Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. CV 80-4101 -- William L. Beatty, Judge.
Before Cummings, Chief Judge, Swygert, Senior Circuit Judge, and Bauer, Circuit Judge.
Gary Welsh is a prisoner at the Illinois Correctional Center in Vienna, Illinois. The murder of which he was convicted was committed in 1962, but Welsh was not competent to stand trial until 1973. At that time he was sentenced in the Circuit Court of McHenry County to a prison term of sixty to one hundred years. His direct appeal was denied, People v. Welsh, 30 Ill.App.3d 887, 333 N.E.2d 572 (2d Dist. 1975). He has served his minimum sentence, with allowance for statutory good time, in several state mental hospitals and in prison. He has been denied parole nine times.
In March 1980 Welsh filed a pro se petition for a writ of habeas corpus. He contended that Illinois' statutory and regulatory parole criteria had changed significantly between 1962, when he committed his crime, and 1973, when new legislation took effect. In 1962 the emphasis had been on preventing further crimes by the particular candidate for parole (special deterrence). The 1973 criteria reflected instead a philosophy of general deterrence-that a prisoner should not be paroled so long as his incarceration might deter other potential offenders. The application of the new parole criteria to him, Welsh argued, contravened the ex post facto clause of the United States Constitution.*fn1
The district court dismissed Welsh's petition on the motion of the Attorney General of Illinois. Judge Beatty reasoned that the changes in parole criteria were procedural and that procedural changes do not violate the ex post facto clause when they "operate only in a limited and unsubstantial manner to (the petitioner's) disadvantage." May 22, 1980 order, p. 2 (quoting Beazell v. Ohio, 269 U.S. 167, 170, 46 S. Ct. 68, 69, 70 L. Ed. 216). He assumed that the Parole and Pardon Board (now the Illinois Prisoner Review Board) had always had broad discretion to grant or deny parole and that Welsh therefore could not show how the changed provisions caused him cognizable harm. Id. at 3. This appeal followed. For the reasons set out below, we reverse and remand to the Illinois Prisoner Review Board, with instructions to give prompt consideration to Welsh's parole application under the statute and regulations applicable in 1962.
The Doctrine of Exhaustion of Remedies Is Inapplicable.
We are met at the threshold by a jurisdictional question. The state has argued, although the point was not pressed on appeal, that Welsh's petition should be dismissed for failure to exhaust state remedies. There are two reasons for not requiring exhaustion. First, the state has expressly waived it. In urging this Court to deny Welsh's motion for a stay, the state claimed to have shown by its original motion to dismiss that "although petitioner had not gone to the state courts for relief * * * it would have been futile for him to do so" (emphasis added).*fn2 Second, even without the state's waiver, sending Welsh back to the state courts would be an exercise in futility, which federal habeas procedure allows us to pretermit. An Illinois appellate court has recently rejected a challenge identical to Welsh's, Harris v. Irving, 90 Ill.App.3d 56, 45 Ill.Dec. 394, 412 N.E.2d 976 (5th Dist. 1980), and the Illinois Supreme Court denied leave to appeal that decision on January 30, 1981. Thus "there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner," 28 U.S.C. § 2254(b).
The Ex Post Facto Clause Was Violated.
In its most recent explication of the ex post facto clause, the Supreme Court has said:
The ex post facto prohibition forbids * * * the States to enact any law "which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed." * * * (T)wo critical elements must be present for a criminal or penal law to be ex post facto : it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. Weaver v. Graham, 450 U.S. 24, 28, 29, 101 S. Ct. 960, 963, 964, 67 L. Ed. 2d 17 (citations and footnotes omitted)
We begin our inquiry therefore by looking at the criteria for parole in effect in September 1962, when Welsh committed the crime for which he was sentenced. They were contained in Sections 6 and 7b of the Parole Law Ill.Rev.Stat.1961, ch. 38 §§ 806, 808a. Cf. Ill.Rev.Stat.1961, ch. 127 § 55b. Section 6 required the sentencing judge and the State's Attorney to transmit to the Parole Board an official statement of all "facts or circumstances which may tend to throw light on the question as to whether such prisoner * * * is capable again of becoming a law-abiding citizen." Section 7b required the Parole Board to give "due consideration and weight * * * to the record of the prisoner's conduct kept by the superintendent or warden."
The regulations issued by the Parole Board sounded similar themes. For example,
12. If the members of the Parole and Pardon Board in conference determine that a prisoner serving an indeterminate sentence 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, parole shall be denied, and such further order entered as in the judgment of the members is warranted.
14. In its consideration of the question of whether a prisoner should be paroled, the Parole and Pardon Board shall evaluate all the factors in each case, including the prisoner's conduct record, and grant or ...