law' was a term of art with a well-established meaning." Akins v. Snow, 922 F.2d at 1560. In Calder

v. Bull, 3 U.S. (Dall.) 386, 1 L.Ed. 648 (1798), the Supreme Court "identified several legislative acts

that clearly implicated the core concerns" with respect to ex post facto laws that existed at the time

the Constitution was written. Akins, 922 F.2d at 1560-61. Included in such legislative acts was any

law "... that changes the punishment, and inflicts a greater punishment, than the law annexed to the

crime, when committed." Akins, 922 F.2d at 1560-61 (quoting Calder, 3 U.S. (Dall.) at 390
(emphasis in original)). The Supreme Court's ex post facto rulings have continued to adhere to the

original principle that laws with this effect violate the Constitution's ex post facto prohibition. See

id. (collecting cases).2

Akins v. Snow

In Akins, this Court considered an ex post facto challenge to the retroactive application of

the amendments to Georgia's regulations governing parole consideration at issue here, see Ga.

Comp. R. & Regs. r. 475-3-.05.(2), and held such application to violate the proscription against laws

" "that change[ ] the punishment, and inflict[ ] a greater punishment than the law annexed to the

crime when committed.' " Akins, 922 F.2d at 1560-61 (quoting Calder, 3 U.S. (Dall.) at 390

(emphasis in original)). When the crimes for which the petitioners in Akins were convicted were

committed, "the Board's rules required the Board to initially consider an inmate serving a life term

for parole after serving seven years of his life sentence." Id. at 1560. If the inmate was denied

parole at that time, he would receive reconsideration every year thereafter. See id. The regulation

was subsequently amended so that "[parole r]econsideration of those inmates serving life sentences

who have been denied parole shall take place at least every eight years." Ga. Comp. R. & Regs. r.

475-3-.05.(2). Applying the two-pronged test for Ex Post Facto Clause violations established by the

Supreme Court in Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981),3 we

2
Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Weaver v.
Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); Dobbert v. Florida, 432 U.S.
282, 292, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Lindsey v. Washington, 301 U.S. 397, 401, 57
S.Ct. 797, 81 L.Ed. 1182 (1937); Rooney v. North Dakota, 196 U.S. 319, 324-25, 25 S.Ct. 264,
49 L.Ed. 494 (1905); In re Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 33 L.Ed. 835 (1890);
Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1866); Calder v. Bull, 3
U.S. (Dall.) 386, 390, 1 L.Ed. 648 (1798).
3
First, the law must be "retrospective, that is, it must apply to events occurring before its
enactment...." Weaver, 450 U.S. at 29, 101 S.Ct. 960. Second, the law must "disadvantage the
offender affected by it." Id. (quoted in Akins, 922 F.2d at 1563).
found both that the Georgia regulation was retroactive and that, by creating significant delays

between parole reconsideration hearings, the application of the regulation "substantially

disadvantages a prisoner." Akins, 922 F.2d at 1564.4

California Dep't of Corrections v. Morales and Lynce v. Mathis

Four years later, the Supreme Court entertained an ex post facto challenge to retroactive

application of an amended California Department of Corrections regulation governing parole

eligibility. See California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131

L.Ed.2d 588 (1995). At the time that Morales committed the crime for which he was incarcerated,

the California parole consideration regulations specified that, once an inmate became eligible for

an initial parole consideration hearing, if the inmate was denied parole at that time, he or she would

be eligible for annual reconsideration. See id. at 503, 115 S.Ct. 1597. Subsequent to Morales'

sentencing, however, the California legislature amended the regulation to authorize the Board of

Prison Terms "to defer subsequent suitability hearings for up to three years if the prisoner has been

convicted of "more than one offense which involves the taking of a life' and if the Board "finds that

it is not reasonable to expect that parole would be granted at a hearing during the following [two]

years and states the bases for the findings.' " Id. (quoting Cal.Penal Code Ann. § 3041.5(b)(2)(West

1982)).

In Morales, the Supreme Court rejected an expansive reading of the Ex Post Facto Clause

4
In Akins, we addressed three preliminary questions as a predicate to making the ultimate ex
post facto determination. Specifically, we found that: (1) Georgia's administrative regulation
governing parole reconsideration is a "law" for purposes of the Ex Post Facto Clause, see Akins,
922 F.2d at 1561; (2) that a parole reconsideration hearing is part of a prisoner's parole
eligibility, id. at 1561-62; and (3) that, because parole eligibility is part of an offender's
punishment, "for ex post facto purposes, parole eligibility must be considered part of any
sentence." Id. at 1563. None of these holdings has been called into question either by the
Supreme Court's decision in Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), or
by the parties on appeal.
as forbidding any and all legislative change having any conceivable risk of affecting a prisoner's

punishment. See id. at 508, 115 S.Ct. 1597. Instead, the Court found it to be "a matter of "degree'

" as to which "legislative adjustments "will be held to be of sufficient moment to transgress the

constitutional prohibition [on ex post facto laws].' " Id. at 509, 115 S.Ct. 1597 (quoting Beazell v.

Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Declining to provide a universal

formula for identifying legislative changes that violate the ex post facto prohibition, id., the Court

directed that each case be analyzed by asking "whether [the law at issue] produces a sufficient risk

of increasing the measure of punishment attached to the covered crimes," id., and proceeded to apply

this standard to the California statute at issue in Morales.

First, the Court noted that the regulation as amended applies "only to a class of prisoners for

whom the likelihood of release on parole is quite remote": those prisoners "who have been

convicted of "more than one offense which involves the taking of a life.' " Id. at 510, 115 S.Ct. 1597

(quoting Cal.Penal Code Ann. § 3041.5(b)(2)(West 1982)).

Second, the Court found that the California amendment was intended only "as a means "to

relieve the [state's Board of Prison Terms] from the costly and time-consuming responsibility of

scheduling parole hearings for prisoners who have no chance of being released,' " id. at 511, 115

S.Ct. 1597 (quoting In re Lawrence A. Jackson, 39 Cal.3d 464, 473, 216 Cal.Rptr. 760, 703 P.2d 100

(1985) (quoting legislative history))—and not to increase the punishment of the affected offenders.

The Court found the measure to be "carefully tailored" to the end of saving time and money, id., and

to incorporate several safeguards to ensure that its application does not result in extending the

sentence of a prisoner who would be eligible for parole in the intervening two years. See id.

Specifically, the Court noted that "the amendment has no effect on any prisoner unless the Board

has first concluded, after a hearing, not only that the prisoner is unsuitable for parole, but also that
"it is not reasonable to expect that parole would be granted at a hearing during the following years.'

" Id. at 511, 115 S.Ct. 1597 (quoting § 3041.5(b)(2)). In this regard, the Court particularly

emphasized the statutory requirement that "the [California Board of Prison Terms] must conduct "a

full hearing and review' of all relevant facts, and state the bases for its finding." Id. (quoting §

3041.5(b)(2)).5

Finally, the Morales Court noted that, under the amended regulation, the California Board

of Prison Terms retains "the authority to tailor the frequency of subsequent suitability hearings to

the particular circumstances of the individual prisoner." Id.; see also id. ("The default is an annual

hearing but the Board may defer the next hearing up to two years more depending on the

circumstances.") (citing § 3041.5(b)(2)). In particular, the Court found no reason to fear that a

prisoner who would have been found qualified for release one or two years previous would suffer

a later actual release date than he would have under the old annual review system. The Court noted

that in California, it is often the case that an inmate's actual release date will come several years after

a finding of suitability by the Board. See id. at 513, 115 S.Ct. 1597. It therefore reasoned that,

because the Board retained the discretion to expedite the release date of an inmate who is able to

demonstrate "that he was "suitable' for parole two years prior to such a finding by the Board," such

an inmate "might well be entitled to secure a release date that reflects that fact." Id.

On the basis of the safeguards in place in the amended California regulation, the Morales

Court concluded that the regulation as amended "creates only the most speculative and attenuated

risk of increasing the measure of punishment attached to the covered crimes." Id. at 514, 115 S.Ct.

5
The Court added that "[t]hough California law is not entirely clear on this point, the
reliability of the Board's determination may also be enhanced by the possibility of an
administrative appeal." Morales, 514 U.S. at 511, 115 S.Ct. 1597 (citing Tit. 15 Cal.Code of
Regulations, § 2050 (1994)).
1597. As the Court put it,

[i]n light of the particularized findings required under the amendment and the broad
discretion given to the Board, the narrow class of prisoners covered by the amendment
cannot reasonably expect that their prospects for early release on parole would be enhanced
by the opportunity of annual hearings. For these prisoners, the amendment simply allows
the Board to avoid the futility of going through the motions of reannouncing its denial of
parole suitability on a yearly basis.

Id. at 512, 115 S.Ct. 1597. The Court therefore found no ex post facto violation. See id. at 514, 115

S.Ct. 1597.

Subsequently, in Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), the

Supreme Court found Florida's attempt to cancel retroactively the accumulated overcrowding credits

awarded to inmates convicted of murder and attempted murder to be a violation of the prohibition

on ex post facto laws, and in the course of so doing, provided some guidance to courts applying the

standards established in Morales. The Lynce Court emphasized in particular two features of the

Court's reasoning in that case. First, it underscored that the "bulk of [the Court's analysis in Morales

] focused on the effect of the law on the inmate's sentence" and that the holding in Morales "rested

squarely on the conclusion that "a prisoner's ultimate date of release would be entirely unaffected

by the change in the timing of suitability hearings.' " Lynce, at ----, 117 S.Ct. at 897 (quoting

Morales, 514 U.S. at 513, 115 S.Ct. 1597); see also id. at ---- n. 16, 117 S.Ct. at 898 n. 16 ("Simply

put, we rejected the inmate's claim in Morales, because it could not be said with any certainty that

the amended statutory scheme was more "onerous' than at the time of the crime.").

Second, the Lynce Court emphasized the need to assess the legislature's purpose behind the

change in the sentencing scheme as well as the possible effect of the change on offenders' sentences.

In Lynce, the Court pointed out that Morales never addressed the question as to whether a legislative

purpose to "increas[e] the quantum of punishment" would alone "be a sufficient basis for concluding

that a law violated the Ex Post Facto Clause when it actually had no such effect." Id. at ----, 117
S.Ct. at 897. However, the Court underscored that in Morales, where no ex post facto violation was

found, "the change at issue had neither the purpose nor the effect of increasing the quantum of

punishment." Id. In Lynce, on the other hand, the Court saw no evidence that the Florida legislature

effected the change at issue in that case "merely to save time or money" in those cases in which the

ultimate date of release would remain entirely unaffected. Rather, the Court found "it [to be] quite

obvious that the retrospective change was intended to prevent the early release of prisoners

convicted of murder-related offenses who had accumulated overcrowding credits," Lynce, 519 U.S.

at ---- - ----, 117 S.Ct. at 897-98. This finding supported the Court's conclusion that the Florida

provision violated the prohibition on ex post facto laws.

The Amended Georgia Regulation

As Morales and Lynce make clear, our inquiry regarding the retroactive application of

Georgia's regulation governing parole reconsideration, r. 475-3-.05.(2), must focus on its effect on

" "a prisoner's ultimate date of release,' " id. at ----, 117 S.Ct. at 897 (quoting Morales, 514 U.S. at

513, 115 S.Ct. 1597), in order to determine whether the change constitutes a "sufficient risk of

increasing the measure of punishment attached to the covered crimes." Id. at ---- n. 14, 117 S.Ct.

at 897 n. 14 (quoting Morales, 514 U.S. at 509, 115 S.Ct. 1597). To determine whether the

retroactive application of the Georgia regulation gives rise to such a risk, we examine the regulation

in light of the factors discussed in Morales, and find it to be wholly distinguishable from the statute

at issue in that case.

First, unlike the California statute, it cannot be said of Georgia's r. 475-3-.05.(2) that it

applies "only to a class of prisoners for whom the likelihood of release on parole is quite remote."

Morales, 514 U.S. at 510, 115 S.Ct. 1597. The California statute at issue in Morales applied only

to those inmates "who have been convicted of "more than one offense which involves the taking of
a life.' " Id. (quoting Cal.Penal Code Ann. § 3041.5(b)(2)(West 1982)). The set of affected inmates

is thus likely to be extremely small. The Georgia provision, in contrast, applies to all "those inmates

serving life sentences," r. 475-3-.05.(2). In Georgia, it turns out, this group can include prisoners

convicted of murder, see GA.CODE ANN. § 16-5-1; felony murder, see id.; rape, see GA.CODE ANN.

§ 16-6-1; armed robbery, see GA.CODE ANN. § 16-8-41; kidnapping for ransom, see GA.CODE

ANN. § 16-5-40; hijacking an aircraft, see GA.CODE ANN. § 16-5-44; more than one count of child

molestation, see GA.CODE ANN. § 16-6-4; perjury that was the cause of someone else being

sentenced to death, see GA.CODE ANN. § 16-10-70; more than one count of possession or use of a

machine gun, sawed-off rifle, sawed-off shotgun, or a firearm equipped with a silencer during the

commission or attempted commission of a series of enumerated offenses,6 see GA.CODE ANN. § 16-

6
This list includes:

(1) Aggravated assault as defined in Code Section 16-5-21;

(2) Aggravated battery as defined in Code Section 16-5-24;

(3) Robbery as defined in Code Section 16-8-40;

(4) Armed robbery as defined in Code Section 16-8-41;

(5) Murder or felony murder as defined in Code Section 16-5-1;

(6) Voluntary manslaughter as defined in Code Section 16-5-2;

(7) Involuntary manslaughter as defined in Code Section 16-5-3;

(8) Sale, possession for sale, transportation, manufacture, offer for sale, or offer to
manufacture controlled substances in violation of any provision of Article 2 of Chapter
13 of [Title 16], the "Georgia Controlled Substances Act";

(9) Terroristic threats or acts as defined in Code Section 16-11-37;

(10) Arson as defined in Code Sections 16-7-60, 16-7-61, and 16-7-62;

(11) Influencing witnesses as defined in Code Section 16-10-93; and
11-160; and more than one count of a series of prohibitions on the manufacture, possession, sale,

or distribution of certain controlled substances, see GA.CODE ANN. § 16-13-30. The set of inmates

whose parole consideration will be affected by r. 475-3-.05.(2) is thus bound to be far more sizeable

than the set of inmates affected by the California provision at issue in Morales. This set must

also—unless we are to believe that the state of Georgia imposes a sentence of life in prison without

parole for the entire set of offenses just enumerated—be comprised of many inmates who can expect

at some point to be paroled. For this reason, we are unable to conclude that r. 475-3-.05.(2) will

apply "only to a class of prisoners for whom the likelihood of release on parole is quite remote."

Second, unlike the California statute, the Georgia regulation cannot be said to be "carefully

tailored" so as to support a finding that the measure was intended only to further the legitimate end

of saving time and money and not to "increas[e] the quantum of punishment." Lynce, 519 U.S. at

----, 117 S.Ct. at 897. The Morales Court emphasized that safeguards built into the California

provision would ensure that retroactive application would not extend the sentences of those

prisoners who would be otherwise eligible for parole in the years between hearings. In particular,

the Court noted the statutory requirement that "the [California Board of Prison Terms] must conduct

"a full hearing and review' of all relevant facts, and state the bases for its finding" that " "it is not

reasonable to expect that parole would be granted at a hearing during the following [two] years.' "

Morales, 514 U.S. at 511, 115 S.Ct. 1597 (quoting Cal.Penal Code Ann. § 3041.5(b)(2)(West

1982)).

The same cannot be said for the Georgia regulation. It reads, in its entirety,

Reconsideration of those inmates serving life sentences who have been denied parole shall

(12) Participation in criminal gang activity as defined in Code Section 16-15-4.

GA.CODE ANN. § 16-11-160.
 take place at least every eight years. The Board will inform inmates denied parole of the
reasons for such denial without disclosing confidential sources of information or possible
discouraging diagnostic opinions.

Ga. Comp. R. & Regs. r. 475-3-.05.(2). The Board is not required to make any particularized

findings supporting its conclusion that, as to the inmate under consideration, "it is not reasonable

to expect that parole would be granted" during the intervening eight years before the next

hearing—indeed, as the facts of this case indicate, the Board would be within its discretion to say

next to nothing.7 Nor is the Board required to have any sort of hearing on this question, much less

the "full hearing" required by the California statute approved by the Supreme Court in Morales.

Unlike the California provision at issue in Morales, which established an annual hearing as

a default but conferred on the Board of Prison Terms the authority to "defer the next hearing up to

two years more depending on the circumstances," the Georgia regulation simply sets the default for

affected inmates at reconsideration "at least every eight years." Eight years is a long time. Much

can happen in the course of eight years to affect the determination that an inmate would be suitable

7
The letter Jones received from the Board in 1995 illustrates the minimal burden the
regulation places on the Board to justify its scheduling decisions. In its entirety, this letter reads:

Dear Mr. Jones,

You have been thoroughly and carefully considered for parole. The
Board's decision is to deny parole at this time. The main reasons for the decision
cited by the Board members during their individual study of your case are
circumstances and nature of the offense, and multiple offenses.

The board has decided to consider you again for parole during August
2003.

Sincerely,

[signature].

R.1-18-Ex.3
for parole. The Morales Court emphasized that, because an inmate's "parole release date [often]

comes at least several years after a finding of suitability," and because the Board "retains the

discretion to expedite the release date of such a prisoner," a prisoner affected by the amended

California statute who can demonstrate "that he was "suitable' for parole two years prior to such a

finding by the Board might well be entitled to secure a[n earlier] release date that reflects that fact."

Morales, 514 U.S. at 513, 115 S.Ct. 1597. The eight-year period specified in r. 475-3-.05.(2),

however, is simply too long to allow us to say that an inmate who would have been able to

demonstrate suitability for parole in the years between reconsideration hearings would be able to

"cure" this delay through petitioning for an earlier release date. There is therefore a "sufficient risk"

that the amended Georgia regulation would "increas[e] the measure of punishment attached to the

covered crimes." Id. at 509, 115 S.Ct. 1597.

We are not persuaded by the Board's argument that the policy statement it issued in October

1996 cures the constitutional defects of r. 475-3-.05.(2) identified here. See State Board of Pardons

and Paroles Policy Statement No. 4.110. The relevant language of the policy statement provides that

Policy: It is the policy of the Board that all Life Sentence Cases denied parole may be set
for reconsideration up to a maximum of eight years from the date of the last denial when, in
the Board's determination, it is not reasonable to expect that parole would be granted during
the intervening years. Inmates set-off under this policy may receive expedited parole
reviews in the event of a change in their circumstance or where the Board receives new
information that would warrant a sooner review.

Procedures: At the time the Members vote to deny parole in a Life Sentence Case, the
Members will indicate the number of years the inmate must serve prior to being next
considered.

See id. §§ 1.105-06.

This policy does not sufficiently mitigate the defects in the regulation itself to defeat an ex

post facto challenge. Policy statements, unlike regulations, are unenforceable and easily changed,

and adherence to them is a matter of the Board's discretion. These are qualities that caution against
treating their contents as if they had the authority of officially promulgated statutes or regulations.

Moreover, even notwithstanding these limitations, this particular policy statement still does not

require the Board to make particularized findings or even to provide clear reasons for its decision

regarding the scheduling of subsequent hearings. And it also, of course, continues to allow an

interval of eight years between hearings without any requirement that the Board consider an inmate's

case during that time. Given the large class of affected inmates, this eight-year interval seems

certain to ensure that some number of inmates will find the length of their incarceration extended

in violation of the Ex Post Facto Clause of the Constitution.

The Board also argues that we should follow the Fourth Circuit, which in the wake of

Morales upheld against ex post facto challenges the retroactive application of both South Carolina's

and Virginia's amended parole reconsideration statutes. See Roller v. Gunn, 107 F.3d 227 (4th

Cir.1997) (South Carolina); Hill v. Jackson, 64 F.3d 163, 169-70 (4th Cir.1995) (Virginia). We

do not find in these cases, however, any discussion or analysis of the absence in the statutes at issue

of the procedural safeguards deemed essential in Morales to protect inmates against an increase in

the "quantum of punishment" attached to their crimes. See Roller, 107 F.3d at 238-40 (dissent of

Judge Hall). Moreover, the South Carolina statute as amended provides that affected inmates "only

have [their] case[s] reviewed every two years after an initial negative parole determination rather

than every year," Roller, 107 F.3d at 229 (citing S.C.CODE ANN. § 24-21-645 (Law. Co-op.1997)),

while the Virginia amendments authorize the extension of the period between parole

reconsiderations from one year to three years. Hill, 64 F.3d at 166 (citing VA.CODE ANN. § 53.1-

154 (Michie 1988)). The respective time-frames created for the subsequent parole reconsideration

of inmates by the South Carolina and Virginia statutes are thus considerably shorter than the lengthy

eight-year gap between parole reconsiderations authorized by the Georgia provision, thus creating
less of a risk than the Georgia statute that "the measure of punishment" imposed on affected inmates

will be "increased." Morales, 514 U.S. at 513, 115 S.Ct. 1597.

Whether a particular provision violates the prohibition on ex post facto laws is a "matter of

"degree.' " Morales, 514 U.S. at 509, 115 S.Ct. 1597 (quoting Beazell, 269 U.S. at 171, 46 S.Ct. 68).

Given the length of time that the Georgia provision requires inmates to wait between parole

consideration hearings and the absence of safeguards such as a "full hearing and review of all the

relevant facts" and an obligation on the part of the Board to state particularized facts relating to the

inmate's likely future parole eligibility, we cannot conclude—as we must, to find no ex post facto

violation—that the amended regulation "ha[s] neither the purpose nor the effect of increasing the

quantum of punishment." Lynce, 519 U.S. at ----, 117 S.Ct. at 897.

For the foregoing reasons, we conclude that Akins has not been overruled. Indeed, we find

that the Supreme Court's reasoning in Morales and Lynce reaffirms the correctness of our holding

in that case. Thus, pursuant to Morales, Lynce, and Akins, we REVERSE the district court's grant

of the defendant's motion for summary judgment on the plaintiff's ex post facto claim, and

REMAND the case to the district court for proceedings consistent herewith.