GA Code § 42-9-43 (2021)
2021 Georgia Code|Title 42 - Penal Institutions|Chapter 9 - Pardons and Paroles|Article 2 - Grants of Pardons, Paroles, and Other Relief|§ 42-9-43. Information to Be Considered by Board Generally; Conduct of Investigation and Examination; Determination as to Grant of Relief

  The board, in considering any case within its power, shall cause to be brought before it all pertinent information on the person in question. Included therein shall be:   A report by the superintendent, warden, or jailer of the jail or state or county correctional institution in which the person has been confined upon the conduct of record of the person while in such jail or state or county correctional institution;   A report of the conduct of record of the person serving a sentence for a serious violent felony, as such term is defined in Code Section 17-10-6.1, who is in the custody of the Department of Corrections;   The results of such physical and mental examinations as may have been made of the person;   The extent to which the person appears to have responded to the efforts made to improve his or her social attitude;   The industrial record of the person while confined, the nature of his or her occupations while so confined, and a recommendation as to the kind of work he or she is best fitted to perform and at which he or she is most likely to succeed when and if he or she is released;   The educational programs in which the person has participated and the level of education which the person has attained based on standardized reading tests;   The written statements or oral testimony, if any, of the district attorney of the circuit in which the person was sentenced expressing views and making any recommendation as to parole, conditional release, a pardon for a serious offense, as such term is defined in Code Section 42-9-42, or commutation of a death sentence;   The written, oral, audiotaped, or videotaped testimony of the victim, the victim's family, or a witness having personal knowledge of the victim's personal characteristics, including any information prepared by the victim or any individual offering or preparing information on behalf of the victim, for the purpose of the board's consideration of a parole, conditional release, pardon, or commutation of a death sentence if the victim has provided such information to the board; and   If the person is or was required to register pursuant to Code Section 42-1-12, any court order issued releasing the person from registration requirements or residency or employment restrictions.       As used in this subsection, the term:   "Debilitating terminal illness" means a disease that cannot be cured or adequately treated and that is reasonably expected to result in death within 12 months.   "Entirely incapacitated" means an offender who:   Requires assistance in order to perform two or more necessary daily life functions or who is completely immobile; and   Has such limited physical or mental ability, strength, or capacity that he or she poses an extremely low risk of physical threat to others or to the community.     "Necessary daily life function" means eating, breathing, dressing, grooming, toileting, walking, or bathing.     The board may issue a medical reprieve to an entirely incapacitated person suffering a progressively debilitating terminal illness in accordance with Article IV, Section II, Paragraph II of the Constitution.       The board shall give at least 30 days' advance written notification to the district attorney of the circuit in which the person was sentenced whenever it considers making a final decision on a pardon for a serious offense, as such term is defined in Code Section 42-9-42, and at least 90 days' advance written notification to such district attorney prior to making a final decision on parole or conditional release for a person sentenced for a serious violent felony, as such term is defined in Code Section 17-10-6.1, and shall provide the district attorney an opportunity to submit information and file a written objection to such actions and shall also provide the person being considered for parole or conditional release an opportunity to submit information.   Within 72 hours of receiving a request to commute a death sentence, the board shall provide written notification to the district attorney of the circuit in which the person was sentenced of the date set for hearing such request and shall provide the district attorney an opportunity to submit information and file a written response to such request.   The board may also make such other investigation as it may deem necessary in order to be fully informed about the person.       Before releasing any person on parole or conditional release, granting a pardon, or commuting a death sentence, the board may have the person appear before it and may personally examine him or her and consider any information it deems relevant or necessary. When objections to relief have been tendered, the board may hold a hearing and consider oral testimony. If the board holds a hearing, it shall provide the district attorney of the circuit in which the person was sentenced 30 days' notice via email of such hearing date and the district attorney or his or her designee may attend such hearing and present evidence to the board and shall also provide the person being considered 30 days' notice of such hearing date and he or she may present evidence to the board. Upon consideration of the reports, files, records, information, and oral testimony submitted, the board shall make its findings and determine whether or not such person shall be granted a pardon, parole, or other relief within the power of the board and determine the terms and conditions thereof, and if such person is serving a split sentence, the board's conditions shall include all of the terms of probation imposed by the sentencing court.   Notice of the board's determination shall be given to the person being considered, the correctional official having him or her in custody, if applicable, the district attorney who submitted any information or objection, and the victim if the victim has expressed a desire for such notification and has provided the board with a current mailing or email address and telephone number.     If a person in custody is granted a pardon, parole, or conditional release, the correctional official having such person in custody, upon notification thereof, shall inform him or her of the terms and conditions thereof and shall, in strict accordance therewith, release the person.    (Ga. L. 1943, p. 185, § 14; Ga. L. 1986, p. 1596, § 4; Ga. L. 2009, p. 192, § 2/SB 151; Ga. L. 2013, p. 222, § 19/HB 349; Ga. L. 2015, p. 207, § 4/HB 71; Ga. L. 2017, p. 585, § 2-11/SB 174; Ga. L. 2021, p. 922, § 42/HB 497.)    The 2013 amendment,  effective July 1, 2013, added subsection (b); and redesignated former subsections (b) through (e) as present subsections (c) through (f), respectively. See editor's note for applicability.    The 2015 amendment,  effective July 1, 2015, in subsection (a), deleted "and" at the end of paragraph (a)(5); redesignated former paragraph (a)(6) as paragraph (a)(7) and added new paragraph (a)(6); in paragraph (a)(7), as redesignated, added", including any information prepared by the victim or any individual offering or preparing information on behalf of the victim, for the purpose of the board's consideration of a pardon or commutation of a death sentence if the victim has provided such information to the board; and" at the end; and added paragraph (a)(8); in subsection (c), designated the formerly existing provisions as paragraph (c)(3), and added paragraphs (c)(1) and (c)(2); substituted the present provisions of subsection (d) for the former provisions, which read: "Before releasing any person on parole, the board may have the person appear before it and may personally examine him or her. Thereafter, upon consideration the board shall make its findings and determine whether or not such person shall be granted a pardon, parole, or other relief within the power of the board; and the board shall determine the terms and conditions thereof. Notice of the determination shall be given to such person and to the correctional official having him or her in custody."; in subsection (e), inserted "in custody" near the beginning and substituted "official having such person" for "officials having the person" near the middle; and deleted former subsection (f), which read: "The board shall send written notification of the parole decision to the victim or, if the victim is no longer living, to the family of the victim."    The 2017 amendment,  effective July 1, 2017, added paragraph (a)(2); redesignated former paragraphs (a)(2) through (a)(8) as present paragraphs (a)(3) through (a)(9), respectively; inserted "parole, conditional release," in the middle of present paragraphs (a)(7) and (a)(8); in paragraph (c)(1), inserted "and at least 90 days' advance written notification to such district attorney prior to making a final decision on parole or conditional release for a person sentence for a serious violent felony, as such term is defined in Code Section 17-10-6.1," near the middle and substituted "actions and shall also provide the person being considered for parole or conditional release an opportunity to submit information" for "action" at the end; in paragraph (d)(1), inserted "or conditional release" near the middle of the first sentence, added the third sentence, and, in the last sentence, substituted "reports, files, records, information" for "records, papers, documents" near the beginning and added ", and if such person is serving a split sentence, the board's conditions shall include all of the terms of probation imposed by the sentencing court" at the end; substituted "if the victim has expressed a desire for such notification and has provided the board with a current mailing or e-mail address and telephone number" for "in accordance with Code Section 17-17-13" at the end of paragraph (d)(2); and substituted "pardon, parole, or conditional release," for "pardon or a parole," near the beginning of subsection (e).    The 2021 amendment,  effective May 10, 2021, part of an Act to revise, modernize, and correct the Code, substituted "email" for "e-mail" in the middle of the third sentence of paragraph (d)(1), and near the end of paragraph (d)(2).   Cross references.   - Power of board to order adult offender to make restitution to victim as condition of any relief ordered, § 17-14-3.    Power of board to grant parole prior to completion of one-third of sentence if restitution of victim is ordered as condition of parole, § 17-14-4.   Crime Victims' Bill of Rights, T. 17, C. 17.   Editor's notes.   - Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."   Law reviews.   - For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U.L. Rev. 17 (2013). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 115 (2017).   JUDICIAL DECISIONS    This section allows, but does not require, an interview.  Williams v. McCall, 531 F.2d 1247 (5th Cir. 1976).   Board members immune from damage suits.    - Members of the board in passing on and processing applications for parole exercise discretion imposed upon the members by law. The members are immune from suits for damages for such governmental functions. Neal v. McCall, 134 Ga. App. 680, 215 S.E.2d 537 (1975).   No interview required.    - Because a prior district court order only required that the inmate be considered for parole annually under the rules in effect at the time of the inmate's offense, and neither the order nor the rule in effect at the time of the inmate's offense required interviews, the members of Georgia's Board of Pardons and Paroles complied with the order; and, while the United States Court of Appeals for the Eleventh Circuit included interviews in the list of actions encompassed by "parole reconsideration hearing," the Eleventh Circuit did not hold that an in-person interview was mandated, and O.C.G.A. § 42-9-43(b), the statute cited by the Eleventh Circuit, did not require such an interview. Akins v. Perdue, F. Supp. 2d (N.D. Ga. Apr. 18, 2006).   No due process right to collect testimony from prison staff.    - Death row inmate's suit under 42 U.S.C. § 1983 arising out of a warden's forbidding prison staff to testify for the inmate in a clemency hearing was properly dismissed for failure to state a claim because the Due Process Clause did not guarantee state prisoners a right to acquire such testimony, nor did it bar state officials from limiting prisoners' access to such testimony, despite a Georgia statute allowing the Board of Pardons and Paroles to collect all available information. Gissendaner v. Comm'r, Ga. Dep't of Corr., 794 F.3d 1327 (11th Cir. 2015), cert. denied, stay denied, 136 S. Ct. 25, 192 L. Ed. 2d 996 (U.S. 2015).   No power to increase sentence.   - Parole board was responsible for maintaining a complete record on any person who came under the power of the board and that record included the nature and term of the individual's sentence; furthermore, it was the parole board that has the power to set the terms and conditions of parole. Thus, the acts of the parole officer, or those within the parole board who make such determinations, in setting the expiration dates of plaintiff's parole, served to break the chain of causation with respect to any error that might have flowed from the misstatement in the parole officer's motion; the parole officer had no power to increase the plaintiff's sentence and no power to set the terms of the plaintiff's parole. Morgan v. Yarbrough, F. Supp. 2d (M.D. Ga. Apr. 30, 2008).    Cited in  Slocum v. Georgia State Bd. of Pardons & Paroles, 678 F.2d 940 (11th Cir. 1982).   OPINIONS OF THE ATTORNEY GENERAL    Board may make investigations  as deemed necessary so as to be fully informed about persons seeking parole. 1973 Op. Att'y Gen. No. 73-22.   Access to hospital "discharge summaries."   - Board should be given access to "discharge summaries" from Central State Hospital on inmates being considered for parole; such disclosure would not be a breach of confidentiality. 1973 Op. Att'y Gen. No. 73-54.   Stipulation in order revoking conditional pardon.   - Board, in revoking a conditional pardon of a parolee who was convicted of burglary committed while on parole, may stipulate in the order of revocation that the balance of the original sentence be served consecutively with the new sentence. 1952-53 Op. Att'y Gen. p. 388.   RESEARCH REFERENCES   Am. Jur. 2d.   - 59 Am. Jur. 2d, Pardon and Parole, §§ 20, 77.   C.J.S.   - 67A C.J.S., Pardon and Parole, §§ 48, 50-53.   ALR.    - Consent of convict as essential to a pardon, commutation or reprieve, 52 A.L.R. 835.   Right to credit on state sentence for time served under sentence of court of separate jurisdiction where state fails to specify in that regard, 90 A.L.R.3d 408.