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Prisons & Jails – Parole – Constitutional – Ex Post Facto Law – Board Quorum

Barton v. South Carolina Department of Probation Parole & Pardon Services (Lawyers Weekly No. 010-085-13, 23 pp.) (Jean Hoefer Toal, Ch.J.) (Costa M. Pleicones, J., concurring in the result only) (John W. Kittredge, J., concurring in the result) Appealed from the Administrative Law Court (S. Phillip Lenski, ALJ) S.C. S. Ct.

Holding: A change in a parole statute — requiring a two-thirds vote of the parole board rather than a majority vote to grant parole to violent offenders — is an unconstitutional ex post facto law as applied to petitioner, who was convicted of murder before the statutory amendment. Even under the new law, a vote in favor of parole by four of the six board members who attended petitioner’s hearing was sufficient to grant her parole.

We reverse the decision of the Administrative Law Court.

The California statute analyzed in California Department of Corrections v. Morales, 514 U.S. 499 (1995), is distinguishable from S.C. Code Ann. § 24-21-645. The two-thirds requirement applies to a wide variety of crimes, rather than a well-defined set of inmates, the two-thirds requirement is the default provision for all violent crimes regardless of the crime’s nature, and the requirement compels an offender to convince an additional member of the parole board. This certainly produces a sufficient risk of increasing the measure of punishment attached to a violent crime.

Moreover, § 24-21-645 contains none of the restraints and safeguards critical to the analysis in Morales.

Prior to the amendment, petitioner merely needed to obtain favorable votes from a majority of the parole board. Following the amendment, she must obtain favorable votes from two-thirds of the parole board. This amendment is not procedural; instead, it poses a sufficient risk of increasing the measure of punishment attached to petitioner’s crime. Additionally, this risk is compounded by the parole board’s position that petitioner must convince two-thirds of the entire parole board, and not merely those members who participate in her hearing.

Moreover, this change affects an inmate’s substantial right to statutorily correct parole review. It is clearly more difficult to convince a two-thirds majority of the parole board to grant parole than a simple majority. The application of the two-thirds vote requirement to petitioner would violate our constitution’s prohibition of ex post facto laws.

Even if the new law applied to petitioner, she obtained the required two-thirds majority vote. Of the seven members of the board, six attended petitioner’s parole hearing. Four voted to grant parole. The ALC incorrectly ruled that petitioner was required to obtain the votes of two-thirds of the entire board (five votes).

Section 24-21-645 is ambiguous. It can be read to mean that an offender must receive votes from two-thirds of the members of the entire parole board, regardless of how many members actually attend a hearing. However, it can also be read to require a two-thirds vote of only those members who attend a hearing. Since § 24-21-645 does not specify the number of parole board members who must participate in a hearing, the common-law rule that a majority of the whole board constitutes a quorum applies.

Under the interpretation advanced by respondent, if the parole board reviewing the parole suitability of an inmate convicted of a violent crime consisted of only four members – a quorum — a unanimous decision to grant parole would nonetheless result in a parole denial. Essentially, respondent’s interpretation treats nonparticipating members of the parole board as “no” votes. Respondent fails to present any authority for this position. In fact, respondent fails to bring forward any rationale as to why absent parole board members could not just as well be treated as “yes” votes.

Petitioner obtained favorable votes from two-thirds of the parole board and should have been granted parole even if § 24-21-645 is applied retroactively.



(Pleicones, J.) I agree that “two-thirds of the members of the board” in § 24-21-645 means two-thirds of the members participating in the hearing. I would not reach the constitutional question.


(Kittredge, J.) Petitioner received the requisite two-thirds approval and should be paroled. However, I disagree that the statutory change from a majority to two-thirds constitutes an ex post facto violation. I view the statutory amendment as merely a procedural change.


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