Harris v. Irving

• Decision Date: 14 October 1980
• Docket Number: No. 80-81,80-81
• Citation: 412 N.E.2d 976,90 Ill.App.3d 56,45 Ill.Dec. 394
• Parties: , 45 Ill.Dec. 394 Charles HARRIS, Plaintiff-Appellant, v. James IRVING, Chairman, and Joseph Dakin, Earl Dryden, Ethel Gingold, Joseph Longo, Joseph McCombs, Rafael Nieves, Virginia Scales and Paul Clincar, Members of the Illinois Prison Review Board, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 976

412 N.E.2d 976

90 Ill.App.3d 56, 45 Ill.Dec. 394

Charles HARRIS, Plaintiff-Appellant, v. James IRVING, Chairman, and Joseph Dakin, Earl Dryden, Ethel Gingold, Joseph Longo, Joseph McCombs, Rafael Nieves Virginia Scales and Paul Clincar, Members of the Illinois Prison Review Board, Defendants-Appellees.

No. 80-81.

Appellate Court of Illinois, Fifth District.

Oct. 14, 1980.

Charles B. Harris, pro se.

William J. Scott, Atty. Gen. of the State of Illinois, Chicago, for defendants-appellees; Myra Turner, Asst. Atty. Gen., of counsel.

HARRISON, Justice:

Appellant Charles Harris appeals from a judgment of the circuit court of Johnson County denying his "motion for leave to file a complaint for writ of mandamus" and granting appellees' motion for dismissal. On appeal he contends (1) that the trial court erred in denying his motion and (2) that section 3-3-5(c)(2) of the Unified Code of Corrections (Ill.Rev.Stat.1979, ch. 38, par. 1003-3-5(c)(2)) as applied in denying his application for parole violated the ex post facto clauses of the United States and Illinois Constitutions. We affirm.

Plaintiff was convicted of two counts of murder and arson in 1965, although the record indicates neither the date the crimes were committed nor the sentences received. On April 27, 1979, the Illinois Prisoner Review Board denied plaintiff parole, stating: "(P)arole at this time would deprecate the seriousness of the offenses committed by you * * * or otherwise promote disrespect for the law." Plaintiff filed his motion for leave on September 28, 1979 and defendants, the members of the Illinois Prisoner Review Board, filed their motion to dismiss on January 18, 1980. On February 1, 1980, the circuit court denied plaintiff's motion and granted defendants' motion. It is from this judgment that plaintiff appeals.

Whether or not this is a proper case for mandamus relief is irrelevant because we find the underlying case to be without merit. Appellant contends that section 3-3-5(c)(2) of the Unified Code of Corrections, effective November 14, 1973, established a new but more strict consideration by which the Illinois Parole and Pardon Board (now the Illinois Prisoner Review Board) could grant or deny parole. Appellant's argument continues that since this particular consideration was not in force in 1965 when he was convicted, application of it on April 27, 1979 to deny him parole constituted the retroactive application of a punitive measure in violation of the ex post facto clauses of the Illinois and United States Constitutions. He asks for reconsideration of his parole application under the 1965 standards. (See People v. Harper (5th Dist. 1975), 27 Ill.App.3d 406, 327 N.E.2d 91 (Abstract).) We disagree.

When appellant was convicted in 1965, the General Assembly imposed on the Parole and Pardon Board the following duty:

"In consideration of any application for parole due consideration and weight shall be given to the record of the prisoner's conduct kept by the superintendent or warden." (Ill.Rev.Stat.1965, chs. 108 & 127, pars. 206 & 55b (respectively).)

In addition, the legislature empowered the Board to "make regulations not inconsistent with law governing the issuance, supervision and revocation of parole * * * ." (Ill.Rev.Stat.1965, ch. 38, par. 123-1.) One such rule promulgated by the Board read as follows:

"12. If the members of the Parole and Pardon Board in conference determine that a prisoner serving an indeterminate term is entitled to parole, they shall enter an order for parole. If they determine that a prisoner is not a fit person to serve his sentence outside the penitentiary, a parole shall be denied, and such further order entered as in the judgment of the members is deemed warranted." (DEPARTMENT OF PUBLIC SAFETY, PAROLE AND PARDON BOARD, RULES AND STATUTES RELATING TO PAROLE AND PARDONS 22 (1962).)

Appellant argues that these statutory guidelines directed the Parole and Pardon Board to consider only the parole applicant's conduct while confined in prison. He further suggests that Rule 12 of the rules of the Parole and Pardon Board likewise focused on the applicant's prison conduct by addressing the determination of whether "a prisoner is not a fit person to serve his sentence outside the penitentiary * * * ." Thus, appellant contends that the statutes and rule in force at the time he was convicted were directed solely to special deterrence, or consideration of the rehabilitation of the offender and the likelihood that he would not commit future crimes. Shepard v. Taylor (2nd Cir. 1977), 556 F.2d 648, 653; Duldulao v. United States Parole Com. (S.D.Fla.1978), 461 F.Supp. 1138, 1142.

In 1973, however, the following statute became effective:

"(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."

(Ill.Rev.Stat.1973, ch. 38, par. 1003-3-5(c).)

Moreover, pursuant to its rule-making authority, the Illinois Prisoner Review Board adopted the following rule, effective December 31, 1978:

"In accordance with statute, the Board shall not parole a candidate if it determines that:

B. Release of the candidate would deprecate the seriousness of the offense or promote disrespect for the law, based on one or more of the following factors:

1. The offense is one of murder * * *."

(Rules of the Prisoner Review Board, 3 Ill.Reg. 153-54 (1979).)

The 1965 statutes, Ill.Rev.Stat.1965, chs. 108 & 127, pars. 206 & 55b (respectively), were repealed in 1973 by section 8-5-1 of the Unified Code of Corrections (Ill.Rev.Stat.1973, ch. 38, par. 1008-5-1). Appellant contends that by adopting section 3-3-5(c)(2) of the Unified Code of Corrections, the legislature added a consideration of general deterrence which made it more difficult to obtain parole, thereby increasing the punishment for his crime. General deterrence is "(t)he theory of punishing one individual to deter other would-be offenders * * *." (People v. Knowles (4th Dist. 1979), 70 Ill.App.3d 30, 33, 26 Ill.Dec. 637, 640, 388 N.E.2d 261, 264.) Since the Board's order denying parole for appellant read as follows: "The Board still feels that parole at this time would deprecate the seriousness of the offenses committed by you, which include two counts of murder, or otherwise promote disrespect for the law," appellant argues that he was denied parole on the added basis of the general deterrence consideration in violation of the ex post facto prohibitions.

It is well-settled that the ex post facto clauses (U.S.Const., art. I, § 10, clause 1; Ill.Const.1970, art. I, § 16) apply only to criminal legislation which operates retrospectively to the disadvantage of the party affected or which alters any substantial right of the accused to his detriment. (Dobbert v. Florida (1977), 432 U.S. 282, 292-93, 97 S.Ct. 2290, 2297-98, 53 L.Ed.2d 344; Calder v. Bull (1798), 3 U.S. (Dall.) 386, 390, 1 L.Ed. 648.) The pivotal question under ex post facto is whether a new statute imposes a greater punishment than that prescribed when the criminal act was committed. ¹ (Dobbert v. Florida ; Beazell v. Ohio (1925), 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216; Calder v. Bull ; People v. Harris (3rd Dist. 1979), 69 Ill.App.3d 118, 124, 25 Ill.Dec. 576, 387 N.E.2d 33; People v. Bowling (3rd Dist. 1976), 43 Ill.App.3d 932, 933, 2 Ill.Dec. 557, 357 N.E.2d 724.) The United States Constitution looks to the standard of punishment prescribed by a statute rather than to the sentence actually imposed (Lindsey v. Washington (1937), 301 U.S. 397, 400-01, 57 S.Ct. 797, 798-99, 81 L.Ed. 1182), while the focus of the state constitution is directed more toward the actual punishment imposed. (People v. Massarella (1st Dist. 1980), 80 Ill.App.3d 552, 559, 36 Ill.Dec. 16, 400 N.E.2d 436; People v. Wyckoff (2nd Dist. 1969), 106 Ill.App.2d 360, 364-65, 245 N.E.2d 316.) We must first determine the nature of appellant's parole interest and then decide whether his punishment has been increased or his rights affected to his detriment.

Appellant concedes, as he must, that he has no constitutional right to parole. Although the United States Supreme Court has not yet spoken to the issue of whether more burdensome parole guidelines violate the ex post facto clause of the federal constitution (United States Parole Com. v. Geraghty (1980), 445 U.S. 388, 390 n. 1, 409, 100 S.Ct. 1202, 1205 n. 1, 1215, 63 L.Ed.2d 479, 486 n. 1, 498; United States v. Addonizio (1979), 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805), we find some of the dicta in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex (1979), 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668, a parole case involving due process considerations, beneficial to our analysis here. In that case it was clearly said:

"There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: '(G)iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.' Meachum v. Fano, 427 U.S. 215, 224, 49 L.Ed.2d 451, 96 S.Ct. 2532 (1976).

That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained. (Citation.)" (442 U.S. 1, 7-11, 99 S.Ct. 2100, 2104-05, 60 L.Ed.2d 668.)

When discussing the difficult choices surrounding the decision to grant parole, the Supreme Court stated:

"A state may * * * establish a parole system, but it has no duty to do so. Moreover,...