Parole & Post Conviction Relief
When the Parole Board makes a parole determination it relies on the inmate’s parole file. Much of the information in the parole case file comes from prosecutors and probation officers and can be extremely negative and sometimes inaccurate. In those cases, what Jake Arbes does for his clients is submit a written presentation to the Parole Board in which he attempts to counter the negative and inaccurate information by explaining to the Board what really happened and why and arguing that the inmate should be released because he or she is not a danger to society and that release is appropriate under the Parole Board’s rules and regulations. Mr. Arbes does this either “proactively” before the Board makes its initial decision by coordinating with the Board the timing of the presentation or, if hired after the parole decision has already been made, Mr. Arbes submits the presentation as an appeal or request for reconsideration based on new information not known by the Board when it made its original decision. A presentation by Mr. Arbes usually contains new evidence of which the Board might be unaware, sentencing and release statistics, a letter from the inmate expressing regret and remorse for what he did, letters from friends and relatives and potential employers and anything else that he believes can put the inmate in the best light possible.
Mr. Arbes’ normal fee for submitting a written parole presentation varies, depending on the complexity of the case. However, Mr. Arbes is reluctant to charge for a written parole presentation if it is clear from the beginning that there is nothing he can do that could possibly help the inmate. Therefore, he offers an initial case review for a modest nonrefundable retainer fee. The initial case review consists of a review of information pertinent to parole and an in-person meeting with a Board hearing examiner who has reviewed the inmate’s case file at Mr. Arbes’ request. Unlike some other attorneys, Jake Arbes actually meets in person at the Parole Board with a current senior Parole Board official who has looked at the inmate’s actual case file prior to the meeting. Mr. Arbes believes this is much more effective and cost efficient than meeting with a former Board official who no longer works at the Board and does not have access to the actual case file used by the Board in making its parole determination. Within three to four weeks after being retained for the review, Mr. Arbes makes an oral report and recommendation to the inmate’s family based on his review of the file and his meeting with the Parole Board official. If he believes there is really nothing he can do to help the inmate he will tell that to the inmate’s family, explain why, and take the case no further, but he keeps the initial retainer as payment for his review and report and recommendation. On the other hand, if there is something he thinks that can be tried to advance the inmate’s release date, he outlines his recommendations in detail and indicates exactly what it would cost for him to pursue the case further. The inmate can then pursue Mr. Arbes’ recommendations on his/her own at no further cost or Mr. Arbes can pursue the matter for the inmate by submitting a written presentation on his/her behalf to the Board as outlined above. If the inmate chooses to have Mr. Arbes pursue the matter further, he will deduct the initial file review retainer fee from the final fee so that the inmate is not being double charged. Before he actually submits the presentation to the Board, he usually sends a draft to the inmate and the inmate’s family so that he can make sure the information in the presentation is complete and accurate.
Please visit our How Parole Works page for detailed information on the Georgia parole process.
Maximizing Parole Relief Through Creative Pleas and Sentencing
It is a well known fact that most criminal prosecutions end with a defendant pleading guilty or being found guilty by a judge or jury. Unfortunately many attorneys, because of their lack of familiarity with parole, feel that once there has been a finding of guilt their job is over and there is little more they can do to help their client. In fact, defendants and their attorneys should consider parole implications as part of their defense strategy from the very beginning of the case. Mr. Arbes frequently consults with some of the top attorneys in Georgia to help them understand the parole implications of pleas offered by the prosecution and help them negotiate even better deals which will make a favorable parole decision more likely down the road. Many times the prosecutor and judge are simply unaware of the parole implications of the plea agreement being considered and they can be persuaded to moderate their positions once those implications are known. In cases where there is no plea agreement, Mr. Arbes can help attorneys fashion a sentencing strategy to persuade sentencing judges to be more lenient based on statewide sentencing statistics and other factors. Even in cases where both the judge and prosecutor are extremely hostile to the defendant, Mr. Arbes can suggest evidence that the defense can put on the record at sentencing that could be of critical importance to the Board when it makes its parole decision.
Pursuant to Official Code of Georgia Annotated s. 17-10-1(f), the sentencing court retains jurisdiction to reduce, suspend, probate or correct a sentence within one year of the date of sentencing or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after the direct appeal. Jake Arbes can file the appropriate motion to reduce the sentence and vigorously litigate claims that the punishment originally imposed by the sentencing judge does not fit the crime.
Correction of Void Sentence
If the court imposes a punishment that the law does not allow, the sentence is void. Void sentences may be corrected at any time. Jake Arbes can file the appropriate motion to void an illegal sentence.
Motion for New Trial
Pursuant to Official Code of Georgia Annotated Title 5, Chapter 5, Sections 20-51, a defendant may seek a motion for new trial within 30 days of the entry of the judgment. When Jake Arbes files a motion for new trial for a client he does not simply rely on the statutorily enumerated grounds for a motion for new trial. He tailors the motion to fit the case to maximize the client’s chance for success or at least to put the case in the best posture for an appeal.
Extraordinary Motion for New Trial
Pursuant to Official Code of Georgia Annotated s. 5-5-41, a defendant may challenge his conviction based on newly discovered evidence. Unlike an ordinary motion for new trial, an extraordinary motion for new trial may be filed at any time after the conviction. Jake Arbes can assist you with an extraordinary motion for new trial in those cases where it can be demonstrated to the court: (1) that the newly discovered evidence has come to the defendant’s knowledge since the trial; (2) that want of due diligence was not the reason that the evidence was not acquired sooner; (3) that the evidence was so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is procured or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness.
Depending on what kind of case it is, pursuant to Official Code of Georgia Annotated, Title 5, Chapter 6, sections 30-51, Georgia state direct appeals must be filed either with the Georgia Supreme Court or the Georgia Court of Appeals. Notices of appeal must be filed within 30 days after entry of the judgment or 30 days after the denial of the motion for new trial. Through his creative and passionate arguments, Mr. Arbes has prevailed on appeals in the Georgia Court of Appeals, the Georgia Supreme Court, and in the Eleventh Circuit Court of Appeals, the federal appellate court which covers Georgia, Florida and Alabama.
Initial Prison Designation
If a defendant is convicted, he or she is transferred from county custody to state custody for “processing” during which the inmate is interviewed by representatives from both the Department of Corrections and the Parole Board. Soon thereafter an inmate is designated to a particular prison and shipped there. Jake Arbes can intercede with the Department of Corrections and attempt to persuade them to assign the inmate to a particular prison, perhaps closer to home so that his family will have an easier time visiting.
In order to have any chance at obtaining a transfer the inmate must first comply with the following requirements: (1) Request a prison that is in the appropriate security level which is generally the same security level as the prison in which he is currently serving his time; (2) Request a prison that is not in the same county in which he was convicted or in any county that touches the county in which he was convicted; (3 )Have no disciplinary reports within the past 6 months; (4) Have served at least a year in his present prison. Mr. Arbes can assist with transfers by working with the inmate’s case worker and Department of Corrections officials.
Performance Incentive Credits
In 1992, the Georgia Legislature passed a law creating an inmate performance incentive credit program (PIC) The program has recently been modified and eligible inmates may now have their TPM advanced up to a year by satisfactory progress in education/treatment programs, work, and good behavior. At the time of parole consideration, if parole is tentatively scheduled, the Board will set a TPM and, on the recommendation of the DOC, a PIC date. The time between the two dates will be the maximum amount of time that a TPM can be advanced for good conduct in prison.
Inmates serving life sentences, or who are in work-release programs, or who are in Boot Camp programs, or those sentenced to two years or less, or those with TPMs set at one third of their sentences, or who have been denied parole are not eligible to receive these credits. Other categories of inmates may also be ineligible for participation.
Shortly before the PIC review date, prison officials send the Board a report detailing the inmate’s institutional conduct, attitude and participation in rehabilitative programming, with a recommendation whether the Board should advance or delay the TPM. Jake Arbes can assist inmates with maximizing their PIC credits by working with the inmate’s case worker, the Department of Corrections, and the Parole Board.
For more detailed information on the important favorable changes to the PIC program, please refer to the two articles on Performance Incentive Credit in the News section of this website.
Contesting Disciplinary Reports
Disciplinary reports for alleged prison misconduct can be detrimental to obtaining parole. It is very easy for an inmate to be given a disciplinary report but it is very difficult for the inmate to prevail at the informal hearing on the alleged infraction at the prison. Jake Arbes has successfully appealed disciplinary reports to the Department of Corrections.
Getting Parole Release Plans Approved
Even if the Parole Board is prepared to parole an inmate, the inmate will not actually be released until his release plan is approved. Many times the inmate will submit a release plan, not realizing that the plan does not comply with certain legal restrictions. This is especially true in sex offender cases. Other times the inmate’s caseworker will simply drop the ball and not timely act on the plan or tell the inmate if there is a problem. Jake Arbes can assist the inmate by helping him with his release plan and working with both the Parole Board and the Department of Corrections to see that the plan is approved without delay.
Sex offenders face unique problems with regard to parole, first in convincing the Board to grant them parole, second in having a parole plan approved, and third in complying with the numerous restrictive laws that the legislature enacts. Jake Arbes can assist sex offenders with all these issues. Mr. Arbes first attempts to clarify just what the inmate did, as opposed to what he was originally charged with, and then tries to convince the Board that the offender is not a pedophile or a sexual predator, if, in fact, he is not. Mr. Arbes works with a number of highly respected psychologists and therapists who can assist his efforts with psychosexual evaluations.
Mr. Arbes can also help inmates navigate the thicket of the constantly changing sex offender laws in Georgia, including sex offender registration as set forth in Official Code of Georgia s. 42, Chapter 1, Sections 12-19. Recently there have been some changes to Georgia laws regarding removal of a sex offender from the sex offender registry. Jake Arbes can help eligible sex offenders, who are no longer incarcerated, petition the Sex Offender Registration Review Board (SORRB) for removal from the sex offender registry.
Out of State and Out of Country Parole Issues
Many inmates believe that it will be easier to obtain parole if they indicate to the Georgia Parole Board that they wish to parole out to another state. In reality this could substantially delay the inmate’s release because not only must Georgia be persuaded to parole the inmate, but the receiving state must be persuaded to accept the inmate. It is sometimes easier for the inmate to parole out to Georgia and then immediately try to transfer his parole to another state. However, Jake Arbes can work with the Georgia Interstate Compact Division and the interstate compact divisions of other states to facilitate a timely release.
Jake Arbes can also assist inmates with United States Immigration and Customs Enforcement (ICE) detainers by using their likely deportation as a reason for a favorable parole decision and, in some cases, by working with consulates of foreign nationals in lobbying efforts on behalf of the inmate.
A pardon is a declaration of record by the Parole Board that a person is relieved from the legal consequences of a particular conviction. It restores civil and political rights and removes legal disabilities resulting from conviction in a Georgia court of law. A pardon may be granted in two instances by the Board:
1. A pardon may be granted to a person who, to the Board’s satisfaction, proves his innocence of the crime for which he was convicted under Georgia law. Newly available evidence proving the person’s complete justification or non-guilt may be the basis for granting a pardon. Application may be submitted in any written form any time after conviction.
2. A pardon which does not imply innocence may be granted to an applicant convicted under Georgia law who has completed his full sentence obligation, including serving any probated sentence and paying any court-ordered payment, and who has thereafter completed five years without any criminal involvement. The five-year waiting period after sentence completion may be waived if the waiting period is shown to be detrimental to the applicant’s livelihood by delaying his qualifying for employment in his chosen profession. Application must be made by the ex-offender on a form available from the Board on request.
No pardon is automatic; the Board judges the merits of each individual case. Jake Arbes can help inmates obtain pardons by making a presentation to the Board outlining why a pardon should be granted.
Restoration of Firearm Rights
Under Georgia law conviction of a felony removes the right to receive, possess, and transport a firearm. A pardon applicant may request that the pardon be specially worded to restore this firearm right, but he must provide in detail his reason for the request. The applicant should also understand that the restoration of the firearm right only removes disabilities occurring by operation of Georgia law. It provides no exemption from the firearm laws of other states or the Federal government.
Board policy is to deny restoration of the firearm right to a pardon applicant who possessed a firearm during the commission of an offense.
In appropriate cases, Jake Arbes can assist in restoring firearm rights to eligible convicted felons.
Removal of Disability Incurred by Conviction
Under Georgia law a person convicted of a “felony involving moral turpitude” loses his civil and political rights, including the right to vote, the right to hold public office, and the right to serve on a jury. Under the 1983 State Constitution the right to vote is restored automatically to ex-offenders who have completed their sentences.
A person who was convicted under Georgia law may apply to the Parole Board for a Restoration of Civil and Political Rights. If the person was convicted under another state’s law or under Federal law but is residing in Georgia and wishes to exercise civil and political rights in the State, he also may apply.
A Restoration of Civil and Political Rights carries no implication of innocence. It may be granted only to a person who has completed his full sentence or, with no probation unserved, has been discharged early by commutation.
A Restoration may, upon specific application and with specific wording, restore the right to receive, possess and transport a firearm to a felon living in Georgia but convicted in Federal or another state’s court. Applicants are required to meet the same criteria outlined for Georgia felons in preceding topics.
The Board automatically considers restoring civil and political rights to a felony parolee upon discharge from parole if he has no other sentence to serve or pending criminal charge against him.
Expungement of Arrest Record
Official Code of Georgia Annotated s. 35-3-37 governs expungement of arrest records in very limited circumstances. The Georgia state legislature has been asked to consider broadening the expungement laws due to the devastating impact an arrest record can have on an individual’s employment options. Jake Arbes can assist you with an expungement if possible and can be expected to stay on top of any changes in the law.
State and Federal Habeas Corpus
Georgia state habeas is a vehicle through which an inmate can collaterally attack his state conviction or sentence. Official Code of Georgia Annotated s. 9-14-40 through s. 9-14-53 govern Georgia State Habeas Corpus. The laws regarding habeas are complex with many procedural bars. Jake Arbes has successfully litigated habeas issues, both in superior court and before the Georgia Supreme Court. When he prepares a habeas petition, he does not simply fill out the habeas form like most attorneys. He also attaches a detailed statement of fact and legal brief with the original petition. He then litigates the case, generally in the superior court where the inmate is incarcerated, and, if necessary, in the Georgia Supreme Court.
In some cases, the inmate might also wish to file a federal habeas corpus. The statute governing federal habeas applications by state prisoners is 28 U.S.C. s. 2254. Jake Arbes can help you navigate the procedural rules regarding federal habeas for state inmates which are even more complicated than the laws for filing a state habeas.
Because habeas cases, if done right, are so time consuming and expensive, Mr. Arbes offers a habeas review for a nonrefundable initial retainer, the amount of which is dependent on the size and complexity of the case. As part of the review, Mr. Arbes will review all transcripts, motions, orders, briefs, and discovery. He will also attempt to talk to the trial attorney and do some preliminary research. If, after the review, Mr. Arbes does not think it worthwhile to proceed he will explain why and take the case no further but keep the initial retainer for the review. If he thinks it is worth proceeding with the habeas he will say so and credit the cost of the review against the final fee.
For more information on habeas corpus, including forms, go to our Resources page.