Stephen Sultenfuss, Charles McMulling v. Wayne Snow, Jr., James T. Morris, Mobley Howell, Michael H. Wing, Bettye O. Hutchings, Michael J. Bowers

35 F.3d 1494, 1994 U.S. App. LEXIS 27817, 1994 WL 538702
Court of Appeals for the Eleventh Circuit·Decided October 5, 1994·No. 91-8002·Published·Cited by 60 cases

Opinions

BIRCH, Circuit Judge:

In this case, we must decide whether the current Georgia parole system, as embodied in the Georgia Constitution, the Georgia statutes, and the rules and guidelines promulgated pursuant to the statutes, creates a liberty interest in parole protected by the Due Process Clause of the Fourteenth Amendment. The district court found no protected liberty interest, and we affirm.

I. BACKGROUND

A The Georgia Parole Guidelines System

The Georgia parole system is set out in the Georgia Constitution, several Georgia stat[1496]*1496utes, and the rules and regulations promulgated by the state Board of Pardons and Paroles (the “Board”) pursuant to those statutes. The Georgia Constitution vests the Board with the exclusive power to grant reprieves, pardons, and paroles. Ga. Const, art. IV, § 2, ¶ 2. In 1980, the Georgia legislature enacted a law requiring the Board to implement a parole guidelines system. That statute provides in pertinent part:

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.

O.C.G.A. § 42-9-40(a). Section 42-9-40 is qualified, however, by section 42-9-42, which provides in relevant part:

No inmate shall be placed on parole until and unless the board shall find that there is reasonable probability that, if he is so released, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society. Furthermore, no person shall be released on pardon or placed on parole unless and until the board is satisfied that he will be suitably employed in self-sustaining employment or that he will not become a public charge.

Id. § 42-9-42(c).

Pursuant to these provisions, the Board adopted and maintains the Georgia Parole Decision Guidelines System (the “Guidelines”).1 That system is embodied in the rules and regulations passed by the Board pursuant to O.C.G.A. § 42-9-40 and in accordance with the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq. The stated purpose of the Guidelines is as follows: “In the parole decision process, the Board shall utilize a set of guidelines which consider both the severity of an individual’s offense and the likelihood of the individual successfully completing a term of supervision on parole.” Parole Decision Guidelines System ¶ 8-1.01.

Other rules and regulations of the Board also shed light on the purpose and function of the system. Chapter 475-3-.05, for instance, provides as follows:

The Parole Decision Guidelines System is an aid to the Board in making more consistent, soundly based and explainable parole decisions and does not create a liberty interest. The Board specifically reserves the right to exercise its discretion under Georgia Law to disagree with the recommendation resulting from application of the [1497]*1497Parole Decision Guidelines and may make an independent decision to deny parole or establish a Tentative Parole Month at any time prior to sentence expiration.

Ga.R. eh. 475-3-.05. Moreover, Annexure 2, an essential component of the Guidelines, contains similar language:

Parole Decision Guidelines help the Board make a more consistent, soundly based, prompt, and explainable parole decision. Guidelines help the Board decide on a Tentative Parole Month for the inmate or decide that the inmate will complete his sentence without parole. When making decisions, the Board may depart from the Guidelines recommendation and make an independent decision using the full discretion given it under Georgia Law. The length of the prison sentence imposed by the court will be considered in establishing a Tentative Parole Month.

Parole Decision Guidelines System, Anne-xure 2.2 These provisions set forth the fundamental purpose and function of the Guidelines.

The Guidelines establish a step-by-step procedure for the Board to follow in making parole determinations for eligible inmates. First, the Board assigns the inmate a Crime Severity Level. According to the Guidelines, “[t]he Board deems the nature of the offense to be the most important element in the parole decision. Consequently, the guidelines are to be structured around a Crime Severity Index ranking crimes by increasing degree of seriousness.” Parole Decision Guidelines System ¶ 8-1.01. Using a table ranking various crimes in terms of severity, the Board assigns each eligible inmate a Crime Severity Level of I to VII.

Next, the Board assigns the inmate a Parole Success Likelihood Score. “The second component of the Parole Decision Guidelines System combines eight social and criminal history factors found to relate to the likelihood of one’s success on parole, which are labeled ‘Parole Success Factors.’ ” Id. ¶ 8-17.01. Rating the inmate on each of these eight factors, the Board arrives at a Parole Success Likelihood Score ranging form 0 to 20 for each inmate.

The Board then uses the Parole Decision Grid to formulate the months-to-serve recommendation. The Parole Decision Grid combines the inmate’s Crime Severity Level with the Parole Success Likelihood Score to arrive at a months-to-serve recommendation. Adding the months-to-serve recommendation to the date of the controlling sentence provides the inmate’s Tentative Parole Month. “The Tentative Parole Month, during which the offender may expect to be released, absent new information or other cause to cancel the Board’s tentative release decision, shall be calculated by adding the recommended months-to-serve to the compute-from date of the controlling sentence.” Id. ¶ 8-27.01.

A central point of contention between the parties is whether the Tentative Parole Month is a final, binding determination. The appellant argues that the Tentative Parole Month may be changed only for “new information or other cause,” id., as specified in the Guidelines. The Board, on the other hand, maintains that it has the authority to exercise discretion in departing from the grid recommendation. As noted earlier, several of the rules and regulations expressly provide for departure.3 Annexure 2, which contains the Parole Decision Grid, states that “the Board may depart from the Guidelines recommendation and make an independent decision using the full discretion given it under Georgia Law.” Id.,

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Stephen Sultenfuss, Charles McMulling v. Wayne Snow, Jr., James T. Morris, Mobley Howell, Michael H. Wing, Bettye O. Hutchings, Michael J. Bowers, 35 F.3d 1494, 1994 U.S. App. LEXIS 27817, 1994 WL 538702 (11th Cir. 1994).

35 F.3d 1494 (Stephen Sultenfuss, Charles McMulling v. Wayne Snow, Jr., James T. Morris, Mobley Howell, Michael H. Wing, Bettye O. Hutchings, Michael J. Bowers) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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