GA Code § 42-9-45 (2021)
2021 Georgia Code|Title 42 - Penal Institutions|Chapter 9 - Pardons and Paroles|Article 2 - Grants of Pardons, Paroles, and Other Relief|§ 42-9-45. General Rule-Making Power

  The board may adopt and promulgate rules and regulations, not inconsistent with this chapter, touching all matters dealt with in this chapter, including, among others, the practice and procedure in matters pertaining to paroles, pardons, and remission of fines and bond forfeitures. The rules and regulations shall contain an eligibility requirement for parole which shall set forth the time when the automatic initial consideration for parole of inmates under the jurisdiction of the Department of Corrections shall take place and also the times at which periodic reconsideration thereafter shall take place. Such consideration shall be automatic, and no written or formal application shall be required.     An inmate serving a misdemeanor sentence or misdemeanor sentences shall only be eligible for consideration for parole after the expiration of six months of his or her sentence or sentences or one-third of the time of his or her sentence or sentences, whichever is greater.   Except as otherwise provided in Code Sections 17-10-6.1 and 17-10-7 and paragraphs (3) and (4) of this subsection, an inmate serving a felony sentence or felony sentences shall only be eligible for consideration for parole after the expiration of nine months of his or her sentence or one-third of the time of the sentences, whichever is greater. Except as otherwise provided in Code Sections 17-10-6.1 and 17-10-7 and paragraphs (3) and (4) of this subsection, inmates serving sentences aggregating 21 years or more shall become eligible for consideration for parole upon completion of the service of seven years.   When an inmate was sentenced pursuant to subsection (d) of Code Section 16-13-30 and subsection (c) of Code Section 17-10-7 to a term of at least 12 years and up to a life sentence, he or she may become eligible for consideration for parole if he or she:   Has never been convicted of:   A serious violent felony as such term is defined in Code Section 17-10-6.1;   An offense for which he or she was or could have been required to register pursuant to Code Section 42-1-12; provided, however, that this paragraph shall not apply to any felony that became punishable as a misdemeanor on or after July 1, 2006;   A violation of paragraph (1) or (2) of subsection (a) of Code Section 16-5-21;   A violation of Code Section 16-11-106; and   A violation of Code Section 16-11-131;     Has completed at least 12 years of his or her sentence;   Has obtained a low-risk for recidivism rating as determined by a validated risk assessment instrument approved by the Department of Corrections;   Has been classified as a medium or less than medium security risk for institutional housing classification purposes by the Department of Corrections;   Has completed all criminogenic programming requirements as determined by a validated risk assessment instrument approved by the Department of Corrections;   In the 12 months preceding consideration, has not been found guilty of any serious disciplinary infractions; and   Has a high school diploma or general educational development (GED) diploma, unless he or she is unable to obtain such educational achievement due to a learning disability or illiteracy. If the inmate is incapable of obtaining such education, he or she shall have completed a job skills training program, a literacy program, an adult basic education program, or a faith based program.     When an inmate was sentenced pursuant to subsection (c), (e), or (l) of Code Section 16-13-30 and subsection (c) of Code Section 17-10-7 to a term of at least six years, he or she may become eligible for consideration for parole if he or she:   Has never been convicted of:   A serious violent felony as such term is defined in Code Section 17-10-6.1;   An offense for which he or she was or could have been required to register pursuant to Code Section 42-1-12; provided, however, that this paragraph shall not apply to any felony that became punishable as a misdemeanor on or after July 1, 2006;   A violation of paragraph (1) or (2) of subsection (a) of Code Section 16-5-21;   A violation of Code Section 16-11-106; and   A violation of Code Section 16-11-131;     Has completed at least six years of his or her sentence;   Has obtained a low-risk for recidivism rating as determined by a validated risk assessment instrument approved by the Department of Corrections;   Has been classified as a medium or less than medium security risk for institutional housing classification purposes by the Department of Corrections;   Has completed all criminogenic programming requirements as determined by a validated risk assessment instrument approved by the Department of Corrections;   In the 12 months preceding consideration, has not been found guilty of any serious disciplinary infractions; and   Has a high school diploma or general educational development (GED) diploma, unless he or she is unable to obtain such educational achievement due to a learning disability or illiteracy. If the inmate is incapable of obtaining such education, he or she shall have completed a job skills training program, a literacy program, an adult basic education program, or a faith based program.       The board shall adopt rules and regulations governing the granting of other forms of clemency, which shall include pardons, reprieves, commutation of penalties, removal of disabilities imposed by law, and the remission of any part of a sentence, and shall prescribe the procedure to be followed in applying for them. Applications for the granting of such other forms of clemency and for exceptions to parole eligibility rules established by statute or promulgated by the board shall be made in such manner as the board shall direct by rules and regulations.   All rules and regulations adopted pursuant to this Code section shall be adopted, established, promulgated, amended, repealed, filed, and published in accordance with the applicable provisions and procedure as set forth in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The courts shall take judicial notice of the rules and regulations.   For the purposes of this Code section, the words "rules and regulations" shall have the same meaning as the word "rule," as defined in Code Section 50-13-2, except that the words "rules and regulations" shall not be construed to include the terms and conditions prescribed by the board to which a person paroled by the board may be subjected.   Except to correct a patent miscarriage of justice and not otherwise, no inmate serving a sentence imposed for any of the crimes listed in this subsection shall be granted release on parole until and unless said inmate has served on good behavior seven years of imprisonment or one-third of the prison term imposed by the sentencing court for the violent crime, whichsoever first occurs.No inmate serving a sentence for any crime listed in this subsection shall be released on parole for the purpose of regulating jail or prison populations.This subsection shall govern parole actions in sentences imposed for any of the following crimes: voluntary manslaughter, statutory rape, incest, cruelty to children, arson in the first degree, homicide by vehicle while under the influence of alcohol or as a habitual traffic violator, aggravated battery, aggravated assault, trafficking in drugs, and violations of Chapter 14 of Title 16, the "Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act."   No inmate serving a sentence for murder, murder in the second degree, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery shall be released on parole for the purpose of regulating jail or prison populations.   An inmate whose criminal offense or history indicates alcohol or drug involvement shall not be considered for parole until such inmate has successfully completed an Alcohol or Drug Use Risk Reduction Program offered by the Department of Corrections.   An inmate who has committed an offense which has been identified to involve family violence as such term is defined in Code Section 19-13-1 shall not be released on parole until such inmate has successfully completed a Family Violence Counseling Program offered by the Department of Corrections.    (Ga. L. 1943, p. 185, § 23; Ga. L. 1964, p. 487, § 1; Ga. L. 1969, p. 948, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 1991, p. 94, § 42; Ga. L. 1992, p. 3221, § 10; Ga. L. 1994, p. 1959, § 15; Ga. L. 1995, p. 625, § 3; Ga. L. 1996, p. 1113, § 3; Ga. L. 2014, p. 444, § 2-12/HB 271; Ga. L. 2015, p. 519, § 2-2/HB 328; Ga. L. 2015, p. 693, § 3-32/HB 233; Ga. L. 2016, p. 443, § 9-1/SB 367; Ga. L. 2018, p. 1112, § 42/SB 365.)    The 2014 amendment,  effective July 1, 2014, inserted "murder in the second degree," near the beginning of subsection (g).    The 2015 amendments.  The first 2015 amendment, effective July 5, 2015, in subsection (b), inserted paragraph (b)(1) and (b)(2) designations, in paragraph (b)(2), inserted "and paragraph (3) of this subsection" twice, and added paragraph (b)(3). See Editor's notes for applicability. The second 2015 amendment, effective July 1, 2015, substituted "fines and bond forfeitures" for "fines and forfeitures" at the end of the first sentence of subsection (a).    The 2016 amendment,  effective April 27, 2016, twice substituted "paragraphs (3) and (4)" for "paragraph (3)" in paragraph (b)(2); and added paragraph (b)(4). See Editor's notes for applicability.    The 2018 amendment,  effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "subsection (a)" for "subsection (b)" in divisions (b)(3)(A)(iii) and (b)(4)(A)(iii).   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 to victim is ordered as condition of parole, § 17-14-4.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1995, the subsection originally designated as subsection (g) in the 1995 amendment was redesignated as subsection (h), owing to the fact that this Code section already contained a subsection (g).   Editor's notes.   - Ga. L. 1994, p. 1959, § 18, not codified by the General Assembly, provides: "This Act shall become effective on January 1, 1995, upon ratification by the voters of this state at the 1994 November general election of that proposed amendment to Article IV, Section II, Paragraph II of the Constitution authorizing the General Assembly to provide for mandatory minimum sentences and sentences of life without possibility of parole in certain cases and providing restrictions on the authority of the State Board of Pardons and Paroles to grant paroles...." That amendment was ratified by the voters on November 8, 1994, so this Code section, as set out above, became effective on January 1, 1995.   Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sentence Reform Act of 1994.'"   Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds:   "(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and   "(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections."   Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: "The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a 'conviction' for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act."   Ga. L. 1994, p. 1959, § 17, not codified by the General Assembly, provides for severability.    Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond , 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond , it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."   Ga. L. 2015, p. 519, § 2-2(b)/HB 328, not codified by the General Assembly, provides, in part, that this Act shall be given retroactive effect to those sentences imposed before May 5, 2015, of Part II of this Act."   Ga. L. 2016, p. 443, § 14-1/SB 367, not codified by the General Assembly, provides, in part, that the provisions of Part IX of this Act shall be given retroactive effect to those sentences imposed before the effective date of Part IX of this Act (April 27, 2016).   Law reviews.   - For article, "Garner v. Jones: Restricting Prisoners' Ex Post Facto Challenges to Changes in Parole Systems," see 52 Mercer L. Rev. 761 (2001). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 1 (2015). For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 139 (2016). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 159 (1994).   JUDICIAL DECISIONS   No constitutionally protected interest in parole.    - Exceptional parole process governed by O.C.G.A. §§ 42-9-45 and42-9-46 did not create a constitutionally protected liberty interest in parole. Worley v. Georgia Bd. of Pardons & Paroles, 932 F. Supp. 1466 (N.D. Ga. 1996).    State prisoner's rights under the due process clause were not violated because there was no liberty interest in parole, nothing in 28 U.S.C. § 1915A required an evidentiary hearing prior to a sua sponte dismissal of a 42 U.S.C. § 1983 case for failure to state a claim, and O.C.G.A. § 42-9-45(f) did not create a liberty interest in parole after a residential burglary conviction. Heard v. Ga. State Bd. of Pardons & Paroles, 222 Fed. Appx. 838 (11th Cir. 2007)(Unpublished).   Consideration of inmate for parole prior to service of minimum time.    - Although subsection (b) of O.C.G.A. § 42-9-45 purports to establish the minimum time served before an inmate is eligible for consideration for parole, and O.C.G.A. § 42-9-46 authorizes the Board of Pardons and Paroles to consider an inmate for parole before the inmate has served the minimum time specified in subsection (b), these provisions can be interpreted as meaning that the board can consider an inmate for parole before service of the minimum time specified in subsection (b), so long as the notice required by § 42-9-46 is given. Charron v. State Bd. of Pardons & Paroles, 253 Ga. 274, 319 S.E.2d 453 (1984).    Retroactive change in the method for calculating the tentative parole month  of certain crime severity level offenders under the parole decision guidelines did not violate the ex post facto clause because the change did not produce a sufficient risk of increasing the measure of punishment attached to the covered crimes. Jones v. Georgia State Bd. of Pardons & Paroles, 59 F.3d 1145 (11th Cir. 1995).   Retroactive change in the method for calculating the tentative parole month of certain crime severity level offenders under the parole decision guidelines did not violate due process because the prisoners affected did not have a derivative due process right to be sentenced in reliance on an expectation of parole. Jones v. Georgia State Bd. of Pardons & Paroles, 59 F.3d 1145 (11th Cir. 1995).    Retroactive application of amendments to the Georgia regulations changing the frequency of parole reviews, Ga. Comp. R. & Regs. r. 475-3-.05.(2) (1986), does not violate the ex post facto clause of the United States Constitution. Garner v. Jones, 529 U.S. 244, 120 S. Ct. 1362, 146 L. Ed. 2d 236 (2000).    Retroactive application of Rule 475-3-.05 (2) of the Board of Pardons and Paroles, allowing the board to extend the interval between parole reconsiderations up to a period of eight years for an inmate serving a life sentence, does not violate the ex post facto clause of the United States Constitution. Ray v. Jacobs, 272 Ga. 760, 534 S.E.2d 418 (2000).   Determining when to parole is discretionary decision.    - State Pardons and Parole Board had the power to promulgate rules and regulations dictating the practices and procedures pertaining to parole, and the requirement that it set forth the time when the automatic initial consideration for parole of a prisoner would take place did not mean that parole had to take place at that time as the decision of when to parole a prisoner was a discretionary decision entrusted to the board. Ray v. Carthen, 275 Ga. 459, 569 S.E.2d 542 (2002).    Cited in Matthews v. Everett, 201 Ga. 730, 41 S.E.2d 148 (1947); Williams v. McCall, 531 F.2d 1247 (5th Cir. 1976); Slocum v. Georgia State Bd. of Pardons & Paroles, 678 F.2d 940 (11th Cir. 1982); Davis v. State, 255 Ga. 598, 340 S.E.2d 869 (1986); Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008).   OPINIONS OF THE ATTORNEY GENERAL   Constitutionality of guidelines.   - Insofar as the guidelines of the board serve as a codification of relevant factors which have been and will continue to be considered by the board in making parole decisions, the application of the guidelines to persons already in the state's penal system does not violate the ex post facto clause of Ga. Const. 1983, Art. I, Sec. I, Para. X, or U.S. Const., Art. I, Sec. IX, Para. III. 1979 Op. Att'y Gen. No. 79-74.   Constitutional limitations on power of Board of Pardons and Paroles.    - As of January 1, 1995, there are additional constitutional limitations on the power of the Board of Pardons and Paroles to parole. These limitations are the clear prerogative of the General Assembly to proscribe. These limitations 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) and17-10-16, 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 subsection (b) of O.C.G.A. § 42-9-45 subject to the authority reserved by statute to the board in O.C.G.A. § 42-9-46 to consider those individuals for clemency upon complying with certain notice procedures. 1995 Op. Att'y Gen. No. 95-4.   Reinstatement of driver's license.   - Notwithstanding fact that an individual has been pardoned for a traffic offense, one is not entitled to have one's driver's license reinstated. The right to a operate motor vehicle, to practice one's profession, and other extraordinary rights granted and regulated by the state under the state's police power are not affected by pardon. 1954-56 Op. Att'y Gen. p. 506.   Hearing to consider application for commutation of death sentence.   - Because there appears to be no requirement that the board hold a hearing, public or otherwise, when considering an application for commutation of a death sentence, if the board deems a hearing feasible, it may structure such hearing as it deems practicable in order to facilitate the accomplishment of its duties. 1978 Op. Att'y Gen. No. 78-44.   Reprieve to enable prisoner to obtain outside medical treatment.   - Board, in the board's discretion, may grant a reprieve of a sentence for a specified period of time for the purpose of enabling a prisoner to obtain medical treatments outside of the confines of a state penal institution. 1967 Op. Att'y Gen. No. 67-205.   Board may not permit a prisoner to leave the state under reprieve order so long as the board's own rule prohibits such practice; however, there is no constitutional or statutory provision which would prevent the board from granting a reprieve, for medical purposes, when the board's members know the prisoner intends to leave this state for the purpose of securing medical treatment if the board changes the board's rule. 1967 Op. Att'y Gen. No. 67-205.   RESEARCH REFERENCES   C.J.S.   - 67A C.J.S., Pardon and Parole, §§ 49-52.   ALR.    - Pardon or parole, suspension of sentence or discharge, as affecting fine or penalty imposed in addition to imprisonment, 74 A.L.R. 1118.    Application for or acceptance of executive clemency as affecting appellate proceedings or motion for new trial, 138 A.L.R. 1162.