U.S. ex rel. Scott v. Illinois Parole and Pardon Bd., 79-2131

Citation669 F.2d 1185
Decision Date28 October 1981
Docket NumberNo. 79-2131,79-2131
PartiesUNITED STATES of America ex rel. William SCOTT, Petitioner-Appellant, v. ILLINOIS PAROLE AND PARDON BOARD and Lou Brewer, Respondents-Appellees. . Submitted *
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

William Scott, pro se.

Carolyn B. Notkoff, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before CUMMINGS, Chief Judge, and SPRECHER and CUDAHY, Circuit Judges.

PER CURIAM.

This is an appeal from the denial of a petition for a writ of habeas corpus. For the reasons which follow, we reverse the decision of the district court and remand for further proceedings.

I

Petitioner William Scott is an inmate at the Stateville Correctional Center in Joliet, Illinois, serving a 25 to 40 year sentence for murder. On March 6, 1979, Scott was granted leave to file his pro se petition for habeas corpus. The petition alleged that the Illinois Parole and Pardon Board, now the Prisoner Review Board, had violated Scott's constitutional rights by denying his request for parole for the stated reason that release would deprecate the seriousness of the offense for which he was imprisoned. It also alleged that Scott's rights had been violated in that, unlike other Illinois state prisoners, he was not entitled to a mandatory release date under Ill.Rev.Stat. ch. 38, § 1003-3-2.1 (1979). Scott alleged that he had served the minimum amount of time required under the sentence imposed on him, 1 but had twice been denied parole based on the seriousness of the offense. He claimed he was entitled to immediate release and requested the court to order such relief.

The respondents to the petition were the Warden of Stateville Correctional Center and the Illinois Prisoner Review Board. In reply to the district court's order that they answer the petition, respondents filed a motion for summary judgment with a supporting memorandum of law in which they argued, inter alia, that petitioner did not have a constitutional right to parole, that the reason given by the board for the denial was constitutionally sufficient, and that the fact that other inmates with similar records were paroled was not a denial of petitioner's constitutional rights.

The district court granted respondent's motion and dismissed the petition. It held that the Illinois statute governing parole release determinations did not create an expectancy of release on parole and that therefore, under Greenholtz v. Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), due process did not apply. The Court further held that, even if due process did apply, the reason provided by the Board for its decision to deny Scott parole was constitutionally sufficient. Finally, the Court held that the different treatment accorded Illinois prisoners sentenced under the new sentencing law did not violate Scott's Fourteenth Amendment right to equal protection of the law.

II

In United States ex rel. Richerson v. Wolff, 525 F.2d 797 (7th Cir. 1975), cert. denied, 425 U.S. 914, 96 S.Ct. 1511, 47 L.Ed.2d 764 (1976), this court held that when a state holds out the possibility of parole and makes it an integral part of its penological system, "due process includes as a minimum requirement that reasons be given for the denial of parole release." Id. at 800. In this case, we are required to reconsider this conclusion in light of the Supreme Court's more recent decision in Greenholtz v. Nebraska Penal and Correctional Center, supra.

Greenholtz explicitly rejected the underlying rationale for our holding in Richardson that due process requirements apply to Illinois parole release procedures. It held that the mere fact that a state holds out the possibility of parole is not sufficient to invoke the protection of the Due Process Clause of the Fourteenth Amendment.

That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained. Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. To that extent the general interest asserted here is no more substantial than the inmate's hope that he will not be transferred to another prison, a hope which is not protected by due process. Meachum v. Fano, supra, 427 U.S. at 225; 96 S.Ct. at 2538 (1977); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1977).

442 U.S. at 11, 99 S.Ct. at 2105.

The Greenholtz Court also held, however, that even though the mere existence of a parole system does not give rise to a liberty interest entitled to constitutional protection, the specific statute governing parole release determinations may have such an effect if it is phrased in such a way as to provide the inmates with a legitimate expectation of release on parole. The Court specifically found that the Nebraska statute there under consideration did create such an interest. In so holding, however, it emphasized that its conclusion was based on the unique structure and language of the Nebraska statute and cautioned that "whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis." 442 U.S. at 12, 99 S.Ct. at 2106.

Since Greenholtz, other circuits that have considered the issue have generally found the language and structure of other state parole release statutes sufficiently unlike Nebraska's so as not to confer on state prisoners a constitutionally protected expectation of parole. See Candelaria v. Griffin, 641 F.2d 868 (10th Cir. 1981), and cases cited therein. But see Williams v. Missouri Board of Probation and Parole, 661 F.2d 697 (8th Cir. 1981). However, in none of these cases was the language of the statute considered by the court the same or even similar to that contained in the statute now before us. For this reason, these cases are of little relevance to the precise issue raised here. Resolution of that issue, as the Supreme Court indicated in Greenholtz, requires careful analysis of the specific statute under which parole release determinations are made. Naturally, the Nebraska parole release statute under consideration in that case provides a convenient starting point for that analysis. 2

The Nebraska statute at issue in Greenholtz provided that the Nebraska Parole Board "shall" order the release of a prisoner eligible for parole "unless it is of the opinion that his release should be deferred" because of the existence of any of four specified criteria. In holding that this statute created an expectancy of release entitled to some measure of constitutional protection, the Greenholtz majority accepted the inmate's argument that "the structure of the provision together with its use of the word 'shall' binds the Board of Parole to release an inmate unless any one of the four specifically designated reasons are found." 442 U.S. at 11-12, 99 S.Ct. at 2105-2106. The inmates had argued that the language of the statute created a presumption that parole release would be granted, which in turn created a legitimate expectation of release, absent the finding that one of the prescribed justifications for deferral existed. A majority of the Court agreed.

The Illinois parole release statute at issue in this case is practically a mirror image of the Nebraska statute. Section 1003-3-5(c) of the Illinois Unified Code of Corrections, Ill.Rev.Stat. ch. 38, § 1003-3-5(c) (1979) provides:

(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 substantial adverse effect on institutional discipline.

Instead of directing the Board to release an eligible inmate unless one of the conditions is found, Illinois has simply stated the rule in the negative-the Board shall not release the inmate if one of the conditions is found. Even the specified conditions under which release is to be deferred are the same, except for the fact that the Nebraska statute includes an additional reason for deferral which Illinois' does not. Thus, like Nebraska's parole release statute, section 1003-3-5(c) can be read as creating a legitimate expectation of release on parole. 3

However, by stating its rule in the negative Illinois has left open the possibility that its statute can also be reasonably read as not creating an expectancy of release on parole. It can be read as merely a statement by the Illinois legislature as to when the Board must deny parole, leaving the Board free in the absence of those conditions to exercise its own discretion in deciding whether or not parole should be granted. Under this construction, the statute would not create a legitimate expectation of release and due process considerations would not apply. See Averhart v. Tutsie, 618 F.2d 479 (7th Cir. 1980) (where legislature has invested Parole Board with almost total discretion in such matters, inmate had no legitimate expectation of release).

Although there is no authoritative state court decision indicating which of these two possible constructions is correct, 4 both the Council Commentary to section 1003-3-5(c) and the Board's own Rules Governing Parole persuade us that the Illinois parole release statute, like Nebraska's, requires the Board to release an inmate who is eligible for parole unless one of the specified reasons for denial are found to exist. The Council Commentary reads in part:

Subparagraph (c) expands the vague charge to the Board to determine "whether (the offender) is capable again of becoming a law-abiding citizen." Section 203 (repealed). The Board should state one or more of the reasons listed in subparagraph (c) as the basis for its decision denying parole as required by subparagraph (f). Additional reasons may also be stated.

Ill.Ann.Stat. ch. 38 § 1003-3-5, pp. 87-88 (Smith-Hurd). This...

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