Heirens v. Mizell, 83-1748

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation729 F.2d 449
Docket NumberNo. 83-1748,83-1748
PartiesWilliam HEIRENS, Petitioner-Appellee, v. Larry MIZELL, et al., Respondents-Appellants.
Decision Date24 February 1984

Page 449

729 F.2d 449
William HEIRENS, Petitioner-Appellee,
Larry MIZELL, et al., Respondents-Appellants.
No. 83-1748.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 12, 1983.
Decided Feb. 24, 1984. *

Page 451

Charles W. Murdock, Asst. Atty. Gen., Joan S. Cherry, Cook County Asst. State's Atty., Steven F. Molo and Mark A. Ratert, Asst. Attys. Gen., Chicago, Ill., for respondents-appellants.

Michael B. Nash, Chicago, Ill., for petitioner-appellee.

Before PELL and COFFEY, Circuit Judges, and NEAHER, District Judge. **

COFFEY, Circuit Judge.

The respondents appeal from the April 20, 1983 order of Magistrate Gerald B. Cohn releasing the petitioner, William Heirens, on parole. Although several issues have been raised by both the petitioner and the respondents, we believe only two merit extended consideration: (1) whether this court's decision in Welsh v. Mizell, 668 F.2d 328 (7th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982) incorrectly determined that the application of the second of three parole criteria established by Illinois legislation, effective January 1, 1973, to parole applicants who committed their crimes before that date, violated the ex post facto clause of the United States Constitution; 1 and (2) whether the reasons given by the Illinois Parole and Pardon Board for denying the petitioner parole violated the petitioner's due process rights as delineated in this court's U.S. ex rel. Scott v. Ill. Parole and Pardon Bd., 669 F.2d 1185 (7th Cir.), cert. denied sub nom. McCombs v. Scott, --- U.S. ----, 103 S.Ct. 468, 74 L.Ed.2d 617 (1982) decision. We REVERSE.


On September 4, 1946, William Heirens pleaded guilty, in the criminal court of Cook County, Illinois to three murder indictments and twenty-six other indictments

Page 452

charging various assaults, burglaries and robberies. He was sentenced to three consecutive life sentences on the murder indictments. In addition, the court imposed the statutory sentences on the remaining indictments. The court ordered that the latter sentences run concurrent with each other but consecutive to the three life terms.

On August 31, 1981, Heirens filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Sec. 2254 in the United States District Court for the Southern District of Illinois. Heirens alleged that the Illinois Parole Board violated the ex post facto clause of the United States Constitution when it denied him parole solely on a criterion established after the commission of the above-noted offenses. The respondents acknowledged that under our then recent decision in Welsh v. Mizell, 668 F.2d 328 (7th Cir.1982), it was inappropriate to apply the second of three parole criteria promulgated by the Illinois legislature in 1972, to parole applicants whose crimes preceded January 1, 1973. The Welsh court held that the second criterion of Ill.Rev.Stat. ch. 38, Sec. 1003-3-5(c), 2 providing that parole must be denied if the prisoner's "release at that time would deprecate the seriousness of his offense or promote disrespect for the law," was a marked departure from previous practice. According to Welsh, the enactment of the second criterion imported "for the first time into the parole decision considerations of retributive justice (the relationship between time served and the nature of the offense) and general deterrence (incarceration as a means of promoting general respect for law)." Id. at 331 (footnote omitted). Welsh concluded that "the retrospective application of the general deterrence criteria violates the ex post facto clause." Id.

On July 15, 1982, Magistrate Cohn granted the petitioner's writ and ordered the respondent Parole Board to provide Heirens with another parole hearing consistent with the Welsh decision. He also instructed the Board to "provide a sufficiently detailed statement of the 'essential facts' relied upon ..." in making its determination. While noting that the decision whether or not to grant a prisoner's request for parole was one "delegated solely" to the Illinois Parole Board, the Magistrate required that the Board explain "what, if any, legally acceptable criteria were utilized when they denied parole to Mr. Heirens in 1979 and the years since then." If the Board found that it had in fact denied parole in 1979 and subsequent years based exclusively on the now-unacceptable criterion (2), the Board could continue to deny parole only "by specifically detailing the developments since 1979 which, according to presently acceptable criteria, justify a denial of parole."

In response to that order, the Board held a parole hearing for Heirens on August 10, 1982. Six days later the Board issued an order and rationale 3 denying Heirens' release on parole. It subsequently issued an amended rationale on August 24, 1982, to correct certain misstatements in its previous rationale. 4

Page 453

On October 12, 1982, Heirens filed a "Motion for an Order to Show Cause Why the Respondent Prison Review Board Should Not be Held in Contempt for Failure to Comply with This Court's Order of July 15, 1982." On December 22, 1982, the Magistrate granted Heirens' motion holding that the Board had, in fact, failed to comply with his order of July 15, 1982. However, he stayed enforcement of this order for 30 days to provide the Board with an additional opportunity to comply. In this second order the Magistrate noted that the record contained evidence:

"which strongly suggest[s] that Mr. Heirens has been denied parole in recent years for reasons that Welsh recently held to be impermissible. We noted in our Order [July 15, 1982 order] that the record strongly suggests that the Prisoner Review Board has long considered Mr. Heirens completely rehabilitated, and a good parole risk." 5

Although the respondents correctly limited their consideration to criteria relating to "special deterrence" 6--rehabilitation and the corresponding parole risk of the specific individual, etc.--Magistrate Cohn held that in light of the above-noted conflicting evidence in the record, the Board had failed to adequately delineate facts that substantiated that parole denial in 1979 and other recent years had, in actuality, been based on factors of special deterrence, and not on the now-unacceptable "general deterrence" criterion. The Magistrate concluded:

"There is significant undisputed evidence in the record before us which suggests that the Board has long considered Mr. Heirens an excellent parole risk. If, as the Board now claims, this is not the case, then they must show this Court why the record before us is incorrect or misleading. If the Board, on further reconsideration, should determine that Mr. Heirens is rehabilitated and a good parole risk, then they must release him on parole pursuant to the current state of the law."

In an attempt to comply with the Magistrate's December 22, 1982 order, the Review Board issued an additional rationale on January 12, 1983. This rationale began with a statement addressing the evidence in the record that had troubled the Magistrate.

"With specific regard to the comments at the hearing in November of 1979, of Mr. James Irving, former Board Chairman, and the fact that Mr. Irving may have expressed an opinion as to your rehabilitation, we would point out that Mr. Irving was speaking as one member, only, and apparently did not feel sufficiently convinced, himself, that you warranted parole according to the Board Order of that date."

The rationale continued by stating that although Heirens had performed well in a structured environment, the Board was not convinced that such performance would carry over to life in "the free society." Again, reference was made to the various factors the Board considered including his adjustment to institutional life, the underlying facts of the crimes to which he pled guilty and the length of the sentences imposed. Finally, the Board stated:

"In conclusion, as previously noted during prior parole hearings, your academic achievements have been above average; however, in rendering its decision

Page 454

to deny parole at this time, it is this interviewing panel's opinion that to grant parole would not be in the best interest of society, nor would it serve as a deterrent to non-compliance with the established laws of society."

On April 20, 1983, the Magistrate ordered Heirens released from custody. He held:

"While it is certainly true that a District Court cannot substitute its judgment on questions of parole for that of the parole board, and the scope of review is very limited, U.S. ex rel. O'Connor v. MacDonald, 449 F.Supp. 291 (N.D.Ill.1978), we are faced with a very different situation in the instant case. Here, we find that the respondents are violating the petitioner's federal due process rights in two distinct ways. First, they continue to explicitly apply illegal 'general deterrence' criteria to the parole application, despite having been repeatedly ordered not to do so. Second, to the extent that they also consider factors relating to 'special deterrence,' and conclude, in boiler plate language, that the petitioner is a poor parole risk, they have repeatedly refused to explain blatant contradictions in their own record. This Court determines that either of these continuing constitutional violations would justify this Order discharging the petitioner from custody."

* * *

* * *

"Therefore, IT IS THE ORDER of this Court that the respondents release Mr. Heirens from incarceration. This Order is Stayed for twenty (20) days, however, since the respondents may wish to establish an appropriate parole plan. A brief extension of this twenty day period might be granted for good cause shown. By the end of this period of time, Mr. Heirens must be released from incarceration."

It is from this order of release that the respondents appeal.


Before reaching the main issues of this appeal, there are several collateral issues which warrant our...

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