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.
A. The Georgia Parole Guidelines System
The Georgia parole system is set out in the Georgia Constitution, several Georgia statutes,
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:
Id. § 42-9-42(c).
Pursuant to these provisions, the Board adopted and maintains the Georgia Parole Decision Guidelines System (the "Guidelines").
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:
Ga.R. ch. 475-3-.05. Moreover, Annexure 2, an essential component of the Guidelines, contains similar language:
Parole Decision Guidelines System, Annexure 2.
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.
B. Application of the Guidelines to Sultenfuss
The appellant, Stephen Sultenfuss, was convicted of two separate drug charges involving possession of cocaine. He received two concurrent sentences, the longest of which was fifteen years set to run from August 24, 1986, and set to expire on August 23, 2001.
In order to determine Sultenfuss' Tentative Parole Month, the Board used the Guidelines. Based on his two convictions, Sultenfuss' Crime Severity Level was II. The Board then analyzed the Parole Success Factors and gave Sultenfuss a Parole Success Likelihood Score of 11. Based on these two scores, the Parole Decision Grid resulted in a recommended incarceration period of ten months before parole. Nevertheless, the Board departed from the grid recommendation. Finding that the Crime Severity Level and Parole Success Factors did not adequately reflect the true nature of Sultenfuss' case,
On July 15, 1988, Sultenfuss and several other inmates filed a pro se complaint under 42 U.S.C. § 1983 in the United States District Court for the Northern District of Georgia. Claiming that the Board had violated their rights to due process and equal protection by departing from the grid recommendation in setting release dates, the inmates sought declaratory and injunctive relief as well as compensatory damages. Relying on Slocum v. Georgia State Bd. of Pardons & Paroles, 678 F.2d 940 (11th Cir.) (finding no liberty interest in Georgia parole system prior to 1980 changes), cert. denied, 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 612 (1982), the district court sua sponte dismissed the complaint as frivolous under 28 U.S.C. § 1915(d).
Sultenfuss was the only inmate to appeal the district court's dismissal. On appeal, we affirmed the dismissal of the claim for compensatory damages, but reversed the dismissal of the due process claim. Sultenfuss v. Snow, 894 F.2d 1277 (11th Cir.1990) (per curiam). We held that the district court erred by relying on Slocum because that decision had dealt with the previous parole system and did not address the issue under the current system. "While upon close examination, these changes may not have had an actual impact upon the Georgia parole system to vindicate the due process claim at issue, the changes are sufficiently significant to raise an arguable question of law so as to preclude § 1915(d) dismissal." Sultenfuss, 894 F.2d at 1279. We thus remanded the case to the district court for further proceedings.
On remand, the district court appointed counsel to represent Sultenfuss, and Sultenfuss filed a restated complaint. On August 14, 1990, the Board filed a motion for summary judgment. Finding that Georgia's parole system does not create a liberty interest protected by the Due Process Clause, the district court granted the Board's motion for summary judgment.
Sultenfuss appealed pro se to this court, and, after briefs were filed, we appointed
A. Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure provides that the moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When a summary judgment motion has been made and properly supported, the nonmoving party may not rest upon its pleading, but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In making this determination, the district court "should `resolve all reasonable doubts about the facts in favor of the non-movant' and draw `all justifiable inferences ... in his favor.'" United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991) (alteration in original) (citations omitted). We review grants of summary judgment de novo, applying the same standards as the district court. Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir.1990).
B. Creation of a Liberty Interest
Sultenfuss alleges that the Board's departure from the grid recommendation violated his rights under the Due Process Clause of the United States Constitution. The Due Process Clause provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. The requirements of procedural due process, therefore, "apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). As the Supreme Court has explained,
Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989) (citations omitted). In order to establish that the Board violated his rights to due process, therefore, Sultenfuss first must demonstrate that the Georgia parole system provides inmates with a liberty interest in parole.
In Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Supreme Court recognized that the mere establishment of a parole system by a state does not automatically create a liberty interest in parole. "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Id. at 7, 99 S.Ct. at 2104. This is not to say, however, that the establishment of a parole system cannot give rise to a liberty interest in parole.
When a state parole system creates a legitimate expectation of parole, an inmate has a liberty interest protected by the Due Process Clause. Id. at 12, 99 S.Ct. at 2106. In Greenholtz, for instance, the Court found a Nebraska parole statute stating that the parole board "shall order [the inmate's] release unless it is of the opinion that his release should be deferred because" one of four specified criteria is met created a protectible
Likewise, in Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987), the Court analyzed a Montana parole statute similar to the statute in Greenholtz. The Montana statute stated that "the board shall release on parole ... any [inmate] when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community." Id. at 376, 107 S.Ct. at 2420 (emphasis omitted) (first alteration in original). According to the Court, the statute placed "substantive predicates" on the discretion of the decisionmakers and used mandatory language to create a presumption that release would be granted unless the designated findings are made. Id. at 377-80, 107 S.Ct. at 2420-21. Therefore, the Court found that a liberty interest existed.
In other cases, however, the Court has found that penal regulations and parole guidelines do not implicate the Due Process Clause where no liberty interest exists. In Thompson, for instance, the Court analyzed Kentucky prison regulations to determine whether inmates had a liberty interest in visitation. There, the Court focused on the discretion vested in state decisionmakers: "Stated simply, `a State creates a protected liberty interest by placing substantive limitations on official discretion.'" Thompson, 490 U.S. at 462, 109 S.Ct. at 1909 (quoting Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983)). The Court also emphasized the "requirement, implicit in our earlier decisions, that the regulations contain `explicitly mandatory language,' i.e., specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow." Id. at 463, 109 S.Ct. at 1910. The Court found that the regulations at issue lacked the requisite mandatory language because "[t]hey stop short of requiring that a particular result is to be reached upon a finding that the substantive predicates are met." Id. at 464, 109 S.Ct. at 1910. The Court also focused on language in the regulations in which the administrative staff reserved the right to allow or disallow prison visits.
While the Supreme Court has written extensively on whether various prison guidelines create a liberty interest, the Court has declined to set forth any definitive rules. Instead, the Court has emphasized that "whether any ... state statute provides a protectible entitlement must be decided on a case-by-case basis." Greenholtz, 442 U.S. at 12, 99 S.Ct. at 2106. In conducting this case-specific analysis, we are bound by certain principles. After reviewing the relevant caselaw from the Supreme Court and this circuit, we conclude that three, sometimes overlapping, factors are crucial in determining whether a liberty interest is created: (1) whether the system places substantive limitations on the discretion of the decisionmakers; (2) whether the system mandates the outcome that must follow if the substantive predicates are met; and (3) whether the relevant statutes and regulations contain explicitly mandatory language dictating the procedures that must be followed and the result that must be reached if the relevant criteria are satisfied. We explain these factors in more detail below as we examine their application to Georgia's parole system.
C. The Georgia Parole System
In examining these three factors in relation to the Georgia parole system, we must keep in mind that our analysis is inherently subjective. The Supreme Court has recognized that "[n]either the drafting of regulations nor their interpretation can be reduced to an exact science." Thompson, 490 U.S. at 462, 109 S.Ct. at 1909. The Georgia statutes and regulations must be read together to derive the overriding purpose and function of the parole guidelines system. With this caveat in mind, we proceed to analyze the Georgia parole system in light of the three factors set forth above.
We conclude that the Georgia parole system more closely fits within the latter category. Without a doubt, the Guidelines provide a set of particularized criteria that the Board must consider in making parole determinations. The crucial inquiry, however, is whether the relevant statutes and regulations provide standards that meaningfully limit the discretion of the decisionmakers. Not only do the Guidelines leave the Board significant discretion in applying the various factors, but the Board, in promulgating the Guidelines, expressly reserved the authority to depart from the grid recommendation. The criteria in the Guidelines provide a framework to "help the Board make a more consistent, soundly based, prompt, and explainable parole decision." Parole Decision Guidelines System, Annexure 2. The Guidelines were not intended to produce a predetermined outcome upon rote application of specific criteria.
Sultenfuss places great reliance on language from the parole statute mandating that the "guidelines system shall be used in determining parole actions on all inmates." O.C.G.A. § 42-9-40. He argues that this language and the language in the Guidelines dictating the criteria to be considered "constitute specific, substantive limitations on the board's exercise of discretion." Appellant's En Banc Brief at 20-21. We disagree; this language is consistent with the substantial discretion that the Guidelines reserve for the Board. The Board's decision to depart from the grid recommendation does not mean that the Guidelines were not used in determining parole action. The Board may utilize the Guidelines as a framework for making parole determinations, while still exercising the authority to depart from the grid recommendation if other factors, not adequately considered by the Guidelines, warrant such a decision. Therefore, we find that Georgia's parole system does not place limitations on the Board's discretion sufficient to create a liberty interest in parole.
Second, we examine whether the system mandates the outcome that must be reached if the relevant criteria have been met. Thompson, 490 U.S. at 462, 109 S.Ct. at 1909. Where the statute or regulation creates a presumption that release will be granted upon a finding that the substantive predicates have been met,
We do not find such a mandate in the Georgia statutes and regulations. Neither the relevant statutes nor the Guidelines
Finally, we look at the relevant statute and regulations to see if they contain explicitly mandatory language directing the decisionmaker to follow certain procedures. Thompson, 490 U.S. at 462, 109 S.Ct. at 1909-10. Although this third factor largely merges with the second, we find the use of explicitly mandatory language to be an important factor in determining whether a liberty interest exists.
Id. at 464 n. 4, 109 S.Ct. at 1910 n. 4. We recognized this crucial distinction in Staton v. Wainwright, 665 F.2d 686 (5th Cir. Unit B), cert. denied, 456 U.S. 909, 102 S.Ct. 1757, 72 L.Ed.2d 166 (1982), where we found no protectable liberty interest in the Florida parole statutes. Although the Florida statutes were replete with mandatory language, we recognized that this language dictated what criteria should be considered, not what result must follow if those criteria are met. Id. at 688.
Similarly, as the panel in this case recognized, the Georgia statutes and regulations frequently use mandatory language. See Sultenfuss, 7 F.3d at 1547-49 (highlighting use of the word "shall" in the relevant statutes and regulations). We find no mandatory language, however, expressly dictating the outcome that must follow if the criteria are met. The statutes mandate the implementation of a guidelines system, and the Guidelines mandate certain procedures that must be followed. But the Guidelines do not mandate release if the criteria are met. As noted above, the statutory presumption is against parole unless certain subjective criteria are satisfied. See O.C.G.A. § 42-9-42.
Viewing Georgia's parole system in its entirety, we conclude that no protected liberty interest in parole is created. To give rise to a liberty interest in parole, the statutes and regulations must meaningfully limit the discretion of state officials. Here, the substantial discretion reserved by the Board belies any claim to a reasonable expectation of parole. Although the Board is required to follow some relatively strict procedures, the statutes and the Guidelines, acting in conjunction, do not mandate the grant of parole if specified criteria are satisfied. Instead, the system contains a statutory presumption against parole and an explicit reservation of authority to depart from the grid recommendation, negating any reasonable claim of an entitlement to parole.
D. Deference to Administrative Interpretations
Our conclusion that the Georgia parole system does not create a protected liberty interest is strengthened by another factor,
The Board has unequivocally evinced its opinion that the statute and Guidelines do not create a liberty interest in parole. In several portions of the rules and regulations promulgated pursuant to O.C.G.A. § 42-9-40, the Board has expressly reserved the right to depart from the grid recommendation. See Ga.R. ch. 475-3-.05. In fact, the portion of the Guidelines that contains the parole decision grid has the following "NOTICE" in capital letters at the top of the page:
Parole Decision Guidelines System, Annexure 2. The Board's unequivocal interpretation of the statute and Guidelines, therefore, is that no protected liberty interest is created.
The district court found that Georgia's parole system does not create a liberty interest in parole implicating the protections of the Due Process Clause. Georgia's parole system contains a statutory presumption against parole and fails to limit meaningfully the discretion of state officials. We therefore agree with the district court that Georgia inmates do not have a legitimate expectation of parole. Because the protections of the Due Process Clause do not arise without a protectable liberty interest, the district court properly granted summary judgment to the Board.
CARNES, Circuit Judge, dissenting:
I dissent from the Court's failure to certify to the Georgia Supreme Court the unsettled questions of state law which control the disposition of this case.
The majority opinion and Judge Clark's dissenting opinion disagree not so much about applicable federal constitutional law as about applicable state law. The disagreement is over whether the relevant Georgia statutes permit the Parole Board to reserve to itself essentially unfettered discretion, which is what it has attempted to do with the adoption of Ga.R. ch. 475-3-.05 and Annexure
It is the accuracy of the competing state law premises that is in dispute. Only one of them can be correct, and the case turns on which one is. The majority makes a strong argument that the Board's adoption of Rule 475-3-.05 and Annexure 2 was within its authority under Georgia law. Judge Clark, joined by three other judges of this Court, makes an equally strong argument to the contrary. I do not know whether the majority or Judge Clark is right about the Georgia law question, but I do know where we can, and should, turn for the answer.
We have discretion to certify controlling but unanswered questions of Georgia law to the Georgia Supreme Court. See GA. CONST. art. VI, § 6, para. 4; O.C.G.A. § 15-2-9 (1994); GA.SUP.CT.R. 37. We have not hesitated to do so in the past. In the last five years, we have certified state law questions to the Georgia Supreme Court in no fewer than 19 cases.
Certification is especially important here, because this case "present[s] difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in [this] case." Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). The difficulty of the unsettled state law questions in this case is evident from the fact that this Court is sharply divided over those questions. Six judges answer the state law questions one way, and four judges answer those
The Court's unwillingness to certify the important state law questions in this case stands in sharp contrast to its willingness to certify questions of far less public importance in previous cases. The following are some examples of questions this Court has thought sufficiently important to certify to the Georgia Supreme Court in recent cases:
Middle Georgia Neurological Specialists v. Southwestern Life Insurance Co., 946 F.2d 776, 779-80 (11th Cir.1991).
Granite State Insurance Co. v. Nord Bitumi U.S., Inc., 959 F.2d 911, 915 (11th Cir.1992).
Amica Mutual Insurance Co. v. Bourgault, 979 F.2d 187, 190 (11th Cir.1992). Every case matters to the parties, and we should do our utmost to decide every case correctly. Even so, the state law questions involved in this case, and the proper decision of this case, are of greater public import than most, if not all, of the questions that we have certified to the Georgia Supreme Court in the past.
Another reason we should allow the Georgia Supreme Court to answer the unsettled questions of state law upon which this case turns is that the questions involve the division of power and authority between the Georgia Legislature and the Georgia Board of Pardons and Paroles, an executive agency. The way in which a state allocates powers between the executive and legislative branches of its government is a decision of the most fundamental sort for that state; it goes to the very "`heart of representative government.'" Gregory v. Ashcroft, 501 U.S. 452, 458-61, 111 S.Ct. 2395, 2400-01, 115 L.Ed.2d 410 (1991) (quoting Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853 (1973)). "Through the structure of its government, and the character of those who exercise governmental authority, a State defines itself as a sovereign." Id. 501 U.S. at 460, 111 S.Ct. at 2400. We ought to leave to the Georgia Supreme Court the business of interpreting Georgia legislation that may, or may not, effectively curtail the power of an executive agency that is specifically provided for in the Georgia Constitution. We need not, and we should not, get involved in deciding how Georgia has distributed its sovereign powers among the branches of its government. The majority and the other dissenters do just that by venturing to answer unsettled questions about whether the two Board-adopted provisions conflict with the relevant statute, a matter which has implications sounding in Georgia constitutional law.
If the Georgia parole guidelines statute does prohibit the Board from adopting Rule 475-3-.05 and Annexure 2, as four members of this Court believe, then a question arises as to whether that legislative restriction on
To the casual reader it will appear that Sultenfuss, or the inmates for whom he is a proxy, are the losers in this case. They are, but they are not the only ones who have lost. The people of Georgia and the principles of federalism also have lost. The people of Georgia have lost some measure of their right to govern themselves, because close and important issues of their state law have been decided not by the court they have established as supreme in such matters, but instead by a federal court which should have deferred to their supreme court. Federalism has lost because some well-meaning federal judges have determined important matters involving Georgia's government that could and should have been left to the state and its supreme court. It sometimes seems as though we federal judges treat federalism like the flag. We salute it, pledge allegiance to it, and like to talk about how important it is. However, in popular parlance: it's easy to talk the talk, but the time has come to walk the walk. Because the Court fails to do so, I dissent.
CLARK, Senior Circuit Judge, dissenting, in which KRAVITCH, HATCHETT and BARKETT, Circuit Judges, join:
The majority errs in denying due process to Georgia prisoners entitled to parole consideration. The court fails to follow controlling United States Supreme Court precedent. Then, it holds that a Georgia administrative agency (the Parole Board) can ignore a controlling statute passed by the Georgia legislature.
The Supreme Court, as will be discussed below, has unequivocally held that a state by legislative action may create a due process right in its parole system. A state does not have to establish a parole system; when it does, it may elect whether to provide for due process protection or leave parole to the unguided discretion of the paroling authority, who may be the Governor, an agency appointed by the Governor, or an agency staffed as prescribed by the legislature.
Due process protects prisoners entitled to parole consideration from decisions of a paroling authority mistakenly made, infected by discrimination or lack of equal protection, resulting from bribery or political influence, or from some other unjustifiable cause. Due process provides protection from unaccountable arbitrary action on the part of government (invisible people), which is what this country is all about.
Some of these evils led the Governor and legislature of Georgia in 1980 to change the existing system. For reasons not clear, the majority of the court decides to ignore the unequivocal change made in the 1980 law (O.C.G.A. § 42-9-40). The majority holds that the Parole Board has the same unbridled and arbitrary discretion that it had before the 1980 legislation.
I. Under Greenholtz and Its Progeny, the Georgia Parole Scheme Creates a Liberty Interest In Parole
A state creates a protected liberty interest "by placing substantive limitations on official discretion."
Greenholtz is the seminal case on liberty interests in parole. The Nebraska parole statute at issue in Greenholtz provided, in pertinent part:
The statute further provided a list of 15 factors that the Board was obligated to consider in reaching a parole decision. Factor number 15 read: "Any other factors the board determines to be relevant."
Some years later, in Board of Pardons v. Allen, the Supreme Court passed upon the Montana parole statute, which provided, in pertinent part:
Relying on the use of "mandatory language" and "substantive predicates," the Supreme Court concluded that this statute, like the Nebraska statute at issue in Greenholtz, created a liberty interest in parole. As further support for its conclusion, the Court pointed to the legislative history of the Montana statute: the statute quoted above was enacted in 1955 to replace a 1907 statute that had granted absolute discretion to the Board. The Court saw the 1955 change in the law as an "indication of a legislative intent to cabin the discretion of the Board."
It is inconceivable that the Nebraska and Montana statutes at issue in Greenholtz and Allen create a liberty interest in parole while the Georgia parole scheme does not. The Georgia statute, which is entitled "Parole guidelines system," provides:
Certainly the language of this statute is no less "mandatory" than that of the Nebraska or Montana statutes at issue in Greenholtz and Allen. The Georgia statute mandates implementation of a parole guidelines system, mandates use of the system in making parole decisions, and mandates the criteria that the system must take into consideration.
Likewise, the criteria that guide the Board's decisionmaking under the Georgia parole scheme are no less "particularized"
Each of these eight factors is designated a numerical scoring system designed to reflect the inmate's success or lack thereof as to that factor. The numerical scores for each of the eight factors are added together to arrive at the Parole Success Likelihood Score, which ranges from zero to 20.
As this detailed procedure demonstrates, the criteria that guide the Board under the Georgia scheme are far more detailed and particularized, and go much farther in limiting the Board's discretion, than the criteria in the Nebraska and Montana statutes at issue in Greenholtz and Allen. For example, under the Nebraska statute, the Board could consider "[a]ny ... factors the board determines to be relevant,"
Finally, the Georgia Guidelines, like the Nebraska and Montana statutes, contain mandatory language that "`creat[es] a presumption that parole release will be granted' when the designated findings are made."
The Greenholtz decision turned upon the Supreme Court's finding that language of the Nebraska statute created an "expectancy of release" on parole.
The majority's reasoning is not grounded in the Greenholtz and Allen decisions. I give three specific examples. First, the majority begins its discussion of the Georgia parole system with the statement: "we must keep in mind that our analysis is inherently subjective."
Second, the majority concedes that "the Guidelines provide a set of particularized criteria that the Board must consider in making parole determinations."
The discretion upon which the majority relies in concluding that the "particularized criteria" in the Guidelines do not indicate the existence of a liberty interest is clearly the second type of discretion described by the Court in Allen. The majority fails to recognize that this type of discretion is not incompatible with the existent of a liberty interest. Just as a liberty interest may exist when "the standards set by a statutory or regulatory scheme `cannot be applied mechanically,'"
Finally, the majority fails to recognize the significance of the 1980 change in the Georgia law. In Allen, the Supreme Court relied on a change in the Montana parole statute to support its conclusion that the new statute created a liberty interest in parole. Noting that the old statute granted absolute discretion
The majority is able to reach the conclusion it does only by ignoring both the statutes at issue in Greenholtz and Allen and the teachings of those two cases. Under Greenholtz and its progeny, the Georgia parole scheme gives rise to an expectancy of parole that is protected by the due process clause.
II. O.C.G.A. § 42-9-42 Is Consistent with a Liberty Interest in Parole
The majority relies heavily on O.C.G.A. § 42-9-42, which it interprets as creating a "presumption against parole."
Similarly, the Montana statute at issue in Allen provided, in part:
O.C.G.A. § 42-9-42 further provides, in part:
Similarly, the Montana statute provided, in part:
The Supreme Court in Allen did not read the Montana statute as creating a presumption against parole. To the contrary, it read the portions of the statute quoted immediately above as a further constraint on the discretion of the Board, preventing a decision in favor of release when a prisoner is unable "to fulfill the obligations of a law-abiding citizen."
III. The Board's Position that It Retains Absolute Authority to Ignore the Guidelines is Contrary to the History, the Purpose, and the Mandates of the Georgia Parole Guidelines System
In addition to O.C.G.A. § 42-9-42, the majority also relies heavily on Georgia Rule 475-3-.05(5) and on a portion of the Guidelines that the majority refers to as Annexure
The Board's position, when considered in the context of the Georgia parole scheme as a whole, is nonsensical. The Georgia legislature, with O.C.G.A. § 42-9-40, mandated that the Board implement and use Guidelines that take into consideration certain specified factors. The Guidelines promulgated pursuant to this mandate set out a detailed procedure, including the application of numerous particularized criteria, by which the Board must arrive at an inmate's Tentative Parole Month. The Guidelines also set out a procedure by which the Board may adjust the Tentative Parole Month prior to an inmate's release; such adjustments may be based on the inmate's institutional behavior or on new information not previously available.
Other provisions of the Guidelines are inconsistent with the Board's position that it has unfettered discretion to depart. For example, the Guidelines provide a procedure by which an inmate may request reconsideration of his months-to-serve calculation.
Another example of the Guidelines' incompatibility with the Board's position is ¶ 8-12.01, which provides that an inmate's Crime Severity Level shall be determined "based on actual convictions of record, without reference to original arrest or booking charges, or allegations in accusations or indictments for which an actual conviction was not obtained."
Thus, the Board certainly considered "accusations ... for which an actual conviction was not obtained" in reaching its decision to depart from the Guidelines in Sultenfuss's case. To prevent the Board from considering certain information during the calculation of the Tentative Parole Month, when the inmate may challenge the information, but then permit the Board to consider the very same information during the departure decision, when the inmate has no recourse, defies logic and common sense. The Board's interpretation of its own discretion is contrary to the construction of the Guidelines as a whole.
The Board's position is completely at odds with the history and the purpose of the 1980 change in Georgia law governing parole decisions. A bit of background here is helpful.
A year later, in 1979, the Georgia Board of Pardons and Paroles was widely criticized for a number of its decisions.
Publicly, at least, the Board purported to embrace the new guidelines system as a means to repair its tainted image. Another contemporaneous newspaper report reads:
Thus, by mandating the implementation and use of the guidelines system, the legislature intended to prevent the perversion of the system that had occurred in Tennessee and instill public confidence in the Georgia Board by insuring that parole decisions were made equitably, objectively, and openly. This intent is embodied in the Guidelines. For example, ¶ 8-1.02 provides, in pertinent part:
The Board's position that it retains unfettered discretion to depart from the Guidelines for any reason or for no reason at all is at odds with these stated goals. Rather than encouraging equitable, objective, and consistent
By enacting O.C.G.A. § 42-9-40, the Georgia legislature mandated that the Board implement the guidelines system and use the system in determining parole actions. The majority concludes that the Board's position is not inconsistent with this mandate because "[t]he Board's decision to depart from the grid recommendation does not mean that the Guidelines were not used in determining parole action."
This purported retention of discretion is not the only cavalier response the Board has had to the legislature's mandate. O.C.G.A. § 42-9-40(b) specifically requires that the guidelines system be adopted by rules or regulations of the Board and that these rules or regulations "be adopted in conformity with Chapter 13 of Title 50, the `Georgia Administrative Procedure Act.'" Under the Georgia Administrative Procedure Act, the Secretary of State "shall compile, index, and publish all rules adopted by each agency...."
While an agency's interpretation of a statute it is charged with implementing is entitled to deference, "administrative construction should be restricted to cases in which the meaning of the statute is really doubtful and must be disregarded where its invalidity is apparent."
Under Greenholtz and its progeny, the language of the Georgia parole statutes and Guidelines creates a liberty interest in parole. Nothing in the Georgia parole scheme is inconsistent with this liberty interest except the Board's self-serving attempt to reserve for itself the unfettered discretion to arbitrarily depart from the Guidelines. The Board's interpretation is without any basis; indeed, it is contrary to the mandates of the Georgia legislature and is, therefore, entitled to no deference. I dissent.
The document entitled "Parole Decision Guidelines System," contained in the Appendix to Appellant's Brief, was introduced for the first time on appeal. Apparently, that document is part of the Board's internal operating manual. The Board contends that this document is not properly part of the record on appeal. For two reasons, and in the interest of judicial economy, we will consider the document in this appeal. First, the Board has never contended that this document is not a true and correct copy of the guidelines system. See Sultenfuss v. Snow, 7 F.3d 1543, 1548 n. 21 (11th Cir.1993) (panel opinion considering document for same reason), vacated and reh'g en banc granted, 14 F.3d 572 (11th Cir.1994). Second, even taking into consideration the language from this document, we find that a liberty interest in parole does not exist. Therefore, our result would be unaffected by exclusion of the document.
Parole Decision Guidelines System, Annexure 2.
R1-32 Ex. 3, Attach. C.
See also Yeager v. City of McGregor, 980 F.2d 337, 341 nn. 2, 4 & 5 (5th Cir.) cert. denied, ___ U.S. ___, 114 S.Ct. 79, 126 L.Ed.2d 47 (1993).