State Board of Pardons and Paroles
Constitutional limitations on power of the Board of Pardons and Paroles to consider inmates for parole.
As a result of questions arising with the passage of the Sentence Reform Act of 1994 and the ratification of the amendment to Ga. Const. Art. IV, Sec. II, Para. II, on which the Act was contingent, we have undertaken a review of the law governing the power of the Board of Pardons and Paroles to consider inmates for parole and to grant parole. I write to summarize the changes in the law and to clarify the Board's authority.
First, I want to confirm the holding of the decision in Freeman v. State, 264 Ga. 27 (1994). The Supreme Court there considered O.C.G.A. § 17-10-16, the life without parole statute, and determined that "[t]he passage by the legislature of a statute providing for a sentence of life without parole, like the passage of legislation establishing the death penalty, does not impinge on the authority of the Board but, rather, renders the defendant ineligible for parole in the first instance." 264 Ga. at 29. To argue that this language permits parole "eligibility" to be denied to the inmate by legislation but nonetheless allows the Board to exercise power to parole the inmate would have rendered the decision meaningless and the life without parole statute a sham. I am unwilling to ascribe such meaning to the decision or such intent to the Court.
The decision in Freeman, however, is no longer controlling for purposes of determining the Board's authority to exercise parole power because of the amendment to the Georgia Constitution Art. IV, Sec. II, Para. II, proposed in 1994 Ga. Laws 2015-18 and approved in the November 1994 general election, and the passage of the Sentence Reform Act of 1994, 1994 Ga. Laws 1959-72, which amended several sections of the Georgia Code.
Before the 1994 constitutional amendment, there existed the potential for conflict between the legislative prerogative of the General Assembly to establish crimes and prescribe punishment and the Board's constitutionally-derived power to grant clemency. With passage of the constitutional amendment in November 1994, the General Assembly now has clear authority to enact "general law approved by two-thirds of the members" which limits the Board's power to grant clemency, and that limitation has a constitutional basis. The two additional areas where the Board's authority now has been constitutionally limited are (1) minimum mandatory sentences for certain specified offenses and (2) life without parole for certain specified offenses. The potential for conflict which was presented by the Freeman decision has now been recognized and addressed by the electorate.
The 1994 constitutional amendment ratified by the people contains the following provision:
(b)(4) Any general law previously enacted by the General Assembly providing for life without parole or for mandatory service of sentences without suspension, probation, or parole is hereby ratified and approved but such provisions shall be subject to amendment or repeal by general law.
1994 Ga. Laws 2015, 2016. Thus, not only did the constitutional amendment breathe vitality into the criminal statutes which were passed by the 1994 General Assembly contingent upon ratification of the proposed constitutional changes, it expressly ratified and approved previously enacted statutes dealing with life without parole and mandatory service of sentences, importing constitutional authority to them. Effective January 1, 1995, O.C.G.A. § 17-10-6.1 and § 17-10-7, both part of the Sentence Reform Act of 1994, and previously enacted O.C.G.A. § 17-10-16, § 16-8-83, and § 42-9-45 (modified to acknowledge the limitations placed on the Board's authority by new § 17-10-6.1 and § 17-10-7) either became law or were reaffirmed as law by virtue of Ga. Const. Art IV, Sec. II, Para. II(b) and (e).
Official Code of Georgia Annotated § 42-9-45(b), amended in 1994 and ratified by the constitutional amendment, places limitations on the eligibility of an inmate to be considered for parole by the Board. As was determined by the Supreme Court of Georgia in Charron v. State Bd. of Pardons and Paroles, 253 Ga. 274 (1984), however, this provision is qualified by O.C.G.A. § 42-9-46:
[I]nterpreting these provisions as meaning that the board can consider an inmate for parole before service of the minimum times specified in § 42-9-45(b), so long as the notice required by § 42-9-46 is given, we conclude that there is no unconstitutional infringement on the powers of the board.
253 Ga. at 277. Because the 1994 constitutional amendment ratified "any general law previously enacted by the General Assembly providing for life without parole or for mandatory service of sentences without suspension, probation or parole," and because no change has been worked in O.C.G.A. § 42-9-46 so as to remove the Board's authority to consider for parole in those cases not limited by the constitution so long as the notice provisions are complied with, the minimum times provided in O.C.G.A. § 42-9-45(b) and the exception to those requirements so long as notice is given as recognized by the Charron court remain in effect.
In summary, it is my official opinion that as of January 1, 1995, there have been placed additional constitutional limitations on the Board's power to parole which now are the clear prerogative of the General Assembly to proscribe. They include 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, the inability to parole for sentences of life without parole as set out in O.C.G.A. § 17-10-7(b)(2) and § 17-10-16, and the inability to parole for felony recidivists who are convicted for a fourth or subsequent such offense. Other felons and misdemeanants are required to serve the minimum time prescribed in O.C.G.A. § 42-9-45(b) subject to the authority reserved by statute to the Board in O.C.G.A. § 42-9-46 to consider for clemency upon complying with the notice procedures previously discussed and recognized in Charron.
DARYL A. ROBINSON
Senior Assistant Attorney General