---
title: Ga. Const. Art. IV, Sec. II, Para. II. Powers and authority.
collection: code
id: ga-const:art-iv-sec-ii-para-ii
cite_as: Ga. Const. Art. IV, Sec. II, Para. II
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---

# Ga. Const. Art. IV, Sec. II, Para. II. Powers and authority.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

(a) Except as otherwise provided in this Paragraph, the State Board of Pardons and Paroles shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction.

(b)(1) When a sentence of death is commuted to life imprisonment, the board shall not have the authority to grant a pardon to the convicted person until such person has served at least 25 years in the penitentiary; and such person shall not become eligible for parole at any time prior to serving at least 25 years in the penitentiary.

(2) The General Assembly may by general law approved by two-thirds of the members elected to each branch of the General Assembly in a roll-call vote provide for minimum mandatory sentences and for sentences which are required to be served in their entirety for persons convicted of armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery and, when so provided by such Act, the board shall not have the authority to consider such persons for pardon, parole, or commutation during that portion of the sentence.

(3) The General Assembly may by general law approved by two-thirds of the members elected to each branch of the General Assembly in a roll-call vote provide for the imposition of sentences of life without parole for persons convicted of murder and for persons who having been previously convicted of murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery or having been previously convicted under the laws of any other state or of the United States of a crime which if committed in this state would be one of those offenses and who after such previous conviction subsequently commits and is convicted of one of those offenses and, when so provided by such Act, the board shall not have the authority to consider such persons for pardon, parole, or commutation from any portion of such sentence.

(4) Any general law previously enacted by the General Assembly providing for life without parole or for mandatory service of sentences without suspension, probation, or parole is hereby ratified and approved but such provisions shall be subject to amendment or repeal by general law.

(c) Notwithstanding the provisions of subparagraph (b) of this Paragraph, the General Assembly, by law, may prohibit the board from granting and may prescribe the terms and conditions for the board’s granting a pardon or parole to:

(1) Any person incarcerated for a second or subsequent time for any offense for which such person could have been sentenced to life imprisonment; and

(2) Any person who has received consecutive life sentences as the result of offenses occurring during the same series of acts.

(d) The chairman of the board, or any other member designated by the board, may suspend the execution of a sentence of death until the full board shall have an opportunity to hear the application of the convicted person for any relief within the power of the board.

(e) Notwithstanding any other provisions of this Paragraph, the State Board of Pardons and Paroles shall have the authority to pardon any person convicted of a crime who is subsequently determined to be innocent of said crime or to issue a medical reprieve to an entirely incapacitated person suffering a progressively debilitating terminal illness or parole any person who is age 62 or older. (Ga. Const. 1983, Art 4, § 2, Para. 2; Ga. L. 1994, p. 2015, § 1.)

## Cross References

Power of judges to suspend or probate sentences, § 17-10-1. State Board of Pardons and Paroles generally, Ch. 9, T. 42. Powers of State Board of Pardons and Paroles, § 42-9-20. Governor without power as to pardons or paroles, § 42-9-56. Restrictions on relief for person serving a second life sentence, § 42-9-39.

## Editor's Notes

The constitutional amendment (Ga. L. 1994, p. 2015, § 1) which revised subparagraphs (b) and (e) to authorize the General Assembly to provide by two-thirds vote for mandatory service of sentences for persons convicted of armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery without possibility of pardon, parole, or commutation during that portion of the sentence, to provide in the same manner for sentences of life without parole for persons convicted of murder and those who have been convicted a second time of any of the above offenses, and to provide exceptions as to persons convicted of a crime and subsequently determined to be innocent of that crime or determined to be medically incapacitated, and as to certain elderly persons was approved by a majority of the qualified voters voting at the general election held on November 8, 1994.

## Law Reviews

For article discussing areas in which attorneys may represent clients before the State Board of Pardons and Paroles, see 13 Ga. St. B.J. 46 (1976).

For note on the 1994 amendment of this paragraph, see 11 Ga. St. U.L. Rev. 37 (1994).

## Administrative Rules and Regulations

Pardons and paroles, Official Compilation of Rules and Regulations of State of Georgia, Rules of State Board of Pardons and Paroles, Chs. 475-1 through 475-3.

## 1976 Constitution.

Art. IV, Sec. II, Para. I; Art. V, Sec. II, Para. II.

## Punishment and Blot Out the Guilt.

United States v. Athens Armory, 35 Ga. 344 (N.D. Ga. 1868).

## Effect of Reprieve.

A reprieve by the executive is nothing but a temporary suspension for the period named in the respite of the execution of the sentence imposed by the court. Gore v. Humphries, 163 Ga. 106, 135 S.E. 481 (1926).

## Stay of Execution.

The contention that only the Governor can stay the execution of a sentence in a case where such sentence has been suspended by the Governor in the exercise of the Governor’s right to suspend the sentence by reprieve is untenable under Ga. L. 1924, p. 195, § 7 (see now O.C.G.A. § 17-10-40). Gore v. Humphries, 163 Ga. 106, 135 S.E. 481 (1926) (decided under Ga. Const. 1877, Art. V, Sec. I, Para. XII, relating to the Governor’s power to suspend execution of sentences).

Conditional pardon may be granted. Carmichael v. Banks, 102 Ga. 217, 29 S.E. 211 (1897). active application. Whittle v. Jones, 198 Ga. 538, 32 S.E.2d 94 (1944), appeal dismissed, 324 U.S. 829, 65 S. Ct. 915, 89 L. Ed. 1396 (1945) (see Ga. Const. 1983, Art. IV, Sec. II, Para. II).

## Paragraph Will Not Be Given retro-Retroactive Application of Provision Regarding Fourth-offender Recidivists.

Decision of the State Board of Pardons and Paroles to eliminate plaintiff’s parole eligibility which constituted a change in the policy of the Board to grant parole to persons convicted under the recidivist statute did not violate the ex post facto clause of the United States Constitution. Metheny v. Hammonds, 216 F.3d 1307 (11th Cir. 2000), cert. denied, 531 U.S. 1196, 121 S. Ct. 1200, 149 L. Ed. 2d 114 (2001), vacating and remanding Metheny v. Hammonds, 39 F. Supp. 2d 1381 (M.D. Ga. 1999).

Court will not rule on validity of paragraph where prior provision would have same effect. Whittle v. Jones, 198 Ga. 538, 32 S.E.2d 94 (1944), appeal dismissed, 324 U.S. 829, 65 S. Ct. 915, 89 L. Ed. 1396 (1945) (see Ga. Const. 1983, Art. IV, Sec. II, Para. II).

O.C.G.A. § 17-10-16, the life-without-parole statute, does not violate separation of powers doctrine because it imposes legislative restrictions on the Board of Pardons and Paroles to grant parole. Freeman v. State, 264 Ga. 27, 440 S.E.2d 181 (1994).

Authority of board to parole drug

## Traffickers.

Where O.C.G.A. § 16-13-31(d) provides that the adjudication of guilt or imposition of sentence not be suspended, probated, deferred or withheld, and where the term ‘‘paroled’’ is not expressly included, it does not conflict with the parole authority given the State Board of Pardons and Paroles under the Georgia Constitution. Paras v. State, 247 Ga. 75, 274 S.E.2d 451 (1981).

## Parole Conditions.

The trial court erred by requiring 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).

## Nature of Power Discretionary.

The power of the board to grant reprieves, pardons, and paroles, to commute penalties, to remove disabilities imposed by law, and to remit parts of sentences is discretionary. Justice v. State Bd. of Pardons & Paroles, 234 Ga. 749, 218 S.E.2d 45 (1975).

## Separate and Distinct Powers.

An ‘‘Order of Restoration of Civil and Political Rights’’ issued by the Board of Pardons and Paroles did not constitute a pardon of an applicant to become a professional bondsperson, since the Board’s authority to grant pardons is an entirely separate and distinct power from its authority to remove disabilities imposed by law. Harrison v. Wigington, 269 Ga. 388, 497 S.E.2d 568 (1998).

Right of condemned prisoner to

## Seek Commutation.

This paragraph and Ga. L. 1943, p. 185 (see now O.C.G.A. Ch. 9, T. 42) provide that a person sentenced to the extreme penalty of the law may make application for commutation of that person’s sentence. It is the clear intent of this paragraph and the law that consideration and action upon one application for commutation by the State Board of Pardons and Paroles 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 their discretion. McLendon v. Everett, 205 Ga. 713, 55 S.E.2d 119 (1949) (see Ga. Const. 1983, Art. IV, Sec. II, Para. II).

## Confidentiality Provisions of Ga. L.

1975, p. 786, § 4 (see now O.C.G.A. ments, memoranda, and records of State Board of Pardons and Paroles except those required to be made available to the General Assembly under this paragraph (requirement now deleted), and except the transcripts of any hearing conducted by the board in any matter. Morris v. State, 246 Ga. 510, 272 S.E.2d 254 (1980) (see Ga. Const. 1983, Art. IV, Sec. II, Para. II).

O.C.G.A. § 42-9-53 is constitutional under this paragraph. Morris v. State, 246 Ga. 510, 272 S.E.2d 254 (1980) (see Ga. Const. 1983, Art. IV, Sec. II, Para. II).

Remitted fine is recoverable. Parrott v. Wilson, 51 Ga. 255 (1874). mately is valid. Formby v. Pryor, 15 Ga. 258 (1854); Bird v. Meadows, 25 Ga. 251 (1858).

Revocation of probation impossible

## § 42-9-53) Apply to Information, docu-Contract to Obtain a Pardon Legitiif Probation Previously Terminated.

— Trial court erred in granting the state’s motion to revoke defendant’s probation for a probation violation as the Georgia Board of Pardons and Paroles had terminated the probationary portion of defendant’s sentences and had restored defendant’s civil and political rights; the state could not meet its initial burden to show a sentence of probation. White v. State, 274 Ga. App. 805, 619 S.E.2d 333 (2005).

Inmate had no due process right to

## Collect Testimony From Prison Staff.

Death row inmate’s suit under 42 U.S.C. § 1983 arising out of a warden’s forbidding prison staff to testify for the inmate in a clemency hearing was properly dismissed for failure to state a claim because the Due Process Clause did not guarantee state prisoners a right to acquire such testimony, nor did it bar state officials from limiting prisoners’ access to such testimony, despite a Georgia statute allowing the Board of Pardons and Paroles to collect all available information. Gissendaner v. Comm’r, Ga. Dep’t of Corr., 794 F.3d 1327 (11th Cir. 2015), cert. denied, stay denied, 136 S. Ct. 25, 2015 U.S. LEXIS 4672, 192 L. Ed. 2d 996 (U.S. 2015).

Cited in Muckle v. Clarke, 191 Ga. 202, 12 S.E.2d 339 (1940); Matthews v. Everett, 201 Ga. 730, 41 S.E.2d 148 (1947); Turner v. Wilburn, 206 Ga. 149, 56 S.E.2d 285 (1949); Parks v. State, 206 Ga. 675, 58 S.E.2d 142 (1950); Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Green v. State, 244 Ga. 755, 262 S.E.2d 68 (1979); Johns v. State, 160 Ga. App. 535, 287 S.E.2d 617 (1981); Charron v. State Bd. of Pardons & Paroles, 253 Ga. 274, 319 S.E.2d 453 (1984); Guyton v. State, 272 Ga. 529, 531 S.E.2d 94 (2000); Stinski v. State, 286 Ga. 839, 691 S.E.2d 854 (2010).

## Section 17-10-7 Is Unconstitutional.

— O.C.G.A. § 17-10-7, providing that a habitual criminal shall not be eligible for parole, is unconstitutional and may be ignored. 1954-56 Op. Att’y Gen. p. 519. Metheny v. Hammonds, 216 F.3d 1307 (11th Cir. 2000), cert. denied, 531 U.S. 1196, 121 S. Ct. 1200, 149 L. Ed. 2d 114 (2001).

Responsibility to release prisoners

## With Perfect Conduct Records.

Responsibility of releasing prisoners who have served their minimum terms with perfect conduct records rests on State Board of Pardons and Paroles, and not on the State Board of Corrections (now Department of Offender Rehabilitation) or the director thereof. 1957 Op. Att’y Gen. p. 193.

Language of this paragraph covers misdemeanors, and therefore it would be necessary to change the Constitution in order to eliminate, as a matter of law, misdemeanor prisoners from consideration for parole. 1963-65 Op. Att’y Gen. p. 3 (see Ga. Const. 1983, Art. IV, Sec. II, Para. II).

Effect of pardon on extraordinary

## Rights.

The right to operate a motor vehicle, to practice a profession, and other extraordinary rights granted and regulated by the state under its police power are not affected by a pardon. 1954-56 Op. Att’y Gen. p. 506.

One pardoned for traffic offense not entitled to reinstatement of driver’s license. 1954-56 Op. Att’y Gen. p. 506.

## Availability of Files to Governor.

It was not the intent of the law that the records of the board be kept secret from the Governor; files relating to a parole action should be made available to the Governor at the Governor’s request. 1967 Op. Att’y Gen. No. 67-51.

Not necessary for orders to use par-

## Ticular Caption.

The State Board of Pardons and Paroles may entitle or refer to orders authorized to be entered by the General Consideration (Cont’d) Constitution or statutes by employing whatever caption it deems appropriate; it is not necessary for the board to employ such words as ‘‘reprieve,’’ ‘‘pardon,’’ ‘‘parole,’’ ‘‘commutation,’’ or ‘‘remission’’ in the caption of its orders. 1970 Op. Att’y Gen. No. 70-210.

Powers of Board

## Paragraph a Limitation on Commutation of Death Penalty.

Georgia Laws 1976, p. 1865 is a limitation on the authority of the State Board of Pardons and Paroles to grant pardons or paroles to persons whose death penalties are commuted by the board after January 1, 1977, or persons who are convicted of armed robbery after January 1, 1977. 1977 Op. Att’y Gen. No. 77-17.


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