GARNER, FORMER CHAIRMAN OF THE STATE BOARD OF PARDONS AND PAROLES OF GEORGIA, et al. v. JONES

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
244 OCTOBER TERM, 1999
Syllabus
GARNER, FORMER CHAIRMAN OF THE STATE
BOARD OF PARDONS AND PAROLES OF
GEORGIA, et al. v. JONES
certiorari to the united states court of appeals for
the eleventh circuit
No. 99–137. Argued January 11, 2000—Decided March 28, 2000
Respondent escaped while serving a life sentence for murder, committed
another murder, and was sentenced to a second life term. Georgia law
requires the State’s Board of Pardons and Paroles (Board) to consider
inmates serving life sentences for parole after seven years. At the time
respondent committed his second offense, the Board’s Rule 475–3–.05(2)
required that reconsiderations for parole take place every three years.
Acting pursuant to statutory authority, the Board subsequently ex-
tended the reconsideration period to at least every eight years. The
Board has the discretion to shorten that interval, but declined to do so
when it applied the amended Rule in respondent’s case, citing his multi-
ple offenses and the circumstances and nature of his second offense.
Respondent sued petitioner Board members, claiming that retroactive
application of the amended Rule violated the Ex Post Facto Clause.
The District Court denied respondent’s motion for discovery and
awarded petitioners summary judgment. The Eleventh Circuit re-
versed. It found that the amended Rule’s retroactive application was
necessarily an ex post facto violation and that the Rule differed in mate-
rial respects from the change in California parole law sustained in Cali-
fornia Dept. of Corrections v. Morales, 514 U. S. 499. It did not con-
sider the Board’s internal policies regarding its implementation of the
Rule, finding, among other things, that such policies were unenforceable
and easily changed.
Held:
1. The Court of Appeals’ analysis failed to reveal whether retroactive
application of the amendment to Rule 475–3–.05(2) violated the Ex Post
Facto Clause. The controlling inquiry is whether such application cre-
ates a sufficient risk of increasing the measure of punishment attached
to the covered crimes. Morales, supra, at 509. Here, the question
is whether amended Rule 475–3–.05(2) creates a significant risk of pro-
longing respondent’s incarceration. That risk is not inherent in the
amended Rule’s framework, and it has not otherwise been demonstrated
on the record. While Morales identified several factors convincing this

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
245 Cite as: 529 U. S. 244 (2000)
Syllabus
Court that California’s law created an insignificant risk of increased pun-
ishment for covered inmates, the Court was careful not to adopt a single
formula for identifying which parole adjustments would survive an ex
post facto challenge. States must have due flexibility in formulating
parole procedure and addressing problems associated with confinement
and release. This case turns on the amended Rule’s operation within
the whole context of Georgia’s parole system. Georgia law gives the
Board broad discretion in determining whether an inmate should re-
ceive early release. Such discretion does not displace the Ex Post
Facto Clause’s protections, but the idea of discretion is that it has the
capacity, and the obligation, to change and adapt based on experience.
The statutory structure, its implementing regulations, and the Board’s
unrefuted representations regarding its operations do not support re-
spondent’s conclusion that the Board will not exercise its discretion in
the period between parole reviews. The Georgia law is qualified in two
important respects. First, it vests the Board with discretion as to how
often to set an inmate’s date for reconsideration, with an 8-year maxi-
mum. Second, the Board’s policies permit expedited reviews in the
event of a change in circumstance or new information. These qualifica-
tions permit the Board to set reconsideration dates according to the
likelihood that a review will result in meaningful considerations as to
whether an inmate is suitable for release. The Board’s policy of provid-
ing reconsideration every eight years when it does not expect that pa-
role would be granted during the intervening years enables the Board
to ensure that those prisoners who should receive parole come to its
attention. Given respondent’s criminal history, it is difficult to see how
the Board increased his risk of serving a longer time when it set an
8-year, not a 3-year, interval. Yet, even he may seek earlier review
upon showing changed circumstances or new information. The Elev-
enth Circuit’s supposition that the Rule seems certain to result in in-
creased incarceration falls short of the rigorous analysis required by the
Morales standard. When the rule does not by its own terms show a
significant risk, the respondent must demonstrate, by evidence drawn
from the rule’s practical implementation by the agency charged with
exercising discretion, that its retroactive application will result in a
longer period of incarceration than under the earlier rule. On the rec-
ord in this case, it cannot be concluded that the change in Georgia law
lengthened respondent’s actual imprisonment time. Pp. 249–256.
2. The Eleventh Circuit erred in not considering the Board’s internal
policy statement regarding how it intends to enforce its Rule. At a
minimum, such statements, along with the Board’s actual practices, pro-
vide important instruction as to how the Board interprets its enabling

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
246 GARNER v. JONES
Opinion of the Court
statute and regulations, and therefore whether the amended Rule cre-
ated a significant risk of increased punishment. Absent a demonstra-
tion to the contrary, it is presumed that the Board follows its statutory
commands and internal policies. Pp. 256–257.
3. The Eleventh Circuit’s analysis failed to reveal whether the
amended Rule, in its operation, created a significant risk of increased
punishment for respondent. He claims that he has not been permitted
sufficient discovery to make this showing. The matter of adequate dis-
covery is one for the Court of Appeals or, as need be, for the District
Court in the first instance. P. 257.
164 F. 3d 589, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Thomas, and Breyer, JJ., joined. Scalia, J., filed
an opinion concurring in part in the judgment, post, p. 257. Souter, J.,
filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined,
post, p. 260.
Christopher S. Brasher, Senior Assistant Attorney Gen-
eral of Georgia, argued the cause for petitioners. With him
on the briefs were Thurbert E. Baker, Attorney General,
Mary Beth Westmoreland, Deputy Attorney General, and
Jacqueline F. Bunn, Assistant Attorney General.
Elizabeth Thompson Kertscher argued the cause for re-
spondent. With her on the brief were William V. Custer
and LeeAnn Jones.*
Justice Kennedy delivered the opinion of the Court.
We granted certiorari to decide whether the retroactive
application of a Georgia law permitting the extension of in-
tervals between parole considerations violates the Ex Post
Facto Clause. The Court of Appeals found that retroactive
application of the change in the law was necessarily an ex
post facto violation. In disagreement with that determi-
nation, we reverse its judgment and remand for further
proceedings.
*Jill A. Pryor, Steven R. Shapiro, and Gerald Weber filed a brief for the
American Civil Liberties Union et al. as amici curiae urging affirmance.

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
247 Cite as: 529 U. S. 244 (2000)
Opinion of the Court
I
In 1974 respondent Robert L. Jones began serving a life
sentence after his conviction for murder in the State of Geor-
gia. He escaped from prison some five years later and, after
being a fugitive for over two years, committed another mur-
der. He was apprehended, convicted, and in 1982 sentenced
to a second life term.
Under Georgia law, at all times relevant here, the State’s
Board of Pardons and Paroles (Board or Parole Board)
has been required to consider inmates serving life sentences
for parole after seven years. Ga. Code Ann. § 42–9–45(b)
(1982). The issue in this case concerns the interval between
proceedings to reconsider those inmates for parole after its
initial denial. At the time respondent committed his second
offense, the Board’s Rules required reconsiderations to take
place every three years. Ga. Rules & Regs., Rule 475–3–
.05(2) (1979). In 1985, after respondent had begun serving
his second life sentence, the Parole Board, acting under its
authority to “set forth . . . the times at which periodic recon-
sideration [for parole] shall take place,” Ga. Code Ann. § 42–
9–45(a) (1982), amended its Rules to provide that “[r]econsid-
eration of those inmates serving life sentences who have
been denied parole shall take place at least every eight
years,” Ga. Rules & Regs., Rule 475–3–.05(2) (1985).
The Parole Board considered respondent for parole in
1989, seven years after the 1982 conviction. It denied re-
lease and, consistent with the 1985 amendment to Rule 475–
3–.05(2), reconsideration was set for 1997, eight years later.
In 1991, however, the United States Court of Appeals for
the Eleventh Circuit held that retroactive application of the
amended Rule violated the Ex Post Facto Clause. Akins v.
Snow, 922 F. 2d 1558, cert. denied, 501 U. S. 1260 (1991). In
compliance with that decision, in effect reinstating its earlier
3-year Rule, the Parole Board reconsidered respondent’s
case in 1992 and in 1995. Both times parole was denied, the
Board citing for its action respondent’s “multiple offenses”

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
248 GARNER v. JONES
Opinion of the Court
and the “circumstances and nature of ” the second offense.
App. 53–54.
In 1995 the Parole Board determined that our decision in
California Dept. of Corrections v. Morales, 514 U. S. 499
(1995), had rejected the rationale underlying the Eleventh
Circuit’s decision in Akins. The Board resumed scheduling
parole reconsiderations at least every eight years, and so at
respondent’s 1995 review it set the next consideration for
2003. Had the Board wished to do so, it could have short-
ened the interval, but the 8-year period was selected based
on respondent’s “multiple offenses” and the “circumstances
and nature of ” his second offense. App. 54. Respondent,
acting pro se, brought this action under Rev. Stat. § 1979, 42
U. S. C. § 1983, claiming, inter alia, the amendment to Rule
475–3–.05(2) violated the Ex Post Facto Clause. The suit
was filed against individual members of the Parole Board,
petitioners in this Court. Respondent requested leave to
conduct discovery to support his claim, but the District
Court denied the motion and entered summary judgment for
petitioners. The court determined the amendment to Rule
475–3–.05(2) “change[d] only the timing between reconsider-
ation hearings” for inmates sentenced to life in prison,
thereby “relieving the Board of the necessity of holding pa-
role hearings for prisoners who have no reasonable chance
of being released.” App. to Pet. for Cert. 27a. Because the
Parole Board’s policies permit inmates, upon a showing of “a
change in their circumstance or where the Board receives
new information,” App. 56, to receive expedited reconsidera-
tion for parole, the court further concluded the amendment
created “ ‘only the most speculative and attenuated possibil-
ity’ ” of increasing a prisoner’s measure of punishment, App.
to Pet. for Cert. 27a (quoting Morales, supra, at 509).
The Court of Appeals reversed, finding the amended Geor-
gia Rule distinguishable in material respects from the Cali-
fornia law sustained in Morales. 164 F. 3d 589 (CA11 1999).
In finding the Georgia law violative of the Ex Post Facto

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
249 Cite as: 529 U. S. 244 (2000)
Opinion of the Court
Clause, the court posited that the set of inmates affected
by the retroactive change—all prisoners serving life sen-
tences—is “bound to be far more sizeable than the set . . .
at issue in Morales”—inmates convicted of more than one
homicide. Id., at 594. The Georgia law sweeps within its
coverage, the court continued, “many inmates who can ex-
pect at some point to be paroled,” ibid., and thus “seems
certain to ensure that some number of inmates will find the
length of their incarceration extended in violation of the
Ex Post Facto Clause of the Constitution,” id., at 595.
“Eight years is a long time,” the court emphasized, and
“[m]uch can happen in the course of eight years to affect the
determination that an inmate would be suitable for parole.”
Ibid. The Court of Appeals recognized that the Parole
Board would set a new parole review date three years or
more into the future (up to eight years) only where it con-
cludes that “ ‘it is not reasonable to expect that parole would
be granted’ ” sooner. Ibid. (quoting policy statement of Pa-
role Board). The court thought this policy insufficient, how-
ever, because, unlike the statute in Morales, it does not re-
quire the Board “to make any particularized findings” and is
not “carefully tailored.” 164 F. 3d, at 594–595. The court
also recognized that the Board’s policy permitted it to recon-
sider any parole denials upon a showing of a “change in cir-
cumstance[s]” or upon the Board’s receipt of “new informa-
tion.” The court deemed the policy insufficient, however,
stating that “[p]olicy statements, unlike regulations are un-
enforceable and easily changed, and adherence to them is a
matter of the Board’s discretion.” Id., at 595.
We granted certiorari, 527 U. S. 1068 (1999), and we now
reverse.
II
The States are prohibited from enacting an ex post facto
law. U. S. Const., Art. I, § 10, cl. 1. One function of the Ex
Post Facto Clause is to bar enactments which, by retroactive
operation, increase the punishment for a crime after its com-

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
250 GARNER v. JONES
Opinion of the Court
mission. Collins v. Youngblood, 497 U. S. 37, 42 (1990) (cit-
ing Beazell v. Ohio, 269 U. S. 167, 169–170 (1925)). Retroac-
tive changes in laws governing parole of prisoners, in some
instances, may be violative of this precept. See Lynce v.
Mathis, 519 U. S. 433, 445–446 (1997) (citing Weaver v. Gra-
ham, 450 U. S. 24, 32 (1981)); Morales, 514 U. S., at 508–509.
Whether retroactive application of a particular change in pa-
role law respects the prohibition on ex post facto legislation
is often a question of particular difficulty when the discretion
vested in a parole board is taken into account.
Our recent decision in Morales is an appropriate beginning
point. There a California statute changed the frequency of
reconsideration for parole from every year to up to every
three years for prisoners convicted of more than one homi-
cide. Id., at 503. We found no ex post facto violation, em-
phasizing that not every retroactive procedural change
creating a risk of affecting an inmate’s terms or conditions
of confinement is prohibited. Id., at 508–509. The question
is “a matter of ‘degree.’ ” Id., at 509 (quoting Beazell, supra,
at 171). The controlling inquiry, we determined, was
whether retroactive application of the change in Califor-
nia law created “a sufficient risk of increasing the measure
of punishment attached to the covered crimes.” 514 U. S.,
at 509.
The amended California law did not violate this standard.
It did not modify the statutory punishment imposed for any
particular offenses. Nor did the amendment alter the stand-
ards for determining either the initial date for parole eligibil-
ity or an inmate’s suitability for parole. Id., at 507. The
amendment did not change the basic structure of California’s
parole law. It vested the California parole board with dis-
cretion to decrease the frequency with which it reconsidered
parole for a limited class, consisting of prisoners convicted
of more than one homicide. Id., at 507, 510. If the board
determined a low likelihood of release existed for a member
within that class, it could set the prisoner’s next consider-

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
251 Cite as: 529 U. S. 244 (2000)
Opinion of the Court
ation date three years hence. The change in California law
did not, however, prohibit requests for earlier reconsidera-
tion based on a change of circumstances. Id., at 512–513.
Historical practices within the California penal system indi-
cated “about 90% of all prisoners are found unsuitable for
parole at the initial hearing, while 85% are found unsuitable
at the second and subsequent hearings.” Id., at 510–511
(citing In re Jackson, 39 Cal. 3d 464, 473, 703 P. 2d 100, 105
(1985)). On these facts we determined the Ex Post Facto
Clause did not prohibit California from conserving and re-
allocating the resources that would otherwise be expended
to conduct annual parole hearings for inmates with little
chance of release. 514 U. S., at 511–512. The sum of these
factors illustrated that the decrease in the frequency of pa-
role suitability proceedings “create[d] only the most specula-
tive and attenuated possibility of producing the prohibited
effect of increasing the measure of punishment for covered
crimes.” Id., at 509.
Consistent with the Court of Appeals’ analysis, respondent
stresses certain differences between Georgia’s amended pa-
role law and the California statute reviewed in Morales.
The amendment to Rule 475–3–.05(2), respondent urges, per-
mits the extension of parole reconsiderations by five years
(not just by two years); covers all prisoners serving life sen-
tences (not just multiple murderers); and affords inmates
fewer procedural safeguards (in particular, no formal hear-
ings in which counsel can be present). These differences are
not dispositive. The question is whether the amended Geor-
gia Rule creates a significant risk of prolonging respondent’s
incarceration. See ibid. The requisite risk is not inherent
in the framework of amended Rule 475–3–.05(2), and it has
not otherwise been demonstrated on the record.
Our decision in Morales did not suggest all States must
model their procedures governing consideration for parole
after those of California to avoid offending the Ex Post Facto
Clause. The analysis undertaken in Morales did identify

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
252 GARNER v. JONES
Opinion of the Court
factors which convinced us the amendment to California law
created an insignificant risk of increased punishment for cov-
ered inmates. Our opinion was careful, however, not to
adopt a single formula for identifying which legislative ad-
justments, in matters bearing on parole, would survive an
ex post facto challenge. Ibid. We also observed that the
Ex Post Facto Clause should not be employed for “the micro-
management of an endless array of legislative adjustments
to parole and sentencing procedures.” Id., at 508. These
remain important concerns. The States must have due
flexibility in formulating parole procedures and addressing
problems associated with confinement and release.
The case turns on the operation of the amendment to Rule
475–3–.05(2) within the whole context of Georgia’s parole
system. Georgia law charges the Parole Board with deter-
mining which prisoners “may be released on pardon or parole
and [with] fixing the time and conditions thereof.” Ga. Code
Ann. § 42–9–20 (1997). In making release decisions, the
same law, in relevant part, provides:
“Good conduct, achievement of a fifth-grade level or
higher on standardized reading tests, and efficient per-
formance of duties by an inmate shall be considered by
the board in his 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 is so re-
leased, he will live and conduct himself as a respectable
and law-abiding person and that his release will be com-
patible with his 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 will be suitably employed in self-sustaining em-
ployment or that he will not become a public charge.”
§ 42–9–42(c).

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
253 Cite as: 529 U. S. 244 (2000)
Opinion of the Court
See also § 42–9–43 (listing information the Board should con-
sider, including wardens’ reports, results of physical and
mental examinations, and reports regarding prisoners’ per-
formance in educational programs). These provisions illus-
trate the broad discretion the Parole Board possesses in de-
termining whether an inmate should receive early release.
Accord, Sultenfuss v. Snow, 35 F. 3d 1494, 1501–1502 (CA11
1994) (en banc) (describing the discretion Georgia law vests
with Parole Board). Only upon a showing that the Board
engaged in a “gross abuse of discretion” can a prisoner chal-
lenge a parole denial in the Georgia courts. Lewis v. Grif-
fin, 258 Ga. 887, 888, n. 3, 376 S. E. 2d 364, 366, n. 3 (1989).
The presence of discretion does not displace the protec-
tions of the Ex Post Facto Clause, however. Cf. Weaver, 450
U. S., at 30–31. The danger that legislatures might disfavor
certain persons after the fact is present even in the parole
context, and the Court has stated that the Ex Post Facto
Clause guards against such abuse. See Miller v. Florida,
482 U. S. 423, 429 (1987) (citing Calder v. Bull, 3 Dall. 386,
389 (1798) (Chase, J.)). On the other hand, to the extent
there inheres in ex post facto doctrine some idea of actual or
constructive notice to the criminal before commission of the
offense of the penalty for the transgression, see Weaver,
supra, at 28–29, we can say with some assurance that where
parole is concerned discretion, by its very definition, is sub-
ject to changes in the manner in which it is informed and
then exercised. The idea of discretion is that it has the
capacity, and the obligation, to change and adapt based on
experience. New insights into the accuracy of predictions
about the offense and the risk of recidivism consequent upon
the offender’s release, along with a complex of other factors,
will inform parole decisions. See, e. g., Justice v. State
Board of Pardons and Paroles, 234 Ga. 749, 751–752, 218
S. E. 2d 45, 46–47 (1975) (explaining, by illustration to one
prisoner’s circumstances, that parole decisions rest upon the

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
254 GARNER v. JONES
Opinion of the Court
Board’s consideration of numerous factors specific to an
inmate’s offense, rehabilitative efforts, and ability to live a
responsible, productive life). The essence of respondent’s
case, as we see it, is not that discretion has been changed in
its exercise but that, in the period between parole reviews,
it will not be exercised at all. The statutory structure, its
implementing regulations, and the Parole Board’s unrefuted
representations regarding its operations do not lead to this
conclusion.
The law changing the frequency of parole reviews is quali-
fied in two important respects. First, the law vests the
Parole Board with discretion as to how often to set an in-
mate’s date for reconsideration, with eight years for the max-
imum. See Ga. Rules & Regs., Rule 475–3–.05(2) (1985)
(“Reconsideration . . . shall take place at least every eight
years”). Second, the Board’s policies permit “expedited pa-
role reviews in the event of a change in their circumstance
or where the Board receives new information that would
warrant a sooner review.” App. 56. These qualifications
permit a more careful and accurate exercise of the discretion
the Board has had from the outset. Rather than being re-
quired to review cases pro forma, the Board may set recon-
sideration dates according to the likelihood that a review will
result in meaningful considerations as to whether an inmate
is suitable for release. The Board’s stated policy is to pro-
vide for reconsideration at 8-year intervals “when, in the
Board’s determination, it is not reasonable to expect that pa-
role would be granted during the intervening years.” Ibid.
The policy enables the Board to put its resources to better
use, to ensure that those prisoners who should receive parole
come to its attention. By concentrating its efforts on those
cases identified as having a good possibility of early release,
the Board’s Rules might result in the release of some prison-
ers earlier than would have been the case otherwise.
The particular case of respondent well illustrates that the
Board’s Rule changes are designed for the better exercise of

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
255 Cite as: 529 U. S. 244 (2000)
Opinion of the Court
the discretion it had from the outset. Given respondent’s
criminal history, including his escape from prison and the
commission of a second murder, it is difficult to see how the
Board increased the risk of his serving a longer time when
it decided that its parole review should be exercised after an
8-year, not a 3-year, interval. Yet if such a risk develops,
respondent may, upon a showing of either “a change in [his]
circumstance[s]” or the Board’s receipt of “new information,”
seek an earlier review before the 8-year interval runs its
course.
We do not accept the Court of Appeals’ supposition that
Rule 475–3–.05(2) “seems certain” to result in some prison-
ers serving extended periods of incarceration. 164 F. 3d, at
595. The standard announced in Morales requires a more
rigorous analysis of the level of risk created by the change
in law. Cf. 514 U. S., at 506–507, n. 3 (“After Collins, the
focus of the ex post facto inquiry is not on whether a legis-
lative change produces some ambiguous sort of ‘disadvan-
tage’ . . . but on whether any such change . . . increases the
penalty by which a crime is punishable”). When the rule
does not by its own terms show a significant risk, the re-
spondent must demonstrate, by evidence drawn from the
rule’s practical implementation by the agency charged with
exercising discretion, that its retroactive application will re-
sult in a longer period of incarceration than under the earlier
rule. The litigation in Morales concerned a statute cover-
ing inmates convicted of more than one homicide and pro-
ceeded on the assumption that there were no relevant differ-
ences between inmates for purposes of discerning whether
retroactive application of the amended California law vio-
lated the Ex Post Facto Clause. In the case before us, re-
spondent must show that as applied to his own sentence the
law created a significant risk of increasing his punishment.
This remains the issue in the case, though the general opera-
tion of the Georgia parole system may produce relevant evi-
dence and inform further analysis on the point.

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
256 GARNER v. JONES
Opinion of the Court
The record before the Court of Appeals contained little
information bearing on the level of risk created by the
change in law. Without knowledge of whether retroactive
application of the amendment to Rule 475–3–.05(2) increases,
to a significant degree, the likelihood or probability of pro-
longing respondent’s incarceration, his claim rests upon
speculation.
On the record in this case, we cannot conclude the change
in Georgia law lengthened respondent’s time of actual im-
prisonment. Georgia law vests broad discretion with the
Board, and our analysis rests upon the premise that the
Board exercises its discretion in accordance with its assess-
ment of each inmate’s likelihood of release between reconsid-
eration dates. If the assessment later turns out not to hold
true for particular inmates, they may invoke the policy the
Parole Board has adopted to permit expedited consideration
in the event of a change in circumstances. App. 56.
The Court of Appeals erred in not considering the Board’s
internal policy statement. At a minimum, policy state-
ments, along with the Board’s actual practices, provide im-
portant instruction as to how the Board interprets its en-
abling statute and regulations, and therefore whether, as a
matter of fact, the amendment to Rule 475–3–.05(2) created
a significant risk of increased punishment. It is often the
case that an agency’s policies and practices will indicate the
manner in which it is exercising its discretion. Cf. INS v.
Yueh-Shaio Yang, 519 U. S. 26, 32 (1996) (observing that the
reasonableness of discretionary agency action can be gauged
by reference to the agency’s policies and practices). The
Court of Appeals was incorrect to say the Board’s policies
were of no relevance in this case. Absent a demonstration
to the contrary, we presume the Board follows its statutory
commands and internal policies in fulfilling its obligations.
Cf. United States ex rel. Accardi v. Shaugnessy, 347 U. S.
260, 266–268 (1954). In Morales, we relied upon the State’s
representation that its parole board had a practice of grant-

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
257 Cite as: 529 U. S. 244 (2000)
Scalia, J., concurring in part in judgment
ing inmates’ requests for early review. See 514 U. S., at
512–513 (citing Reply Brief for Petitioner, O. T. 1994,
No. 93–1462, p. 3, n. 1). The policy statement here, by con-
trast, is a formal, published statement as to how the Board
intends to enforce its Rule. It follows a fortiori from Mo-
rales that the Court of Appeals should not have disregarded
the policy. Absent any demonstration to the contrary from
respondent, we respect the Board’s representation that in-
mates, upon making a showing of a “change in their circum-
stance[s]” or upon the Board’s receipt of “new information,”
may request expedited consideration. App. 56.
The Court of Appeals’ analysis failed to reveal whether the
amendment to Rule 475–3–.05(2), in its operation, created
a significant risk of increased punishment for respondent.
Respondent claims he has not been permitted sufficient dis-
covery to make this showing. The matter of adequate dis-
covery is one for the Court of Appeals or, as need be, for the
District Court in the first instance. The judgment of the
Court of Appeals is reversed, and the case is remanded for
proceedings consistent with this opinion.
It is so ordered.
Justice Scalia, concurring in part in the judgment.
I would agree with the Court’s opinion if we were faced
with an amendment to the frequency of parole-eligibility de-
terminations prescribed by the Georgia Legislature. Since
I do not believe, however, that a change in frequency pre-
scribed by the Georgia State Board of Pardons and Paroles
(Board) would violate the Ex Post Facto Clause even if
it did pose a sufficient “risk” of decreasing the likelihood
of parole, I would reverse the decision of the Eleventh Cir-
cuit without the necessity of remand.
The Court treats this case as a mere variation on the Mo-
rales theme, whereas in reality it contains a critical differ-
ence: In Morales, the frequency of parole suitability hearings
had been fixed by law, and a legislative change had given

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
258 GARNER v. JONES
Scalia, J., concurring in part in judgment
California’s Board of Prison Terms discretion to decrease the
frequency. See California Dept. of Corrections v. Morales,
514 U. S. 499, 503 (1995); ante, at 250. Here, there has been
no such change. Today, as at the time of respondent’s of-
fense, the Georgia statute requires only that the Board pro-
vide for automatic “periodic reconsideration,” Ga. Code Ann.
§ 42–9–45 (1982). The length of the period, like the ultimate
question of parole, was and is entrusted to the Board’s
discretion.
Any sensible application of the Ex Post Facto Clause, and
any application faithful to its historical meaning, must draw
a distinction between the penalty that a person can antici-
pate for the commission of a particular crime, and opportuni-
ties for mercy or clemency that may go to the reduction of
the penalty. I know of no precedent for the proposition that
a defendant is entitled to the same degree of mercy or clem-
ency that he could have expected at the time he committed
his offense. Under the traditional system of minimum-
maximum sentences (20 years to life, for example), it would
be absurd to argue that a defendant would have an ex post
facto claim if the compassionate judge who presided over the
district where he committed his crime were replaced, prior
to the defendant’s trial, by a so-called “hanging judge.”
Discretion to be compassionate or harsh is inherent in the
sentencing scheme, and being denied compassion is one of
the risks that the offender knowingly assumes.
At the margins, to be sure, it may be difficult to distin-
guish between justice and mercy. A statutory parole sys-
tem that reduces a prisoner’s sentence by fixed amounts of
time for good behavior during incarceration can realistically
be viewed as an entitlement—a reduction of the prescribed
penalty—rather than a discretionary grant of leniency. But
that is immeasurably far removed from the present case. In
Georgia parole, like pardon (which is granted or denied by
the same Board), is—and was at the time respondent com-
mitted his offense—a matter of grace. It may be denied for

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
259 Cite as: 529 U. S. 244 (2000)
Scalia, J., concurring in part in judgment
any reason (except, of course, an unlawful one such as race),
or for no reason. And where, as here, the length of the re-
consideration period is entrusted to the discretion of the
same body that has discretion over the ultimate parole de-
termination, any risk engendered by changes to the length
of that period is merely part of the uncertainty which was
inherent in the discretionary parole system, and to which
respondent subjected himself when he committed his crime.
It makes no more sense to freeze in time the Board’s dis-
cretion as to procedures than it does to freeze in time the
Board’s discretion as to substance. Just as the Ex Post
Facto Clause gives respondent no cause to complain that the
Board in place at the time of his offense has been replaced
by a new, tough-on-crime Board that is much more parsimo-
nious with parole, it gives him no cause to complain that it
has been replaced by a new, big-on-efficiency Board that cuts
back on reconsiderations without cause. And the change in
policy is irrelevant, in my view, whether or not the pre-
existing policy happens to have been embodied in a policy
statement or regulation. To make the constitutional prohi-
bition turn upon that feature would be to ignore reality and
to discourage measures that promote fairness and consist-
ency. Such a policy statement or regulation, in the context
of a system conferring complete discretion as to substance
and as to the timing of hearings upon the Board, simply cre-
ates no reasonable expectation of entitlement, except per-
haps among prisoners whose parole hearings are held (or are
scheduled to be held) while the regulation is in effect. This
is not an expectation of the sort that can give rise to ex post
facto concerns.
In essence, respondent complains that by exercising its
discretion (as to the frequency of review), the Board has de-
prived him of the exercise of its discretion (as to the question
of his release). In my view, these are two sides of the same
coin—two aspects of one and the same discretion—and re-
spondent can have no valid grievance.

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
260 GARNER v. JONES
Souter, J., dissenting
Justice Souter, with whom Justice Stevens and
Justice Ginsburg join, dissenting.
I think the Court of Appeals made no error here and so
respectfully dissent from the reversal. A change in parole
policy violates the Ex Post Facto Clause if it creates a “suf-
ficient,” California Dept. of Corrections v. Morales, 514
U. S. 499, 509 (1995), or substantial risk that the class af-
fected by the change will serve longer sentences as a result.1
To determine the likelihood that the change at issue here
will lengthen sentences, we need to look at the terms of the
new Rule, and then at the possibility that the terms are miti-
gated by a practice of making exceptions.
Before the board changed its reconsideration Rule, a pris-
oner would receive a second consideration for parole by year
10, whereas now the second consideration must occur only
by year 15; those who would receive a third consideration
at year 13 will now have no certain consideration until year
23, and so on. An example of the effect of the longer inter-
vals between mandatory review can be seen by considering
the average term served under the old Rule. In 1992, a
member of the Georgia Legislature stated that the average
life-sentenced inmate served 12 years before parole. See
Spotts, Sentence and Punishment: Provide for the Imposition
of Life Sentence Without Parole, 10 Ga. St. U. L. Rev. 183,
183, and n. 4 (1993). Some prisoners must have been pa-
1 In the first instance, at least, our cases have traditionally evaluated the
effect of the change on the class subject to the new rule, rather than
focusing solely on the individual challenging the change, Weaver v. Gra-
ham, 450 U. S. 24, 33 (1981). It can be difficult, if not impossible, for one
person to prove that a change in penal policy has increased the quantum
of punishment beyond what he would previously have received, since a
sentencing decision is often a mix of rules and discretion. See Lindsey v.
Washington, 301 U. S. 397, 401 (1937). At the same time, when one looks
at the affected class it can be quite clear that punishment has increased
overall. That is proof enough that the new Rule applied retroactively
violates the Ex Post Facto Clause and, as an invalid rule, should not be
applied to anyone within the class.

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
261 Cite as: 529 U. S. 244 (2000)
Souter, J., dissenting
roled before 12 years. But those who would have been pa-
roled when considered a second time at year 10 or a third
time at year 13 will now be delayed to year 15. While the
average helps to show the effects Georgia’s new Rule is
likely to have on some prisoners who would be released at
the early end of the parole spectrum, the changed Rule
threatens to increase punishment for all life-sentenced pris-
oners, not just those who would have been paroled at or be-
fore the average time. If a prisoner who would have been
paroled on his fourth consideration in year 16 under the old
Rule has to wait until his third consideration in year 23
under the new Rule, his punishment has been increased re-
gardless of the average.
Georgia, which controls all of the relevant information, has
given us nothing to suggest the contrary. It has given us
no basis to isolate any subclass of life prisoners subject to
the change who were unlikely to be paroled before some re-
view date at which consideration is guaranteed under the
new Rule. On the contrary, the terms of the Rule adopted
by the State define the affected class as the entire class of
life-sentenced prisoners, and the natural inference is that the
Rule affects prisoners throughout the whole class. This is
very different from the situation in Morales, in which it was
shown that 85% of the affected class were found unsuited for
parole upon reconsideration. Morales, supra, at 511. At
some point, common sense can lead to an inference of a sub-
stantial risk of increased punishment, and it does so here.
The significance of that conclusion is buttressed by state-
ments by the board and its chairman, available at the board’s
official website, indicating that its policies were intended
to increase time served in prison. See Georgia State Board
of Pardons and Paroles, News Releases, Policy Mandates
90% Prison Time for Certain Offenses (Jan. 2, 1998), http://
www.pap.state.ga.us/pr 98.html (“Since 1991 the Board
has steadily and consistently amended and refined its guide-
lines and policies to provide for lengthier prison service for

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
262 GARNER v. JONES
Souter, J., dissenting
violent criminals”); Georgia State Board of Pardons and
Paroles, Violent-Crime Lifers Who Died in Prison (June
4, 1998), http://www.pap.state.ga.us/pr 98.html (quoting
Chairman Walter Ray as stating that “ ‘obtaining parole on
a life-sentence is increasingly rare’ ” and reporting that
“[b]ecause of strict sentencing laws as well as the Board’s
conservative paroling policy, agency officials predict succes-
sive fiscal years will reflect a rising number of inmates for
whom a life sentence does indeed mean just that”).2 If re-
spondent had ever been allowed to undertake discovery, fur-
ther statements of punitive intent may well have been forth-
coming. Although we have never decided that a purpose to
increase punishment, absent a punitive effect, itself invali-
dates a retroactive policy change, see Lynce v. Mathis, 519
U. S. 433, 443 (1997), evidence of purpose certainly confirms
the inference of substantial risk of longer sentences drawn
above. It is, after all, reasonable to expect that members of
a parole board acting with a purpose to get tough succeed in
doing just that.
On the other side, there is no indication that the board
adopted the new policy merely to obviate useless hearings
or save administrative resources, the justification the Court
accepted in Morales. See 514 U. S., at 511. Indeed, since
a parole board review in Georgia means that one board mem-
ber examines an inmate’s file without a hearing and makes a
decision, and no specific findings are required to deny parole,
any interpretation of the rule change as a measure to con-
serve resources is weak at best, and insufficient to counter
the inference of a substantial risk that the prisoners who will
get subsequent mandatory parole considerations years after
2 As Georgia’s punitiveness increased, the number of persons on pa-
role decreased. See Georgia State Board of Pardons and Paroles, Geor-
gia’s Criminal Justice Population Increased by 9% in 1998; Only Decrease
Was in Persons on Parole (Feb. 1, 1999), http://www.pap.state.ga.us/
pr 99.html. News releases available in Clerk of Court’s case file.

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
263 Cite as: 529 U. S. 244 (2000)
Souter, J., dissenting
the reviews that the old Rule would have guaranteed will in
fact serve longer sentences.3
Thus, I believe the Eleventh Circuit properly granted
summary judgment for respondent. Although Georgia ar-
gues that the board freely makes exceptions to the 8-year
Rule in appropriate cases, the State provided no evidence
that the board’s occasional willingness to reexamine cases
sufficiently mitigates the substantial probability of increased
punishment. While the majority accepts the argument that,
even without evidence of practice, the board’s discretion to
revisit its assignment of a reconsideration date may be suffi-
3 The majority suggests, ante, at 252, that the Court required no particu-
lar procedural safeguards in California Dept. of Corrections v. Morales,
even though the Court mentioned those safeguards as an important factor
in its conclusion that there was no increase in the quantum of punishment
in that case, see 514 U. S., at 511–512. This is true, but it does not address
the problem with Georgia’s virtually unbounded scheme. Once the risk
of increased punishment exists, the board’s nearly nonexistent safeguards
provide no way of reducing that risk.
Georgia insists that its lack of procedural safeguards is irrelevant to this
case, because due process does not require much in the way of procedural
safeguards for parole. But that is beside the point. The challenge here
is to the retroactive increase in the quantum of punishment. Unlike the
California procedure for delaying parole reconsideration in Morales, the
Georgia procedure here includes no actual hearing for the prisoner whose
reconsideration is delayed five extra years, and the board is not required
to explain itself. Georgia’s procedural minimalism increases the likeli-
hood that prisoners will get rubberstamp treatment, and decreases the
likelihood that the exceptions to the policy on which the majority relies
will actually be applied in a way that diminishes the significant probability
of increased punishment. Cf. Penson v. Ohio, 488 U. S. 75, 81–82, n. 4
(1988) (stating that a requirement to give written reasons provides an
inducement to make careful decisions in cases that might otherwise be
summarily ignored); Smith v. Robbins, 528 U. S. 259, 290–291 (2000) (Ste-
vens, J., dissenting) (noting that the process of writing out reasons for
decision improves the quality of the decision and can reveal error). Pa-
role need not operate under rigidly defined procedures, but if the board
decides to make changes retroactive, it must do something to prevent
those changes from increasing punishment in violation of the Ex Post
Facto Clause.

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
264 GARNER v. JONES
Souter, J., dissenting
cient standing alone to preclude an ex post facto challenge,
this is surely wrong. The policy statement on which the ma-
jority is willing to rely, see App. 56, gives a prisoner no as-
surance that new information or changed circumstances will
matter, even assuming that prisoners are aware (and able to
take advantage) of their limited ability to ask the board to
change its mind. Because in the end the board’s ability to
reconsider based on a “change in [a prisoner’s] circumstance
or where the Board receives new information,” ibid., is en-
tirely discretionary, free of all standards, an 8-year period
before further consideration of parole made solely upon re-
view of an inmate’s file has to create a real risk of longer
confinement.
A further word about the absence of record evidence of
practice under the new Rule is in order. One reason that
there is none is that Georgia resisted discovery. In this
Court, it sought to compensate for the absence of favorable
evidence by lodging documents recounting parole reconsider-
ations before the mandatory reconsideration date. But
every instance occurred after the Eleventh Circuit had ruled
against the State.4 These examples of reconsiderations are
the parole equivalent of fixing the broken front steps after
the invited guest has slipped, fallen, and seen a lawyer; they
do nothing to show that the board’s own interpretation of its
policy mitigated the risk of increased punishment.5
4 Georgia’s statistics show only that, in fiscal year 1999, about 20% of
inmates received reconsideration dates of three years or less; about 10%
got reconsideration dates more than three years but less than eight, and
70% got 8-year dates. See App. to Reply Brief for Petitioners 9. Eighty
percent were therefore at least potentially negatively affected by the
change from a 3-year to an 8-year delay in reconsideration. Even on their
own terms, then, the statistics do not show that board policies mitigate
the substantial risk of increased punishment.
5 Indeed, as the board explains its decisionmaking procedures, “[t]he
overriding factor in determining whether or not to parole a person under
life sentence is the severity of the offense.” Georgia Board of Pardons

529US1 Unit: $U40 [10-04-01 09:23:11] PAGES PGT: OPIN
265 Cite as: 529 U. S. 244 (2000)
Souter, J., dissenting
I also dissent from the Court’s failure to require discovery
on remand. At the very least, the record gives reason to
expect that discovery could show that the affected class has
been subjected to the risk of increased sentences. Morales
stressed that the question of what changes will be “ ‘of suffi-
cient moment to transgress the constitutional prohibition’
must be a matter of ‘degree,’ ” 514 U. S., at 509 (citation omit-
ted) (emphasis in original). Even if I am wrong and re-
spondent cannot prevail on this record, it is plain that further
discovery is justified to determine the degree to which the
change at issue here altered sentence lengths.
and Paroles, Parole Decisions (visited Mar. 2, 2000), http://www.pap.
state.ga.us/Decisions.htm. If we accept the board’s statements, changed
circumstances or new information would rarely make a difference.