People ex rel. Braver v. Washington

• Decision Date: 30 December 1999
• Docket Number: No. 1-97-4693.,1-97-4693.
• Parties: The PEOPLE of the State of Illinois ex rel. Noah BRAVER, Plaintiff-Appellee, v. Odie WASHINGTON, Director, Illinois Department of Corrections, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

724 N.E.2d 68

311 Ill. App.3d 179

243 Ill.Dec. 759

The PEOPLE of the State of Illinois ex rel. Noah BRAVER, Plaintiff-Appellee, v. Odie WASHINGTON, Director, Illinois Department of Corrections, Defendant-Appellant.

No. 1-97-4693.

Appellate Court of Illinois, First District, Fifth Division.

December 30, 1999.

James E. Ryan, Attorney General, Barbara A. Preiner, Solicitor General, Chicago (Jane E. Hughes, of counsel), for Appellant.

Rittenberg & Buffen, Ltd., Chicago (David L. Buffen and D. Seth Holliday, of counsel); Kaplan & Sorosky, Ltd., Chicago (Sheldon Sorosky, of counsel), for Appellee.

Justice HARTMAN delivered the opinion of the court:

Defendant Odie Washington (Washington), Director, Illinois Department of Corrections (IDOC), appeals from the circuit court's orders granting plaintiff Noah Braver's petition for "writ" of mandamus,¹ seeking an award of meritorious good time credits by Washington sufficient to result in Braver's immediate release from prison, and denying Washington's motion to vacate the granting order.

Washington raises the issue of whether the circuit court's decision to grant Braver's application for mandamus, requiring his immediate release from IDOC custody, was against the manifest weight of the evidence or, alternatively, constituted an abuse of discretion.

On November 10, 1997, Braver filed a combined action for habeas corpus and mandamus against Washington, as Director, claiming that he was being held in custody illegally at an IDOC facility in Vandalia, Illinois, which imprisonment violated his rights to due process and equal protection under the United States and Illinois constitutions.

The following facts are derived from Braver's pleadings. On March 19, 1997, Chicago police officers stopped him for a traffic violation while he was driving his car. The officers found a gun in his car and arrested and charged him with the offense of unlawful use of weapons, a class 4 felony. Braver, an 18-year-old, was unemployed and indigent at the time of his arrest and was unable to make bail, remaining in the custody of the Cook County Department of Corrections (CCDC), during the entire pendency of his case prior to trial.

On August 25, 1997, Braver pled guilty to the offense of unlawful use of weapons. The circuit court entered judgment on his guilty plea and later sentenced him to a term of 18 months in an IDOC facility, ordering that the jail time Braver served in the CCDC (217 days from the date of his arrest to the date of sentencing) be applied to his sentence. On October 24, 1997 (three days after sentencing), Braver was transferred from the CCDC to IDOC. When Braver arrived on that date, he had been in custody for 220 days. Although he had already served 220 days of his jail sentence, Braver was not immediately released from IDOC's custody. Given a projected release date of December 19, 1997, Braver was required by IDOC to serve a total of 276 days in jail, which was in excess of his 270 day sentence (statutory nine month requirement).

Braver asserted that because of the extreme overcrowding of inmates, IDOC has established a policy of awarding each inmate 90 days extra meritorious good time credit, in addition to the statutory day for day "good time" credit given to each inmate. As a prerequisite to the award of meritorious good conduct credit, however, IDOC also has a regular policy and custom of requiring each inmate to serve at least 61 days in IDOC or as close to 61 days as the inmate's sentence will allow.

Braver claimed that IDOC has established a policy whereby its Director has surrendered his discretion, which has been supplemented by an established and regular policy of granting 90 days meritorious good time credit to certain classes of inmates, namely, "all inmates who receive the usual and ordinary day for day meritorious good time credit." Braver claimed to have been a member of the class of inmates who regularly and routinely receives an extra 90 days of meritorious good time credit and, therefore, should have been released by IDOC immediately upon being placed in its custody. Because his release date was December 19, 1997, he "will serve 94 days in jail in excess of actually serving 6 months in jail," without any rational basis for him to be denied "the usual 90 days meritorious good time awarded to all inmates." If he had had sufficient funds to post bail, he would have been released after serving only 180 days in jail, as opposed to the 276 days he would actually serve, because he would have been given the 90 days of meritorious good time credit. Accordingly, this IDOC policy violated Braver's right to equal protection of the law and due process. Relying on Hampton v. Rowe, 88 Ill.App.3d 352, 43 Ill.Dec. 511, 410 N.E.2d 511 (1980), and Freeman v. Lane, 129 Ill.App.3d 1061, 85 Ill.Dec. 216, 473 N.E.2d 584 (1985), Braver seeks to be treated similarly to an individual able to post bond and receive the automatic 90 days meritorious good time awarded to all inmates.

In conclusion, Braver argued that IDOC's policy of requiring each inmate to serve at least 61 days in IDOC, or as close to 61 days as the sentence will allow, regardless of the amount of jail time the inmate has spent in a county jail, violates an inmate's rights to equal protection and due process, and prayed that (1) habeas corpus be ordered releasing him from custody immediately, or, in the alternative, (2) mandamus be ordered, with directions to respondent to treat Braver's 220 days served in county jail as 220 days served in the penitentiary; and (3) he be granted the 90 days meritorious good time awarded to all inmates in his classification.

On December 4, 1997, an evidentiary hearing was held on Braver's combined action. The State called two IDOC employees as witnesses, Mark McHugh and Laurie Schellinger. McHugh testified that the award of meritorious good time is discretionary, explaining that the Director considers the recommendation of staff members at the institution where the person is incarcerated. Such recommendation is made after the inmate has been in the facility for 30 days. Actual awards are not made until the inmate has been in an IDOC facility for 60 days, regardless of whether the inmate has spent time in the county jail prior to the trial or has been out on bond. This time period allows staff to assess the inmate's adjustment to the system and to determine whether the inmate has earned the award.

McHugh stated that "certainly by no means" is the award given to every inmate. There is no IDOC policy which mandates that every inmate be given the meritorious good time award. For example, in the fiscal year ending June 30, 1997, 20% of the inmates received less than 90 days, and 13% received no credit. McHugh also explained that there is no written criteria used to determine whether an inmate should be given the award. The factors considered include length of sentence, behavior, nature of the sentence, criminal background and nature of the offense.

Schellinger, IDOC's legal counsel, testified that one of the reasons for waiting before any meritorious good time is awarded is to enable the staff to have time to observe the inmate and obtain any relevant and available information regarding that individual.

In arriving at its decision, the circuit court recognized the discretionary nature of the award of meritorious good time, but found it was "fundamentally unfair" for Braver, who was unable to make bond, to spend more time in custody than someone who is able to make bond. On December 4, 1997, the court ordered IDOC to release Braver immediately.

On December 8, 1997, Washington filed an emergency motion to vacate the court's December 4, 1997 order, noting that Braver's action for mandamus was not properly served and, in any event, that it should not have been granted because the award of meritorious good time is a discretionary matter not subject to mandamus. Attached to the motion was the affidavit of Susan O'Leary, IDOC's chief legal counsel, who averred that the decision to award meritorious good time is made on a case by case basis after review by both the institution and central office personnel. Meritorious good time is not awarded on a fixed increment of time and can range anywhere from one to 90 days.

Washington's motion included further the affidavit of David M. Boots, IDOC's planning and research unit manager, whose responsibilities include compiling, analyzing, and generating statistics regarding inmates incarcerated with IDOC. Boots stated that during fiscal year 1997, 18.5% of the inmates released from IDOC facilities received less than 90 days of meritorious good time and 12.9% of those eligible received no meritorious good time.

The motion to vacate also was supported by the affidavit of Diane Jockisch, IDOC's transfer coordinator, whose staff reviews recommendations for awards of meritorious good time. Jockisch averred that according to IDOC policy, the review may occur no earlier than 30 days after an inmate is placed in IDOC's custody, allowing the institution time to observe the inmate's adjustment to prison and taking into consideration the fact that IDOC rarely receives documentation of an inmate's pre-IDOC behavior or adjustment. The Director's decision whether to award meritorious good time generally begins at the institutional level, where a staff recommendation to award meritorious good time is reviewed by the warden of the facility. If the warden approves the recommendation, the transfer coordinator's office must then approve or deny the recommendation, as designee of the Director. Individual cases are evaluated based on factors, including the nature of the inmate's offense, the inmate's criminal history and institutional adjustment, and the potential impact of the inmate's early release on the community.

Jockisch stated that IDOC officials must have time to observe and evaluate an inmate for meritorious good time award consideration and...