GA Code § 42-9-20 (2021)
2021 Georgia Code|Title 42 - Penal Institutions|Chapter 9 - Pardons and Paroles|Article 1 - General Provisions|§ 42-9-20. General Duties of Board

  In all cases in which the chairperson of the board or any other member designated by the board has suspended the execution of a death sentence to enable the full board to consider and pass on same, it shall be mandatory that the board act within a period not exceeding 90 days from the date of the suspension order. In the cases which the board has power to consider, the board shall be charged with the duty of determining which inmates serving sentences imposed by a court of this state may be released on pardon or parole and fixing the time and conditions thereof. The board shall also be charged with the duty of determining violations of parole and taking action with reference thereto and making such investigations as may be necessary. It shall be the duty of the board personally to study the cases of those inmates whom the board has power to consider so as to determine their ultimate fitness for such relief as the board has power to grant. The board by an affirmative vote of a majority of its members shall have the power to commute a sentence of death to one of life imprisonment.   The board shall provide The Council of Superior Court Clerks of Georgia the data set forth in Code Section 15-12-40.1, without charge and in the electronic format requested.    (Ga. L. 1943, p. 185, § 11; Ga. L. 1973, p. 1294, § 1; Ga. L. 1982, p. 3, § 42; Ga. L. 1983, p. 500, § 6; Ga. L. 2014, p. 451, § 14/HB 776; Ga. L. 2015, p. 422, § 5-83/HB 310.)    The 2014 amendment,  effective July 1, 2014, designated the existing provisions as subsection (a) and added subsection (b).    The 2015 amendment,  effective July 1, 2015, in subsection (a), substituted "chairperson" for "chairman" near the beginning and substituted "of determining violations of parole and taking action with reference thereto and making such investigations as may be necessary" for "of supervising all persons placed on parole, of determining violations thereof and of taking action with reference thereto, of making such investigations as may be necessary, and of aiding parolees or probationers in securing employment" near the middle. See Editor's notes for applicability.   Cross references.   - Powers of State Board of Pardons and Paroles, Ga. Const. 1983, Art. IV, Sec. II, Para. II.    Authority of Governor to suspend execution of death sentences, Ga. Const. 1983, Art. V, Sec. II, Para. II and § 42-9-56.    Imposition and review of death penalty generally, § 17-10-30 et seq.   Editor's notes.   - Ga. L. 1983, p. 500, § 1, not codified by the General Assembly, provides: "It is the intent of this Act to implement certain changes required by Article IV, Section II of the Constitution of the State of Georgia."   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).   JUDICIAL DECISIONS   Constitutionality.   - 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).   One application intended as matter of right.    - It is the intent of the Constitution and this article that consideration and action upon one application for commutation by the board is all that the prisoner may demand as a matter of right. Whether or not a second application would be considered and acted upon by the board would be a matter for the board's discretion. McLendon v. Everett, 205 Ga. 713, 55 S.E.2d 119 (1949).   Instructing jury of possibility of parole of prisoner not erroneous.    - 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).    Denial of parole, as distinguished from revocation of parole,  does not amount to loss of liberty in the due process context. Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979).    State supreme court vacated the trial court's judgment denying an inmate's petition for a writ of habeas corpus challenging procedures used by the Georgia State Board of Pardons and Paroles when the Board revoked the inmate's parole because the recommendation submitted by the Board member who heard the allegations was not a part of the record and there was no evidence in the record which allowed the court to determine the basis of absent Board members' decisions to accept that recommendation and what procedures were followed in revoking the inmate's parole. Roberts v. Scroggy, 278 Ga. 25, 597 S.E.2d 385 (2004).   Parole conditions.    - Trial court erred by requiring the defendant to waive the defendant's Fourth Amendment right as a condition of parole since "any attempt by a court to impose its will over the Executive Department by attempting to impose as a part of a criminal sentence conditions operating as a prerequisite of or becoming automatically effective in the event of a subsequent parole of defendant by the State Board of Pardons and Parole would be a nullity and constitute an exercise of power granted exclusively to the Executive." Stephens v. State, 207 Ga. App. 645, 428 S.E.2d 661 (1993).    Trial court did not err in denying parolee's petition for writ of mandamus to lift parole conditions requiring electronic monitoring and that the parolee get sex offender counseling as the electronic monitoring condition had been lifted by the time the trial court held a hearing on that condition and the parole board did not act in an arbitrary, capricious, and unreasonable manner in imposing the counseling condition as the parolee's offenses, while they were not sexually violent offenses, had sexual overtones; thus, the parole board acted consistent with the board's primary goal of protecting society. Massey v. Ga. Bd. of Pardons & Paroles, 275 Ga. 127, 562 S.E.2d 172 (2002).    Cited in Matthews v. Everett, 201 Ga. 730, 41 S.E.2d 148 (1947); Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Garner v. Jones, 529 U.S. 244, 120 S. Ct. 1362, 146 L. Ed. 2d 236 (2000).   OPINIONS OF THE ATTORNEY GENERAL   Release prior to serving maximum sentence.   - If the prisoner is to be released any time prior to serving the prisoner's maximum sentence, that duty is one for the State Board of Pardons and Paroles. 1948-49 Op. Att'y Gen. p. 611.    Constitutional requirement in this section of a majority  to decide action of board requires affirmative vote of three members to commute sentence of death to one of life imprisonment. 1973 Op. Att'y Gen. No. 73-137.   Confinement in prison system as prerequisite for parole.   - In order to be eligible for parole consideration, a person must be confined in a state penal institution; a person out on bond would not be eligible for parole consideration unless and until one is returned to confinement in the state prison system. 1971 Op. Att'y Gen. No. 71-97.   Board does not have jurisdiction to act upon this state's sentence so long as the individual concerned is incarcerated in a federal prison serving this state's sentence concurrently with a federal sentence; to be eligible for parole consideration, an individual must be confined in a state penal institution. 1972 Op. Att'y Gen. No. 72-35.   Board may grant conditional release.   - Under Ga. Const. 1983, Art. IV, Sec. II, Para. II, and this article, the board may, if the board deems it necessary and proper in the interest of the prisoner and the public, grant to such prisoner a conditional release, providing that such release is conditioned upon the prisoner's remaining in a state hospital and continuing the treatment prescribed by the members of the staff until such time as the prisoner has been cured of an illness, or the illness reduced to such point where the physicians deem it prudent and safe for the prisoner and the general public that the prisoner be dismissed from the hospital. 1954-56 Op. Att'y Gen. p. 504.   Use of original record of trial.   - Board may not review the original record of trial for purpose of determining guilt or innocence of the defendant, but may consider it on the question of clemency. 1945-47 Op. Att'y Gen. p. 443.   Sentence tolled upon grant of reprieve for receipt of medical treatment.   - When a prisoner receives a reprieve of the prisoner's sentence for the purpose of receiving medical treatment, the prisoner's sentence does not run during the time the prisoner is outside the penitentiary. 1957 Op. Att'y Gen. p. 200.   Commuting sentence to present service.   - Board does have power to commute a sentence of imprisonment to present service upon condition that the prisoner pay a fine in the sum fixed within the law by the board, or upon such other conditions which are not illegal, immoral, or impossible of performance. 1945-47 Op. Att'y Gen. p. 446.   Reprieve defined.   - Reprieve is the withdrawing of any sentence for an interval of time; it does no more than stay the execution of the sentence for a period of time. It is the withdrawing of a sentence for an interval of time whereby the execution of the sentence is suspended; it is merely the postponement of the sentence for a time; it does not and cannot defeat the ultimate execution of the judgment of the court but merely delays it; it is a respite, a temporary suspension of the execution of a sentence; it is a delay. 1957 Op. Att'y Gen. p. 200.   Advisement by attorney general as to whether conviction authorized.   - Attorney General may not advise the board whether a conviction was authorized by the evidence submitted at trial. 1945-47 Op. Att'y Gen. p. 442.   Computation of parole eligibility.   - It is proper to compute parole eligibility of one serving consecutive sentences under state and county control on the same basis as a single sentence equal in duration to the total time of the consecutive sentences. 1973 Op. Att'y Gen. No. 73-109.   Pardon for traffic offense.   - Notwithstanding fact that an individual has been pardoned for a traffic offense, the individual is not entitled to have one's driver's license reinstated, because the right to operate a 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.   RESEARCH REFERENCES   Am. Jur. 2d.   - 59 Am. Jur. 2d, Pardon and Parole, §§ 1, 2, 6-12, 17, 20-22, 25-30, 32, 34, 44-47, 71, 73-76, 91.   C.J.S.   - 67A C.J.S., Pardon and Parole, §§ 2-27, 45, 46.   ALR.    - Judicial investigation of pardon by Governor, 30 A.L.R. 238; 65 A.L.R. 1471.    Power to pardon or commute sentence as one which devolves upon the Lieutenant Governor during the absence or disability of the Governor, 32 A.L.R. 1162.    Consent of convict as essential to a pardon, commutation or reprieve, 52 A.L.R. 835.    Statute conferring power upon administrative body in respect to the parole of prisoners, or the discharge of parolees, as unconstitutional infringement of power of executive or judiciary, 143 A.L.R. 1486.   Offenses and convictions covered by pardon, 35 A.L.R.2d 1261.   Pardon as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.