*1 removing option. Moreover, such a sentenc- find that we unnecessarily ing option courts in restrict would rehabilitating fashioning that is aimed at a sentence offender. judgment foregoing reasons, of the
For the appellate court is affirmed.
Affirmed. (No. 76945. Appellees, al.,
MICHAEL BARGER et HOWARD v. Appellant. III, Corrections, PETERS Director of Opinion December filed J., HEIPLE, joined NICKELS, J., dissenting. Attorney Springfield Burris, General,
Roland W. (Rosalyn Kaplan, General, and S. B. Solicitor Jerald counsel), Attorney Chicago, Post, General, Assistant appellant. DeWolfe, Ruthanne Koeninger W. David and James Latturner, O. Chicago, for appellees.
JUSTICE FREEMAN delivered the opinion of the court: question in this case is whether Public Act 88—
311, which excludes inmates from the opportunity to *2 increase credit, violates the ex post facto (U.S. clauses of the Federal and Illinois Constitutions Const., I, 16). 10; 1970, I, art. Ill. Const. art. § We hold § it does.
BACKGROUND 10, September 1990, As of section 3—6—3 of the Unified Code of Corrections applied multiplier "day increase the for a day” credit prisoners certain (Ill. could earn early 1991, toward release. Rev. Stat. ch. (amended 38, par. 1003—6—3 1373, Pub. Act eff. 86— 1990).) 10, September engaged Inmates in Department programs Corrections educational specified who met goals eligible were to receive credit increased a factor (Ill. 6—3.) 1991, 38, 1.25. Rev. Stat. ch. par. 1003— The multiplier was not available for those convicted of first or degree second murder or those convicted of a (Ill. 1991, Class X felony. 38, Rev. Stat. par. ch. 1003— 3.) Nor was it available for inmates who were 6— convicted of a felony engaged while in the programs. Ill. 1991, 38, par. Rev. Stat. ch. 1003—6—3. 311, August 11, 1993,
Public Act effective 88— (Pub. 311, amended section 3—6—3. Act August eff. 88— 11, (amending 1991, 38, Ill. Rev. Stat. ch. par. 6—3).) Among changes, precluded the act 1003— application of the multiplier categories of inmates (Pub. previously eligible for it under section 3—6—3. 311, 11, August Act eff. (amending Ill. Rev. 88— 6—3).) 1991, 38, here, Stat. par. ch. Pertinent 1003— ineligible act rendered for the multiplier inmates assault, felony criminal of criminal sexual convicted abuse, abuse, aggravated and criminal sexual sexual firearm, as re- aggravated battery with a as well 311, August inchoate offenses. Pub. Act eff. lated 88— 1991, 38, (amending par. ch. Ill. Rev. Stat. 6—3). 1003— action, court
Pursuant to a certified class the circuit County ruled that Public Act 88—311 violates of Cook brought by had been prohibitions. suit post facto Maez, convicted, Barger respec- and Richard Michael armed tively, attempted of criminal sexual assault and robbery. Barger represented and Maez inmates whose September crimes and convictions fell between August date of Public effective Act 86— II, 1993, the effective date of Public Act 88— making ineligible Finding them for increased credit. unconstitutional, Public Act 88—311 court circuit permanently enjoined Department of Corrections applying from it to the plaintiff class. direct
The matter lies here on appeal Ill. 2d R. 302).
DISCUSSION The Federal prohibits Constitution States from (U.S. 10.) enacting any Const., I, ex post law. art. § facto Although that limitation unnecessary, renders it same protection historically has been included in this (Ill. 1970, I, 16; State’s constitutions. Const. art. Ill. § 1870, II, 14; 1848, XIII, 17; Const. art. Ill. Const. art. § § 1818, VIII, 16; Grad, III. Const. art. F. The State Bill § Con-Con, Rights, in Issues for the Illinois Constitutional (V. 1970); Ranney Convention ed. G. Braden & R. Cohn, The Illinois An Constitution: Annotated (1969).) Comparative Analysis suggested It has been is, nevertheless, there some utility provi- coexistence, thought being sions’ the prohibi- tions, together, greater lend assurance of the constitu-
tional protection than the Federal clause alone. G. Cohn, Braden & R The Illinois Constitution: An Anno- (1969). Comparative tated and Analysis 75 But the drafters of our modern constitution intended Illinois clause to do no more than facto conform to the Federal general Constitution’s prohibi- tion on the States. Record Proceedings, Sixth 1476; Illinois Constitutional Convention 6 Committee 55.) Proposals, Sixth Illinois Constitutional Convention Thus, in construing this State’s provision, constitutional we are without depart basis to from the Supreme Court’s construction of the Federal ex post clause. (See 243-45.) People v. Tisler (1984), 226, And, 103 Ill. 2d fact, this long interpreted court has our own constitu- tional provision step Supreme with Court pronounce- See, e.g., People v. Ramey (1992), ments. 41, 152 Ill. 2d 63-64. Weaver v. Graham
In
(1981),
24,
450 U.S.
67 L. Ed.
17,
960,
2d
101 S. Ct.
the Supreme Court used an
of the ex post
expansive interpretation
clause to
strike down a Florida
"gain-time”
statute which reduced
avoiding
earned for
disciplinary
infractions
performing
assigned
legislation,
tasks. Such
the Court
explained,
could be constitutionally
applied retrospec-
tively only if
prisoner’s
it did not work to a
"detriment.”
(Weaver,
33,
25,
any law which 'alters the situation of a party to his ” omitted) disadvantage’ (emphasis was established in (1883), Kring 221, 228-29, v. Missouri 107 U.S. 27 L. Ed. 506, 509, 443, 449, 2 S. Ct. quoting United States v. Hall (D. (No. 1809), 84, 15,285). Pa. But, 26 F. Cas. in Col- Youngblood (1990), 37, 48-49, lins v. 497 U.S. 111 L. Ed. 30, 42-43, 2715, 2722, 2d 110 S. Ct. the Supreme Court overruled Kring, holding that the quoted language unjustified indicated an expansion of the prohibition beyond categories laws Framers intended to come within the clause’s ambit. categories
Those
were
established
Calder v. Bull
(3 Dall.)
(1798),
386,
648,
shortly
Ed.
after
included,
ratification of the
They
Constitution.
as is rel
here, "[ejvery
evant
changes
law that
the punishment,
and inflicts a greater punishment,
than the law annexed
crime,
to the
committed.”
(Emphasis
original.)
(3 Dall.)
650.)
(Calder,
390,
3 U.S.
1 L. Ed. at
Summa
rized
differently, such
law would be one "which makes
more burdensome the punishment
for a
after its
crime[ ]
(Beazell
(1925),
commission.”
v. Ohio
269 U.S
169-
70 L. Ed.
If the law does
*5
punishment
crime,
not so affect
the
associated with a
it
is of no moment
that
the
a
may
prisoner’s
work to
Collins,
disadvantage.
See
L. Ed. 2d
42-43,
incarceration a a prescribed by judge person con- is, Instead, victed of crime — that the sentence. the punishment Court construes to mean the time actual person spends prison. that such a The Florida statute in Weaver did not affect, retrospectively, invalidated the " sentence on imposed any 'quantum inmate. The ” nothing punishment’ affected was but the time for an actually which inmate was incarcerated under the then, imposed. Generally, any legislation sentence curtailing possibility reducing the actual time consequence makes more onerous the associated with entirely capitalizing crime. It is on inconsequential success in opportunity may depend the on inmate’s staying attaining goals. out of trouble or other change prescribed
Public Act 88 —311 does not period imposed of incarceration for the crimes commit- understanding If by plaintiff ted members of the class. consequence associated with a crime was limited equating punishment the more common notion of with sentence, comport the act would with the constitutional consequence clauses. But when the associated with a crime is manner indicated Supreme viewed Weaver, does, indeed, Court the act make more punishment burdensome associated with certain already crimes committed. must, Tiller, as in apply generous
We that more understanding punishment here. Public Act 88—311 curtails opportunity for an earlier release as permitted under section 3—6—3 in its form as existed September 10, 1990, August 11, between 1993. Pub- lic Act 88—311 curtails the opportunity for an earlier permitted release as under section 3—6—3 in its form *6 10, 1990, as existed between September August 11, and 1993, and so makes more burdensome the punishment associated plaintiff with the crimes of the class. The class consists of inmates eligible who were as of Septem- 10, 1990, ber to enhance their aby were, factor of 1.25 under section 3—6—3 but as who August 11, 1993, deprived of opportunity Public by Act class, 88—311. As to that Public Act 88—311 violates the ex post prohibitions of the Federal facto Illinois Constitutions.
We therefore affirm the permanent injunction by entered the circuit injunction court. The precludes application of Public Act persons 88—311 "to who committed the offenses for which they were convicted on 10, 1990[,] and after September including August 10, 1993, were committed to the Illinois Depart- Corrections, ment of and were or would have been eligible August 10, 1993[,] on for the 1.25 enhanced good educational conduct credit” under section 3—6—3 as unamended by Public Act 88—311.
Affirmed. HEIPLE, JUSTICE dissenting: plaintiffs When the instant criminal were sentenced crimes, for their section 3—6—3 of the Unified Code of Corrections provided prisoners eligible that certain were to earn credits early through toward release their participation in educational programs. ILCS 6—3(a)(4) (West 1992).) Then, Public Act 5/3 — effective, 88 —311 became which modified the Unified categories prison- Code of Corrections so that certain longer eligible ers were no to earn any additional education The plaintiffs’ resulting credits. class action alleged, majority found, suit and the has that Public Act ex post impermissible 88 —311 constitutes an law facto in that it makes more burdensome the punishment their crimes. I dissent. Court’s decision in Collins v. Supreme
Prior Youngblood (1990), 37, 50, 30, 44, 497 U.S. 111 L. Ed. 2d ex post jurisprudence facto United finding States had devolved into violation retroactively disadvantage wherever law worked a on a prisoner. Essentially, majority employs this outdated, finding approach broader that Public Act post ex unconstitutionally 88 — 311 is disadvantaging plaintiffs. the instant Collins, however, Court returned Supreme
In rightful to its roots reaffirm jurisprudence Justice Chase in Calder ing the definition delivered (Collins, v. Bull. Ed. 2d at (Dall.) Calder v. Bull 2723, citing (1798), S. Ct. 3 U.S. *7 Calder held, part, 1 L. Ed. that pertinent post ex an a retroac only violation occurs where "changes greater the and inflicts a punishment, tive crime, than the law annexed to the punishment, added.) Calder, at (Emphasis committed.” L. Ed. at 650. of the Calder
The errs in its majority application meaning on the term focusing solely definition the of that a "punishment.” It finds Public Act 88—311 inflicts greater possibility in that it curtails the of punishment the reducing plaintiffs’ prison actual time. What the however, majority ignores, is the threshold requirement law at change the issue constitutes the crime, punishment to "annexed the when committed.” Calder, 3 U.S. at Ed. dangers in ignoring inherent this requirement upon considering
become clear the absurd conclusions 6—3(a)(3) logically to which it leads. Consider section 3— of the Unified Code of Corrections ILCS 5/3 —6— 3(a)(3) (West 1992)), gives prison which officials the grant good- discretion an additional days conduct credit for meritorious conduct. Accepting if, majority’s rationale, crime, good- the time conduct by prisoner cleaning credit could be earned latrines, assignment then subsequent of such an might services employed janitor arguably be prisoner’s rights. deemed a violation of the directly More however, to the point, the majority’s approach improvi- dently raises both equal protection and ex post facto questions as to prisoners the thousands who are on currently waiting lists for educational programs. enacted, At time Public Act 88—311 was there 4,000 were in excess of prisoners waiting on lists for (See programs. Assem., educational 88th Ill. Gen. Senate (comments April 16, 1993, Proceedings, at 1 Senator Hawkinson).) 4,992 As of November some inmates waiting remained on educational program lists. Doubtless, many prisoners of these will served have being their prison terms without ever participa- offered tion in educational programs.
It recognized should be the amendments con- tained in only Public Act can 88—311 constitute law if pre-amendment provisions consti- *8 when the crimes plaintiffs’ a law annexed to
tuted to determining a law is annexed In whether committed. that, committed, to note appropriate it is a crime when the in the Consti- prohibition including legislative "assure that tution, sought Framers to the permit warning of their effect give fair Acts meaning explicitly until rely on their individuals to (Weaver 24, 28-29, Graham (1981), 450 U.S. v. changed.” words, In other 67 L. Ed. 2d the ex post facto that a criminal knows clause ensures of his crime. consequences in advance the course, the sentence include consequences, These Illinois, for the law. In expect can under that a criminal that, for certain except criminals understand example, trial offenders, by a imposed the sentence proscribed good by their automatically be reduced will judge 6—3(a)(2) (730 ILCS prison. while behavior 5/3 — 1992).) (West is good for behavior automatic credit Such because, committed the crime when a law annexed alia, inter for reduced "eligibility guaranteed this entering into both significant factor is a imprisonment judge’s the bargain and plea decision to the defendant’s Weaver, imposed.” to be of the sentence calculation S. Ct. at 966. Ed. 2d at case, however, enhanced regarding the This is not Unlike programs. in educational participation for credit behavior, good possibility credit automatic always been in Illinois has earning educational vagaries of State upon It depends uncertain. assigned randomly an inmate is that funding, given abilities innate to, upon the and even prisoner. availability uncertain arbitrary suggestion any precludes programs
educational will be reduced their sentences anticipate criminals programs. in educational participate they if choose For, though they might, likely choose their desires are unavailability to be of such programs. frustrated credit, Consequently, unlike automatic making programs these educational available does not constitute law annexed to the crime commit- ted.
Insofar as the availability of educational participa- *9 tion depended credits could not have been upon plaintiffs crimes, committed their Act Public 88— only which modifies the availability of the educa- classes, tional is not an ex law. Any disadvan- tages caused Public Act 88—311 are thus constitutionally irrelevant. foregoing reasons,
For the I respectfully dissent from the majority opinion. joins
JUSTICE NICKELS this dissent.
(No. 72742. THE ILLINOIS, PEOPLE OF THE STATE OF Appel-
lee, ENIS, v. ANTHONY Appellant. Opinion September 29, Rehearing January denied filed 1994.