O.C.G.A.
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
(a) 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. (b) The guidelines system required by subsection (a) of this Code section shall be adopted by rules or regulations of the board. The rules or regulations shall be adopted in conformity with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
History
Ga. L. 1980, p. 404, § 1. Administrative rules and regulations. Duties of the Board, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of State Board of Pardons and Paroles, Duties of the Board, Rule 475-2-.01. Parole Consideration, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of State Board of
Pardons and Paroles, Rules, Rule 475-3.05. Time-Served Requirements for Parole Consideration, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of State Board of Pardons and Paroles, Rules, Rule 475-3-.06.
Annotations
Law reviews. For article critically analyzing the adoption of determinate-based sentencing, see 17 Ga. L. Rev. 425 (1983).
JUDICIAL DECISIONS Release is not mandated. - O.C.G.A. § 42-9-42(c) must be read as a qualification of O.C.G.A. § 42-9-40, the provision requiring adoption of the parole guideline system. Although the legislature has required the Board of Pardon and Paroles to adopt a guideline system to be used as a framework for making more consistent parole decisions, it also preserved the Board’s authority to use the Board’s discretion in making final parole decisions. The statute and regulations, therefore, do not mandate that release be granted if the guidelines criteria is met. Sultenfuss v. Snow, 35 F.3d 1494, 1994 U.S. App. LEXIS 27817 (11th Cir. 1994), cert. denied, 513 U.S. 1191, 115 S. Ct. 1254, 131 L. Ed. 2d 134, 1995 U.S. LEXIS 1692 (1995). Role of board in denying parole. - Plaintiff’s contention that the Georgia Parole Board was not vested with the discretion to deny parole was specious in light of O.C.G.A. § 42-9-40. Toenniges v. Ga. Dep’t of Corr., No. 1:09-CV-165, 2010 U.S. Dist. LEXIS 52907 (M.D. Ga. May 26, 2010). Mandamus not available to compel change in parole date. - Setting of a
tentative parole month was a discretionary act of the state parole board and mandamus did not lie to compel the board to reinstate a former tentative date. Vargas v. Morris, 266 Ga. 141, 465 S.E.2d 275, 1996 Ga. LEXIS 8, cert. denied, 517 U.S. 1108, 116 S. Ct. 1329, 134 L. Ed. 2d 480, 1996 U.S. LEXIS 2036 (1996). Even though the State Pardons and Paroles Board was required to adopt a parole guideline system on all inmates who would become eligible for parole, except for inmates serving life sentences, the board was not obligated to grant parole to a prisoner at the earliest date parole had to be considered as the issue of whether to grant parole was a discretionary matter entrusted to the board; thus, the prisoner’s petition for a writ of mandamus to compel parole at an earlier time should have been denied. Ray v. Carthen, 275 Ga. 459, 569 S.E.2d 542, 2002 Ga. LEXIS 634 (2002).
RESEARCH REFERENCES Am. Jur. 2d 59 Am. Jur. 2d, Pardon and Parole, § 1 et seq. ALR. Validity of statutes prohibiting or re-
stricting parole, probation, or suspension of sentence in cases of violent crimes, 100 A.L.R.3d 431.
Notes of Decisions
Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010).
· cites it 2× “165 (parole guidelines); Ga.Code Ann. §§ 42-9-40 (parole guidelines), -9-45 (parole eligibility); Haw.”
Gomez v. State, 797 S.E.2d 478 (Ga. 2017).
· cites it 2× “Although Gomez testified at the motion to withdraw hearing that counsel told him he would only have to serve 22 to 2 5 years before becoming parole-eligible, in his brief to this Court, he now states that it is “undisputed” that plea counsel told him he would be eligible for…”
Bradshaw v. State, 671 S.E.2d 485 (Ga. 2008).
· cites it 4× “While the General Assembly has required the Board to establish and use a parole guidelines system (OCGA §§ 42-9-40 (a); 42-9-42 (c)), nothing in the applicable statutes mandates that the guidelines control the final parole decision.”
Daker v. Ray, 563 S.E.2d 429 (Ga. 2002).
· cites it 4× “In the alternative, he sought to compel the Board to consider him for parole because he had served more than one-third of his sentences, to reconsider him for parole on a periodic basis, and to adhere strictly to *206 the parole guidelines mandated by OCGA § 42-9-40. The trial…”
Perez v. State, 564 S.E.2d 208 (Ga. Ct. App. 2002).
· cites it 4× “[26] OCGA §§ 42-9-40; 42-9-42; 42-9-45; 42-9-46; see Vargas v.”
Terry v. Hamrick, 663 S.E.2d 256 (Ga. 2008).
· cites it 4× “"The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.”
Stephen Sultenfuss, Charles McMulling v. Wayne Snow, Jr., James T. Morris, Mobley Howell, Michael H. Wing, Bettye O. Hutchings, Michael J. Bowers, 7 F.3d 1543 (11th Cir. 1993).
· cites it 10× “In 1980, however, the Georgia legislature enacted O.C.G.A. § 42-9-40. This stat *1548 ute, which is entitled “Parole guideline system,” provides: (a) The board shall adopt, implement, and maintain a parole guidelines system for determining parole action.”
Vargas v. Morris, 465 S.E.2d 275 (Ga. 1996).
· cites it 4× “OCGA § 42-9-40 (a). Pursuant to that statutory authority, the board has adopted the Georgia Parole Decision Guidelines System as “an aid to the Board in making more consistent, soundly based and explainable parole decisions” (Rule 475-3-.”
Stephen Sultenfuss, Michael C. Bishop v. Wayne Snow, Jr., James T. Morris, Mobley Howell, Michael H. Wing, Bettye O. Hutchings, & Michael J. Bowers, 894 F.2d 1277 (11th Cir. 1990).
· cites it 2× “” O.C.G.A. § 42-9-40 (1980). Thus, since Slocum was decided, the Georgia parole system has been revised significantly.”
Massey v. Georgia Bd. of Pardons & Paroles, 562 S.E.2d 172 (Ga. 2002).
· cites it 4× “Since the Parole Board is responsible for conditioning parole consistent with its primary goal of protecting society (OCGA § 42-9-40 (a)), it is not an arbitrary, capricious, and unreasonable act to condition the parole of one whose crimes had sexual overtones on participation…”
Hamm v. Ray, 531 S.E.2d 91 (Ga. 2000).
· cites it 4× “This process is clearly designed to serve the parole statute’s primary goal to protect society, OCGA § 42-9-40 (a), while fostering individualized decision making in parole actions.”
— 42-9-40(a) — 4 cases
Bradshaw v. State, 671 S.E.2d 485 (Ga. 2008).
“While the General Assembly has required the Board to establish and use a parole guidelines system (OCGA §§ 42-9-40 (a); 42-9-42 (c)), nothing in the applicable statutes mandates that the guidelines control the final parole decision.”
Hamm v. Ray, 531 S.E.2d 91 (Ga. 2000).
“This process is clearly designed to serve the parole statute’s primary goal to protect society, OCGA § 42-9-40 (a), while fostering individualized decision making in parole actions.”
— 42-9-40(b) — 1 case
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