Can Georgia give people in prison a liberty interest in parole?

The Court of Appeals of Georgia in Saleem v. Snow (1995) stated, citing Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979), that 'Georgia law does not create a liberty interest in parole.'

Hawaii Revised Statutes § 706-670(1) provides that a person assessed as low risk for reoffending shall be granted parole upon completing the minimum sentence, subject to good cause and enumerated exceptions.

The New Jersey Superior Court Appellate Division in Filgueiras v. Newark Pub. Schools (2012) quoted New Jersey State Parole Bd. v. Byrne, 93 N.J. 192, 208, 460 A.2d 103 (1983), stating: "we have generally been more willing to find State-created interests that invoke the protection of procedural due process than have our federal counterparts."

The Eleventh Circuit, sitting en banc in Sultenfuss v. Snow, 35 F.3d 1494 (11th Cir. 1994), held that a Georgia inmate has no liberty interest in parole. Jones v. Ray (2001) held that a Georgia prisoner's due process claim was foreclosed by this holding.

The en banc Eleventh Circuit, applying the three-factor test derived from Greenholtz and Board of Pardons v. Allen (explicitly mandatory language plus specified substantive predicates limiting discretion), held: 'Under [Greenholtz] and [Allen], the Georgia scheme creates a [liberty] [interest] in parole.'

The Board's rule on parole consideration provides that reconsideration of inmates serving life sentences who have been denied parole shall take place at least every eight years, and the Board will inform inmates denied parole of the reasons for such denial without disclosing confidential sources of information or possible discouraging diagnostic opinions.

O.C.G.A. § 42-9-53(b)(1) classifies 'All information, both oral and written, received by the members of the board in the performance of their duties under this chapter and all reports, files, records, and information coming into their possession by reason of the performance of their duties under this chapter' as 'confidential state secrets until declassified by the board.'

The Georgia Supreme Court held that a parolee was entitled to mandamus to compel removal of sex-offender conditions imposed by a parole officer rather than by the Board itself, because he had a clear legal right to compel their removal as a term of his parole.

The Board's rule on notification to officials provides that when the Board issues a parole order, a notice of parole will within 72 hours be sent to the presiding judge, district attorney, and sheriff of the county of conviction and to the sheriff of the county of the parolee's last residence if this was in Georgia.

Judge Carnes's dissent in Sultenfuss states that the en banc court was sharply divided over the state-law questions, with six judges answering one way and four judges the other way.

A provision of the Georgia Constitution provides that 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 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.

In Justice v. State Board of Pardons & Paroles (1975), the Supreme Court of Georgia held that even assuming the petitioner had proved every factual allegation in his petition, it would have been error for the trial court to require the Parole Board, by mandamus or otherwise, to grant him parole.

In Sultenfuss v. Snow, the en banc Eleventh Circuit affirmed summary judgment and held that the Georgia parole system does not create a liberty interest in parole protected by the Due Process Clause.

O.C.G.A. § 42-9-42(c) provides that no inmate shall be placed on parole unless the board finds a reasonable probability that the inmate will live and conduct himself or herself as a respectable and law-abiding person and that release will be compatible with the inmate's own welfare and the welfare of society.

O.C.G.A. § 42-9-45(a) provides that the board's parole eligibility rules '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' and that 'Such consideration shall be automatic, and no written or formal application shall be required.'

The Supreme Court of Georgia held in Justice v. State Board of Pardons & Paroles (1975) that Duncan v. Ricketts does not hold that a prisoner can use habeas corpus to complain of denial of the grant of parole, and that the trial court did not err in denying habeas corpus relief to a petitioner complaining of parole denial.

The en banc Eleventh Circuit held that the Georgia parole system does not create a liberty interest in parole protected by the Due Process Clause, because the system contains a statutory presumption against parole and fails to limit meaningfully the discretion of state officials.

O.C.G.A. § 42-9-42(c) provides that no person shall be released on pardon or placed on parole unless the board is satisfied that he or she will be suitably employed in self-sustaining employment or will not become a public charge; the board may, in its discretion, grant pardon or parole to aged or disabled persons.

O.C.G.A. § 42-9-45(f) provides that, with exceptions, 'no inmate serving a sentence imposed for any of the crimes listed in this subsection shall be granted release on parole until and unless said inmate has served on good behavior seven years of imprisonment or one-third of the prison term imposed by the sentencing court for the violent crime, whichsoever first occurs,' and that 'No inmate serving a sentence for any crime listed in this subsection shall be released on parole for the purpose of regulating jail or prison populations.'

The en banc court characterized O.C.G.A. § 42-9-42(c) as creating a presumption against parole rather than a presumption in favor of release. The statute provides that no inmate shall be placed on parole until and unless the board finds a reasonable probability that the inmate will live and conduct himself as a respectable and law-abiding person and that release is compatible with his own welfare and the welfare of society.

In Ray v. Barber, the Supreme Court of Georgia affirmed a trial court order directing the Parole Board to give a prisoner consideration for parole where the Board had failed to timely consider him, while denying all other relief sought (including a grant of parole or a tentative parole date).

O.C.G.A. § 42-9-42(d)(2) provides that the board may require the payment of a parole supervision fee of at least $10.00 per month as a condition of parole or conditional release.

The 2018 Michigan enrolled act that added the 'substantial and compelling objective reasons' guideline-departure standard also enacted, in the same bill, the statement that 'There is no entitlement to parole' in Michigan.

In Porter v. Ray, the Eleventh Circuit held that because Georgia's parole system does not create a legitimate expectation of parole, the appellants could not establish a due process violation, even assuming the Board applied a de facto 90% policy.

In Johnson v. Griffin, the Supreme Court of Georgia held that a prisoner's claim that the Parole Board determined he was no longer eligible for parole is not cognizable in a habeas corpus proceeding.

The en banc Eleventh Circuit vacated a prior panel decision (Sultenfuss v. Snow, 7 F.3d 1543 (11th Cir. 1993)) that had held Georgia's parole system creates a protected liberty interest, and on February 4, 1994 granted rehearing en banc.

OCGA § 17-10-6.1(a) specifies serious violent felonies, murder or felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery. Subsection (b) mandates that the sentence be served in its entirety and that no portion be suspended, reduced by parole or other sentence-reducing measures, or commuted by the State Board of Pardons and Paroles.

In Metheny v. Hammonds (M.D. Ga.), the court stated that the Georgia Board of Pardons and Paroles never adhered to the recidivist parole-ineligibility statute, O.C.G.A. § 17-10-7(c), because, based on opinions of two attorneys general, the Board took the position that the legislature lacked authority to restrict its constitutionally granted parole authority by general law.

Ballotpedia states that Georgia Amendment 2 was on the ballot as a legislatively referred constitutional amendment in Georgia on November 8, 1994, and that it was approved.

The amendment resolution directed that the proposed amendment be published and submitted as provided in Article X, Section I, Paragraph II of the Constitution, and set out a ballot question asking whether the Constitution should be amended to let the General Assembly by two-thirds vote provide mandatory service of sentences for armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery, and life without parole for murder and repeat offenders of those crimes, with the State Board of Pardons and Paroles barred from considering such persons for pardon, parole, or commutation during that portion of the sentence.

The Prison Policy Initiative's parole grading report states that 'Sixteen states have abolished or severely curtailed discretionary parole, and the remaining states range from having a system of presumptive parole, where when certain conditions are met, release on parole is guaranteed, to having policies and practices that make earning release almost impossible.'

The Attorney General concluded that as of January 1, 1995, additional constitutional limitations had been placed on the Board's power to parole which are the clear prerogative of the General Assembly to proscribe, including the inability to parole during the mandatory minimum sentence for the seven serious violent felonies set out in O.C.G.A. § 17-10-6.1.

O.C.G.A. § 42-9-46 provides that if an objection to early parole consideration was filed and the board grants early parole, it shall issue a statement explaining its reasoning for granting such parole and such statement shall be served on any party who filed an objection.