GA Code § 42-9-42 (2021)
2021 Georgia Code|Title 42 - Penal Institutions|Chapter 9 - Pardons and Paroles|Article 2 - Grants of Pardons, Paroles, and Other Relief|§ 42-9-42. Procedure for Granting Relief From Sentence; Conditions and Prerequisites; Public Access to Information; Violation of Parole

  No person shall be granted clemency, pardon, parole, or other relief from sentence except by a majority vote of the board. A majority of the members of the board may commute a death sentence to life imprisonment, as provided in Code Section 42-9-20.     As used in this subsection, the term "serious offense" means:   A serious violent felony as such term is defined in Code Section 17-10-6.1; or   A felony offense of:   False imprisonment in violation of Code Section 16-5-41 when the victim is not the child of the accused and the victim is less than 14 years of age;   Aggravated assault in violation of Code Section 16-5-21;   Aggravated battery in violation of Code Section 16-5-24;   Trafficking of persons for labor or sexual servitude in violation of Code Section 16-5-46;   Cruelty to children in violation of Code Section 16-5-70;   Stalking in violation of Code Section 16-5-90;   Aggravated stalking in violation of Code Section 16-5-91;   Exploitation and intimidation of disabled adults, elder persons, and residents in violation of Code Section 16-5-102;   Sodomy in violation of Code Section 16-6-2;   Statutory rape in violation of Code Section 16-6-3;   Child molestation in violation of Code Section 16-6-4;   Enticing a child for indecent purposes in violation of Code Section 16-6-5;   Sexual assault of certain persons in violation of Code Section 16-6-5.1;   Incest in violation of Code Section 16-6-22;   Sexual battery in violation of Code Section 16-6-22.1;   Burglary in violation of Code Section 16-7-1;   Home invasion in violation of Code Section 16-7-5;   Arson in violation of Code Section 16-7-60;   Possession, manufacture, transport, distribution, possession with the intent to distribute, or offering to distribute an explosive device in violation of Code Section 16-7-82;   Possessing, transporting, or receiving explosives or destructive devices with the intent to kill, injure, or intimidate individuals or destroy public buildings in violation of Code Section 16-7-88;   Theft by receiving stolen property in violation of Code Section 16-8-7;   Robbery in violation of Code Section 16-8-40;   Sexual exploitation of children in violation of Code Section 16-12-100;   Drug related objects in violation of Code Section 16-13-1;   Approval by the federal Food and Drug Administration as prerequisite to certain sales in violation of Code Section 16-13-4;   Purchase, possession, manufacture, distribution, or sale of controlled substances or marijuana in violation of Code Section 16-13-30;   Licenses for sale, transfer, or purchase for resale of products containing pseudoephedrine; reporting and record-keeping requirements in violation of Code Section 16-13-30.4;   Possession of substances with intent to use or convey such substances for the manufacture of Schedule I or Schedule II controlled substances in violation of Code Section 16-13-30.5;   Trafficking in cocaine, illegal drugs, marijuana, or methamphetamine in violation of Code Section 16-13-31;   Trafficking in ecstasy in violation of Code Section 16-13-31.1;   Transactions in drug related objects in violation of Code Section 16-13-32;   Transactions in drug related objects in violation of Code Section 16-13-32.1;   Use of a communication facility in committing or facilitating commission of an act which constitutes a felony in violation of Code Section 16-13-32.3;   Manufacturing, distributing, dispensing, or possessing controlled substances in, on, or near public or private schools in violation of Code Section 16-13-32.4;   Manufacturing, distributing, dispensing, or possessing controlled substances, marijuana, or counterfeit substances near a park or housing project in violation of Code Section 16-13-32.5;   Manufacturing, distributing, dispensing, or possessing with intent to distribute controlled substances or marijuana in, on, or within a drug-free commercial zone in violation of Code Section 16-13-32.6;   Unauthorized distribution and dispensation of a controlled substance in violation of Code Section 16-13-42;   Unauthorized distribution of a controlled substance in violation of Code Section 16-13-43;   A violation of Article 3 of Chapter 13 of Title 16 involving dangerous drugs;   A violation of Chapter 14 of Title 16 involving racketeer influenced and corrupt organizations; or   Participating in gang activity in violation of Code Section 16-15-4.       A grant of pardon, parole, or other relief from sentence shall be rendered only by a written decision which shall be signed by at least the number of board members required for the relief granted and which shall become a part of such individual's permanent record.   Notwithstanding the provisions of Article 4 of Chapter 18 of Title 50 or any provisions of this chapter relating to the confidentiality of records, a written decision relating to a pardon for a serious offense or commutation of a death sentence shall:   Include the board's findings which reflect the board's consideration of the evidence offered that supports the board's decision; and   Be available for public inspection.       Good conduct, achievement of a fifth-grade level or higher on standardized reading tests, and efficient performance of duties by an inmate shall be considered by the board in his or her favor and shall merit consideration of an application for pardon or parole. No inmate shall be placed on parole until and unless the board shall find that there is reasonable probability that, if he or she is so released, he or she will live and conduct himself or herself as a respectable and law-abiding person and that his or her release will be compatible with his or her own welfare and the welfare of society. Furthermore, no person shall be released on pardon or placed on parole unless and until the board is satisfied that he or she will be suitably employed in self-sustaining employment or that he or she will not become a public charge. However, notwithstanding other provisions of this chapter, the board may, in its discretion, grant pardon or parole to any aged or disabled persons.     Any person who is paroled shall be released on such terms and conditions as the board shall prescribe, and if he or she is serving a split sentence, the board's conditions shall include all of the terms of probation imposed by the sentencing court. The board shall diligently see that no peonage is allowed in the guise of parole relationship or supervision. The parolee shall remain in the legal custody of the board until the expiration of the maximum term specified in his or her sentence, he or she is pardoned by the board, or his or her supervision is terminated as provided in Code Section 42-9-52.   The board may require the payment of a parole supervision fee of at least $10.00 per month as a condition of parole or conditional release. The monthly amount shall be set by rule of the board and shall be uniform state wide. Such fees shall be collected by the department to be paid into the general fund of the state treasury.     If a parolee or conditional releasee violates the terms of his or her parole or conditional release, he or she shall be subject to rearrest or extradition for placement in the actual custody of the board, to be redelivered to any state or county correctional institution of this state or placed in any other Department of Corrections facility, including a probation detention center, not to exceed 180 days, or in a residential substance abuse treatment facility, as such term is defined in Code Section 42-8-111, as deemed appropriate by the board. Nothing in this subsection shall be construed to limit or restrict the authority of the commissioner of corrections in making custodial assignments.    (Ga. L. 1943, p. 185, § 13; Ga. L. 1974, p. 474, § 1; Ga. L. 1975, p. 795, § 1; Ga. L. 1984, p. 775, § 1; Ga. L. 1985, p. 414, § 1; Ga. L. 1986, p. 1596, § 3; Ga. L. 2015, p. 207, § 3/HB 71; Ga. L. 2015, p. 422, § 5-86/HB 310; Ga. L. 2017, p. 585, § 2-10/SB 174.)    The 2015 amendments.  The first 2015 amendment, effective July 1, 2015, in subsection (b), designated the provisions as paragraph (2), added paragraphs (1) and (3); and, in paragraph (2), deleted "clemency," following "A grant of". The second 2015 amendment, effective July 1, 2015, inserted "or she" near the end of paragraph (d)(1), and substituted "department" for "board" near the end of paragraph (d)(2). See Editor's notes for applicability.    The 2017 amendment,  effective July 1, 2017, in subsection (c), inserted "or her" and "or she" throughout, and inserted "or herself" in the second sentence; in paragraph (d)(1), added ", and if he or she 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 of the first sentence, and in the last sentence, substituted a comma for "or until" near the middle, and added ", or his or her supervision is terminated as provided in Code Section 42-9-52" at the end; in paragraph (d)(2), deleted "other" preceding "conditional" near the end of the first sentence, and deleted the former third and fourth sentences, which read: "The board may require or the parolee or person under conditional release may request that up to 24 months of the supervision fee be paid in advance of the time to be spent on parole or conditional release. In such cases, any advance payments are nonreimbursable in the event of parole or conditional release revocation or if parole or conditional release is otherwise terminated prior to the expiration of the sentence being served on parole or conditional release."; and substituted the present provisions of subsection (e) for the former provisions, which read: "If a parolee violates the terms of his parole, he shall be subject to rearrest or extradition for placement in the actual custody of the board, to be redelivered to any state or county correctional institution of this state."   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.   Editor's notes.   - Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."   Law reviews.   - For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For article on the 2017 amendment of this Code section, see 34 Ga. St. U. L. Rev. 115 (2017).   JUDICIAL DECISIONS   Section constitutional.   - Presence of "unfettered discretion" in the clemency process does not render the imposition of the death penalty on the defendant arbitrary and capricious in violation of the Eighth Amendment. The discretion involved at the clemency stage can never cause the imposition of the death sentence; it serves only as an act of grace to relieve that sentence even when the sentence has been legally imposed. Smith v. Snow, 722 F.2d 630 (11th Cir. 1983).   Instruction to jury.    - Defendant in a criminal case, upon conviction and after serving the defendant's minimum sentence, may be paroled to serve the remainder of the defendant's sentence outside the confines of the penitentiary and the court did not err in so instructing the jury at their request. Jones v. State, 88 Ga. App. 330, 76 S.E.2d 810 (1953).    State cannot be required to explain state's reasons for parole decision when it is not required to act on prescribed grounds. Georgia State Bd. of Pardons & Paroles v. Turner, 248 Ga. 767, 285 S.E.2d 731 (1982).   Habeas court violated separation of powers by revoking sentence while petitioner in custody of parole board.    - Habeas court erred by revoking the petitioner's remaining portion of the original sentence while the petitioner was in the legal custody of the Georgia Board of Pardons and Paroles as such action was in violation of the separation of powers provision of Ga. Const. 1983, Art. I, Sec. II, Para. III. Hayward v. Danforth, 299 Ga. 261, 787 S.E.2d 709 (2016).   Board control until expiration of maximum term.    - This section gives the board control over the prisoner until expiration of the prisoner's maximum term and power to revoke a parole and remand a parolee into custody to serve the maximum of the parolee's sentence. Balkcom v. Sellers, 219 Ga. 662, 135 S.E.2d 414 (1964).   No liberty interest in parole.    - Current Georgia parole system, as reflected in O.C.G.A. § 42-9-42, does not require the board to grant parole based upon the presence or absence of specified findings and, as a result, does not give rise to a liberty interest. Accordingly, because the plaintiff had no liberty interest in parole, the plaintiff's right to procedural due process could not have been violated and summary judgment on the plaintiff's claim was appropriate. Greene v. Georgia Pardons & Parole Bd., 807 F. Supp. 748 (N.D. Ga. 1992).    Paragraph (c) of O.C.G.A. § 42-9-42 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 (11th Cir. 1994), cert. denied, 513 U.S. 1191, 115 S. Ct. 1254, 131 L. Ed. 2d 134 (1995).    Cited in Matthews v. Everett, 201 Ga. 730, 41 S.E.2d 148 (1947); Balkcom v. Jackson, 219 Ga. 59, 131 S.E.2d 551 (1963); Woodall v. State, 122 Ga. App. 653, 178 S.E.2d 337 (1970); Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Houser v. Morris, 518 F. Supp. 873 (N.D. Ga. 1981); Shafer v. Crockett, 160 Ga. App. 419, 287 S.E.2d 358 (1981); Slocum v. Georgia State Bd. of Pardons & Paroles, 678 F.2d 940 (11th Cir. 1982); Green v. State, 283 Ga. App. 541, 642 S.E.2d 167 (2007); Terry v. Hamrick, 284 Ga. 24, 663 S.E.2d 256 (2008); Allen v. State, 286 Ga. 392, 687 S.E.2d 799 (2010).   OPINIONS OF THE ATTORNEY GENERAL   Jurisdiction of state probation system.   - Defendant may come under jurisdiction of the state probation system in only one of two ways: (1) when the court elects to place the defendant in the custody of the state probation system; or (2) when the board elects to release a prisoner on "probation." 1972 Op. Att'y Gen. No. 72-21.   Adult and youthful offenders treated alike.   - Rules and regulations of the board do not distinguish between youthful and adult offenders in setting forth those circumstances and criteria which determine when offenders will be considered for parole. Those offenders who were sentenced in the superior court, but committed to the Division for Children and Youth until their seventeenth birthday, are to be treated as all other offenders sentenced in the superior court on felony charges, for purposes of parole consideration. 1980 Op. Att'y Gen. No. 80-142.   Parolee remains under supervision of prison authorities.    - O.C.G.A. §§ 42-9-42 and42-9-52, construed together, mean that a paroled prisoner while serving a sentence outside the confines of the prison continues to serve the sentence under supervision of prison authorities. 1945-47 Op. Att'y Gen. p. 441.   Reimbursement for medical care provided to parolees.   - Person to whom a prisoner suffering from tuberculosis has been paroled should be reimbursed for providing proper medical care. 1945-47 Op. Att'y Gen. p. 441.   Authority to collect payments of fines and restitution.   - Collection and disbursement of payments of fines and restitution as may be established as conditions upon the grant of parole may be undertaken by probation supervisors employed by the Department of Offender Rehabilitation (Corrections) so long as such payments are specifically required by court order as the result of a criminal proceeding. 1984 Op. Att'y Gen. No. 84-50.   Payment of fines and restitution during parole.   - State Board of Pardons and Paroles may, as a condition of parole, order parolees to commence court imposed payments such as fines and restitution while on parole. 1984 Op. Att'y Gen. No. 84-50.   RESEARCH REFERENCES   Am. Jur. 2d.   - 59 Am. Jur. 2d, Pardon and Parole, §§ 78, 79, 82, 91, 94-96, 99.   C.J.S.   - 67A C.J.S., Pardon and Parole, §§ 6, 7, 26, 46, 48, 52, 53, 59-62.   ALR.    - Formal requisites of pardon, 34 A.L.R. 212.    Constitutionality of statute prescribing course of conduct for discharged convict, 38 A.L.R. 1036.    Consent of convict as essential to a pardon, commutation or reprieve, 52 A.L.R. 835.    Conditional pardon, 60 A.L.R. 1410.    Extradition of escaped or paroled convict, or one at liberty on bail, 78 A.L.R. 419.   Procedure to be followed where jury requests information as to possibility of pardon or parole from sentence imposed, 35 A.L.R.2d 769.   What constitutes "good behavior" within statute or judicial order expressly conditioning suspension of sentence thereon, 58 A.L.R.3d 1156.   When is a person in custody of governmental authorities for purpose of exercise of state remedy of habeas corpus - modern cases, 26 A.L.R.4th 455.   Construction and application of interstate compact for adult offender supervision, 75 A.L.R.6th 181.