Fletcher v. Williams

Fletcher v. Williams, Nos. 81599, 81600, 81601 cons. (11/20/97)


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final action by the Court.

Docket Nos. 81599, 81600, 81601 cons.--Agenda 11--
September 1997.
SILAS FLETCHER, Appellee, v. JAMES K. WILLIAMS et
al., Appellants.--THEODORE PARSONS, Appellee, v.
JAMES K. WILLIAMS et al., Appellants.--CARL
REIMANN, Appellee, v. JAMES K. WILLIAMS et al.,
Appellants.
Opinion filed November 20, 1997.

CHIEF JUSTICE FREEMAN delivered the opinion of the
court:
Section 3--3--5(f) of the Unified Code of Corrections
formerly required the Illinois Prisoner Review Board, after
initially denying a prisoner parole, to schedule a parole hearing
for the prisoner every year. Ill. Rev. Stat. 1975, ch. 38, par.
1003--3--5(f). That section, as amended, now permits the Board
to schedule a prisoner's next parole hearing at an interval of up
to three years "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 1996).
At issue is whether amended Corrections Code section 3--3-
-5(f), as applied to the plaintiffs in these three consolidated
appeals, is an ex post facto law and, therefore, unconstitutional.
Pursuant to California Department of Corrections v. Morales,
514 U.S. 499, 131 L. Ed. 2d 588, 115 S. Ct. 1597 (1995), we
hold that amended section 3--3--5(f) does not violate the
constitutional prohibitions against ex post facto laws in these
cases.

BACKGROUND
Plaintiffs, Silas Fletcher, Carl Reimann, and Theodore
Parsons, are prisoners in the custody of the Illinois Department
of Corrections at Dixon Correctional Center. Fletcher was
convicted of the aggravated kidnapping and murder of a police
officer and sentenced to serve 100 to 200 years in prison. See
People v. Fletcher, 59 Ill. App. 3d 310 (1978). Reimann and his
codefendant were convicted of five murders in the course of an
armed robbery and received concurrent prison sentences of 50
to 150 years for each murder and 20 to 60 years for the armed
robbery. See People v. Piche, 44 Ill. App. 3d 993 (1976).
Parsons and his codefendants were convicted of two murders
and an attempted murder in the course of an armed robbery. See
People v. Gleckler, 82 Ill. 2d 145 (1980). Parsons received
consecutive sentences of 150 to 1,000 years for the murders, 30
years for the attempted murder, and 30 years for the armed
robbery.
Each plaintiff appeared before the Illinois Prisoner Review
Board, chaired by James K. Williams (herein jointly referred to
as the Board), for an annual parole hearing: the thirteenth parole
hearing for Fletcher, the seventh for Reimann, and the second
for Parsons. In each case, the Board denied parole and
scheduled the next parole hearing for three years later. We note
that in Fletcher's and Parsons' cases, the Board expressly cited
to amended section 3--3--5(f). See 730 ILCS 5/3--3--5(f) (West
1996).
Each plaintiff brought an action in the circuit court of Lee
County against the Board. Plaintiffs sought a declaration that
amended section 3--3--5(f), as applied to them, is an
unconstitutional ex post facto law; and either an injunction
precluding the Board from scheduling subsequent parole
hearings in three-year intervals, or an order forcing the Board to
provide them with annual parole hearings.
We note that Fletcher and Reimann also included a count
in each of their complaints alleging that Public Act 89--428, in
which amended section 3--3--5(f) was enacted, violates the
single-subject rule of the Illinois Constitution. Ill. Const. 1970,
art. IV, sec. 8(d). Reimann additionally alleged that the Board's
rationale for his parole denial did not include the finding
required by amended section 3--3--5(f) that it was "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 1996).
The circuit court addressed only the ex post facto issue.
Relying on Tiller v. Klincar, 138 Ill. 2d 1 (1990), the circuit
court declared amended section 3--3--5(f) as applied to plaintiffs
an unconstitutional ex post facto law. The court enjoined the
Board from scheduling subsequent parole hearings for plaintiffs
less frequently than once per year. The court found no just cause
to delay the enforcement or appeal of the decision. See 155 Ill.
2d R. 304(a).
The State appeals directly to this court. 134 Ill. 2d R.
302(a). We consolidated these cases for review, and now reverse
the circuit court.

DISCUSSION
Jurisdiction
The issue of whether amended Corrections Code section 3--
3--5(f) as applied to plaintiffs is an unconstitutional ex post
facto law is appealable because the circuit court made the
requisite finding pursuant to Supreme Court Rule 304(a). 155
Ill. 2d R. 304(a). The appeal lies directly to this court because
the circuit court found that the statute as applied to plaintiffs is
unconstitutional. 134 Ill. 2d R. 302(a). See, e.g., Barger v.
Peters, 163 Ill. 2d 357 (1994); Tiller v. Klincar, 138 Ill. 2d 1
(1990).
We note that amended section 3--3--5(f) was enacted as part
of Public Act 89--428. Pub. Act 89--428, art. 5, eff. December
13, 1995. This court recently invalidated Public Act 89--428
because it violated the single-subject rule of the 1970 Illinois
Constitution (Ill. Const. 1970, art. IV, sec. 8(d)). Johnson v.
Edgar, 176 Ill. 2d 499 (1997). In Johnson, "[t]he defect we
identified in Public Act 89--428 was in the structure of the Act,
not in its substantive provisions." Johnson, 176 Ill. 2d at 521.
The legislature reenacted amended section 3--3--5(f) in
Public Act 89--689. Pub. Act 89--689, sec. 100, eff. December
31, 1996; see Johnson, 176 Ill. 2d at 510. Thus, we are now
squarely presented with the issue of whether amended section 3-
-3--5(f) as applied to plaintiffs is an unconstitutional ex post
facto law.

The Merits
The Ex Post Facto Prohibition
The United States Constitution prohibits both Congress
(U.S. Const., art. I, sec. 9) and the states (U.S. Const., art. I,
sec. 10) from enacting ex post facto laws. The Illinois
Constitution also forbids the enactment of ex post facto laws. Ill.
Const. 1970, art. I, sec. 16. This court, in interpreting the ex
post facto prohibition in the Illinois Constitution, looks to the
United States Supreme Court's interpretation of the federal
prohibition. Barger, 163 Ill. 2d at 360.
The United States Supreme Court has long recognized "that
the constitutional prohibition on ex post facto laws applies only
to penal statutes which disadvantage the offender affected by
them." Collins v. Youngblood, 497 U.S. 37, 41, 111 L. Ed. 2d 30, 38, 110 S. Ct. 2715, 2718 (1990). The prohibition against ex
post facto laws serves at least two purposes. The prohibition
restrains Congress and state legislatures from enacting arbitrary
or vindictive legislation. The prohibition also assures that
statutes give fair warning of their effect and permit individuals
to rely on their meaning until explicitly changed. Miller v.
Florida, 482 U.S. 423, 429-30, 96 L. Ed. 2d 351, 359-60, 107 S. Ct. 2446, 2451 (1987); Weaver v. Graham, 450 U.S. 24, 28-
29, 67 L. Ed. 2d 17, 23, 101 S. Ct. 960, 964 (1981).
The State posits that "parole is a matter of legislative grace
which does not implicate ex post facto concerns." However, a
statute need not impair a vested right to violate the ex post facto
prohibition. The presence or absence of an affirmative, enforce-
able right is irrelevant to an analysis under the ex post facto
prohibition. Critical to relief under the ex post facto clauses is
not an individual's right to less punishment, but rather the lack
of governmental restraint and fair notice when the legislature
increases punishment beyond what was prescribed when the
crime was committed. Thus, even if a statute merely alters penal
provisions accorded by the grace of the legislature, it can
nevertheless violate the ex post facto prohibition. Weaver, 450 U.S. at 29-30, 67 L. Ed. 2d at 23-24, 101 S. Ct. at 964-65;
accord Lynce v. Mathis, 519 U.S. ___, ___, 137 L. Ed. 2d 63,
72, 117 S. Ct. 891, 896 (1997).
Based on these principles, the United States Supreme Court
prescribed a test for determining whether a criminal law is ex
post facto. Under this test: (1) the law must be retrospective,
i.e., it must apply to events occurring before its enactment; and
(2) the law must disadvantage the offender affected by it. Miller,
482 U.S. at 430, 96 L. Ed. 2d at 360, 107 S. Ct. at 2451,
quoting Weaver, 450 U.S. at 29, 67 L. Ed. 2d at 23, 101 S. Ct. at 964; Lindsey v. Washington, 301 U.S. 397, 401, 81 L. Ed. 1182, 1186, 57 S. Ct. 797, 799 (1937).

Corrections Code Section 3--3--5(f)
Corrections Code section 3--3--5 establishes procedures for
hearing and evaluating the cases of prisoners eligible for parole.
Paragraph (f) of that section governs the frequency with which
parole hearings must be granted. 730 ILCS 5/3--3--5(f) (West
1996). Plaintiffs allege that at the time they committed their
offenses, they were entitled to annual parole hearings. Section
3--3--5(f) formerly provided in pertinent part that "if [the Board]
denies parole it shall provide for a rehearing not more than 12
months from the date of denial." Ill. Rev. Stat. 1975, ch. 38, par.
1003--3--5(f).
Section 3--3--5(f) was amended several times, so that by
1988, the section provided 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 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).
Today, the provision reads 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 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 1996).
Thus, amended section 3--3--5(f), as it did at the time of
this court's decision in Tiller v. Klincar, 138 Ill. 2d 1 (1990),
permits the Board to schedule a prisoner's parole hearings at
intervals of up to three years if the Board finds that it is not
reasonable to expect that the prisoner would be granted parole
before the next scheduled hearing date. See Tiller, 138 Ill. 2d at
6-7.
In Tiller, 138 Ill. 2d at 6-12, this court applied the "Miller-
Weaver-Lindsey" test of ex post facto lawmaking to the 1988
amended section 3--3--5(f). In Tiller, the Board conceded that
the 1988 amended section 3--3--5(f) was intended to apply
retroactively to prisoners such as Tiller, the plaintiff in that case.
This court concluded that Tiller was disadvantaged when the
Board scheduled his next parole hearing at an interval greater
than one year.
The Tiller court noted that "[t]he possibility of parole is an
element of the punishment annexed to any crime." Tiller, 138 Ill. 2d at 11, citing, inter alia, Warden, Lewisburg Penitentiary
v. Marrero, 417 U.S. 653, 662-64, 41 L. Ed. 2d 383, 391-92, 94 S. Ct. 2532, 2537-38 (1974). The court then reasoned:
"If that opportunity is curtailed through a reduction in
the frequency of parole hearings or in their complete
elimination, then the inmate has suffered a disadvantage
for ex post facto purposes. [Citations.] *** `[O]nly an
unusual prisoner could be expected to think that he is
not suffering a penalty when even though he is eligible
for parole and might be released if granted a hearing, he
is denied that hearing.' [Citation.]" Tiller, 138 Ill. 2d at
11.
The Tiller court also held that two features of the 1988
amended section 3--3--5(f) did not sufficiently ameliorate the
disadvantage to Tiller. The 1988 amended section 3--3--5(f)
required the Board to make the special finding 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). The Tiller court concluded that this
provision merely made explicit what the Board would have
implicitly considered in scheduling the next parole hearing.
Tiller, 138 Ill. 2d at 10.
Also, the Board's regulations provided that a prisoner may
request a rehearing at any time based upon " `new facts or
extraordinary circumstances which could not have been
known' " to the prisoner at the time of his interview or " `which
have arisen subsequent to the time of the interview *** which
have not been previously considered.' " Tiller, 138 Ill. 2d at 10,
quoting 20 Ill. Adm. Code sec. 1610.100(a)(2) (1985). The
Tiller court concluded that this provision nevertheless delayed
Tiller's ability to present to the Board information that, if
known to the Board, might have caused the Board to grant
Tiller's parole application. Tiller, 138 Ill. 2d at 11. The Tiller
court held that the 1988 amended section 3--3--5(f), as applied
to Tiller, was an ex post facto law and, therefore, unconstitution-
al.

Collins-Morales
However, subsequent to Tiller, the United States Supreme
Court altered the second element of its test for determining
whether a criminal law is ex post facto. In Collins v.
Youngblood, the Court rejected the requirement that a statute
disadvantage an offender. The effect of Collins was to
reestablish the "Calder categories" as the controlling definition
of an ex post facto law:
" `1st. Every law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law that
aggravates a crime, or makes it greater than it was,
when committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment, than the
law annexed to the crime, when committed. 4th. Every
law that alters the legal rules of evidence, and receives
less, or different, testimony, than the law required at the
time of the commission of the offence, in order to
convict the offender.' " (Emphasis in original.) Collins,
497 U.S. at 41-42, 111 L. Ed. 2d at 38-39, 110 S. Ct. at
2719, quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390,
1 L. Ed. 648, 650 (1798).
Over a century later, the Court summarized the Calder
categories as follows:
" `It is settled, by decisions of this Court so well known
that their citation may be dispensed with, that any
statute which punishes as a crime an act previously
committed, which was innocent when done; which
makes more burdensome the punishment for a crime,
after its commission, or which deprives one charged
with crime of any defense available according to law at
the time when the act was committed, is prohibited as
ex post facto.' " Collins, 497 U.S. at 42, 111 L. Ed. 2d
at 39, 110 S. Ct. at 2719, quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 217, 46 S. Ct. 68, 68
(1925).
The Court in Collins held that "[t]he Beazell formulation is
faithful to our best knowledge of the original understanding of
the Ex Post Facto Clause: Legislatures may not retroactively
alter the definition of crimes or increase the punishment for
criminal acts." Collins, 497 U.S. at 43, 111 L. Ed. 2d at 39, 110 S. Ct. at 2719.
In California Department of Corrections v. Morales, 514 U.S. 499, 131 L. Ed. 2d 588, 115 S. Ct. 1597 (1995), the Court
applied the analysis used in Collins to a California statutory
amendment that permitted a decrease in the frequency of parole
hearings from once every year to every three years. The Court
reaffirmed its rejection of an offender's "disadvantage" as an
element in the test for determining whether a criminal law was
ex post facto:
"Our opinions in Lindsey, Weaver, and Miller
suggested that enhancements to the measure of criminal
punishment fall within the ex post facto prohibition
because they operate to the `disadvantage' of covered
offenders. [Citations.] But that language was
unnecessary to the results in those cases and is
inconsistent with the framework developed in Collins v.
Youngblood [citation]. After Collins, the focus of the ex
post facto inquiry is not on whether a legislative change
produces some ambiguous sort of `disadvantage,' nor
*** on whether an amendment affects a prisoner's
`opportunity to take advantage of provisions for early
release,' *** but on whether any such change alters the
definition of criminal conduct or increases the penalty
by which a crime is punishable." (Emphasis in original.)
Morales, 514 U.S. at 506 n.3, 131 L. Ed. 2d at 595 n.3,
115 S. Ct. at 1602 n.3.
Morales teaches 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
be 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 597, 115 S. Ct. at 1603. The Court distinguished Morales from Lindsey,
Weaver, and Miller in that the statutes at issue in those cases
"had the purpose and effect of enhancing the range of available
prison terms." Morales, 514 U.S. at 507, 131 L. Ed. 2d at 596,
115 S. Ct. at 1602.
The Morales Court held that the California statutory
amendment in that case did not produce a sufficient risk of
increasing the measure of punishment attached to the covered
crimes and, thus, was not ex post facto. In reaching its
conclusion, the Court specifically noted ameliorating features of
the California parole scheme--two of those features which, in
the Illinois scheme, the Tiller court did not find constitutionally
significant. The Morales Court noted that the amended
California statute requires the parole board to find that it is not
reasonable to expect that parole would be granted prior to the
next scheduled hearing date. Morales, 514 U.S. at 511, 131 L. Ed. 2d at 598, 115 S. Ct. at 1604. The Court also noted the
practice of the parole board to consider at any time a prisoner's
request for an earlier parole hearing. Morales, 514 U.S. at 512-
13, 131 L. Ed. 2d at 599, 115 S. Ct. at 1604-05. The Court
concluded that the California statutory amendment created "only
the most speculative and attenuated risk of increasing the
measure of punishment attached to the covered crimes."
Morales, 514 U.S. at 514, 131 L. Ed. 2d at 599, 115 S. Ct. at
1605.
It is clear that the reasoning of the Court in Morales
contravenes this court's reasoning in Tiller. Dissenting from the
majority opinion in Morales, Justice Stevens listed decisions,
including Tiller, which have held that the retroactive application
of a statute that decreases the frequency of formerly annual
parole hearings constricts an inmate's opportunity to earn early
release and, therefore, constitutes increased punishment in
violation of the ex post facto prohibition. Morales, 514 U.S. at
519, 131 L. Ed. 2d at 603, 115 S. Ct. at 1608 (Stevens, J.,
dissenting, joined by Souter, J.). Several of those courts have
acknowledged that Morales has overruled that holding. See, e.g.,
Roller v. Gunn, 107 F.3d 227, 234-35 (4th Cir. 1997); Jones v.
Georgia State Board of Pardons & Paroles, 59 F.3d 1145, 1149
n.8 (11th Cir. 1995). We must do likewise. We hold that
Morales has overruled that part of Tiller that discusses the issue
of ex post facto.
Applying the reasoning of Morales to the present case, we
conclude that amended Corrections Code section 3--3--5(f) is
not an ex post facto law. We remember the admonition of
Morales that the ex post facto inquiry cannot be contained in a
formula or general proposition. Rather, the question is simply
whether the statute at issue produces a sufficient risk of
increasing the measure of punishment. See Morales, 514 U.S. at
509, 131 L. Ed. 2d at 597, 115 S. Ct. at 1603.
Subsequent to Morales, the Supreme Court identified three
ameliorating characteristics of the California statutory
amendment in Morales that supported the decision to uphold the
law. First, the amendment affected a narrow class of prisoners--
multiple murderers--who had little chance of being released on
parole. Second, the amendment did not alter the date of a
prisoner's initial parole hearing and, thus, affected only those
initially deemed unsuitable for parole. Third, the parole board
retained the authority to tailor the frequency of subsequent
parole hearings to the particular circumstances of the individual
prisoner. Lynce, 519 U.S. at ___ n.16, 137 L. Ed. 2d at 75 n.16,
117 S. Ct. at 898 n.16.
Turning to amended section 3--3--5(f), it is true that the
provision applies to all prisoners and not to any particular
prisoner class. However, this characteristic, by itself, is not
constitutionally determinative. Other ameliorating characteristics
of amended section 3--3--5(f) insure that the provision does not
enhance the range of available prison terms or the substantive
criteria for determining a prisoner's eligibility or suitability for
parole. In other words, the amended provision does not have the
prohibited effect of increasing punishment. See Morales, 514 U.S. at 510 n.7, 131 L. Ed. 2d at 597 n.7, 115 S. Ct. at 1604
n.7.
Next, amended section 3--3--5(f) is tailored to the
determination of the likelihood that a prisoner would be released
sooner than an extended parole hearing date. Amended section
3--3--5(f) does not affect the date of a prisoner's initial parole
hearing; it affects the timing only of subsequent hearings.
Accordingly, the provision does not affect any prisoner unless
the Board has first concluded, after a hearing, not only that a
prisoner is unsuitable for parole, but also 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 1996); see Morales, 514 U.S. at 511, 131 L. Ed. 2d at
598, 115 S. Ct. at 1604.
Also, the Board retains the authority under amended section
3--3--5(f) to tailor the frequency of subsequent parole hearings
to the particular circumstances of the individual prisoner. The
amendment explicitly provides that if the Board makes the
special finding, then the Board can schedule the next hearing
"no later than" three years after the parole denial. 730 ILCS 5/3-
-3--5(f) (West 1996). Thus, the amendment allows the Board to
set the next parole hearing date anytime between the one-year
minimum and the three-year maximum, as a prisoner's particular
circumstances dictate. See Morales, 514 U.S. at 511-12, 131 L. Ed. 2d at 598, 115 S. Ct. at 1604.
Further, an Illinois prisoner may seek a parole hearing at
anytime based on "new facts or extraordinary circumstances
which could not have been known" to the prisoner at the time
of his interview or "which have arisen subsequent to the time
of" the interview "which have not been previously considered."
20 Ill. Adm. Code sec. 1610.100(a)(2) (1996); see Morales, 514 U.S. at 512-13, 131 L. Ed. 2d at 599, 115 S. Ct. at 1604-05.
Based on all of these ameliorating characteristics, we cannot
say that amended Corrections Code section 3--3--5(f) will have
any constitutionally significant effect on any prisoner's actual
term of confinement. Therefore, we hold that it does not violate
the constitutional prohibition against ex post facto laws.

CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Lee County is reversed, and the cause remanded for
consideration of the remaining counts of plaintiffs' complaints.

Reversed and remanded.