Hill v. Walker

Docket No. 110215.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

WILLIAM R. HILL, Appellant, v. ROGER E. WALKER, JR.,
Director of Corrections, et al., Appellees.

Opinion filed March 24, 2011.

JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Thomas, Garman, Karmeier,
Burke, and Theis concurred in the judgment and opinion.

OPINION

Plaintiff, William R. Hill, an inmate at Tamms Correctional Center,
brought an action in the circuit court of Alexander County seeking
declaratory and mandamus relief against defendants, Roger E.
Walker, Jr., Director of Corrections, and the members of the Illinois
Prisoner Review Board (Board). The circuit court dismissed plaintiff’s
second amended complaint pursuant to section 2–615 of the Code of
Civil Procedure (735 ILCS 5/2–615 (West 2006)). The appellate
court upheld the dismissal. 397 Ill. App. 3d 1090. We allowed
plaintiff’s petition for leave to appeal (Ill. S. Ct. R. 315(a) (eff. Feb.
26, 2010)), and now affirm the judgment of the appellate court.
 I. BACKGROUND
Hill was hired to kill Robert Fields. In August 1974, Hill fatally
shot Allen Zipperstein, whom Hill mistook for Fields. In January
1975, Hill fatally shot Fields. Following a jury trial in the circuit court
of Cook County, Hill was convicted of two counts of murder and, at
the close of a separate sentencing hearing before the same jury, the
court sentenced Hill to death. People v. Hill, 78 Ill. 2d 465, 467
(1980) (citing Ill. Rev. Stat. 1977, ch. 38, par. 9–1). On direct review,
this court held that the circuit court erred by admitting into evidence
inculpatory statements that Hill had made during plea negotiations,
and further held that the error was so prejudicial as to require reversal
of Hill’s convictions. Hill, 78 Ill. 2d at 469-74. This court also held
that, if Hill were convicted of murder on remand, he could not be
sentenced to death because he committed the crimes prior to the
enactment of the then-existing death penalty statute. Id. at 474-76.
On remand, Hill pled guilty to two counts of murder and was
sentenced in 1981 to two concurrent prison terms of 30 to 90 years.
Under the then-existing sentencing laws, Hill became eligible for
parole in 1983. The Board held parole hearings for Hill in May 1983,
March 1984, January 1985, April 1986, and April 1987. At the close
of each hearing, the Board denied parole based on the seriousness of
the offenses.
Effective January 1988, the legislature amended the law governing
parole. As amended, the statute allows the Board to set parole
hearings as much as three years apart, so long as the Board finds that
it is not reasonably likely to grant parole prior to that time. See Ill.
Rev. Stat. 1987, ch. 38, par. 1003–3–5(f). Subsequent to this
amendment, the Board held parole hearings for Hill in February 1988,
February 1991, February 1992, May 1993, May 1994, May 1995,
May 1996, November 1997, November 1998, October 1999,
December 2002, and January 2006. The Board denied parole each
time based primarily on the seriousness of the offenses. In the 2002
and 2006 decisions, the Board additionally noted several prison
disciplinary infractions that had occurred in 2000.
On December 8, 2006, Hill, pro se, filed his second-amended
complaint for declaratory and mandamus relief. Hill claimed that the
parole process, as applied by the Board to him, was unconstitutional
because it violated both procedural due process and the prohibition

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against ex post facto laws. Hill sought a declaration to that effect and
a writ of mandamus ordering the Board to provide Hill with parole
hearings in accordance with the statutory and regulatory criteria in
effect when he committed the murders. The circuit court granted the
State’s motion to dismiss. The appellate court affirmed. 397 Ill. App.
3d 1090. We subsequently allowed Hill’s pro se petition for leave to
appeal (Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010)), and appointed
counsel to represent him during these proceedings.

II. ANALYSIS
Hill argues that the circuit court erred in dismissing his causes of
action. Reviewing de novo the circuit court’s dismissal (Turner v.
Memorial Medical Center, 233 Ill. 2d 494, 499 (2009)), we hold that
the circuit court did not err.

A. Due Process
Hill claims that two procedural defects in his parole hearings
deprived him of due process of law. First, Hill noted that in all but
three of its many decisions denying parole, the Board referenced Hill’s
original death sentence. Hill alleged that the Board continued to
consider his initial death sentence in determining his eligibility for
parole, although this court overturned it. See Hill, 78 Ill. 2d at 474-
76. Second, Hill alleged that the Board considered prison disciplinary
infractions that had occurred in 2000 in denying parole in 2002 and
2006. Hill alleged that these infractions were based on false
accusations made by a biased Department of Corrections official who
was himself under the influence of drugs. Hill contends that the
Board’s consideration of these two pieces of information rendered his
parole hearings fundamentally unfair.
We reject these contentions. The due process clauses of the
federal and Illinois Constitutions protect against the deprivation of
liberty or property without due process of law. U.S. Const., amend.
XIV; Ill. Const. 1970, art. I, §2. Procedural due process protections
are triggered only when a constitutionally protected liberty or property
interest is at stake, to which a person has a legitimate claim of
entitlement. Greenholtz v. Inmates of the Nebraska Penal &
Correctional Complex, 442 U.S. 1, 7 (1979) (quoting Board of

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Regents of State Colleges v. Roth, 408 U.S. 564, 570-71, 577
(1972)). “ ‘Therefore, the starting point in any procedural due process
analysis is a determination of whether one of those protectable
interests is present, for if there is not, no process is due.’ ” Wilson v.
Bishop, 82 Ill. 2d 364, 368 (1980) (quoting Polyvend, Inc. v.
Puckorius, 77 Ill. 2d 287, 293-94 (1979)).
There is no constitutional or inherent right of a convicted person
to be conditionally released from confinement prior to the expiration
of a valid sentence. The natural desire of an individual to be released
is no different from the initial resistance to being confined. However,
the conviction, with all of its procedural safeguards, has extinguished
that liberty right. A valid conviction constitutionally deprives a
criminal defendant of his or her liberty. Greenholtz, 442 U.S. at 7; see
Thompson v. Veach, 501 F.3d 832, 835-36 (7th Cir. 2007);
Heidelberg v. Illinois Prisoner Review Board, 163 F.3d 1025, 1026
(7th Cir. 1998). However, a state may create a protected liberty
interest in parole through its statutes and regulations governing the
parole decisionmaking process. See Greenholtz, 442 U.S. at 12;
Thompson, 501 F.3d at 836. A state creates this liberty interest if its
parole system requires release whenever the parole authority
determines that the necessary prerequisites exist. See Board of
Pardons v. Allen, 482 U.S. 369, 376 (1987); Heidelberg, 163 F.3d at
1026.
Before this court, Hill argues that “a person is entitled to due
process protection against ‘arbitrary action’ in parole revocation
hearings,” citing the partial dissent in Morrissey v. Brewer, 408 U.S.
471, 499 (1972) (Douglas, J., dissenting in part). However, in
Greenholtz, the United States Supreme Court distinguished Morrissey
based on the context of parole revocation, at issue in Morrissey, and
parole release, at issue in Greenholtz and the present case. “There is
a crucial distinction between being deprived of a liberty one has, as in
parole, and being denied a conditional liberty that one desires.”
Greenholtz, 442 U.S. at 9. As the United States Court of Appeals for
the Seventh Circuit explained, in a procedural due process analysis,
“the framework of Greenholtz (and our holding in Heidelberg)
distinguishes between discretionary parole systems and those that
establish legitimate claims of entitlement based on specific criteria.”
Grennier v. Frank, 453 F.3d 442, 446 (7th Cir. 2006).

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 In Illinois, this court has consistently held that parole is not a right
(Hanrahan v. Williams, 174 Ill. 2d 268, 276 (1996)), but a matter of
grace and executive clemency. People v. Hawkins, 54 Ill. 2d 247, 252
(1973); People ex rel. Jones v. Brantley, 45 Ill. 2d 335, 337-38
(1970); People ex rel. Castle v. Spivey, 10 Ill. 2d 586, 594 (1957).
The Board is an administrative agency created by the legislature.
Hanrahan, 174 Ill. 2d at 274. One of the Board’s duties is to
determine whether an eligible inmate should be granted or denied
parole. 730 ILCS 5/3–3–1(a)(1), 3–3–2(a)(1), (a)(2) (West 2006).
The legislature has set forth criteria under which the Board must deny
parole:
“(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.” 730 ILCS 5/3–3–5(c)
(West 2006).
Further, the legislature has authorized the Board to promulgate its
own rules regarding the conduct of its work and the exercise of its
discretion in making parole determinations. 730 ILCS 5/3–3–2(d),
3–3–5(h) (West 2006). According to its rules, “[t]he Board grants
parole as an exercise of grace and executive discretion as limited or
defined by *** legislation,” and the Board’s “parole release decision
is a subjective determination based on available relevant information.”
20 Ill. Adm. Code §§1610.50(a), (b). Although the rules provide lists
of factors that the Board may consider in determining to grant or deny
parole, the rules expressly provide that the parole decision is not
limited to the consideration of only the listed factors. 20 Ill. Adm.
Code §1610.50(b).
In Hanrahan, this court explained that the parole statute provides
criteria under which the Board must deny parole, and does not
provide when the Board must grant parole. Further, the rules
expressly provide that parole is granted as a matter of executive

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discretion and grace, based on available relevant information.
Hanrahan, 174 Ill. 2d at 276. This court concluded:
“We believe that Illinois’ statutory criteria and the Board’s
rules do not provide standards for release on parole
sufficiently objective to allow a court to evaluate the Board’s
decision to deny parole. We thus conclude that the legislature,
in drafting the statutory language, intended the Board to have
complete discretion in determining whether to grant parole
when the denial of parole is not mandated by statute.”
Hanrahan, 174 Ill. 2d at 276.
We now conclude that the Illinois parole statute does not create a
legitimate expectation of parole that rises to the level of a liberty
interest protected by procedural due process. See Heidelberg, 163
F.3d at 1027. Accordingly, the circuit court did not err in dismissing
this claim.

B. Ex Post Facto
Hill claims two violations of the prohibition against ex post facto
laws. Both the federal and Illinois Constitutions prohibit the General
Assembly from enacting ex post facto laws. U.S. Const., art. I, §10;
Ill. Const. 1970, art. I, §16. This court, in interpreting the ex post
facto prohibition in the Illinois Constitution, looks to the United
States Supreme Court’s interpretation of the ex post facto clause of
the United States Constitution. People ex rel. Birkett v. Konetski, 233
Ill. 2d 185, 209 (2009); Barger v. Peters, 163 Ill. 2d 357, 360 (1994).
The ex post facto clauses prohibit laws that “ ‘retroactively alter the
definition of crimes or increase the punishment for criminal acts.’ ”
California Department of Corrections v. Morales, 514 U.S. 499, 504
(1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)); see
People v. Cornelius, 213 Ill. 2d 178, 207 (2004) (citing Lynce v.
Mathis, 519 U.S. 433, 439-41 (1997)). Retroactive changes in laws
governing parole may, in some circumstances, violate the ex post facto
prohibition. Garner v. Jones, 529 U.S. 244, 250 (2000).

1. Changed Discretionary Standard
In the present case, Hill contends that, after he committed the
murders, the Board changed its interpretation of the “seriousness of

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the offense” criterion (see 730 ILCS 5/3–3–5(c)(2) (West 2006)) to
require murderers to serve more prison time before granting them
parole. Hill argues that the Board’s retroactive change to this standard
for granting parole constitutes a violation of the ex post facto
prohibition. We disagree.
Although we earlier explained that the Board is vested with
complete discretion in granting parole, this does not end our analysis.
The United States Supreme Court has cautioned: “The presence of
discretion does not displace the protections of the Ex Post Facto
Clause, however. [Citation.] The danger that legislatures might
disfavor certain persons after the fact is present even in the parole
context, and the Court has stated that the Ex Post Facto Clause
guards against such abuse.” Garner, 529 U.S. at 253; see Fletcher v.
Williams, 179 Ill. 2d 225, 229-30 (1997). Hill relies on Ganci v.
Washington, 318 Ill. App. 3d 1174 (2001), in which the plaintiff made
the same claim of ex post facto parole standards as does Hill, and
whose complaint was likewise dismissed for failure to state a cause of
action. However, citing the above-quoted caution from Garner (id. at
1186), the appellate court reversed the dismissal and remanded the
cause for discovery on the claim. Id. at 1185-88.
Despite the Court’s cautionary note in Garner, that case
nevertheless involved an amended parole board rule. Garner, 529
U.S. at 247. In the present case, however, Hill failed to allege that the
Board based its latest denial of parole on a new or amended statute or
rule. Rather, he alleged only that the Board is exercising its discretion
more stringently. In Grennier, the Seventh Circuit Court of Appeals
recognized this crucial distinction in a case involving a Wisconsin
inmate who made nearly the same ex post facto argument as Hill. The
court rejected the inmate’s argument as follows:
“Defendants allow that Wisconsin has become less willing
to release persons convicted of serious offenses and now
demands assurance that interests in deterrence, desert, and
public safety have been satisfied before a murderer will be let
free. Neither the ex post facto clause nor the due process
clause has anything to say about how discretion will be
exercised under an open-ended system, however. [Citation.]
Grennier has no more entitlement to a liberal release policy
than he would have had to be sentenced by a judge who

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 favored home confinement over prison. The constitutional
interest is in the rules and statutes–the ‘laws’ to which it
refers–rather than the attitudes of public officials who
administer a discretionary system.” Grennier, 453 F.3d at 445.
Although Grennier is not binding on this court (see City of Chicago
v. Groffman, 68 Ill. 2d 112, 118 (1977)), we believe that the Seventh
Circuit’s analysis is more faithful to the Supreme Court’s holding in
Garner than our appellate court’s analysis in Ganci. As the Court in
Garner recognized:
“[W]here parole is concerned discretion, by its very definition,
is subject to changes in the manner in which it is informed and
then exercised. The idea of discretion is that it has the
capacity, and the obligation, to change and adapt based on
experience. New insights into the accuracy of predictions
about the offense and the risk of recidivism consequent upon
the offender’s release, along with a complex of other factors,
will inform parole decisions.” Garner, 529 U.S. at 253.
We agree and therefore overrule Ganci.
Hill does not allege a retroactive change in a parole statute or rule,
but rather only a change in how the Board exercises its discretion.
This does not violate the prohibition against ex post facto laws.
Accordingly, this claim does not state a cause of action.

2. Reduced Frequency of Parole Hearings
Hill’s second alleged violation of the ex post facto clauses of the
federal and Illinois Constitutions does involve a “law.” Specifically,
Hill notes that at the time he committed the murders section 3–3–5(f)
of the Unified Code of Corrections entitled him to annual parole
hearings. Hill maintains that amendments to the statute over the years
retroactively applied to him and that these retroactive laws imposed
upon him a more onerous punishment than was in place when he
committed the murders in 1974 and 1975. We disagree.
Section 3–3–5 of the Unified Code of Corrections provides for the
hearing and evaluation of prisoners under consideration for parole.
Subsection (f) governs the frequency with which parole hearings must
be granted. 730 ILCS 5/3–3–5(f) (West 2006). At the time Hill
committed the murders, the statute provided in pertinent part that “if

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[the Board] denies parole it shall provide for a rehearing not more
than 12 months from the date of denial.” Ill. Rev. Stat. 1973, ch. 38,
par. 1003–3–5(f). Section 3–3–5(f) was amended several times, in
1981, 1983, and 1988.1 The provision has provided since 1996 in
relevant part:
“[I]f [the Board] denies parole it shall provide for a rehearing
not less frequently than once every year, except that the Board
may, after denying parole, schedule a rehearing no later than
3 years from the date of the parole denial, if the Board finds
that it is not reasonable to expect that parole would be granted
at a hearing prior to the scheduled rehearing date.” 730 ILCS
5/3–3–5(f) (West 2006).
Hill argues that the amendments cannot constitutionally apply to him
and that he is entitled to the annual parole hearings from the statute in
effect at the time he committed the murders.
Hill is not the first inmate to so argue. This court, in People v.

1
In 1981, the provision read in pertinent part:
“In its decision, the Board shall set the person’s time for parole, or
if it denies parole it shall provide for a rehearing not more than 12
months from the date of denial, however, the Board, on its own
motion, may provide for a rehearing for an individual more
frequently than once every 12 months or less frequently than once
every 12 months but no less frequently than once every 3 years.” Ill.
Rev. Stat. 1981, ch. 38, par. 1003–3–5(f).
In 1983, the section provided in pertinent part: “[I]f [the Board] denies parole
it shall provide for a rehearing not less frequently than once every 3 years.”
Ill. Rev. Stat. 1983, ch. 38, par. 1003–3–5(f). By 1988, the provision
provided in pertinent part:
“[I]f [the Board] denies parole it shall provide for a rehearing not
less frequently than once every 3 years. The Board may, after
denying parole to a person originally sentenced or who became
eligible for parole between January 1, 1973 and September 30,
1977, schedule a rehearing no later than 3 years from the date of the
parole denial, if the Board finds that it is not reasonable to expect
that parole would be granted at a hearing prior to the scheduled
rehearing date.” Ill. Rev. Stat. 1989, ch. 38, par. 1003–3–5(f).

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Fletcher, 179 Ill. 2d 225 (1997), addressed a virtually identical
argument concerning the effect of these amendments on parole
hearings. In Fletcher, the plaintiffs contended that section 3–3–5(f)
violated the ex post facto clauses because at the time they committed
their various crimes, the section provided for annual parole hearings,
but was subsequently amended to permit the Board to schedule parole
hearings up to three years apart. We rejected this contention, relying
on the United States Supreme Court’s decision in Morales. We
explained that under Morales:
“[A] statute that decreases the frequency of parole hearings
will violate the ex post facto prohibition only when ‘it
produces a sufficient risk of increasing the measure of
punishment attached to the covered crimes.’ This inquiry
cannot be embraced within a formula or stated in a general
proposition, but rather is a matter of degree. However, where
the legislative adjustment creates only a ‘speculative and
attenuated possibility’ of increasing punishment, it cannot be
considered ex post facto. Morales, 514 U.S. at 509, 131 L.
Ed. 2d at 596, 115 S. Ct. at 1602.” Fletcher, 179 Ill. 2d at
234-35.
We therefore concluded that, under Morales, the relevant inquiry is
whether the section produced a sufficient risk of increasing the
measure of punishment. Fletcher, 179 Ill. 2d at 236 (citing Morales,
514 U.S. at 509).
In holding that section 3–3–5(f) did not produce a sufficient risk
of increasing the measure of punishment, we identified several
characteristics of the section that ameliorate against an increase of
punishment. First, the statute itself is tailored to the determination of
the likelihood that a prisoner would be released sooner than an
extended parole hearing date. Second, the Board retains the authority
to tailor the frequency of subsequent parole hearings to the particular
circumstances of the individual prisoner. Third, the prisoner may seek
a parole hearing at anytime based on new facts or extraordinary
circumstances. Fletcher, 179 Ill. 2d at 237-38 (citing Morales, 514
U.S. at 511-13). We therefore concluded that amended section
3–3–5(f) of the Unified Code of Corrections is not an ex post facto
law.
Notwithstanding the above, Hill contends that in Garner, which

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postdates Fletcher, the Court “called the breadth of Morales into
question.” Hill cites to a passage in Garner where the Court explains
that when an amended statute or rule does not facially show a
significant risk of increased punishment, a prisoner “must
demonstrate, by evidence drawn from the rule’s practical
implementation by the agency charged with exercising discretion, that
its retroactive application will result in a longer period of incarceration
than under the earlier rule.” Garner, 529 U.S. at 255. Based on this
language, Hill contends that an ex post facto claim always requires a
“fact intensive review” and the admission of evidence. Thus,
according to Hill, when this court in Fletcher determined whether
section 3–3–5(f) created a significant risk of increased punishment, the
court should have considered evidence regarding how the Board
actually interpreted the statute. Hill invites us to reconsider Fletcher
in light of Garner.
We decline Hill’s invitation because Garner does not change the
reasoning or result in Fletcher. We earlier recited the statutory
evolution of section 3–3–5(f) from the time Hill committed the
murders to the present day. The Court in Garner noted its observation
in Morales that “the Ex Post Facto Clause should not be employed for
‘the micromanagement of an endless array of legislative adjustments
to parole and sentencing procedures.’ [Morales, 514 U.S. at 508.]
These remain important concerns. The States must have due flexibility
in formulating parole procedures and addressing problems associated
with confinement and release.” Garner, 529 U.S. at 252. The
amendments to section 3–3–5(f) represent the legislature’s best
efforts, in the exercise of its discretion, to fulfill its obligation to
change and adapt parole laws based on experience. See id. at 253.
Further, Hill overstates the Court’s holding in Garner, which does
not require a “fact intensive review” in every ex post facto claim.
Indeed, the passage from Garner, upon which Hill relies, ends with
the observation that “the general operation of the Georgia parole
system may produce relevant evidence and inform further analysis on
the point.” Garner, 529 U.S. at 255. Garner involved that parole
board’s nonbinding policy statement as to how it would enforce a rule.
The lower court in that case failed to consider the effect thereof in its
analysis. Id. at 256-57. “Finding that the record was insufficient to
show whether the change in parole law would lengthen the inmate’s

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actual time in prison, the Court remanded the case for a determination
of fact as to whether the new rule created a significant risk of
increased punishment. Id. at 256, 120 S. Ct. 1362.” Glascoe v. Bezy,
421 F.3d 543, 547 (7th Cir. 2005) (explaining Garner).
In the present case, unlike in Garner, there is no question that
section 3–3–5(f) on its face, or in its operation pursuant to its binding
regulation (see 20 Ill. Adm. Code §1610.100(a)(2)), does not create
a significant risk of increasing Hill’s incarceration. Fletcher correctly
concluded, as a matter of law, that section 3–3–5(f) of the Unified
Code of Corrections does not violate the ex post facto clauses of the
federal and Illinois Constitutions. Fletcher remains consistent with
federal law. Accordingly, the circuit court’s dismissal of Hill’s ex post
facto claims was not erroneous.

III. CONCLUSION
For the foregoing reasons, the judgment of the appellate court is
affirmed.

Affirmed.

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