The Basics of Parole Eligibility in the State of Georgia

By: H. Victoria Smith and Jessica Ambrose Lexmond

I. Introduction

Understanding when a client will become eligible for parole is important information for a criminal defense attorney to know not only after a client’s conviction, but also during pre-trial plea negotiations while offering guidance to the client about the ramifications of contemplated convictions and sentences. The purpose of this article is to provide the criminal defense attorney with the basics of parole eligibility in the State of Georgia.

II. General Provision Controlling Parole Eligibility

A. Sentences of Less Than 21 Years

OCGA §42-9-45(b) is the general statutory provision controlling parole eligibility of sentences, providing that a defendant serving a felony sentence becomes eligible for consideration for parole after the expiration of 9 months or one-third of the defendant’s sentence, whichever is greater.

B. Sentences of 21 Years or More

Defendants serving aggregate sentences of 21 years or more become eligible for consideration for parole after 7 years. Of course, there are statutory exceptions to the general provisions set forth in OCGA §42-9-45(b) See Section III below.)

III. Statutory Exceptions to the General Provision Controlling Parole Eligibility

A. First Offenders Sentenced Pursuant to OCGA §17-10-1(b)

The first statutory exception is one that can benefit first offenders and, unfortunately, is rarely sought during plea negotiations or requested during sentencing hearings. Under OCGA §17-10-1(b), a sentencing judge “may specify in the sentence that the person is sentenced under this subsection and may provide that the State Board of Pardons and Paroles, acting in its sole discretion, may consider and may parole any person so sentenced at any time prior to the completion of any minimum requirement otherwise imposed by law … The determination allowed in this subsection shall be applicable to first offenders only…”. In other words, the defendant will be eligible for consideration for parole immediately upon the sentence being imposed. Whether the State Board of Pardons and Paroles (“the Parole Board”) will agree to consider the person for parole earlier than the times set forth in OCGA §42-9-45(b) is a separate hurdle to clear; however, in having the judge explicitly note on the final disposition sheet that the defendant is sentenced under OCGA §17-10-1(b), the Parole Board has the authority to consider the defendant earlier than the time periods set forth in OCGA §42-9-45(b).

B. Persons Convicted and Sentenced of Serious Violent Felonies pursuant to OCGA §17-10-6.1 (The Seven Deadly Sins)

1. Term of Years Sentences

A second statutory exception is found in OCGA §17-10-6.1, which addresses serious violent felonies (The Seven Deadly Sins) (murder, felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery). Defendants convicted of serious violent felonies committed after July 31, 1994, who receive term of years sentences will not be eligible for parole.

2. Life Sentences

A third statutory exception is also found in OCGA §17-10-6.1, which addresses life sentences received for serious violent felonies. Defendants sentenced to life imprisonment for a serious violent felony committed between January 1, 1995 and June 30, 2006 will be eligible for consideration for parole upon service of 14 years. Defendants sentenced to life imprisonment for a serious violent felony committed on or after July 1, 2006 will be eligible for consideration for parole upon service of 30 years. Pursuant to current Parole Board policy, upon initial parole consideration, the Parole Board will either grant parole or establish the next consideration date, which will be within the next 8 years.

A fourth statutory exception is found in OCGA §42-9-39, which addresses consecutive life sentences where at least one life sentence is imposed for the crime of murder. Defendants who received consecutive life sentences as the result of offenses occurring in the same series of acts, at least one of which was imposed for the crime of murder, committed between January 1, 1995 and June 30, 2006, shall serve consecutive 10 year periods for each sentence, up to a maximum of 30 years before they will be eligible for consideration for parole. Defendants who received consecutive life sentences as the result of offenses occurring in the same series of acts, at least one of which was imposed for the crime of murder, committed on or after July 1, 2006, shall serve consecutive 30 year periods for each sentence, up to a maximum of 60 years before they will be eligible for consideration for parole.

C. Repeat Offenders Sentenced Pursuant to OCGA §17-10-7

A fifth statutory exception is found in OCGA §17-10-7, which addresses repeat offenders. Defendants with prior convictions of serious violent felonies who again are convicted of serious violent felonies must be sentenced to life without parole. Also, defendants convicted a fourth or greater time of any felony must be sentenced to the maximum amount of time allowed for that felony and, additionally, will not be eligible for parole for that sentence.

D. Parole Board Authority to Establish Exceptions to the General Provision Controlling Parole Eligibility Pursuant to OCGA §42-9-45(c)

Not all parole eligibility issues are established directly through statutory provisions. Rather, the Parole Board is given the authority in OCGA §42-9-45(c) to establish its own rules and regulations. The Parole Board’s rules can be found at: http://rules.sos.state.ga.us/pages/STATE_BOARD_OF_PARDONS_AND_PAROLES_/RULES/index.html.

1. Crime Severity Level of IV or Less

Pursuant to current Parole Board policy, defendants who have committed offenses classified as a Crime Severity Level IV or less are eligible to be considered for parole prior to the completion of one-third of their sentence. (See the Parole Board’s website at: http://www.pap.state.ga.us/opencms/opencms/ for Crime Severity Level charts.)

2. Crime Severity Level of V or Greater

Pursuant to current Parole Board policy, the Parole Board may vote on the cases of defendants who have committed offenses with a Crime Severity Level V or greater prior to their parole eligibility dates, those dates typically equating to one-third of their sentence. However, the Parole Board will not release those defendants on parole prior to their parole eligibility date.

3. Sentences of Two Years or Less

Sentences of two years or less are treated uniquely by the Parole Board. Defendants with sentences of two year or less are usually placed on a fast track, and parole consideration for these defendants is not constrained by the general provisions of parole eligibility. An example of this exception can be found in the ability of male defendants who are serving sentences of two years or less, and who meet other criteria identified by the Georgia Department of Corrections, to be transferred from the county jails directly into three or six month Strategic Intervention Programs (SIP) offered at Coastal State Prison and, upon successful completion of those programs, to be released on parole by the Parole Board.

4. Notification Requirement Pursuant to OCGA §42-9-46

Pursuant to OCGA §42-9-46, if the Parole Board exercises its authority under OCGA §42-9-45(c) to consider a defendant for parole prior to the eligibility requirements set forth in OCGA §42-9-45(b), the Parole Board must notify the registered victim(s), the sentencing judge, and the district attorney in writing at least ten days prior to its consideration of parole for the defendant. The registered victim(s), the sentencing judge, and the district attorney will be afforded the opportunity to submit a written statement to the Parole Board or appear before the Parole Board to express their views regarding parole of the defendant.

IV. Conclusion

Some of the Parole Board’s practices are constant and predictable. This is true with respect to treatment of defendants sentenced for the commission of one of the Seven Deadly Sins. It is also true with respect to the Parole Board’s consideration of defendants who are serving life sentences. Other practices are not static and are constantly changing. It is important for a criminal defense attorney to have the most recent information available from the Parole Board when advising a client regarding parole eligibility of contemplated convictions and sentences.

*This article was originally published in the Georgia Association of Criminal Defense Lawyer's newsletter: The Georgia Defender, September, 2011.