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12/22/94 MICHAEL BARGER ET AL. v. HOWARD PETERS III

December 22, 1994

MICHAEL BARGER ET AL., APPELLEES,
v.
HOWARD PETERS III, DIRECTOR OF CORRECTIONS, APPELLANT.



The Honorable Justice Freeman delivered the opinion of the court: Justice Heiple dissenting

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

The question in this case is whether Public Act 88-311, which excludes inmates from the opportunity to increase good-conduct credit, violates the ex post facto clauses of the Federal and Illinois Constitutions (U.S. Const., art. I, § 10; Ill. Const. 1970, art. I, § 16). We hold that it does.

BACKGROUND

As of September 10, 1990, section 3-6-3 of the Unified Code of Corrections applied a multiplier to increase the "day for a day" credit certain prisoners could earn toward early release. (Ill. Rev. Stat. 1991, ch. 38, par. 1003-6-3 (amended by Pub. Act 86-1373, eff. September 10, 1990).) Inmates engaged in Department of Corrections educational programs who met specified goals were eligible to receive credit increased by a factor of 1.25. (Ill. Rev. Stat. 1991, ch. 38, par. 1003-6-3.) The multiplier was not available for those convicted of first or second degree murder or those convicted of a Class X felony. (Ill. Rev. Stat. 1991, ch. 38, par. 1003-6-3.) Nor was it available for inmates who were convicted of a felony while engaged in the programs. Ill. Rev. Stat. 1991, ch. 38, par. 1003-6-3.

Public Act 88-311, effective August 11, 1993, amended section 3-6-3. (Pub. Act 88-311, eff. August 11, 1993 (amending Ill. Rev. Stat. 1991, ch. 38, par. 1003-6-3).) Among the changes, the act precluded application of the multiplier to categories of inmates previously eligible for it under section 3-6-3. (Pub. Act 88-311, eff. August 11, 1993 (amending Ill. Rev. Stat. 1991, ch. 38, par. 1003-6-3).) Pertinent here, the act rendered ineligible for the multiplier inmates convicted of criminal sexual assault, felony criminal sexual abuse, and aggravated criminal sexual abuse, and aggravated battery with a firearm, as well as related inchoate offenses. Pub. Act 88-311, eff. August 11, 1993 (amending Ill. Rev. Stat. 1991, ch. 38, par. 1003-6-3).

Pursuant to a certified class action, the circuit court of Cook County ruled that Public Act 88-311 violates ex post facto prohibitions. The suit had been brought by Michael Barger and Richard Maez, convicted, respectively, of criminal sexual assault and attempted armed robbery. Barger and Maez represented inmates whose crimes and convictions fell between September 10, 1990, the effective date of Public Act 86-1373, and August 11, 1993, the effective date of Public Act 88-311, making them ineligible for increased credit. Finding Public Act 88-311 unconstitutional, the circuit court permanently enjoined the Department of Corrections from applying it to the plaintiff class.

The matter lies here on direct appeal (134 Ill. 2d R. 302).

ARGUMENT(S)

The Federal Constitution prohibits States from enacting any ex post facto law. (U.S. Const., art. I, § 10.) Although that limitation renders it unnecessary, the same protection historically has been included in this State's constitutions. (Ill. Const. 1970, art. I, § 16; Ill. Const. 1870, art. II, § 14; Ill. Const. 1848, art. XIII, § 17; Ill. Const. 1818, art. VIII, § 16; F. Grad, The State Bill of Rights, in Con-Con, Issues for the Illinois Constitutional Convention 44 (V. Ranney ed. 1970); G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 75 (1969).) It has been suggested that there is, nevertheless, some utility in the provisions' coexistence, the thought being that the prohibitions, together, lend greater assurance of the constitutional protection than the Federal clause alone. G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 75 (1969).

But the drafters of our modern constitution intended the Illinois ex post facto clause to do no more than conform to the Federal Constitution's general prohibition on the States. (3 Record of Proceedings, Sixth Illinois Constitutional Convention 1476; 6 Committee Proposals, Sixth Illinois Constitutional Convention 55.) Thus, in construing this State's constitutional provision, we are without a basis to depart from the Supreme Court's construction of the Federal ex post facto clause. (See People v. Tisler (1984), 103 Ill. 2d 226, 243-45, 82 Ill. Dec. 613, 469 N.E.2d 147.) And, in fact, this court has long interpreted our own constitutional provision in step with Supreme Court pronouncements. See, e.g., People v. Ramey (1992), 152 Ill. 2d 41, 63-64, 178 Ill. Dec. 19, 604 N.E.2d 275.

In Weaver v. Graham (1981), 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960, the Supreme Court used an expansive interpretation of the ex post facto clause to strike down a Florida statute which reduced "gain-time" credit earned for avoiding disciplinary infractions and performing assigned tasks. Such legislation, the Court explained, could be constitutionally applied retrospectively only if it did not work to a prisoner's "detriment." ( Weaver, 450 U.S. at 33, 67 L. Ed. 2d at 25, 101 S. Ct. at 966.) Because the statute "change[d] 'the quantum of punishment' "for prisoners who committed crimes before its enactment, it was disadvantageous with respect to them. ( Weaver, 450 U.S. at 33, 67 L. Ed. 2d at 25, 101 S. Ct. at 966, quoting Dobbert v. Florida (1977), 432 U.S. 282, 293-94, 53 L. Ed. 2d 344, 356, 97 S. Ct. 2290, 2298.) The disadvantage: constricting the opportunity to earn early release effectively "lengthen[ed]" the period of actual incarceration, making more onerous the punishment for already committed crimes. Weaver, 450 U.S. at 33-34, 67 L. Ed. 2d at 26, 101 S. Ct. at 966-67.

This court, in Tiller v. Klincar (1990), 138 Ill. 2d 1, 149 Ill. Dec. 206, 561 N.E.2d 576, used the same interpretation of the ex post facto prohibition to invalidate legislation curtailing the frequency of parole hearings which had been previously mandated every year. The "possibility of parole," the court noted, "is an element of the punishment annexed to any crime." ( Tiller, 138 Ill. 2d at 11.) Thus, in lengthening the period between parole hearings, the legislation eliminated the opportunity for earlier release to the disadvantage of those already incarcerated. Tiller, 138 Ill. 2d at 11-12.

The notion that the ex post facto prohibition nullifies any law which "'alters the situation of a party to his disadvantage'" (emphasis omitted) was established in Kring v. Missouri (1883), 107 U.S. 221, 228-29, 27 L. Ed. 506, 509, 2 S. Ct. 443, 449, quoting United States v. Hall (D. Pa. 1809), 2 Wash. C. C. 366, 26 F. Cas. 84, 86 (No. 15,285). But, in Collins v. Youngblood (1990), 497 U.S. 37, 48-49, 111 L. Ed. 2d 30, 42-43, 110 S. Ct. 2715, 2722, the Supreme Court overruled Kring, holding that the quoted language indicated an ...


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