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Ray v. Jacobs

The defendant who was sentenced to life in 1972 failed to show that he faced a significant risk of increased punishment from retroactive application of the parole board's rule extending the interval between his parole eligibility hearings.

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The issue presented by this appeal is whether retroactive application of Rule 475-3-.05 2 of the Board of Pardons and Paroles, allowing the Board to extend the interval between parole reconsiderations up to a period of eight years for an inmate serving a life sentence,1 violates the Ex Post Facto Clause of the United States Constitution. The trial court held that it does. Subsequently, the United States Supreme Court decided Garner v. Jones2 in which it held that Rule 475-3-.05 2 does not inherently create a “significant risk of prolonging an inmate’s incarceration”3 and, therefore, does not facially violate the Ex Post Facto Clause. That Court further held that absent a demonstration by an inmate “that as applied to his own sentence the Rule creates a significant risk of increasing his punishment,”4 the Ex Post Facto Clause is not implicated. Because Jacobs has not shown that retrospective application of the Rule to his sentence creates a significant risk of increased punishment, we reverse.

Charlie Jacobs was convicted of murder in 1971 and sentenced to the death penalty. In 1972 his sentence was commuted to life imprisonment. Jacobs first became eligible for parole in 1978.5 Between 1978 and 1995 his parole reviews were considered on an annual basis and denied. In 1995 the Board notified Jacobs that in accordance with Rule 475-3-.05 2, as amended to afford a parole review at least every eight years,6 his next parole review would occur in 2001.

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