Hill v. WalkerHill v. Walker
- Reporters:
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- Before:
- Freeman
delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.
OPINION
Plaintiff, William R. Hill, an inmate at Tamms Correctional Center, brought an action in the circuit court of Alexander County seeking declaratory and mandamus relief against defendants, Roger E. Walker, Jr., Director of Corrections, and the members of the Illinois Prisoner Review Board (Board). The circuit court dismissed plaintiffs second amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (
I. BACKGROUND
Hill was hired to kill Robert Fields. In August 1974, Hill fatally shot Allen Zipperstein, whom Hill mistook for Fields. In January 1975, Hill fatally shot Fields. Following a jury trial in the circuit court of Cook County, Hill was convicted of two counts of murder and, at the close of a separate sentencing hearing before the same jury, the court sentenced Hill to death. People v. Hill, 78 Ill. 2d 465, 467 (1980) (citing Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1). On direct review, this court held that the circuit court erred by admitting into evidence inculpatory statements that Hill had made during plea negotiations, and further held that the error was so prejudicial as to require reversal of Hill’s convictions. Hill, 78 Ill. 2d at 469-74. This court also held that, if Hill were convicted of murder on remand, he could not be sentenced to death because he committed the crimes prior to the enactment of the then-existing death penalty statute. Id. at 474-76.
On remand, Hill pled guilty to two counts of murder and was sentenced in 1981 to two concurrent prison terms of 30 to 90 years. Under the then-existing sentencing laws, Hill became eligible for parole in 1983. The Board held parole hearings for Hill in May 1983, March 1984, January 1985, April 1986, and April 1987. At the close of each hearing, the Board denied parole based on the seriousness of the offenses.
Effective January 1988, the legislature amended the law governing parole. As amended, the statute allows the Board to set parole hearings as much as three years apart, so long as the Board finds that it is not reasonably likely to grant parole prior to that time. See Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3—5(f). Subsequent to this amendment, the Board held parole hearings for Hill in February 1988, February 1991, February 1992, May 1993, May 1994, May 1995, May 1996, November 1997, November 1998, October 1999, December 2002, and January 2006. The Board denied parole each time based primarily on the seriousness of the offenses. In the 2002 and 2006 decisions, the Board additionally noted several prison disciplinary infractions that had occurred in 2000.
On December 8, 2006, Hill, pro se, filed his second-amended complaint for declaratory and mandamus relief. Hill claimed that the parole process, as applied by the Board to him, was unconstitutional because it violated both procedural due process and the prohibition against ex post facto laws. Hill sought a declaration to that effect and a writ of mandamus ordering the Board to provide Hill with parole hearings in accordance with the statutory and regulatory criteria in effect when he committed the murders. The circuit court granted the State’s motion to dismiss. The appellate court affirmed. 397 Ill. App. 3d 1090. We subsequently allowed Hill’s pro se petition for leave to appeal (Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010)), and appointed counsel to represent him during these proceedings.
II. ANALYSIS
Hill argues that the circuit court erred in dismissing his causes of action. Reviewing de novo the circuit court’s dismissal (Turner v. Memorial Medical Center, 233 Ill. 2d 494, 499 (2009)), we hold that the circuit court did not err.
A. Due Process
Hill claims that two procedural defects in his parole hearings deprived him of due process of law. First, Hill noted that in all but three of its many decisions denying parole, the Board referenced Hill’s original death sentence. Hill alleged that the Board continued to consider his initial death sentence in determining his eligibility for parole, although this court overturned it. See Hill, 78 Ill. 2d at 474-76. Second, Hill alleged that the Board considered prison disciplinary infractions that had occurred in 2000 in denying parole in 2002 and 2006. Hill alleged that these infractions were based on false accusations made by a biased Department of Corrections official who was himself under the influence of drugs. Hill contends that the Board’s consideration of these two pieces of information rendered his parole hearings fundamentally unfair.
We reject these contentions. The due process clauses of the federal and Illinois Constitutions protect against the deprivation of liberty or property -without due process of law.
There is no constitutional or inherent right of a convicted person to be conditionally released from confinement prior to the expiration of a valid sentence. The natural desire of an individual to be released is no different from the initial resistance to being confined. However, the conviction, with all of its procedural safeguards, has extinguished that liberty right. A valid conviction constitutionally deprives a criminal defendant of his or her liberty. Greenholtz, 442 U.S. at 7; see Thompson v. Veach, 501 F.3d 832, 835-36 (7th Cir. 2007); Heidelberg v. Illinois Prisoner Review Board, 163 F.3d 1025, 1026 (7th Cir. 1998). However, a state may create a protected liberty interest in parole through its statutes and regulations governing the parole decisionmaking process. See Greenholtz, 442 U.S. at 12; Thompson, 501 F.3d at 836. A state creates this liberty interest if its parole system requires release whenever the parole authority determines that the necessary prerequisites exist. See Board of Pardons v. Allen, 482 U.S. 369, 376 (1987); Heidelberg, 163 F.3d at 1026.
Before this court, Hill argues that “a person is entitled to due process protection against ‘arbitrary action’ in parole revocation hearings,” citing the partial dissent in Morrissey u. Brewer, 408 U.S. 471, 499 (1972) (Douglas, J., dissenting in part). However, in Greenholtz, the United States Supreme Court distinguished Morrissey based on the context of parole revocation, at issue in Morrissey, and parole release, at issue in Greenholtz and the present case. “There is a crucial distinction between being deprived
In Illinois, this court has consistently held that parole is not a right (Hanrahan v. Williams, 174 Ill. 2d 268, 276 (1996)), but a matter of grace and executive clemency. People v. Hawkins, 54 Ill. 2d 247, 252 (1973); People ex rel. Jones v. Brantley, 45 Ill. 2d 335, 337-38 (1970); People ex rel. Castle v. Spivey, 10 Ill. 2d 586, 594 (1957). The Board is an administrative agency created by the legislature. Hanrahan, 174 Ill. 2d at 274. One of the Board’s duties is to determine whether an eligible inmate should be granted or denied parole.
“(c) The Board shall not parole a person eligible for parole if it determines that:
(1) there is a substantial risk that he will not conform to reasonable conditions of parole; or
(2) his release at that time would deprecate the seriousness of his offense or promote disrespect for the law; or
(3) his release would have a substantially adverse effect on institutional discipline.”
Further, the legislature has authorized the Board to promulgate its own rules regarding the conduct of its work and the exercise of its discretion in making parole determinations.
In Hctnrahan, this court explained that the parole statute provides criteria under which the Board must deny parole, and does not provide when the Board must grant parole. Further, the rules expressly provide that parole is granted as a matter of executive discretion and grace, based on available relevant information. Hanrahan, 174 Ill. 2d at 276. This court concluded:
“We believe that Illinois’ statutory criteria and the Board’s rules do not provide standards for release on parole sufficiently objective to allow a court to evaluate the Board’s decision to deny parole. We thus conclude that the legislature, in drafting the statutory language, intended the Board to have complete discretion in determining whether to grant parole when the denial of parole is not mandated by statute.” Hanrahan, 174 Ill. 2d at 276.
We now conclude that the Illinois parole statute does not create a legitimate expectation of parole that rises to the level of a liberty interest protected by procedural
B. Ex Post Facto
Hill claims two violations of the prohibition against ex post facto laws. Both the federal and Illinois Constitutions prohibit the General Assembly from enacting ex post facto laws.
1. Changed Discretionary Standard
In the present case, Hill contends that, after he committed the murders, the Board changed its interpretation of the “seriousness of the offense” criterion (see
Although we earlier explained that the Board is vested with complete discretion in granting parole, this does not end our analysis. The United States Supreme Court has cautioned: “The presence of discretion does not displace the protections of the Ex Post Facto Clause, however. [Citation.] The danger that legislatures might disfavor certain persons after the fact is present even in the parole context, and the Court has stated that the Ex Post Facto Clause guards against such abuse.” Garner, 529 U.S. at 253; see Fletcher v. Williams, 179 Ill. 2d 225, 229-30 (1997). Hill relies on Ganci v. Washington, 318 Ill. App. 3d 1174 (2001), in which the plaintiff made the same claim of ex post facto parole standards as does Hill, and whose complaint was likewise dismissed for failure to state a cause of action. However, citing the above-quoted caution from Garner (id. at 1186), the appellate court reversed the dismissal and remanded the cause for discovery on the claim. Id. at 1185-88.
Despite the Court’s cautionary note in Garner, that case nevertheless involved an amended parole board rule. Garner, 529 U.S. at 247. In the present case, however, Hill failed to allege that the Board based its latest denial of parole on a new or amended statute or rule. Rather, he alleged only that the Board is exercising its discretion more stringently. In Grennier, the Seventh Circuit Court of Appeals recognized this crucial distinction in a case involving a Wisconsin inmate who made nearly the same ex post facto argument as Hill. The court rejected the inmate’s argument as follows:
“Defendants allow that Wisconsin has become less willing to release persons convicted of serious offenses and now demands assurance that interests in deterrence, desert, and public safety have been satisfied before a murderer will be let free. Neither the ex post facto clause nor the due process clause has anything to say about how discretion will be exercised under an open-ended system, however. [Citation.] Grennier has no more entitlement to a liberal release policy than he would have had to be sentenced by a judge who favored home confinement over prison. The constitutional interest is in the rules and statutes — the ‘laws’ to which it refers — rather than the attitudes of public officials who administer a discretionary system.” Grennier, 453 F.3d at 445.
Although Grennier is not binding on this court (see City of Chicago v. Groffman, 68 Ill. 2d 112, 118 (1977)), we believe that the Seventh Circuit’s analysis is more faithful to the Supreme Court’s holding in Garner than our appellate court’s analysis in Ganci. As the Court in Gamer recognized:
“[W]here parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender’s release, along with a complex of other factors, will inform parole decisions.” Garner, 529 U.S. at 253.
We agree and therefore overrule Ganci.
Hill does not allege a retroactive change in a parole statute or rule, but rather only a change in how the Board exercises its discretion. This does not violate the prohibition against ex post facto laws. Accordingly, this claim does not state a cause of action.
2. Reduced Frequency of Parole Hearings Hill’s second alleged violation of the ex post facto clauses of the federal and Illinois Constitutions does involve a “law.” Specifically, Hill notes that at the time he committed the murders
“[I]f [the Board] denies parole it shall provide for a rehearing not less frequently than once every year, except that the Board may, after denying parole, schedule a rehearing no later than 3 years from the date of the parole denial, if the Board finds that it is not reasonable to expect that parole would be granted at a hearing prior to the scheduled rehearing date.”730 ILCS 5/3 — 3—5(f) (West 2006).
Hill argues that the amendments cannot constitutionally apply to him and that he is entitled to the annual parole hearings from the statute in effect at the time he committed the murders.
Hill is not the first inmate to so argue. This court, in Fletcher, 179 Ill. 2d 225, addressed a virtually identical argument concerning the effect of these amendments on parole hearings. In Fletcher, the plaintiffs contended that
“[A] statute that decreases the frequency of parole hearings will violate the ex post facto prohibition only when ‘it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.’ This inquiry cannot he embraced within a formula or stated in a general proposition, but rather is a matter of degree. However, where the legislative adjustment creates only a ‘speculative and attenuated possibility’ of increasing punishment, it cannot be considered ex post facto. Morales, 514 U.S. at 509, 131 L. Ed. 2d at 596, 115 S. Ct. at 1602.” Fletcher, 179 Ill. 2d at 234-35.
We therefore concluded that, under Morales, the relevant inquiry is whether the section produced a sufficient risk of increasing the measure of punishment. Fletcher, 179 Ill. 2d at 236 (citing Morales, 514 U.S. at 509).
In holding that
Notwithstanding the above, Hill contends that in
We decline Hill’s invitation because Garner does not change the reasoning or result in Fletcher. We earlier recited the statutory evolution of
Further, Hill overstates the Court’s holding in Garner, which does not require a “fact intensive review” in every ex post facto claim. Indeed, the passage from Garner, upon which Hill relies, ends with the observation that “the general operation of the Georgia parole system may produce relevant evidence and inform further analysis on the point.” Garner, 529 U.S. at 255. Garner involved that parole board’s nonbinding policy statement as to how it would enforce a rule. The lower court in that case failed to consider the effect thereof in its analysis. Id. at 256-57. “Finding that the record was insufficient to show whether the change in parole law would lengthen the inmate’s actual time in prison, the Court remanded the case for a determination of fact as to whether the new rule created a significant risk of increased punishment. Id. at 256, 120 S. Ct. 1362.” Glascoe v. Bezy, 421 F.3d 543, 547 (7th Cir. 2005) (explaining Garner).
In the present case, unlike in Garner, there is no question that
III. CONCLUSION
For the foregoing reasons, the judgment of the appellate court is affirmed.
Affirmed.
Notes
In 1981, the provision read in pertinent part:
“In its decision, the Board shall set the person’s time for parole, or if it denies parole it shall provide for a rehearing not more than 12 months from the date of denial, however, the Board, on its own motion, may provide for a rehearing for an individual more frequently than once every 12 months or less frequently than once every 12 months but no less frequently than once every 3 years.” Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 3—5(1).
In 1983, the section provided in pertinent part: “[I]f [the Board] denies parole it shall provide for a rehearing not less frequently them once every 3 years.” Ill. Rev. Stat. 1983, ch. 38, par. 1003— 3 — 5(f). By 1988, the provision provided in pertinent part:
“[I]f [the Board] denies parole it shall provide for a rehearing not less frequently than once every 3 years. The Board may, after denying parole to a person originally sentenced or who became eligible for parole between January 1, 1973 and September 30, 1977, schedule a rehearing no later than 3 years from the date of the parole denial, if the Board finds that it is not reasonable to expect that parole would be granted at a hearing prior to the scheduled rehearing date.” Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 3—5(f).