On June 26, 1946, Chicago police caught a seventeen-year-old University of Chicago student prowling an apartment building on the North Side, and in the struggle an officer broke three flower pots over his head. William Heirens went to the hospital unconscious and stayed there five days. The Illinois Supreme Court’s account of what followed, written in 1954, is blunt. Police and an assistant state’s attorney questioned him in his hospital bed, all night on the second night; on the third day the state’s attorney had a psychiatrist inject him with sodium pentothal, without his consent or his parents’, and question him about the kidnapping and murder of six-year-old Suzanne Degnan, taken from her home on January 7, 1946, and dismembered. Under the drug he talked about burglaries, the Degnan killing and other crimes, and blamed them on someone named George who, when he was asked to describe him, turned out to be himself. The next day he was given a polygraph without his consent. By the end of July his own lawyers and his parents had agreed with the prosecution that he would plead guilty, confess fully and be examined by psychiatrists, in exchange for a recommendation of concurrent life terms. On August 6 he confessed to the murders of Suzanne Degnan, Frances Brown and Josephine Ross and walked investigators through the scenes. On September 4 he pleaded guilty to three murders and twenty-six other charges, and the judge sentenced him to three consecutive life terms.
These five opinions are what came of his argument that none of it was voluntary. In 1954 the Illinois Supreme Court called the search of his room, the questioning in the hospital, the pentothal and the polygraph “flagrant violations of his rights,” and then held that they did not matter, because his pleas came from his lawyers’ advice and the strength of the case rather than from the police. The court went further. It conceded that the psychiatrists’ opinions and his words under the drug might well have supported a finding that he was not legally responsible, and ruled that a lawyer’s decision not to raise insanity was not a denial of due process. The prosecutor’s own words at sentencing are quoted: without the defense’s help “we would to this day have no answer for the death of Josephine Ross.” After a detour through the federal courts over his right to a lawyer, the state court turned him down again in 1967, and in 1968 the Seventh Circuit affirmed the denial of federal relief over a dissent by Judge Luther Swygert, who wrote that the case showed a prosecutor and defense counsel “buckling under the pressure of a hysterical and sensation-seeking press.”
The last opinion is about parole, not guilt. In April 1983 a federal magistrate, Gerald Cohn, ordered Heirens released, finding that the Prisoner Review Board had kept him in on a deterrence criterion the Seventh Circuit had held could not be applied to crimes committed before 1973, and that the record showed the board had long regarded him as rehabilitated. In February 1984 the Seventh Circuit reversed, overruling its own earlier decision on the criterion, and he stayed in prison. Heirens was found unresponsive in his cell at the Dixon Correctional Center and died at the University of Illinois Medical Center in Chicago on March 5, 2012, aged eighty-three, after more than sixty-five years in custody, still saying he had confessed only to escape the electric chair.
Five opinions in date order: the Illinois Supreme Court in 1954 and 1967 and the Seventh Circuit in 1967, 1968 and 1984, printed in full from the Harvard Law School Library’s digitization of the official reports and free of any copyright. None of them tries the question most readers bring to this case, which is whether Heirens killed anyone. He never had a trial. Every court here was asking something narrower: whether a plea entered in 1946 was voluntary, whether his lawyers served him, whether the judge should have ordered a sanity hearing, whether consecutive sentences were lawful, and in the end what a parole board must say when it refuses release. The facts they recite come from the hearing in 1952 and the record of 1946, and the confession they describe is the one he spent the rest of his life repudiating.
The famous lipstick message appears only once in these pages, and not where a reader might expect. It is quoted in the 1968 dissent from the psychiatrists’ 1946 report, as something Heirens had written on the wall of one victim’s apartment, “For Heaven’s sake catch me before I kill more. I cannot control myself.” The opinions do not say which apartment, and they do not describe the handwriting or fingerprint evidence beyond the Degnan ransom note, which police matched to his prints and his printing. His later lawyers disputed both matches, and nothing here resolves that dispute. The 1954 court records that the prosecution recommended concurrent life terms and the judge imposed consecutive ones, and the 1967 court rejected his challenge to that.
Most of this text was typeset, but the oldest opinion is a scan of a 1954 volume and it shows. The author of the 1954 opinion, Justice Walter Klingbiel, is printed as “Klingbiee,” one of Heirens’s own counsel as “Arthur Fran-i<EL,” and the defendant himself as “Hierens” in three places and “William Pleirens” in the prosecutor’s quoted remarks. The 1984 opinion has a string of asterisks where the reporter marked an omission. We have left all of it as scanned. Five words broken across lines, among them Degnan and Heirens, have been closed up where the opinions spell them whole elsewhere. No private person appears here who needed protecting; the names are those of the three women and the child who died, the lawyers, the doctors and the officials.
(No. 33165.
The People of the State of Illinois, Defendant in Error, vs. William Heirens, Plaintiff in Error.
Opinion filed. Sept. 23, 1954
Rehearing denied November 15, 1954.
Herbert M. Wetzel, of Chicago, (Arthur Fran-i<EL, Walter S. Kureic, and Edward Stasukaitis, of counsel,) for plaintiff in error.
Latham Castle, Attorney General, of Springfield, John Guticnecht, State’s Attorney, of Chicago, John L. Davidson, Jr., William C. Wines, and Fred G. Leach, (John T. Gallagher, Rudolph L. Janega, Arthur F. Manning, and Elmer C. Kissane, all of Chicago, of counsel,) for the People.
Calvin Sawyier and Arthur R. Seder, Jr., both of Chicago, amici curiae.
[OPINION BY Mr. Justice Klingbiee type=majority]
Mr. Justice Klingbiee
delivered the opinion of the court:
On September 4, 1946, William Heirens pleaded guilty, in the criminal court of Cook County, to three murder indictments and twenty-six additional indictments charging various burglaries, robberies and assaults. After pronouncing judgments of guilty the court sentenced Heirens to the penitentiary for life on each of the murder indictments, the sentences to run consecutively, and imposed the statutory sentences on the other indictments, the latter to run concurrently with each other but consecutively to the sentences on the murder indictments. On July 8, 1952, Heirens filed a petition under the Post-Conviction Hearing Act, (Ill. Rev. Stat. 1953, chap. 38, par. 826 et seq.,) setting forth a number of respects in which he alleged his constitutional rights had been violated. The State filed an answer and a hearing was had, after which judgment was entered denying the petition. Hierens seeks review by this court on writ of error. We have appointed as amici curiae Calvin Sawyier and Arthur R. Seder, Jr., who have filed briefs on behalf of petitioner.
It is contended that, police unlawfully searched petitioner’s living quarters and seized property found there; that he was subjected to unduly prolonged and continuous questioning by law enforcement authorities; that he was injected with sodium pentothal at their direction and against his consent, to obtain admissions and confessions from him; that he was compelled to submit to a lie-detector test; that adverse newspaper publicity would have prevented him from receiving a fair and impartial trial; that he was subjected to insistent urgings of counsel and parents to plead guilty; that his attorneys, instead of giving him their undivided allegiance, mistakenly conceived it their duty to avoid any action which might result in his return to society; and that the pleas of guilty were not the result of his free and voluntary choice but were induced or compelled by the illegally obtained evidence, his disclosures while under the influence of drugs, the improbability of a fair trial in view of the newspaper publicity, and the pressure exerted by parents and counsel.
The major portions of the briefs in this court, however, are devoted to argument on questions which were not before the criminal court in the post-conviction hearing. Thus petitioner’s counsel of record contend that failure to appoint a guardian ad litem for petitioner, who was a minor when the judgments were entered against him, deprived him of a constitutional right; and the amici curiae contend that failure to hold a hearing on the matter of petitioner’s sanity at the time of the commission of the crimes of itself deprived him of a constitutional right. Neither of such issues was presented to or decided by the trial court in these proceedings, and while the respondent here has seen fit to argue them on the merits we nevertheless cannot undertake to pass upon them. The function of this court in cases of this kind is to review the decision and rulings of the lower court. Where the contention that constitutional rights were denied is based on grounds not raised or passed upon in that court we will not consider them. See People v. Niemoth, 409 Ill. 111, 119; People v. Dale, 406 Ill. 238, 243; People v. Holt, 398 Ill. 606, 614-615; Ill. Rev. Stat. 1953, chap. 38, par. 828.
A determination of the questions properly before this court requires consideration of the evidence in some detail. The record discloses that on June 26, 1946, the petitioner, a seventeen-year-old University of Chicago student, was captured by Chicago police officers while prowling in an apartment house on the north side of the city. In the course of a struggle with the officers one of them broke three flower pots over petitioner’s head, inflicting severe injuries. He was taken unconscious to a hospital, where he remained as a bed patient for five days. On the day of his arrest police searched his living quarters at the university, and recovered a number of articles later identified as having been stolen. During the following two days petitioner was intermittently questioned in the hospital by police and an assistant State’s Attorney, and was subjected to questioning all night of the second day. Petitioner failed to respond coherently, but stared with a vacant expression and behaved in an irrational manner throughout the interrogation.
On the third day the State’s Attorney directed a specialist in psychiatry to administer sodium pentothal to petitioner, in order, it is said, to ascertain whether he was malingering. No permission was obtained from petitioner or his parents. Petitioner was injected with sodium pentothal, a so-called “truth serum,” which produces a mental state of semi-consciousness wherein the individual is unable to critically survey his responses to questions, or to associate, select and inhibit his remarks. While petitioner was under the influence of this drug, he was questioned about his life and development, and his past and recent experiences. He was asked about specific crimes, particularly the murder of Suzanne Degnan on January 7, 1946. He readily spoke about burglaries, the Degnan murder and other crimes, for which he was subsequently convicted, but attributed them to someone named “George,” a person of bad influence who forced Hierens to search out places for him to burglarize. According to Hierens’s disclosures while under the influence of the sodium pentothal, “George” was responsible for everything, and Heirens had constantly been trying to prevent him from committing the acts. When Heirens was asked to describe the man he called “George,” he described himself exactly. Throughout the examination the State’s Attorney, the first assistant State’s Attorney, the police commissioner, and a stenographer were present behind screens which had been placed about the bed. The stenographer took notes during the questioning. After petitioner regained an awareness of his surroundings he sat up in bed and asked: “What did I say? What did I say?” to which the first assistant State’s Attorney replied: “Why you said all the things that I think we have to know.” The examining doctor testified in the present proceedings that “the major factor in the productions which developed under pentothal were not those of a malingerer but those of a mentally sick boy;” that he informed the State’s Attorney that petitioner was a disassociated psychotic schizophrenic; and that such affliction is “a mental disease characterized by a splitting of personality, in which very frequently one aspect of the personality may not be aware of the other, and may not be in communication with the other.”
After the sodium pentothal interview, questioning by police officers was resumed and continued all night. On June 30, the following day, petitioner was taken to the detective bureau where the police, without obtaining his consent, gave him a polygraph or lie-detector examination. Heirens did not answer .the questions but merely repeated each one as it was asked. About 6 :3o o’clock that evening, however, he summoned the police captain to the hospital, and said he was going to tell everything. The State’s Attorney and his assistant were then called, and Heirens proceeded to give a statement in which he admitted knowledge of the Degnan murder and other crimes but ascribed them to a “George Merman,” whom he described as a friend who was always doing the wrong thing and would never listen to him. At the conclusion of this statement he was asked to print out the text of a ransom note involved in the Degnan murder, and he did so, making four copies. On the next day he was told that a handwriting expert found it was his ■■ own handwriting on the ransom note, and that in addition the ransom note misspelled two words and Heirens misspelled the same words.
On July 1 Heirens was brought into court on a petition for habeas corpus filed on his behalf by attorneys engaged by his parents. Shortly thereafter he was formally charged with a number of burglaries, and some weeks later the murder indictments were presented. One of his attorneys conferred with the prosecuting attorney, who disclosed information tending to connect petitioner with the three murders as well as the burglary charges, and subsequently reviewed with petitioner the evidence against him. Petitioner’s attorney informed him and his parents that several of the burglary charges could probably be successfully prosecuted; that in view of the publicity the case had received it was doubtful that a jury could be obtained which had not read about it; that it was reasonably certain severe and consecutive sentences would be imposed if the cases were tried on not guilty pleas, with the result that the rest of his life would be spent in the penitentiary; and that even though the possibility of a death penalty for the murders was remote it would be foolish to take the chance. Petitioner had told his attorneys as well as his parents that he committed the murders.
The attorney had conferred with a psychiatrist about the symptoms of mental derangement which Heirens had related to him, and was advised by the psychiatrist that although they showed an abnormality they did not render Heirens unable to distinguish between right and wrong. Several conferences were had between Heirens and his attorney concerning his mental condition and a possible defense of insanity. The attorney concluded there was no available proof that Heirens did not know the difference between right and wrong.
Petitioner’s parents and attorneys agreed that the best course to take was to discuss a plea of guilty with the prosecution. The attorney accordingly met with the prosecutors, and an arrangement was reached whereby petitioner would plead guilty to the offenses with which he was charged, make a complete confession of the murders, and submit to a psychiatric examination to determine whether he was of sufficient mental soundness to make a plea. In return the prosecutors were to recommend' concurrent sentences of life imprisonment. On July 26 a conference was held in the county jail between petitioner, his parents and his attorneys, a-t which he and his parents signed an instrument directing the attorneys to proceed on the agreed terms. In addition petitioner then signed a written confession prepared by one of his attorneys from notes made during conversations of the preceding week. In the confession Heirens described the urge he would experience, at irregular intervals over the course of many years, to break into and enter other people’s dwellings, the sexual manifestations which would accompany the urge; the sexual satisfaction derived in committing a burglary, and the headache or dizziness which usually preceded or accompanied the acts. The confession then proceeded to relate in some detail the murders of Suzanne Degnan, Frances Brown, and Josephine Ross, all committed in the course of burglaries.
On July 30, for the purpose of obtaining his confessions, Heirens was brought to the State’s Attorney’s office, where a large number of police officials, newspaper reporters and photographers were present. When he was questioned about the crimes, however, Heirens stated he did not remember. His counsel then took him into an adjoining room where Heirens repeated that he did not remember and remarked that he was upset. His parents were called. His attorneys questioned him as to why he did not make the confession, advised him to accept the proposition of the State’s Attorney, and talked to him about the newspaper publicity. He was later informed by his attorneys that he should tell them whether he wanted them to continue representing him; that they had expected him to make a confession in the State’s Attorney’s office on July 30, and did not like to be taken by surprise; and that it appeared likely he would get the electric chair. Petitioner observed that he had no desire to take the chance of being electrocuted, and that he would make a statement. In the meantime the State’s Attorney had reconsidered, and insisted that the sentences to be recommended for the murders would now be consecutive, instead of concúrrent as theretofore proposed, or else the cases could be tried on not guilty pleas. When informed of this, petitioner observed that if there was nothing else to do he would accept the terms and make the confession.
On August 6, Heirens was taken to the State’s Attorneys office for the second time where he gave lengthy statements concerning the three murders, and late that afternoon he was taken to the localities of the crimes, where he “re-enacted” them. He was thereafter examined by three qualified psychiatrists, pursuant to an order of court, and a comprehensive report was made finding that Heirens “is not suffering from any psychosis, nor is he mentally retarded; he has average intelligence. He has a deep sexual perversion and is emotionally insensitive and unstable. * * * He is unstable, and hysterically unpredictable, and most of his actions can be swayed from time to time by the suggestions coming from his environment.”
On September 4 petitioner was arraigned and pleaded guilty to the indictments after being warned of the consequences. A hearing was then held as to aggravation and mitigation, at which the prosecution introduced into evidence petitioner’s confessions of August 6, transcribed statements of the reenactments of the murders, the psychiatrists’ report, the testimony of some eighteen witnesses, and stipulations concerning a number of the burglaries with which petitioner was charged. Petitioner’s counsel offered no evidence in mitigation. The court thereupon entered judgments of guilty on petitioner’s pleas.
Prior to the pronouncement of sentence the prosecutor and the principal defense attorney addressed the court. The State’s Attorney in his remarks acknowledged the “co-operative assistance” of defense counsel and observed: “The small likelihood of a successful murder prosecution of William Pleirens early prompted the State’s Attorney’s office to seek out and obtain the co-operative help of defense counsel and, through them, that of their client. * * * Without the aid of the defense we would to this day have no answer for the death of Josephine Ross. Without their aid, to this day a great and sincere public doubt might remain as to the guilt of William Heirens in the killing of Suzanne Degnan and Frances Brown.” Petitioner’s attorney then proceeded to state to the court the reasons which impelled him and his cocounsel to adopt the course they followed. He remarked in part: “I have no memory of any case, certainly not in my time at the bar, when counsel on both sides were so perplexed as to the mental status of an individual and the causes which motivated him to do certain acts. In those cases we both sought psychiatrists in the hope that they might aid us. I must confess that at this time there exists in my mind many doubts as to this defendant’s mental capacity for crime; and I believe doubt must exist in our minds as to just what the relation of cause and effect was, and how he could, in a manner so devoid of feeling, do the acts here charged and upon which the plea has been guilty. On acquiring knowledge, your "Honor, of the facts we were further notified at a láter date of his mental condition. We were collectively agreed that any thought on the part of the State to cause this man to forfeit his life would be unjust. It would be unfair. By the same token we were collectively agreed that any course on our part which would assist in having him returned to society would be equally unfair.”
No contention is made that petitioner was in fact insane at the time the pleas were made, or that he failed to understand the nature and object of the proceedings against him. Nor is it disputed that, in form at least, the usual constitutional safeguards were observed. Petitioner was represented by counsel of recognized ability and experience, and he was advised by the court of his right to trial by jury, he was admonished as to the possible consequences of his pleas. It is insisted, however, that beneath the surface of formal regularity, the combination of circumstances to-which petitioner was subjected in effect deprived him of any substantial choice in the matter; and that his attorneys, through a mistaken conception of public duty, failed to take advantage of the defense of insanity, but advised pleas of guilty in order to avoid any chance of petitioner returning to society.
Of course the search of petitioner’s living quarters, the incessant and prolonged questioning of petitioner while he was confined to a hospital bed, and the unauthorized use of sodium pentothal and a lie detector, were flagrant violations of his rights. Such conduct on the part of law enforcement officials deserves the severest condemnation, especially in view of petitioner’s age and emotional instability, and any conviction obtained as a result of such practices would violate constitutional guaranties of due process of law. If either a confession or a plea of guilty is caused by illegal and coercive conduct on the part of law-enforcement officials, the conviction cannot stand. (Waley v. Johnston, 316 U.S. 101.) But the issue here is whether the pleas are attributable to the conduct in question. If it is reasonably found that there is no relationship of cause and effect, the fact that illegal acts were committed in order to extract information or confessions from the accused does not warrant setting aside the conviction. (See Lisenba v. California, 314 U.S. 219.) In the case at bar the finding that the pleas were not the product of any illegal conduct of law-enforcement officials is amply supported by the evidence. The pleas of guilty were not made until more than a month after the occurrence of the acts complained of; and petitioner must be deemed to be aware, through his counsel, that any evidence obtained by unlawful methods could not have been used against him. It is clear that the antecedent conduct of police and State’s Attorney, however much it is to be condemned, had no substantial connection with the pleas of guilty.
It is also contended that the petitioner pleaded guilty because public hostility created by newspaper publicity made it impossible for him to have an impartial trial. Acceptance of the plea under these circumstances is said to be a denial of due process. It is true that newspaper publicity may result in conditions under which a fair trial becomes improbable and that where such conditions are present, a trial held in the locality over objections of the accused may violate due process. (See concurring opinion of Mr. Justice Jackson in Shepherd v. Florida, 341 U.S. 50.) Unwarranted publicity does not, however, necessarily render unconstitutional a conviction based upon an otherwise voluntary plea of guilty. Here no attempt was made to secure a change of venue or to defer the trial. Instead, the petitioner entered a plea of guilty. The record shows numerous circumstances which would normally lead to a voluntary plea of guilty, prominent among them being the many circumstances indicative of guilt and petitioner’s expressed desire to escape the death penalty. Upon this record we are not warranted in differing with the conclusion reached by the trial court that the plea of guilty was not induced by adverse newspaper publicity.
It is maintained on behalf of petitioner that his counsel at the time of his conviction failed to give him their undivided allegiance; that although they were of undisputed competence and integrity they improperly assumed a public responsibility and acted in part from a desire to protect society from petitioner; that petitioner had a good defense of insanity, but his attorneys, from mistaken motives of public duty, prevailed upon him to plead guilty instead of relying upon said defense; and that petitioner was thereby denied due process of law. The evidence shows that petitioner had four attorneys, selected by his parents and himself; that they were capable and of high integrity; and that they unstintingly devoted time and attention to the case, and conferred frequently with petitioner. It is not contended that they misrepresented the law to petitioner, misinformed him as to his rights, or failed to give him sufficient legal advice. The complaint is merely that their recommendation to plead guilty was made from motives of public duty as well as those of duty to their client, whereas their actions should have been governed only by the latter. Although petitioner was young, emotionally unstable and unusually susceptible to suggestions, he was of normal intelligence and able to make his own decisions. To recognize the responsibility of such a person for his own decisions is not to withhold due process. As a general rule, an accused person who retains counsel of his own selection is responsible if that counsel does not faithfully serve his interest; and he cannot contend, on a post-conviction hearing, that he was denied due process of law because his counsel was incompetent or negligent. (Mitchell v. People, 411 Ill. 407.) Where attorneys frequently consult with the accused, and fully explain his rights and the effect of a plea of guilty, the fact that they advised him to plead guilty does not show inadequacy of representation. People v. Seger, 405 Ill. 222.
It may be conceded that the circumstances under which the crimes were committed, the opinions of examining psychiatrists, the involuntary disclosures of petitioner while under the influence of sodium pentothal, and other matters in evidence, indicate the presence of an abnormality rendering him unable to control his conduct, and might well have justified a finding that he was not legally responsible for the acts at the time they were committed. But the mere fact that counsel failed to advise their client to defend on such grounds does not amount to a denial of due process. Insanity is a defense to be asserted at the trial as any other defense; and the decision not to advise such a defense, even if it were a mistake, does not of itself show that the defendant was inadequately represented. Mistakes of counsel will not amount to a denial of due process unless on the whole the representation is of such low caliber as to be equivalent to no representation at all, and to reduce the proceedings to a farce or a sham. (See People v. Reeves, 412 Ill. 555, 562-563.) The finding of the criminal court against petitioner on this issue is adequately supported by the evidence.
We have thoroughly examined the record and find no error therein. The judgment of the criminal court of Cook County will be affirmed. r,,,
, Judgment affirmed.
UNITED STATES of America ex rel. William HEIRENS, Petitioner-Appellant, v. Frank J. PATE, Warden, Illinois State Penitentiary, Respondent-Appellee.
No. 15797.
United States Court of Appeals Seventh Circuit.
April 11, 1967.
Calvin P. Sawyier, Chicago, Ill., for appellant.
William G. Clark, Atty. Gen., Phillip J. Rock, Asst. Atty. Gen., Chicago, Ill., for appellee, Richard A. Michael, Asst. Atty. Gen., of counsel.
Before HASTINGS, Chief Judge, and SWYGERT and CUMMINGS, Circuit Judges.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
This case arises on appeal from the District Court’s denial of a petition filed under the Habeas Corpus Act (28 U.S.C. § 2241 et seq.). Subsequent to the denial of habeas corpus relief, Milani v. State of Illinois, 386 U.S. 12, 87 S.Ct. 874, 17 L.Ed.2d 702, was decided by the Supreme Court of the United States. Under that decision, petitioner was entitled to counsel in his writ of error proceedings in the Supreme Court of Illinois (People v. Heirens, No. 3552, decided May 21, 1964), but he was not afforded counsel there. Therefore, those proceedings were invalid. We agree with the Illinois Attorney General that under the Milani decision, petitioner is now entitled to a full and early hearing in the Illinois Supreme Court aided by appointed counsel.
Although recognizing the seriousness of petitioner’s charges, we are reluctant to pass on their merits without giving the Supreme Court of Illinois the first opportunity to determine whether petitioner was denied due process and a fair trial in the state court proceedings (Blair v. People of State of California, 340 F.2d 741, 745 (9th Cir. 1965); Montez v. Eyman, 372 F.2d 100, 103 (9th Cir. 1967)) in the light of criminal law developments since his 1946 conviction on three guilty pleas. See, e.g., Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549; Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Rideau v. State of Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L.Ed.2d 663; Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690; Giles v. State of Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737.
So that the Supreme Court of Illinois may expeditiously take a fresh look at the substantial contentions raised by this habeas corpus petition, and in the interests of comity (Giles v. State of Maryland, 386 U.S. 66, 81-82, 87 S.Ct. 793, 17 L.Ed.2d 737), the proceedings before us will be held in abeyance for a reasonable period of time in order to afford the petitioner the opportunity to pursue his remedies before that tribunal.
We are appreciative of the exemplary services of Calvin P. Sawyier of the Illinois Bar who served as eourt-appoint-ed counsel for petitioner here and in the District Court.
(No. 40628.
The People of the State of Illinois, Respondent, vs. William Heirens, Petitioner.
Opinion filed Sept. 29, 1967.
Rehearing denied Nov. 27, 1967.
Ward, J., took no part.
Calvin Sawier, of Chicago, appointed by the court, for petitioner.
William G. Clark, Attorney General, of Springfield, (Richard A. Michael and Philip J. Rock, Assistant Attorneys General, of counsel,) for the People.
[OPINION BY Mr. Justice Schaefer “Per Curiam. type=majority]
Mr. Justice Schaefer
delivered the opinion of the court:
This is the third time that this court has considered this case. What has gone before must be stated, to explain how it happens that the case is before this court again, and why we dispose of it as we do.
On September 4, 1946, William Heirens, hereafter defendant, who was represented by retained counsel, pleaded guilty to three charges of murder and to 26 additional charges of burglaries, robberies and assaults. He was sentenced to the penitentiary for life on each of the murder indictments, the sentences to run consecutively. Statutory sentences were imposed on the other indictments, which ran concurrently with each other, but consecutively to the sentences on the charges of murder. On July 8, 1952, the defendant filed a petition seeking relief under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1951, chap. 38, pars. 826-832.) A hearing was had, and judgment was entered denying the relief sought. On writ of error (No. 33165) to review that judgment, this court appointed Calvin Sawyier and Arthur R. Seder as amici curiae, in addition to the attorney who appeared for the defendant, and directed them to file a brief on behalf of the defendant. In September of 1954, this court affirmed the judgment. (4 Ill.2d 131.) The Supreme Court of the United States denied certiorari. 349 U.S. 947, 99 L. Ed. 1273.
In November of 1963, the defendant filed a petition for a writ of error under our Rule 65 — 1 (Ill. Rev. Stat. 1963, chap. 110, par. 101.65 — 1), which provided for delayed discretionary review in certain cases. (See People v. Griffin, 9 Ill.2d 164; People v. Johnson, 15 Ill.2d 244, cert. denied 359 U.S. 930, 949.) In that petition (No. 3552) the defendant asserted (1) that the trial court erred in failing to hold an inquiry into his sanity at the time the crimes were committed; (2) that the trial court erred in imposing consecutive sentences; (3) that the trial climate and circumstances were not such as are required before a judgment of conviction can validly be entered; and (4) that the trial court erred by failing to preserve a complete record of the proceedings at the time of his convictions. The defendant’s request that counsel be appointed to represent him in this court upon his petition for a writ of error was denied.
In May of 1964, the petition for a writ of error was denied in a memorandum order which held that the defendant’s first and third contentions had been disposed of by our previous decision in People v. Heirens, 4 Ill.2d 131, 142, 143, rejected the defendant’s attack upon the consecutive sentences, and held, upon the authority of Norvell v. Illinois, 373 U.S. 420, 10 L. Ed. 2d 456, that the defendant’s final contention, which was based upon the fact that the transcript of a portion of the hearing in mitigation and aggravation was not available because the court reporter had died and his notes could not be transcribed, did not require a reversal of the judgments of conviction. The Supreme Court of the United States denied certiorari. Heirens v. Illinois, 379 U.S. 868, 13 L. Ed. 2d 71.
Thereafter a habeas corpus petition was filed in the United States District Court for the Northern District of Illinois. The district court denied relief and the defendant appealed to the United States Court of Appeals for the Seventh Circuit. On April 11, 1967, that court filed the following opinion:
“Before Hastings, Chief Judge, and Swygert and Cummings, Circuit Judges.
“Per Curiam.
This case arises on appeal from the District Court’s denial of a petition filed under the Habeas Corpus Act (28 USC § 2241 et seq.). Subsequent to the denial of habeas corpus relief, Milani v. Illinois, 35 U.S. Law Week 3281, was decided by the Supreme Court of the United States. Under that decision, petitioner was entitled to counsel in his writ of error proceedings in the Supreme Court of Illinois (People v. Heirens, No. 3552, decided May 21, 1964), but he was not afforded counsel there. Therefore, those proceedings were invalid. We agree with the Illinois Attorney General that under the Milani decision, petitioner is now entitled to a full and early hearing in the Illinois Supreme Court aided by appointed counsel.
"Although recognizing the seriousness of petitioner’s charges, we are reluctant to pass on their merits without giving the Supreme Court of Illinois the first opportunity to determine whether petitioner was denied due process and a fair trial in the state court proceedings (Blair v. People of State of California, 340 F.2d 741, 745 (9th Cir. 1965); Montez v. Eyman, 372 F.2d 100, 103 (9th Cir. 1967)) in the light of criminal law developments since his 1946 conviction on three guilty pleas. See, e.g., Pate v. Robinson, 383 U.S. 375; Smith v. Baldi, 344 U.S. 561; Estes v. Texas, 381 U.S. 532; Fay v. Noia, 372 U.S. 391; Rideau v. Louisiana, 373 U.S. 723; Miller v. Pate, 35 U.S. Law Week 4179; Giles v. Maryland, 35 U.S. Law Week 4181.
“So that the Supreme Court of Illinois may expeditiously take a fresh look at the substantial contentions raised by this habeas corpus petition, and in the interests of comity (Giles v. Maryland, 35 U.S. Law Week 4181, 4185), the proceedings before us will be held in abeyance for a reasonable period of time in order to afford the petitioner the opportunity to pursue his remedies before that tribunal.
“We are appreciative of the exemplary services of Calvin P. Sawyier of the Illinois Bar who served as court-appointed counsel for petitioner here and in the District Court.”
After' the order of the court of appeals was entered, leave was sought on behalf of the defendant to file in this court a “Petition for Exercise of Jurisdiction.” Leave was granted and this court entered an order which recited the action taken by the court of appeals and continued:
“The petition now filed in this Court contends that petitioner’s constitutional rights were violated in several respects at the time of his convictions and that these alleged violations were not waived by his pleas of guilty. It requests that this Court make a new and independent determination of the claims advanced in the petition, based upon the records of petitioner’s former appeals in 3552 and in 33165, a post-conviction writ of error (4 Ill.2d 131), and the record before the Federal Court in the habeas corpus case. It is also requested that this Court take judicial notice of certain allegedly prejudicial newspaper clippings. Petitioner requests that counsel be appointed to represent him, that the petition be set for hearing at an early date, and that petitioner be granted new trials.
“It is ordered that
(1) Calvin Sawyier is appointed counsel for petitioner.
(2) The judgment of this Court in People v. Heirens, No. 3552 is vacated and a new hearing is granted.
(3) Petitioner shall file his brief on the issues raised by the petition for a writ of error in No. 3552, or by an amended petition in that case, on or before May 24, 1967. The State shall file its brief on or before June 8, 1967. Reply brief, if any, to be filed on or before June 16, 1967. Cause to stand for hearing at the June 1967 session of this Court.
(4) The petitioner and the State are also requested to brief and argue the question of the authority and the propriety of a new and independent determination by this Court, as urged in the petition and suggested in the opinion of the Court of Appeals.”
The Court of Appeals was influenced in reaching its conclusion by the per curiam decision of the Supreme Court in Milani v. Illinois, (1967) 386 U.S. 12, 17 L. Ed. 2d 702. In that case the defendant, Joseph Milani, had been convicted upon his plea of guilty to a charge of murder. He was represented by the public defender and another appointed attorney. His plea was entered after the trial had commenced and a witness for the prosecution had testified to his admission of guilt. The defendant appealed to this court and moved that counsel be appointed to represent him. The motion was denied, the case was considered on the defendant’s pro se brief, and the judgment was affirmed. (People v. Milani, 34 Ill.2d 524.) The defendant filed a petition for certiorari in the Supreme Court of the United States, and on February 13, 1967, that court entered the following memorandum order: “414 Misc. Milani v. Illinois. Per curiam. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Supreme Court of Illinois is reversed. Douglas v. California, 372 U.S. 353.”
In Douglas v. California the defendant had pleaded not guilty, and had been convicted after a trial. The California Court of Appeals itself examined the record and because it found no ground for reversal it affirmed the conviction without appointing counsel.
In cases in which a defendant who pleaded not guilty was convicted after a trial, it has been the practice of this court to appoint counsel to represent the defendant on review. Under the rules of this court, however, a plea of guilty was not permitted to be accepted in the trial court unless the defendant was represented by counsel, or had understanding^ waived his right to be represented by counsel after he had been advised that counsel would be appointed to represent him if he could not afford to retain counsel, and after his right to a jury trial and the possible consequences of his plea had been explained to him by the trial judge. The inquiries of the court and the answers of the defendant were required to be transcribed and incorporated in the common-law record. See, e.g., Ill. Rev. Stat. 1949, chap. 110, par. 259.27A; Ill. Rev. Stat. 1965, chap. 110, par. 101.26(3).
When a defendant was convicted on his plea of guilty after a full admonition, however, it was not the practice of this court to appoint counsel to represent him on review. The only issues open for consideration on direct review in such a case were the jurisdiction of the trial court, the sufficiency of the indictment, the adequacy of the trial judge’s admonition, and whether the sentence imposed was within statutory limits. Until January 1, 1964, a reviewing court in Illinois had no power to alter sentences. The court itself considered the limited issues open to review and if it found that arguable contentions existed, counsel was appointed.
If a defendant sought to attack the voluntariness of his plea of guilty or for any other reason to assert the invalidity of that plea, he could proceed under the Post-Conviction Hearing Act, as the defendant in this case did. In that proceeding counsel was required to be appointed to represent him, as counsel was appointed to represent this defendant, and any constitutional objection to the validity of his conviction could be raised. (Ill. Rev. Stat. 1951, chap. 38, pars. 826-832.) The procedures outlined above were in our opinion adequate to protect the rights of indigent defendants. We interpreted Douglas v. California, 372 U.S. 353, 9 L. Ed. 2d 811, as applicable only to defendants who, like the defendants in that case, had pleaded not guilty and had been found guilty after trial. Since Milani v. United States was decided, we have amended our Rules 605 and 607 so that counsel will hereafter be appointed to represent indigent defendants upon direct review of convictions entered upon their pleas of guilty. 36 Ill.2d 171, 174, 227 N.E.2d LX-LXI.
The Attorney General took the position before the Court of Appeals that Milani v. Illinois invalidated our order in No. 3552, and that State remedies had not been exhausted. The Court of Appeals apparently acted in reliance upon the views of the Attorney General. While we have vacated our order in No. 3552 in deference to the views of the Court of Appeals, we are unable to follow the further suggestion of that court that we “take a fresh look at the substantial contentions raised” by the habeas corpus petition pending before that court. Nor are we able to accede to the defendant’s suggestion that this court take judicial notice of the records and files “of the United States Court of Appeals for the Seventh Circuit in petitioner’s case there pending.” We do not have before us either the contentions advanced in the Federal habeas corpus proceeding or the record that is before the Court of Appeals. Nor do we see how, by taking judicial notice of those contentions and that record, or otherwise, we could acquire jurisdiction to decide those contentions on that record. As the defendant elsewhere points out, these are determinations which the Federal Court of Appeals is in a position to make independently in this matter.
This is not a proceeding to review our judgment in the defendant’s post-conviction case. It is our order in No. 3552 which has been held invalid because the defendant was without counsel, and our concern centers upon that case. The defendant is now represented by appointed counsel, and we consider the contentions now advanced upon the record in that case, which consists of the formal common-law record, supplemented by the proceedings that took place on September 4 and 5, 1946, when the defendant pleaded guilty and was sentenced.
Many of the contentions now advanced on behalf of the defendant are without factual support in the record now before us. Others were adjudicated in the defendant’s post-conviction proceeding. Throughout that proceeding the defendant was represented by counsel. The trial court heard the testimony of the available witnesses and denied the defendant’s petition. After a full review of the extensive record this court affirmed that judgment, and the Supreme Court of the United States denied certiorari (349 U.S. 947, 99 L. Ed. 1273). The issues there adjudicated are not now open to review.
We consider, therefore, only those contentions now advanced which are open to review upon the limited record before us. There are two such contentions. The first is that the consecutive sentences imposed by the trial court were erroneous. The brief now filed on behalf of the defendant asserts that “this case comes squarely under People v. Hardgrave, (1950) 406 Ill. 211, 214, rather than under the more general authorities cited in this Court’s formal order.” But the Hardgrave case, which had decided that the phrase “consecutively with” when used in imposing consecutive sentencés was fatally ambiguous, was overruled in People v. Ferguson, 410 Ill. 87, 91. (See People v. Vraniak, 5 Ill.2d 384, 391; People v. Bristol, 12 Ill.2d 632.) Since the defendant pleaded guilty to separate crimes, the imposition of consecutive sentences was not improper.
The contention based upon the fact that the State was unable to provide the defendant with certain portions of the hearing in mitigation and aggravation because of the death of the court reporter, and the impossibility of transcribing his notes, was disposed of in our memorandum order upon the basis of Norvell v. Illinois, (1962) 373 U.S. 420, 10 L. Ed. 2d 456. That contention is not now argued by counsel for the defendant.
The defendant’s motion for a writ of error under Rule 65 — 1 of this court is denied.
Motion denied.
Mr. Justice Ward took no part in the consideration or decision of this case.
UNITED STATES of America ex rel. William HEIRENS, Petitioner-Appellant, v. Frank J. PATE, Respondent-Appellee.
No. 15797.
United States Court of Appeals Seventh Circuit.
Dec. 27, 1968.
Rehearing Denied Jan. 22, 1969.
Calvin Sawyier, Chicago, Ill., for appellant.
William G. Clark, Atty. Gen. of Illinois, Philip J. Rock, Asst. Atty. Gen., for appellee, Richard A. Michael, Asst. Gen., of counsel.
Before HASTINGS, SWYGERT and CUMMINGS, Circuit Judges.
[OPINION BY CUMMINGS, Circuit Judge. type=majority]
CUMMINGS, Circuit Judge.
This is an appeal from the denial of a habeas corpus petition. The district court’s memorandum opinion denying the petition without holding a hearing has not been reported. Earlier phases of this litigation are reported in 4 Ill.2d 131, 122 N.E.2d 231, certiorari denied, 349 U.S. 947, 75 S.Ct. 876, 99 L.Ed. 1273; 38 Ill.2d 294, 230 N.E.2d 875, certiorari denied, 390 U.S. 1044, 88 S.Ct. 1644, 20 L.Ed.2d 306; and 7 Cir., 401 F.2d 147. For the sake of brevity, the facts will not be restated herein except in connection with the legal issues presented by this petition. We do not need to reexamine all of the questions adjudicated earlier. Woodington v. Mathews, 401 F.2d 125, 126 (7th Cir. 1968).
On September 4, 1946, petitioner was arraigned and pleaded guilty to three charges of murder and to twenty-six charges of burglary, robbery and assault. He thereupon received consecutive life sentences on each of the murder indictments and concurrent sentences on the other charges, to be consecutive to the murder sentences. The court had previously ordered that a panel of three psychiatrists examine the petitioner. One of the three was selected by petitioner’s retained counsel, another by the State, and the third by the other two. Their report, which concluded that petitioner was sane and competent to conduct his defense, was discussed by petitioner and his trial counsel before his arraignment and pleas. Before entering judgments on the pleas and before sentencing petitioner, the trial court received the report in evidence, pursuant to stipulation of the parties.
If there was enough evidence before the trial court to create a bona fide doubt as to petitioner’s ability to plead guilty or stand trial, it would have been a denial of due process for the court not to convene a sanity jury sra sponte. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815. But Robinson is factually different because here the data before the trial judge was not sufficient to raise a bona fide doubt. About a month before petitioner’s arraignment, the court directed that three psychiatrists examine the petitioner at the County’s expense. The panel was well qualified, one of them being the then president of the American Psychiatric Society. Two of the psychiatrists examined petitioner for five to six hours daily for several weeks, and the third was present during the last week of the examinations. Their unanimous report was in part as follows:
“This patient, in our opinion, is not suffering from any psychosis, nor is he mentally retarded; he has average intelligence, he has a deep sexual perversion and is emotionally insensitive and unstable. He has sufficient intelligence to understand the nature and object of the proceedings against him. He rightly comprehends his own position in regard to these proceedings and has sufficient mind to conduct his defense in a rational and reasonable manner. He has repeatedly stated to us that he has always been aware of the nature and purpose of his acts, which are the basis of the present proceedings against him.
******
“The quality of intellect was carefully tested and he was found to have an intelligence quotient of 110, an average figure. The Rorschach test was used and failed to reveal any psychosis. At the Illinois Neuropsychiatric Institute several electroencephalographic tracings were taken and found completely normal.”
This report was the only evidence that the trial judge had before him as to defendant’s mental competence at the time he pled guilty, whereas in Pate v. Robinson four defense witnesses expressed the opinion that Robinson was insane at trial time. See 383 U.S. at p. 383, 86 S.Ct. 836. Since no evidence raised a bona fide doubt as to petitioner’s competence to stand trial or plead guilty, the trial judge was not required to empanel a jury and conduct a competency hearing. Petitioner’s reportedly exemplary prison behavior is consistent with the examining panelists’ conclusions that he was not psychotic.
In an effort to fall within the shelter of Pate v. Robinson, petitioner states that the State’s Attorney withheld from defense counsel and from the trial court the views of the psychiatrist who conducted a June 29, 1946, interview of petitioner after injecting him with a sodium pentothal solution. That specialist, Dr. Roy R. Grinker, advised the State’s Attorney that petitioner was then a “disassociated, psychotic schizophrenic,” but he later admitted that he did not know petitioner’s mental condition on January 6, 1946 (the day before the murder of Suzanne Degnan) or on August 12, 1946, when the panel of psychiatrists commenced their examination of petitioner. Grinker never reported on petitioner’s September 1946 competence to stand trial or to plead guilty or whether he knew right from wrong under the then Illinois sanity tests. His examination of petitioner lasted only from one to two and a half hours, whereas the later panel examination by three recognized experts lasted for several weeks, without the use of sodium pentothal, and was completed just prior to arraignment. We cannot say that Dr. Grinker’s earlier views, if known to the trial court, would have compelled the convening of a sanity jury. Moreover, since petitioner pleaded guilty after having been found competent by the panel of psychiatrists (with whom the trial judge agreed), he waived an insanity defense. See United States ex rel. Smith v. Baldi, 344 U.S. 561, 566-568, 73 S.Ct. 391, 97 L.Ed. 549; Lynch v. Overholser, 369 U.S. 705, 719-720, 82 S.Ct. 1063, 8 L.Ed.2d 211; Goldstein, The Insanity Defense, 184-188 (1967). This is especially true here where experienced defense counsel decided not to utilize an insanity defense in view of the panel’s report. Furthermore, after many discussions of the possibility of raising such a defense, on July 26, 1946, petitioner directed his counsel to arrange instead for a life sentence in return for his disclosure of his involvement in the crimes.
Petitioner next argues that his guilty pleas were coerced by the conduct of the police, the State’s Attorney and the press. His principal reliance is on United States ex rel. Perpiglia v. Rundle, 221 F.Supp. 1003 (E.D.Pa.1963). Perpiglia confessed to the police seven or eight days after prolonged coercion while in their custody and before he had secured counsel. In the present case, counsel was retained by petitioner’s parents on Friday, June 28, and first saw petitioner on Monday, July 1, 1946. No confession had been made to the police prior to the retention of counsel. In fact, petitioner’s confession to the State’s Attorney did not occur until August 6. Because of the. marked dissimilarity in facts, the Perpiglia case does not warrant the issuance of the writ of habeas corpus here. This is not a case involving an ignorant and impoverished defendant, unequipped to assist in his own defense or unadvised of his legal rights. This petitioner was well educated and came from a family of means who were able to afford and did retain seasoned and respected counsel shortly after his arrest. He evidenced a shrewd awareness of the advantage to be gained by dissembling. All those who examined him, including Dr. Grinker, noticed a marked tendency to malinger. Within a month of his arrest, with the knowledge of the State’s case against him and with the advice of his parents and counsel, petitioner decided to plead guilty in order to avoid the electric chair, which was his objective throughout. By obtaining life sentences, he achieved his “desire [not] to take the chance of being electrocuted.”
Petitioner claims that the guilty pleas were coerced by the State’s Attorney’s retreat from his original agreement to recommend only concurrent life sentences. The record discloses that the State’s Attorney’s final decision to recommend consecutive life sentences (to be followed by concurrent sentences on the lesser charges, consecutive to the murder sentences) was made known to petitioner by his counsel before his August 6th confession, thus refuting the coercion claim. Cf. Rogers v. Wainwright, 394 F.2d 492 (5th Cir. 1968). The testimony shows that the increase in the recommendation was prompted by the State’s Attorney’s displeasure at petitioner’s refusal to confess on July 30, rather than to force the August 6th confession or the guilty pleas. Petitioner received the very sentences for which he had bargained.
Likewise, the clamor in the public press about these crimes cannot be deemed responsible for the guilty pleas. Petitioner was arrested on the evening of June 26, and he admitted his connection with the Degnan murder when he first saw his counsel on July 1. There has been no showing that anything that previously appeared in the press caused him to make that admission. Further admissions of guilt were made to counsel commencing July 7, again without a showing that the press motivated them. His counsel testified at the post-conviction hearing that the newspaper reports had little or nothing to do with his advising guilty pleas. He added: “I did not tell Heirens the newspaper accounts of his arrest and his pending case. Often I acquired information from the press about which I would inquire of him, but not as having seen it in the newspapers.”
Although not attacking the competency of petitioner’s counsel, petitioner now implies that the guilty pleas would not have been made if his counsel were fully loyal. This contention cannot be sustained. From the day of their first meeting on July 1, his retained counsel knew that petitioner was guilty. These admissions of guilt were confirmed on July 7, and petitioner started confessing to counsel on July 15 or 16, culminating in a written confession to counsel, signed on July 26. Knowing of petitioner’s guilt and having been advised by Dr. Harry Hoffman, the psychiatrist consulted by counsel, in several July 1946 conferences that petitioner’s abnormalities “were insufficient in law to constitute an insanity defense,” counsel concluded that petitioner had no defense to the charges. His only recourse, he thought, was to recommend guilty pleas in return for the State’s Attorney’s agreement not to recommend the death penalty for these crimes. Since trial counsel’s decision to recommend entering guilty pleas was in petitioner’s best interest, it is unfair to ascribe this recommendation to a conflict in interest caused by newspaper pressure (see 4 Ill.2d at p. 142, 122 N.E.2d 231). Cf. Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964), certiorari denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343.
In the 1952 post-conviction proceedings, petitioner made similar coercion arguments to the trial judge who denied relief, stating:
“The Court finds in particular that petitioner’s counsel did not coerce him into confessing, re-enacting crimes of which he was not guilty or into entering pleas of guilty. Furthermore, the record shows that he was warned by the Court as to the consequences of his pleas and persisted in them. There is no question but that he was represented by counsel who were competent and experienced and did the very best they possibly could for him under the circumstances. He told his counsel he had no defense.”
These arguments were renewed in the Supreme Court of Illinois, which unanimously held:
“In the case at bar the finding that the pleas were not the product of any illegal conduct of law-enforcement officials is amply supported by the evidence. The pleas of guilty were not made until more than a month after the occurrence of the acts complained of; and petitioner must be deemed to be aware, through his counsel, that any evidence obtained by unlawful methods could not have been used against him. It is clear that the antecedent conduct of police and State’s Attorney, however much it is to be condemned, had no substantial connection with the pleas of guilty.” (4 Ill.2d at pp. 141-142; 122 N.E.2d at p. 237.)
Likewise, in denying this habeas corpus petition, the district court held that petitioner’s guilty pleas were “intelligent and voluntary.” Our independent review of the record does not impel any disagreement with that conclusion.
Finally, we find no error in the district court’s refusal to hold an evidentiary hearing on the questions raised in the petition. None of the criteria set forth in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, as substantially codified in 28 U.S.C. § 2254(d), is applicable here. The facts on which we place reliance were developed fairly and conscientiously by the Illinois courts in the post-conviction proceedings. Surely no evidentiary hearing which might be undertaken today, some twenty-two years after the events took place, could be expected to produce more reliable or extensive findings on which to base relief. Therefore the judgment is affirmed.
[OPINION BY SWYGERT, Circuit Judge type=dissent]
SWYGERT, Circuit Judge
(dissenting).
With all due respect, the majority’s treatment of the questions presented in this appeal is one in which I am unable to concur.
If I read the court’s opinion correctly, the majority says in essence that because the questions have been fully canvassed by the Illinois courts on three different occasions and because certiorari has thrice been denied by the Supreme Court, we need not reexamine the facts. This approach is erroneous in light of the provisions of 28 U.S.C. § 2254 which, although directing that a federal court accord presumptive validity to prior state court determinations, in no way require that a federal court treat those determinations as irrebuttably correct. This latter unwarranted emphasis given by the majority to the discretely selected — indeed, slanted — facts utilized by the Illinois courts induced this court, I believe, to reach a result inconsistent with constitutional principles and fundamental due process. As for the denials of certiorari, these are unimportant. “Our denial of certiorari in habeas corpus cases is without substantive significance.” United States ex rel. Smith v. Baldi, 344 U.S. 561, 565, 73 S.Ct. 391, 393, 97 L.Ed. 549 (1953). A fresh recital of the essential facts is necessary.
On January 7, 1946 Suzanne Degnan, age six, was kidnapped from her home on the south side of Chicago. A ransom note, which was found by the child’s father, was the only trace left by her abductor. Suzanne’s dismembered body was later discovered in a sewer catch basin. With the unbridled encouragement of the press, one of Chicago's most sensational manhunts commenced.
On June 26, 1946 the Chicago police captured William Heirens, a seventeen-year old youth, shortly after he had committed a burglary on the city’s north side. While scuffling with an officer at whom the petitioner had pointed a gun, young Heirens was hit on the head with three flowerpots by another officer. Still unconscious, the petitioner was taken to a hospital where his head wounds were mended. Thereafter he was transferred to the hospital section of the House of Correction.
From the time of his arrest, the petitioner was suspected of committing the Degnan murder. The day after his apprehension he was interrogated at length by Chicago police and a first assistant State’s Attorney, Wilbert F. Crowley. The petitioner, seemingly semiconscious and in pain, refused to answer any questions.
On June 28 petitioner’s fingerprints were compared, with those found on the Degnan ransom note. The police concluded that there was sufficient similarity between the petitioner’s fingerprints and those on the ransom note to establish their identity. Thereafter, the police joined by members of the State’s Attorney staff began to question the petitioner. After interrogation which extended throughout the night, he was permitted to sleep for four hours. The petitioner appeared to be suffering from amnesia and refused to answer any further questions.
On the following day the police officers resumed their interrogation; however, on account of the petitioner’s continuing irrational behavior, the State’s Attorney, William J. Tuohy, requested two Chicago doctors to examine the petitioner and determine whether he had suffered some brain injury which prevented him from answering the questions. After a neurological and verbal examination, Doctors William Haines and Francis Gerty reported that in their opinion the petitioner was malingering. Dr. Gerty suggested, in addition, that the petitioner could be given an injection of sodium pentothal for a definitive determination and that Dr. Roy R. Grinker was qualified to conduct a psychiatric examination of the suspect. Upon being contacted, Dr. Grinker discussed use of the drug with Tuohy and asked whether the petitioner’s consent had been obtained for a sodium pentothal injection. He was told that no consent had been given. That the suspect’s permission had not been granted or even sought was disquieting to Dr. Grinker according to his subsequent testimony: “I remember very well that there was a struggle with myself about this but I felt that Mr. Tuohy was the State’s Attorney, the people’s attorney, my attorney, and therefore if he asked me to determine the mental status of this boy I should go ahead, which I did.”
Accordingly, a sodium pentothal injection, which rendered the petitioner unconscious, was administered. Later, after he was aroused to a level where he could communicate, he was questioned concerning his past life and various crimes, particularly the Degnan murder. He readily gave details of that murder and also of numerous burglaries. Besides Doctors Grinker and Haines, State’s Attorney Tuohy, his assistant Crowley, and others, including a stenographer, were present during the course of the interrogation. The petitioner ascribed the crimes in which he was implicated to a friend “George” who forced the petitioner to plan and commit the crimes. Dr. Grinker concluded that “George” was actually Heirens despite the fact that the petitioner believed “he did none of these things that George had done * * * and * * * was constantly trying to prevent George from doing those things.”
After the petitioner had regained consciousness, he asked, “What did I say? What did I say?” Crowley replied, “Why, I think you said all that I think we have to know." The doctors who participated in the truth serum interrogation boasted to newspaper reporters that the results were “miraculous.” Dr. Grinker reported to Tuohy that, although the petitioner was malingering to some extent in refusing to answer questions, “the major factor developed under the pentothal was that the actions of Heirens were not those of the malingerer but those of a mentally sick boy.” The doctor also related that Heirens “was a disassociated psychotic schizophrenic,” that is, “a mental disease characterized by a splitting of personality, in which very frequently one aspect of the personality may not be aware of the other and may not be in communication with the other.”
On June 30, a lie detector test was administered to the petitioner without his consent. Later the same day, he asserted his desire to make a statement and requested to see a police captain. The State’s Attorney, his assistant, and a court reporter were called. After several hours of questioning Heirens admitted knowledge of the Degnan murder and other crimes, but attributed them to George Murman, the friend whom he had previously identified while under sodium pentothal.
The following day, a habeas corpus petition was filed on behalf of the petitioner by two lawyers the petitioner’s parents had retained. The lawyers met the petitioner for the first time in the courtroom on return of the writ. Despite the fact that the court gave the police twenty-four hours in which “to book” the petitioner, one newspaper overzealously reported that the “police were given until noon today to exact a confession from the youth.”
Two days later, the petitioner, having been formally accused during the interim with three assaults and a number of burglaries, was bound over to the grand jury, which subsequently returned a number of indictments charging the petitioner with the murders of Suzanne Degnan, Frances Brown, and Josephine Ross, and twenty-six other crimes, including various burglaries, robberies, and assaults.
From the moment that the petitioner was arrested on June 26 until he finally pleaded guilty on September 4, the Chicago newspapers indulged in excessive and inflammatory coverage of the Degnan murder and Heirens’ involvement. Lurid, sensational stories and pictures concerning the case were regular features. All of the State’s Attorney’s evidence against the petitioner was furnished to the press. Further, the newspapers printed at length the details of the petitioner’s questioning while in police custody. The reporters searched for clues and assumed the role of prosecutors. This unparalleled press coverage generated an atmosphere where the only concern of the prosecutor and defense counsel was whether a public confession of his crimes would be elicited from Heirens and whether he would receive a promise enabling him to escape the electric chair.
Following the return of the indictments, while the press talked about a “deal” and headlines appeared announcing the fact that the petitioner was going to confess his crimes to the State’s Attorney, the petitioner’s counsel and the State’s Attorney agreed to a public confession. On the appointed day the prosecutor’s office, crowded with photographers and reporters, greeted the petitioner and his counsel’s arrival. Surprisingly, and much to the embarrassment of the prosecutor, the petitioner upon being asked a specific question with reference to the Degnan murder replied that he “did not remember.” Tuohy thereupon altered the conditions for his deal, demanding three consecutive life sentences (rather than concurrent ones) in exchange for the petitioner’s escape from the electric chair.
Although prosecutor Tuohy terminated the confession interview when the petitioner said that he “did not remember,” Heirens’ counsel attempted to persuade their client to go through with the confession and even implored his parents to pressure their son into making a confession. That day the newspapers carried headlines, “Heirens Balks,” and “Heirens Won’t Talk — His fine attorneys and his parents * * * pleaded with him, but to no avail.”
Petitioner’s counsel publicly expressed “amazement” at his refusal to talk. The following day the petitioner’s attorneys again talked with him. One attorney testified that, “I told Heirens that I was provoked and he had no right to embarrass me; that he could follow whatever course he wished but I insisted that I know what was going on.” The petitioner testified that his attorney told him that he could never expect to have his freedom and that “it looked very likely that I would get the electric chair.”
The petitioner’s much heralded public confession was again announced in the press for August 6. On that day, with news reporters and photographers packed in an outer room, the petitioner was brought to the State’s Attorney’s office. Heirens began a confession which, as extracted from him, was handed in relays to reporters outside the prosecutor’s door. The lengthy confession was printed verbatim in all the Chicago newspapers.
A part of the deal between the State’s Attorney and defense counsel was that a mental examination of the petitioner would be conducted by a three-member panel of psychiatrists to determine whether Heirens was competent to enter the bargained for guilty pleas.
Before his confession, the petitioner’s counsel stated to the press that a psychiatric examination would be made “prior to any plea on the murder indictments” and they “emphasized that the examination was to acquaint the court with the youth’s psychiatric background, and was not scheduled with the hope of Heirens being found insane.” The record reveals that this announcement was made in light of the fact that the defense counsel had previously conferred with Dr. Harry R. Hoffman, a State psychiatrist, who, according to the attorney, said that although “the symptoms [of Heirens] * * * may show an abnormality they were insufficient in law to constitute an insanity defense.” Notwithstanding Dr. Hoffman’s unsympathetic conclusion regarding Heirens’ lack of sanity, defense counsel selected him as their representative on the three-man panel. The State’s Attorney chose Dr. Haines who had earlier diagnosed the petitioner as malingering, and these two doctors selected Dr. Foster Kennedy, a neurologist, as the third member of the panel. Dr. Hoffman testified about Dr. Kennedy’s qualifications as follows: “Dr. Kennedy was of the school of psychiatry that might be referred to as organic psychiatry as distinguished from Freudian analysis. Dr. Grinker is of the Freudian school. Dr. Haines and I belong to the school followed by Dr. Kennedy.”
The psychiatrists’ report was addressed to the question of the petitioner’s sanity at the time of the trial. Because the psychiatrists followed non-Freudian methods of analysis, it is not surprising that their report concluded that the petitioner “has sufficient intelligence to understand the nature and object of the proceedings and has sufficient mind to conduct his defense in a rational and reasonable manner.”
Apart from the various psychological and physiological tests which were made to support the foregoing conclusion, most of the report consists of the transcript of psychiatric interviews with the petitioner. Even a most casual reading of these interviews by a disinterested person would indicate that, if the petitioner was not suffering from a severe mental illness, at the very least a substantia] doubt existed as to his sanity. The report, for example, states that the petitioner had scrawled on one of the murder victim’s apartment wall, “For Heaven's sake catch me before I kill more. I cannot control myself.” The report’s concluding line read that the petitioner “is unstable, and hysterically unpredictable, and most of his actions can be swayed from time to time by the suggestions coming from his environment.”
On September 4, Heirens was arraigned in the Criminal Court of Cook County on the indictments. Before entry of the pleas his attorneys asked him whether he was still agreeable to entering pleas of guilty. After being warned of the consequences of his pleas, the petitioner pleaded guilty to the charges. Thereafter a hearing was held at which the petitioner’s confessions of the Degnan, Brown and Ross murders, reenactments of those murders, and the psychiatrists’ report were received, the testimony of some eighteen witnesses was heard, and stipulations of counsel regarding the burglaries with which petitioner was charged were read into the record. Following this, the State rested, and counsel for the defense stated that it had “nothing in mitigation” to offer. Thereupon, the court entered judgments of guilty on petitioner’s pleas.
Following entry of the judgments, but prior to the imposition of the sentences, statements were made to the court by the State’s Attorney and the petitioner’s principal attorney. The latter concluded his statement by the following remarks:
I have no memory of any case, certainly not in my time at the bar, when counsel on both sides were so perplexed as to the mental status of an individual and the causes which motivated him to do certain acts. In those cases we both sought psychiatrists in the hope that they might aid us.
I must confess that at this time there exists in my mind many doubts as to this defendant’s mental capacity for crime; and I believe doubt must exist in our minds as to just what the relation of cause and effect was, and how he could, in a manner so devoid of feeling, do the acts here charged and upon which the plea has been guilty.
On acquiring knowledge, your Hon- or, of the facts we were further notified at a later date of his mental condition. We were collectively agreed that any thought on the part of the State to cause this man to forfeit his life would be unjust. It would be unfair. By the same token we were collectively agreed that any course on our part which would assist in having him returned to society would be equally unfair. (Emphasis added.)
Upon the completion of these remarks, the court immediately imposed sentence on the petitioner.
The majority recognizes that the validity of the petitioner’s due process claim depends upon whether the trial court had before it sufficient evidence to create a bona fide doubt regarding both Heirens’ competency to stand trial and his sanity in general. Aside from constitutional requirements Illinois law provided in 1946 as it does now that, “If before a trial, or after a judgment has been entered but before pronouncement of sentence * * * the court has reason to believe that the defendant is incompetent the court shall suspend the proceedings and shall impanel a jury to determine the defendant’s competency.” Ill.Rev.Stat.1967, ch. 38, § 104-2. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), made it clear that a defendant is constitutionally entitled to a hearing on the issue of his competency to stand trial. That case further held that “where the evidence raises a ‘bona fide doubt’ as to a defendant’s competence to stand trial, the judge on his own motion must impanel a jury and conduct a sanity hearing” pursuant to the Illinois statute. Id. at 385, 86 S.Ct. at 842.
Although obviously the facts regarding Heirens’ competency were different from the facts in Robinson, they are sufficiently analogous so as to have required an application of the rule laid down in Robinson. In my opinion an objective test of the relevant facts demonstrates that the trial court should have entertained a reasonable doubt as to Heirens’ competency and acted accordingly. The duty imposed on the trial judge could not be delegated to the defendant or his counsel.
The majority, in concluding that the psychiatric panel’s report “was the only evidence that the trial judge had before him as to defendant’s mental competence at the time he pled guilty,” overlooks the total circumstances concerning Heirens’ mental state of which the trial judge was aware before the petitioner’s guilty pleas were accepted; and to say, as the majority does, that there was “no evidence * * * [of] a bona fide doubt as to petitioner’s competence to stand trial or plead guilty” is unwarranted in light of the uncontroverted facts.
What was the evidence of Heirens’ mental state at the time his pleas were entered ? The facts that have heretofore been outlined are replete with instances of abnormal behavior which could only have raised substantial doubt as to Heirens’ criminal responsibility. That the trial judge in collaboration with Heirens’ counsel and the State’s Attorney’s office felt it incumbent to impanel a team of psychiatric experts is conclusive indication of the fact that Heirens’ sanity presented a question not free from doubt. The facts surrounding his apprehension, his behavior while incarcerated prior to the date of trial, and especially his own lawyer’s confession of uncertainty made at the time of sentencing corroborates my belief that as a matter of law a substantial doubt existed regarding Heirens’ sanity. The Grinker report, although apparently withheld from the trial judge by the State’s Attorney, allows no other conclusion.
The majority asserts that, since Heirens was found competent by the psychiatric panel, his guilty plea waived his right to subsequently raise the insanity defense. This, principle of law; is not substantiated by the cases cited in the majority opinion. To me it is morally and legally repugnant to hold that a questionably sane individual by entering a plea of guilty which may be without meaning to him thus waives forever the opportunity to have his incompetency established. The right of an insane person not to be tried and convicted under our system of justice is basic and is essential to insure the preservation of his eighth amendment’s protection against cruel and inhuman punishment. The waiver of such a fundamental right where a guilty plea has been entered is surely contrary to the rationale of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938).
The case presents the picture of a public prosecutor and defense counsel, if not indeed the trial judge, buckling under the pressure of a hysterical and sensation-seeking press bent upon obtaining retribution for a horrendous act. The State’s Attorney and defense counsel usurped the judicial function, complying with a community scheme inspired by the press to convict the defendant without his day in court. The proceeding on September 4, at which the defendant entered his pleas of guilty and was sentenced, was in reality a post-mortem of a prior public trial conducted by and in the press. Such a spectacle does little to inspire confidence in our judicial process.
My dissent does not mean that I think Heirens did not commit the terrible wrongs charged against him or that he should have been turned loose. The only proposition I urge is that if Heirens appeared to be incompetent, as the facts indicate, the question of competency should have been resolved in accordance with law, and if adjudicated incompetent, he should have been hospitalized as a dangerously insane person rather than incarcerated as he was as a sane person found guilty of criminal acts.
In May 1964, the Supreme Court of Illinois denied a petition for a writ of error in an unreported memorandum order. Certiorari was denied. Heirens v. Illinois, 379 U.S. 868, 85 S.Ct. 140, 13 L.Ed.2d 71.
A somewhat similar procedure was employed in Hahn v. United States, 178 F.2d 11, 12 (10th Cir. 1949).
In the Illinois post-conviction proceedings, one of the three reporting panelists testified that petitioner was legally sane and could plead to the charges and cooperate with his counsel. Another panelist testified that petitioner was neither psychotic nor suffering from mental illness. Their testimony related to the August-September 1946 period. The third panelist was not a witness.
See United States v. Shapiro, 383 F. 2d 680 (7th Cir. 1967) (en banc); United States v. Williams, 372 F.2d 76 (7th Cir. 1967), certiorari denied, 389 U.S. 880, 88 S.Ct. 112, 19 L.Ed.2d 172; Comments of the Joint Committee to Revise the Illinois Criminal Code, 38 Smith-Hurd Ill.Ann.Stats. § 6-2, at p, 215. The Grinker diagnosis was noted by the Illinois Supreme Court, but it observed that “No contention is made that petitioner was in fact insane at the time the pleas were made, or that he failed to understand the nature and object of the proceedings against him” (4 Ill.2d at pp. 136, 140, 122 N.E.2d at p. 237).
Petitioner’s counsel conceded at the oral argument that the trial court decided petitioner was mentally competent to plead guilty. Because of the death of one of the court reporters and because the transcript of the abstracted September 4-5, 1946, trial proceedings has been lost, the complete text of the trial court’s remarks is not available. However, the same judge heard the 1952 post-conviction petition and reviewed his own notes of the trial proceedings before ruling upon that petition. The court noted Hr. Grinker’s belief that “petitioner was a schizophrenic with a dual personality” at the time of his June 29, 1946, sodium pentothal examination. In denying relief, the court must have considered Dr. Grinker’s post-conviction testimony as not negating petitioner’s competency to plead guilty. It is therefore apparent that the earlier disclosure of the Grinker diagnosis would not have caused the court to reject the guilty pleas in 1946. Cf. Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737.
There is testimony, credited by the trial judge at the post-conviction hearing, that this confession was voluntary. Petitioner’s June 29 sodium pentothal statements did not admit his commission of the crimes, and his counsel properly advised him that such illegally obtained evidence could be suppressed.
Thereafter, the Supreme Court of the United States denied certiorari. 349 U.S. 947, 75 S.Ct. 876, 99 E.Ed. 1273. In 1967, the Illinois Supreme Court saw no reason to reconsider its prior rulings, (38 Ill.2d at p. 301, 230 N.E.2d 875), and the United States Supreme Court declined review for a third time (390 U.S. 1044, 88 S.Ct. 1644, 20 L.Ed.2d 306). See note 1, supra.
William HEIRENS, Petitioner-Appellee, v. Larry MIZELL, et al., Respondents-Appellants.
No. 83-1748.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 12, 1983.
Decided Feb. 24, 1984.
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, 111., for respondents-appellants.
Michael B. Nash, Chicago, 111., for petitioner-appellee.
Before PELL and COFFEY,, Circuit Judges, and NEAHER, District Judge.
This opinion has been circulated among all judges of this court in regular active service. No judge favored a rehearing en banc on the question of overruling Welsh v. Mizell, 668 F.2d 328 (7th Cir.), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982).
The Honorable Edward R. Neaher, District Judge of the United States District Court for the Eastern District of New York, is sitting by designation.
[OPINION BY COFFEY, Circuit Judge. type=majority]
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, 459 U.S. 923, 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; 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, 459 U.S. 1048, 103 S.Ct. 468, 74 L.Ed.2d 617 (1982) decision. We Reverse.
I.
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 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. § 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, § 1003-3-5(c), 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 denying Heirens’ release on parole. It subsequently issued an amended rationale on August 24, 1982, to correct certain misstatements in its previous rationale.
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 suggests] 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.”
Although the respondents correctly limited their consideration to criteria relating to “special deterrence” — 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 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.
II.
Before reaching the main issues of this appeal, there are several collateral issues which warrant our consideration. The petitioner-appellee, Heirens, argues that there is no jurisdiction to entertain the respondents’ attempt to relitigate matters resolved in the Magistrate’s “final” order of July 15, 1982, from which the respondents did not appeal. Our jurisdiction in this case is based on 28 U.S.C. § 1291 which grants federal appellate courts jurisdiction over appeals from all final decisions of United States district courts, and on 28 U.S.C. § 2253 which provides that the final order in a habeas proceeding is subject to review by the court of appeals for the circuit where the proceeding took place. We hold that the petitioner’s contention is without merit since, as the respondents point out, the July 15, 1982 order is not the order that directed Heirens’ release from custody and did not terminate the litigation between the parties.
“A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). “A final judgment in a habeas corpus case either denies the petition or orders the petitioner released at a specified time.” United States ex rel. Burton v. Greer, 643 F.2d 466, 469 (7th Cir.), cert. denied, 454 U.S. 851, 102 S.Ct. 293, 70 L.Ed.2d 142 (1981). As in Burton, the July 15, 1982 order in the present case neither terminated the litigation on the merits nor ordered the release of Heirens. Instead, it simply ordered the Parole Board to provide Heirens with a new parole hearing within 30 days. It specifically recognized that the decision whether or not to grant parole was “delegated solely” to the Board. The Magistrate merely directed the Board “to avoid utilizing the [general deterrence] criteria prohibited by the Welsh decision” and “to provide a sufficiently detailed statement of the ‘essential facts’ relied upon by the Board” in making its parole determination. While the Magistrate called his decision a “final order,” it did not end the litigation between the parties. Rather, it appears to contemplate further proceedings since the July 15, 1982 order is couched in terms of “guidelines” to be used by the Board “upon remand” in making its parole decision. Furthermore, while the Magistrate stated that the petition was granted, release was not ordered; instead, the July 15, 1982 decision merely ordered a new parole hearing:
“The Petition before this Court is hereby Granted and the respondents are Ordered to provide the petitioner with a new parole hearing consistent with this Order within thirty (30) days.”
As the preceding quote clearly demonstrates, release was not ordered within a specified time, in fact, it was not ordered at all. Thus, the case falls within this court’s Burton decision. Even if no parole hearing had subsequently been provided, Heirens would not have been automatically released from custody. To gain that relief, he would have had to file a motion requesting that the court find the Parole Board in contempt and accompany that motion with a request for an order directing his release.
Essentially, the Magistrate’s July 15, 1982 order asked the Parole Board whether it could provide adequate reasons for its denial in light of Welsh and U.S. ex rel. Scott v. Illinois Parole and Pardon Bd., 669 F.2d 1185 (7th Cir.1982). Not until the Magistrate found that the Board failed to provide sufficient reasons which could be, in his view, supported by the record was the litigation at an end and Heirens’ release ordered — the two benchmarks of a final order in a habeas action. As the Fifth Circuit stated in Broussard v. Lippman, 643 F.2d 1131 (5th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981):
“The order must not merely have the potential to be the final action, it must, in fact, be the final action of the district court____ Those adversely affected by a district court order should not have to speculate on whether or not that order will prove to be final.”
Id. at 1133 (emphasis original).
Note that the preceding analysis concluding that the first order was not the final appealable order also applies to the Magistrate’s order of December 22, 1982 granting Heirens’ motion to show cause since the Magistrate expressly stayed this second order for thirty days to give the Parole Board an additional opportunity to comply. The December 22 order explicitly stated that if the Board failed to comply within thirty days, contempt proceedings would be instituted before the court, and thus by its very language it did not “end” the litigation between the parties. Again the Magistrate did not order Heirens’ release. As we have previously stated, it was not until the order of April 20, 1983 that the Magistrate determined that the Board could not or would not comply with his July 15, 1982 decision, and as a result ordered Heirens’ release. Therefore, we hold that the Magistrate’s only final order was that issued on April 20, 1983, from which the respondents properly appeal.
The respondents argue that this court should reconsider the Magistrate’s factual determination that the record indicates the Board in actuality believed Heirens to be rehabilitated and a good parole risk. In so doing, they request that we examine a considerable amount of material which was not presented to the Magistrate. As the respondents state in their brief:
“The Third Order thus indicated that the Magistrate had concluded, as a factual matter, what the ‘Board’s determination’ was in Petitioner’s case. The Magistrate reached this factual resolution without requesting, receiving or considering any of the pertinent documents contained in Appendix B, pages B.-l through B.-99.” (Emphasis original.)
We decline to review this additional material since it was not presented to the Magistrate for his consideration. It was the respondents’ duty to offer any material they believed to be relevant to the Magistrate’s ultimate determination and their failure to fulfill that duty precludes review of such material on appeal. We note, however, that in the future if the Magistrate or trial court is aware that such material exists, and believes that it is relevant to his/her determination he/she should request that it be presented.
The respondents next argue that the present action is barred by res judicata. They base their argument on the fact that in 1980, the petitioner filed a suit under 42 U.S.C. § 1983 asserting that Illinois had violated the ex post facto clause of the United States Constitution by denying him parole based solely on a factor (general deterrence) which was added to the relevant parole considerations subsequent to the commission of his crimes. The district court held that Ill.Rev.Stat. ch. 38, § 1003-3-5(c)(2) when applied to inmates who committed their crimes prior to its enactment did not violate the ex post facto prohibition. That decision has been separately appealed to our court and is presently pending. The respondents argue that the resolution of the § 1983 action bars Heirens’ habeas corpus petition under the principles of res judicata. We find this argument to be without merit. As our court recently stated in Warren v. McCall, 709 F.2d 1183, 1184 n. 4 (7th Cir.1983), “a decision in another case is not res judicata as to a habeas proceeding.” See also 18 Wright, Miller & Cooper, Federal Practice and Procedure, § 4405 at 39 (1981); Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 521, 68 L.Ed. 989 (1924); Smith v. Yeager, 393 U.S. 122, 124, 89 S.Ct. 277, 278, 21 L.Ed.2d 246 (1968); and Hardwick v. Doolittle, 558 F.2d 292, 295 (5th Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978).
Finally, the respondents contend (based in part on the amicus curiae’s argument) that Heirens failed to exhaust his state remedies and therefore the present action should be dismissed without prejudice. They recognize that Heirens brought a state habeas proceeding raising the ex post facto issue which was denied by the Illinois court in an unpublished order cited as Heirens v. Mizell, 89 Ill.App.3d 1208, 48 Ill.Dec. 875, 417 N.E.2d 277 (5th Dist.1980). However, they argue that a habeas petition is an inappropriate vehicle to obtain the relief sought. According to the respondents, the appropriate vehicle for challenging whether certain parole criteria “have been properly applied” in Illinois is a mandamus action. Whether appropriate or not, the Fifth District Illinois Appellate Court reached the merits of Heirens’ ex post facto claim and denied it based on its previous decision in Harris v. Irving, 90 Ill.App.3d 56, 45 Ill.Dec. 394, 412 N.E.2d 976 (5th Dist.1980).
“Exhaustion is a matter not of jurisdiction, but of comity; the federal courts should not act until the state courts have had an opportunity to correct federal constitutional errors.” U.S. ex rel. Cunningham v. DeRobertis, 719 F.2d 892, 894 (7th Cir.1983) (citing Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982)). No federalism purpose would be served by requiring Heirens to litigate in an Illinois court under the “appropriate means.” The Illinois Appellate Court did not dismiss for failure to raise the issue in a mandamus action, rather it reviewed the merits and declined relief based on its previous holding in Harris v. Irving. Thus, the state court has had a fair opportunity to correct the alleged constitutional error. Furthermore, there is a question whether any post-conviction relief remains available in Illinois. In People v. James, 46 Ill.2d 71, 263 N.E.2d 5 (1970) the Illinois Supreme Court stated:
“We have heretofore consistently held that where a convicted person has appealed from the judgment of conviction, the judgment of the reviewing court makes res judicata all issues actually decided by that court and all issues which could have been presented to that court and which were not are considered to have been waived.”
263 N.E.2d at 7. A “[petitioner need not pursue post-conviction relief if it would be futile.” U.S. ex rel. Cunningham v. De Robertis, 719 F.2d at 895 (citing Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981)). We believe it would be futile to require Heirens to relitigate in the Illinois courts the ex post facto claim. We therefore hold that Heirens’ claim has been adequately exhausted.
We note that in any event the respondents have waived any argument regarding exhaustion since they failed to raise this issue in the proceedings before the district court. See United States v. Carter, 720 F.2d 941, 945 (7th Cir.1983); Holleman v. Duckworth, 700 F.2d 391, 394-95 (7th Cir.1983); and United States ex rel. Moore v. Brierton, 560 F.2d 288, 291 (7th Cir.1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1285, 55 L.Ed.2d 794 (1978).
A. EX POST FACTO
The first of the two remaining issues to be addressed in this opinion is whether our court mistakenly determined in Welsh v. Mizell, 668 F.2d 328 (7th Cir.1982) that the application of the second of three criteria enacted by the Illinois Legislature in 1972, Ill.Rev.Stat. ch. 38, § 1003-3-5(c)(2) (1973), to parole applicants who committed their crimes before the effective date of that legislation, violates the Constitution’s proscription against ex post facto laws. As the Welsh court noted:
“In 1972, the Illinois legislature enacted new parole criteria based on the Model Penal Code. These criteria, which took effect on January 1, 1973, provide for the denial of parole if:
(1) there is substantial risk that [the prisoner] 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. Ill.Rev.Stat.1973, ch. 38 § 1003-3-5(c) (Ill.Rev.Stat.1979, id.)”
Welsh, 668 F.2d at 330-31. In reference to this legislation, the Welsh court held:
“Criteria (1) and (3) invite the Parole Board to look at many of the same factors as under previous law. Criterion (2), however, is a marked departure, importing 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 the law). Furthermore, the statute allows any one of the criteria to serve as a basis for parole denial. Not only is criterion (2) new, therefore, but it can also be determinative. The district court failed to recognize that Welsh’s petition presented exactly that case: the Parole Board gave only the second of the three factors as its reason for denying parole, and that factor could not have had decisive weight under the Board’s 1962 procedures.”
Id. at 331 (footnotes omitted).
The Welsh court examined both the Illinois statutes governing parole and the Parole Board’s regulations in arriving at its determination that criterion (2) was a departure from prior practice. The court quoted from Ill.Rev.Stat. ch. 38, § 806 (1961), which 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.’ ”
Id. at 330. Except for two unimportant language changes — the substitution of the word “or” for “and” and “on” for “upon,” —the 1961 version of the statute is identical to Ill.Rev.Stat. ch. 38, § 806 (1945) which was in effect when Heirens committed the crimes for which he was sentenced. The Welsh court also quoted from Ill.Rev.Stat. ch. 38, § 808a (1961) which:
“required the Parole Board to give ‘due consideration and weight ... to the record of the prisoner’s conduct kept by the superintendent or warden.”
Welsh, 668 F.2d at 330. The 1945 version of this statute is likewise identical. See Ill.Rev.Stat. ch. 38, § 808a (1945). Welsh then quoted two Parole Board regulations:
“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.
* * * * sis
“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 deny release on parole in accordance with its judgment.”
Welsh, 668 F.2d at 330. These regulations, with a few irrelevant deviations, are also identical to those existing in 1945.
Based on the preceding statutes and regulations, the Welsh court concluded:
“Thus the focus of the Parole Board’s inquiry was on the prisoner himself, as observed by the prosecuting and sentencing authorities and by prison officials. The purpose of incarceration had been served — and parole was appropriate— when the individual prisoner was deterred from engaging in further criminal activity and his conduct demonstrated his rehabilitation. The severity of the offense committed and society’s concern with sufficient punishment did not enter directly into the Parole Board’s decision.”
Id. Building on this conclusion, the court determined, as previously noted, that the second criterion (release would deprecate the seriousness of the prisoner's offense or promote disrespect for the law, i.e., general rather than special deterrence) if applied to parole applicants who committed their offenses prior to the effective date of the enacting legislation (January 1, 1973), violated the ex post facto clause of the Constitution. This conclusion obviously resulted from the court’s position that prior to 1973 principles of general deterrence were not considered by the Parole Board in making its parole decisions.
Keeping in mind this overview of the Welsh decision, we now undertake a re-examination of the question of whether the application of criterion (2) to parole applicants whose crimes preceded its enactment violates the ex post facto clause. In its most recent explanation of that clause, the United States Supreme Court stated:
“The ex post facto prohibition forbids the Congress and 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.’ Cummings v. Missouri, 71 U.S. 277, 325-26, 18 L.Ed. 356, 4 Wall. 277, 325-26 (1867)____ Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed____ The ban also restricts governmental power by restraining arbitrary and potentially vindicative legislation____
“In accord with these purposes, our decisions prescribe that two 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 (1981) (citations and footnotes omitted). Thus, as the preceding quote explicitly states, in order for a law to violate the ex post facto prohibition of the United States Constitution it must be both (1) retrospective and (2) disadvantageous to the offender affected by it. Upon reconsideration of the issue presented to this court in Welsh, we hold that prior to the enactment of criterion (2) in 1972, the Illinois Parole Board possessed broad discretion with regard to parole decisions, and that in the exercise of its discretion the Board could in fact consider principles of general deterrence and retributive justice. Thus, by incorporating such considerations into criterion (2), the 1972 legislation, in effect, merely codified prior law. Based on this holding we conclude that the application of criterion (2) to inmates who committed their crimes prior to 1973 is not disadvantageous since principles of general deterrence and retributive justice entered into the parole decision prior to 1973. Because one of the critical elements for a law to be ex post facto under Weaver is missing — that the law be disadvantageous to the offender affected by it — the application of criterion (2) to inmates whose crimes were committed prior to 1973 does not violate the ex post facto prohibition of the Constitution. We therefore reverse our holding to the contrary in Welsh v. Mizell, 668 F.2d 328 (7th Cir.1982).
As noted above, in order to find a violation of the ex post facto clause, the Welsh court was compelled to hold that prior to January 1, 1973, — the effective date of the Illinois legislation establishing the disputed criterion — the Parole Board did not consider elements of general deterrence, as contained in the criterion (2), in making its parole decisions, that is, that the Parole Board did not concern itself with the question of whether a prisoner’s “release at that time would deprecate the seriousness of his offense or promote disrespect for the law.” Ill.Rev.Stat. ch. 38, § 1003-3-5(c)(2). Thus, the Welsh court determined that the second criterion imported “for the first time into the parole decision considerations of retributive justice ... and general deterrence ____” Our examination of the law as it existed prior to 1973 leads us to the opposite conclusion. We hold that prior to 1973 the Parole Board possessed broad discretion that allowed it to consider both principles of retributive justice and general deterrence in its parole decisions.
To illustrate its conclusion that the 1972 legislation imported for the first time “considerations of retributive justice ... and general deterrence,” the Welsh court cited in a footnote to an article written by former Parole Board Chairman, Theodore P. Fields. Rather than supporting the Welsh majority, the article clearly states that it had, for some time, been the practice of the Parole Board to consider factors of general deterrence and retributive justice. Specifically, Mr. Fields stated:
“The duties of the Parole Board are set forth by the Illinois Statutes. The new statute which became law in January, 1973 was drafted by progressive experts in the corrections field. What did they provide as to the factors that the Board must take into consideration when making parole decisions? The statute sets forth that ‘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 the 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.’
“This statute sets forth the general criteria for denying parole that have been followed by the Board for some time.”
Fields, Illinois Parole and Pardon Board Adult Parole Decisions, 62 Ill.B.J. 20, 20-21 (1973) (emphasis added). The last statement in the preceding quote is never qualified by Mr. Fields. In fact, Mr. Fields goes on to explain the second criterion in depth yet never even implies that this criterion represents a change from prior law. Thus, notwithstanding indications to the contrary in footnote 3 of Welsh, the Fields’ article does not support the Welsh court’s conclusion that the 1972 legislation created a change in the law, rather it clearly demonstrates that the enactment was merely a codification of the Board’s prior practice.
An examination of the statutes and regulations governing parole in both 1945 and 1962 (the time period relevant in Welsh) supports this conclusion. As Welsh correctly observed, under § 808a as it existed in both 1945 and 1962, the Parole Board was required to consider an applicant’s record of conduct while imprisoned.
“In consideration of any application for parole due consideration and weight shall be given to the record of the prisoner’s conduct kept by the superintendent or warden.”
Ill.Rev.Stat. ch. 38, § 808a (1945). See also Ill.Rev.Stat. ch. 127, § 55b (1945) and Ill.Rev.Stat. ch. 38, § 808a (1961). While we do not deny that the Parole Board was required to consider a prisoner’s record as one of the many factors relevant to its parole determination, this was the only limitation placed on the Parole Board’s discretion over the parole decision. There was no requirement that parole be granted if the prisoner was found to be rehabilitated. Furthermore, there is nothing in this statute which limited or prohibited the Parole Board from denying parole based on general deterrence or retributive justice, if it were so inclined, notwithstanding a stellar prison record. The statute merely required consideration of the prisoner’s conduct record but did not make that evidence determinative. We are convinced that had it been the legislature’s intent to make prison conduct solely determinative of the parole question it would have stated that intent explicitly. Instead, the Parole Board was effectively given unlimited discretion in deciding whether or not to parole a particular prisoner with the single exception that the Board include in its consideration the prisoner’s conduct record while confined. We cannot conclude, as the court did in Welsh, that the statute’s requirement that the Board consider an applicant's prison record eliminated all other pertinent criteria, including general deterrence and retributive justice, from its lawful consideration, when the Parole Board’s discretion was otherwise unlimited.
In support of its position, Welsh also cited to the Illinois statutes’ requirement that the sentencing judge and the state’s attorney furnish the Parole Board (in 1945 the Division of Correction) with a statement of the:
“facts and circumstances constituting the crime or offense whereof the prisoner or ward was convicted or committed, together with all other information accessible to them in regard to the career of the prisoner or ward prior to the time of the commitment for the crime or offense of which he or she was convicted or committed relative to his or her habits, associates, disposition and reputation and any other facts and circumstances which may tend to throw light upon the question as to whether such prisoner or ward is capable again of becoming a law-abiding citizen____”
Ill.Rev.Stat. ch. 38, § 806 (1945). See also Ill.Rev.Stat. ch. 38, § 806 (1961). Contrary to the Welsh court’s implication, the preceding statement included not only facts which cast light on whether the inmate could again become a law-abiding citizen, i.e., rehabilitation, but it also included information regarding the heinousness of the prisoner’s crime or crimes, his prior criminal history and other pertinent facts concerning the convicted individual. While the court in Welsh concluded from the requirement of the above-noted statement that the focus of the Board was exclusively on the prisoner himself, and not on the interests of society, we have been unable to draw that same conclusion. We do not contest that rehabilitation was a factor to be considered in the parole decision. We are, however, unwilling to conclude based on either of the preceding statutes that the legislature intended that only factors of special deterrence were to be considered thereby eliminating elements of general deterrence and retributive justice from consideration in the parole decision. If these latter two factors were not relevant to the parole decision, then there would be no need for the post-sentencing report to include information regarding the circumstances and seriousness of the crime or crimes; such information having much greater relevance to the factors of general deterrence and retributive justice than to rehabilitation.
The Parole Board’s regulations as they existed in both 1945 and 1961 likewise support the conclusion that the Board had broad discretion prior to 1973. Regulation 14 as quoted by Welsh states:
“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 deny release on parole in accordance with its judgment.”
668 F.2d at 330 (emphasis added). The use of the word “including” indicates that under this regulation the prisoner’s conduct record was merely one factor among many to be considered by the Parole Board in making its decision whether to grant or deny parole. Certainly a common sense reading of this regulation does not lead one to the conclusion that rehabilitation was the sole focus of the parole determination prior to 1973, rather it simply delineates rehabilitation as one of the various factors to be considered.
Parole Board Regulation No. 12, as set forth in Welsh, provided: Although the term “fit” as it is used in Regulation 12, raises at first glance an inference that rehabilitation is the determinative consideration, one would also not be a fit person for parole if in the judgment of the Parole Board (a) he had not been adequately punished (retributive justice), or (b) his release at the time would promote disrespect for the law (general deterrence). Again, if the drafters of the regulations had intended by the use of the word “fit” to mean “rehabilitated” they would have used the word “rehabilitated” expressly. Thus, the use of the word “fit” indicates that Regulation 12 likewise does not support the conclusion that factors of special deterrence, including rehabilitation, were the sole basis for parole either in 1961 or in 1945. Rather, the term “fit” implies that to gain release, the prisoner must meet the requirements of parole in all respects, e.g., that he be rehabilitated and that factors of general deterrence and retributive justice do not warrant denial.
“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.”
It should be apparent from the preceding analysis that principles of special deterrence, including rehabilitation, were not the sole determinative factors which thereby eliminated from the Board’s discretionary parole decision any consideration of general deterrence and retributive justice. The statutes and regulations existing prior to 1973 merely indicate that the legislature, and the Parole Board, wanted to insure that some thought and consideration be given to an inmate’s progress towards rehabilitation. Our review of the Illinois statutes and the Parole Board’s regulations leads this court to conclude that rehabilitation standing alone did not mandate release. If that had been their intention, the legislature or the Parole Board would have clearly and unequivocally stated that only factors of special deterrence could be considered when deciding whether or not to grant parole. Instead, the statutes, and the regulations written pursuant to those statutes, gave the Parole Board broad discretion in making that decision.
Illinois case law supports our conclusion that considerations other than rehabilitation were taken into account by the Parole Board prior to 1973. For example, in People v. Nowak, 387 Ill. 11, 55 N.E.2d 63, cert. denied, 323 U.S. 745, 65 S.Ct. 67, 89 L.Ed. 597 (1944) the Illinois Supreme Court during its discussion of an equal protection claim stated:
“Plaintiff in error was twenty-four years of age when convicted and the sentence of one hundred years’ imprisonment in the penitentiary is in effect a sentence for life. He has no right under the law to demand that he be discharged from the penitentiary during his lifetime____ The severity of the penalty imposed can not be relaxed except by action of the Governor under the powers conferred on him or by application of the provisions of the Parole Act. These may be granted as a matter of grace and not as of legal right. Such acts of leniency, whether by pardon or parole, are administered by the executive branch of the government in the interests of society and the discipline, education and reformation of the one convicted.”
55 N.E.2d at 65 (citation omitted, emphasis added). Thus, in addition to the “education and reformation of the one convicted,” consideration of the “interests of society” and “discipline” was part and parcel of the parole determination. Factors of general deterrence and retributive justice fall within this latter category.
In its final attempt to justify its conclusion that the 1972 Act created a change in the then existing law, the Welsh court pointed out that in Illinois a convicted criminal is given both a minimum and maximum sentence.
“The severity of the offense committed and society’s concern with sufficient punishment did not enter directly into the Parole Board’s decision. Those factors had already determined the minimum and maximum prison terms imposed by the sentencing judge. The minimum sentence was intended to satisfy society’s desire for adequate punishment; the maximum sentence was a rough indicator of when rehabilitation could be presumed. The function of parole was to mediate between the two extremes. People v. Moore, 133 Ill.App.2d 827, 829, 272 N.E.2d 270, 271 (5th Dist.1971); People v. Lillie, 79 Ill.App.2d 174, 178, 223 N.E.2d 716, 718-719 (5th Dist.1967).”
Welsh, 668 F.2d at 330. The two cases cited by Welsh dealt solely with the length of the sentences imposed. Neither concerned the relevant considerations to be taken into account in the determination of whether or not to grant parole. Furthermore, there is no language in either of these cases indicating that principles of retributive justice, that is, punishment, and general deterrence should not be considered in making the parole decision. While we agree that “[t]he function of parole [is] to mediate between the two extremes,” there is no reason why the 'Parole Board could not, prior to 1973, consider the adequacy of the punishment for the crime committed and the effect that release would have on the deterrence of others in its decision to grant or deny parole.
Support for our conclusion that the Parole Board had broad discretion can also be found in the United States Supreme Court’s decision in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). While discussing the general due process requirements of parole hearings, the Supreme Court in Greenholtz observed that the decision to grant or deny parole requires a:
“predictive judgment as to what is best both for the individual inmate and for the community. This latter conclusion requires the Board to assess whether, in light of the nature of the crime, the inmate’s release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine respect for the administration of justice.”
Id. at 8, 99 S.Ct. at 2104 (emphasis added, footnote omitted). While the preceding quote was obviously not specifically concerned with Illinois law, this passage reinforces our holding that the Parole Board was not limited to merely considering factors of special deterrence prior to 1973 because society’s interests have always weighed in the ultimate decision to grant or deny parole.
We conclude that the 1972 Illinois legislation delineating the parole criteria to be considered subsequent to January 1, 1973, did not enact a change in the factors the Parole Board used in making its parole determination, rather it merely codified the Board’s prior practice and procedure, that is, it simply explicitly articulated the Parole Board’s broad range of discretion which had always existed. Since the Parole Board considered both general deterrence and retributive justice prior to 1973, the application of criterion (2) to inmates who committed their crimes before 1973 does not violate the ex post facto prohibition of the United States Constitution. The second criterion is not disadvantageous to an offender who committed his crime before January 1, 1973, as that criterion merely includes factors which were considered in making parole decisions prior to that date. Thus, under the dictates of Weaver v. Graham the 1972 legislation is not ex post facto because a critical element of the Weaver analysis does not exist; namely, that it be disadvantageous to the affected offender.
Even under the more traditional mode of ex post facto analysis it is clear that the retroactive application of the second criterion of Ill.Rev.Stat. ch. 38, § 1003-3-5(c) does not violate the ex post facto clause of the Constitution. In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) the Supreme Court, quoting the early decision of Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), delineated the general scope of the ex post facto prohibition.
“It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.”
Dobbert, 432 U.S. at 292, 97 S.Ct. at 2297 (quoting Beazell, 269 U.S. at 169-70, 46 S.Ct. at 68-69). Obviously, the only relevant ex post facto prohibition in this case is that against statutes which make more burdensome the punishment for a crime after its commission. It should be clear that there is no punishment enhancement in the present case for the same reason that § 1003-3-5(c)(2) was not disadvantageous under the Weaver analysis. Since the 1972 legislation merely codified prior Board practice, Heirens’ punishment was not increased by the enactment of the second criterion. His opportunity for parole has not been even insignificantly reduced by the delineation in subsection 5(c) of the circumstances which warrant a denial of parole, as those same reasons were applied prior to their incorporation into statute form. Thus, the statute also does not violate the ex post facto prohibition of the Constitution under the more traditional Supreme Court analysis.
As the enactment of § 1003-3-5(c) did not change prior practice, but merely established a framework or structure within which the Board’s discretion was to be exercised, the change, if there was any, was only procedural in nature since no substantive rights were affected. Viewing any possible change in this light lends further support for our holding that no ex post facto violation occurred in the present case. See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) where the Court held that “[e]ven though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” Id. at 293, 97 S.Ct. at 2298. “[T]he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, ... and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.” Id. (quoting Beazell, 269 U.S. at 171, 46 S.Ct. at 69) (citation omitted). See also Portley v. Grossman, 444 U.S. 1311, 100 S.Ct. 714, 62 L.Ed.2d 723 (1980) (Rehnquist, J., opinion in chambers).
Before turning to our discussion of the due process issue, one final observation should be made concerning the Welsh decision's practical effect on the Parole Board’s discretion. Illinois courts have uniformly held that under Illinois law there is no right to parole. See People v. Nowak, 387 Ill. 11, 55 N.E.2d 63 (1944); People v. Ragen, 400 Ill. 191, 79 N.E.2d 479 (1948); People v. Spivey, 10 Ill.2d 586, 141 N.E.2d 321 (1957); People ex rel. Jones v. Brantley, 45 Ill.2d 335, 259 N.E.2d 33 (1970); and People v. Hawkins, 54 Ill.2d 247, 296 N.E.2d 725 (1973). These cases are not determinative of the question presented in this action, however, since as Welsh correctly observed, a prisoner need not “show that he has a vested right to be paroled” to demonstrate an ex post facto violation. Welsh, 668 F.2d at 332 (citing Weaver v. Graham, 450 U.S. at 29-30, 101 S.Ct. at 964-965). The problem arises when Welsh is read in light of this circuit’s subsequent decision in U.S. ex rel. Scott v. Ill. Parole and Pardon Bd., 669 F.2d 1185 (7th Cir.1982). In Scott this court found that the 1972 Illinois parole legislation created a legitimate expectation of parole which was entitled to some measure of constitutional protection. To protect that expectation, the Scott court directed the Parole Board to provide parole applicants with a statement of reasons “sufficient to enable a reviewing body to determine whether parole has been denied for an impermissible reason or for no reason at all.” Id. at 1190 (quoting United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925, 934 (2d Cir.), vacated as moot, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974)). The Welsh case, on the other hand, essentially limits the Illinois Parole Board’s discretion to a consideration of special deterrence if the parole applicant was convicted of a crime committed prior to January 1, 1973. Thus, it can be argued that Welsh, in light of Scott, inferentially created what amounts to a right to parole, a right which the Illinois courts have unequivocally denied existed.
The present case is a perfect example of this presumably unintended result of our holding in Welsh. Since in Magistrate Cohn’s view, the Parole Board was unable to substantiate through any reference to evidence in the record that Heirens was not in fact rehabilitated and thus was not a good parole risk, the Parole Board had no option and was ultimately ordered to release Heirens. As Magistrate Cohn stated in his December 22, 1982 order: “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.” (Emphasis added.) Thus, the practical outcome of Welsh and Scott for inmates convicted of crimes committed prior to 1973, is that the Board must be able to point to facts in the record that support its decision that the applicant is not rehabilitated.
As previously noted, there is no set of facts which, if shown, entitle an Illinois inmate to parole under Illinois law as it has been interpreted by its Supreme Court. Subsequent to Welsh, however, an argument can be made that if an inmate convicted of a crime committed prior to 1973, no matter how heinous or vicious, maintained a stellar prison conduct record and obtained, for example, a psychiatric report which stated that he was in fact rehabilitated, the Parole Board would apparently be required to grant parole since it would not be able to substantiate in the record either lack of rehabilitation or high parole risk. Clearly, this was not the intention of the Illinois Legislature when it enacted the statutes governing parole. If it had so intended, it certainly would not have granted to the Department of Corrections and subsequently the Parole and Pardon Board such broad discretion limited only by the requirement that such agency give due consideration to the inmate’s prison record. It should be noted that we are not questioning the result in Scott, rather we are simply delineating what we believe to be an additional infirmity of the Welsh decision when read in light of our subsequent decision in Scott.
B. THE VALIDITY OF THE PAROLE BOARD’S RATIONALE UNDER DUE PROCESS.
We now turn to a discussion of whether the rationale provided by the Parole Board met the due process requirements set forth in U.S. ex rel. Scott v. Ill. Parole and Pardon Bd., 669 F.2d 1185 (7th Cir.1982). In Scott, the court determined that the Illinois parole statute (Ill.Rev.Stat. ch. 38, § 1003-3-5), like the Nebraska statute in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), “provides [an inmate] with a legitimate expectation of parole entitled to some measure of constitutional protection.” Scott, 669 F.2d at 1190. Thus, the court held that due process required.the Parole Board to provide an applicant whose parole was denied with a statement of reasons which included both the grounds for the denial and the “essential facts” on which those grounds were based:
“To satisfy minimum due process requirements a statement of reasons should be sufficient to enable a reviewing body to determine whether parole has been denied for an impermissible reason or for no reason at all. For this essential purpose, detailed findings of fact are not required, provided the Board’s decision is based upon consideration of all relevant factors and it furnishes to the inmate both the grounds for the decision ... and the essential facts upon which the Board’s inferences are based.”
Scott, 669 F.2d at 1190 (quoting United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925, 934 (2d Cir.), vacated as moot, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974)). This court has since reaffirmed this standard in Solomon v. Elsea, 676 F.2d 282 (7th Cir.1982). To gain a complete understanding of the requirements of due process, however, it is useful to examine Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the case which formed the basis of our decision in Scott.
The Supreme Court in Greenholtz began its due process analysis with a general overview of the parole decisionmaking process.
“A state may, as Nebraska has, establish a parole system, but it has no duty to do so. Moreover, to insure that the state-created parole system serves the public-interest purposes of rehabilitation and deterrence, the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority. It is thus not surprising that there is no prescribed or defined combination of facts which, if shown, would mandate release on parole. Indeed, the very institution of parole is still in an experimental stage. In parole releases, like its siblings probation release and institutional rehabilitation, few certainties exist. In each case, the decision differs from the traditional mold of judicial decisionmaking in that the choice involves a synthesis of record facts and personal observation filtered through the experience of the decision-maker and leading to a predictive judgment as to what is best both for the individual inmate and for the community. This latter conclusion requires the Board to assess whether, in light of the nature of the crime, the inmate’s release will minimize the gravity of the offense, weaken the deterrent impact on others, and undermine, respect for the administration of justice. The entire inquiry is, in a sense, an ‘equity’ type judgment that cannot always be articulated in traditional findings.”
442 U.S. at 7-8, 99 S.Ct. at 2103-2104 (footnotes omitted, emphasis added). The Supreme Court subsequently elaborates on this latter point.
“The parole-release decision, however, is more subtle and depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole releases. Unlike the revocation decision, there is no set of facts which, if shown, mandate a decision favorable to the individual. The parole determination, like a prisoner-transfer decision, may be made
‘for a variety of reasons and often involve[s] no more than informed predictions as to what would best serve [correctional purposes] or the safety and welfare of the inmate.’ Meachum v. Fano, 427 U.S. [215] at 225 [96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976)].”
Id. 442 U.S. at 9-10, 99 S.Ct. at 2104-2105 (insertions original). Thus, it is not surprising that the Supreme Court concluded:
“[W]e find nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular ‘evidence’ in the inmate’s file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. The Board communicates the reason for its denial as a guide to the inmate for his future behavior. See Franklin v. Shields, 569 F.2d [784] at 800 [4th Cir.1977] (en bane). To require the parole authority to provide a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board’s parole-release determination with a guilt determination. The Nebraska statute contemplates, and experience has shown, that the parole-release decision is, as we noted earlier, essentially an experienced prediction based on a host of variables.”
Id. at 15-16, 99 S.Ct. at 2107-2108.
Thus, the extent of judicial review of the Parole Board’s decision is very narrow. If the Parole Board cites to facts upon which its reasons for denial of parole can be justified, due process is met. This position finds support in this court’s recent decision in Walker v. Prisoner Review Bd., 694 F.2d 499 (7th Cir.1982) where we held that an enunciation of the various offenses with an indication of the extreme length of the sentences (indicating the trial judge’s determination that the criminal conduct was especially heinous) was sufficient to support the Parole Board’s conclusion that parole at that time would deprecate the seriousness of the offense or cause disrespect for the law. See Walker, 694 F.2d at 502.
With the preceding as a backdrop, we now focus on the question of whether the rationale provided to Heirens fulfilled the requirements of due process. In its first attempt to comply with the Magistrate’s July 15,1982 order, the Parole Board issued the following rationale for its denial of Heirens’ parole:
“The Board, having heard your case, reviewed the written material in your file which included a statement from the prosecutor, your institutional record, and the representation made by you at the hearing at Vienna Correctional Center.
“In considering the crimes for which you are now serving time, the Board notes that you were convicted of three murders in which one of the bodies was dismembered. Furthermore, according to the Statement of Facts, you stated that you obtained sexual satisfaction from committing these and other burglaries in which three of the victims were murdered.
“This behavior was precipitated by unknown factors, thus rendering at best your behavior in an unstructured environment difficult to predict.
“The Board in rendering its decision to deny parole considered all the above factors but feels there is a risk of further non-conforming conduct too great to allow your release at this time.
“The foregoing rationale is substantially the same reasoning that led to the denial of your parole in 1979 and other recent years.
“We take note of your excellent institutional adjustment in a structured environment and encourage you to continue in the same manner.”
As previously stated, the Magistrate, while agreeing that the Board applied the correct “special deterrence” criteria as required by Welsh, concluded in his December 22, 1982 order that the Board had in fact failed to explain the discrepancies in its record which inferred, contrary to the preceding rationale, that the Board actually believed Heirens to be rehabilitated and a good parole risk. Rather than releasing Heirens, the Magistrate gave the Board an additional opportunity to provide a rationale which included specific citation to the record to substantiate its determination that Heirens was not rehabilitated and continued to be a poor parole risk.
In response to his December 22 order, the Board issued the following rationale:
“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 panel who last interviewed you was likewise not convinced, although you may have demonstrated the ability to perform adequately in a structured society, that you would be able to function without recourse to violence in the free society.
“The Prisoner Review Board heard your particular case at your hearing in August of 1982, considered many and varied factors among which are your personal representations, the many documents in your file, the Program Considerations, your institutional adjustment and the fact that you were sentenced to three consecutive sentences of ‘Natural Life’ for the offense of murder, together with a vast number of sentences for burglary, robbery and assault with intent to murder.
“Additionally, the record reflects the particularly heinous details of your commission of the kidnapping, murder and subsequent dismemberment of ... an innocent seven-year old child.
“In conclusion, as previously noted during prior parole hearings, your academic achievements have been above average; however, in rendering its decision 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.”
Upon review of the foregoing rationale, we hold that the Board’s statements met the due process requirements as set forth in Scott and Greenholtz. Further, we hold that the Magistrate erred in attempting to force the Parole Board to go beyond the requirements of Greenholtz by requiring that it in effect “provide a summary of evidence” in contravention of the Supreme Court’s ruling. See Greenholtz, 442 U.S. at 15, 99 S.Ct. at 2107.
The Board provided Heirens with two reasons for its decision to deny parole: (1) that the risk of non-conforming conduct was too great, i.e., doubts regarding his rehabilitation; and (2) that release would not serve the best interests of society nor “serve as a deterrent to non-compliance with the established laws of society” (now a viable reason due to our reversal of Welsh). The facts cited to support the Board’s fear that Heirens might resort to violence in an unstructured environment are: (1) three murders, one of which was particularly heinous and gruesome; (2) that he stated he obtained sexual satisfaction from committing the murders and other burglaries; and (3) that his behavior was caused by unknown factors making conduct in an “unstructured” setting difficult to predict. The facts cited to support the Board’s belief that release would not be in society’s best interest nor serve as a deterrent for other would-be offenders are: (1) the number of offenses — three murders and the “vast” number (26) of other crimes; and (2) the “particularly heinous details” of one of the murders. Furthermore, the second rationale also addressed the evidence which so concerned the Magistrate, that is, it indicated that Mr. Irving’s statements were his own and did not represent the beliefs of the other members of the reviewing panel which considered Heirens’ parole in 1979. We hold that the above-noted reasons and supporting evidence meet the due process requirements of Scott. The Board considered all the relevant factors, provided Heirens with its reasons for denial and also gave him the “essential facts” underlying its reasons. Nothing more is required. Accord Walker v. Prisoner Review Bd., 694 F.2d 499 (7th Cir.1982).
For the foregoing reasons, we reverse the determination of the Magistrate and deny the petition for a writ of habeas corpus.
"No State shall ... pass any ... ex post facto law.” U.S. Const, art. I, § 10, cl. 1.
Ill.Rev.Stat. ch. 38, § 1003-3-5(c) provides: "(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."
The Board provides a parole applicant with a written statement of the reasons for its action pursuant to Ill.Rev.Stat. ch. 38, § 1003-3-5(f).
The August 24, 1982 rationale essentially stated that the Board had completely reviewed Heirens' case and had decided that the risk of future non-conforming conduct was too great to allow release at that time. To justify its conclusion, the Board cited to the fact that Heirens had been convicted of three murders one of which was particularly heinous. In addition, the Board noted that, according to the statement of facts, Heirens stated that he had gained sexual satisfaction from these murders and other burglaries. The Board asserted that because the underlying cause of such behavior was unknown, Heirens’ reaction to an unstructured environment was “difficult to predict.” Finally, the Board stated that these reasons were substantially the same as those leading to parole denial in 1979 and subsequent years.
Much of the evidence cited by the Magistrate to support this conclusion comes from a transcript of Heirens’ November 27, 1979 parole hearing. Heirens stated under oath that he had made the transcript from a taperecording of that hearing. The veracity of this evidence was not contested by the respondents. According to that transcript, Parole Board Chairman James Irving stated, in response to questions asked by Heirens, that Heirens was "probably rehabilitated in the first 10 or 15 years.”
The terms “special deterrence” and "specific deterrence” appear to be used interchangeably. Compare Welsh, 668 F.2d 328 (7th Cir.1982) where the term "special deterrence” is used, with Salyes v. Welborn, 725 F.2d 436 (7th Cir. Jan. 11, 1984) where the court uses the term "specific deterrence." In view of the fact that these terms are synonomous, we have adopted the "special deterrence” language of Welsh.
The fact that Heirens’ release was not specifically ordered until the Magistrate's April 20, 1983 decision distinguishes this case from Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) since neither his first nor second order directed that Heirens be released at a specified time as was the case in Browder. See Burton, 643 F.2d at 469.
See also Garcia v. United States Bd. of Parole, 557 F.2d 100 (7th Cir.1977) where this court found that the order which actually released the petitioner was the final appealable order since the previous order failed to resolve the issue of whether the reasons given in support of the parole board’s denial of parole were adequate.
Both the present habeas action and the § 1983 action are before this panel. Our refusal to decide the merits in this case would merely transfer the consideration to the § 1983 appeal. We have decided to meet the issue in the habeas action. We also reject respondent’s motion that Heirens’ § 1983 action was in effect a habeas petition.
We note in passing that, while not material to the disposition of this case, Heirens’ present challenge is somewhat ironic since he opposes the application of a supposedly ex post facto parole statute to him, yet at the same time is claiming the benefits of legislation which considerably reduced the time he would have otherwise spent in certain incarceration.
It should be noted that there are few reported decisions which delineate the actual criteria considered by the Parole Board in 1945. The most persuasive authority that the Parole Board considered principles of general deterrence prior to 1973 is found in an Illinois Bar Journal article authored by former Parole Board Chairman, Theodore P. Fields. Fields, Illinois Parole and Pardon Board Adult Parole Decisions, 62 Ill.B.J. 20 (1973). See discussion of this article, infra. Mr. Fields states in that article that the Parole Board considered the criteria codified in Ill.Rev.Stat. ch. 38, § 1003-3-5(c) for "some time” prior to that legislation’s enactment. We are not surprised by the lack of decisional evidence since until recently, challenging a parole decision was an exercise in futility. In addition, the requirement that the Board delineate its reasons for denying parole (the requirement which ultimately provides the basis for the present action) is a most recent development in the law.
In its reference to § 806, the Welsh court only cited to the last part of the above-noted quote requiring that the statement include those facts which shed light on whether the prisoner could again become a law-abiding citizen. The Welsh court’s focus on the latter part of the above quote led it to conclude that § 806 supported its position that rehabilitation was the sole focus of the parole decision prior to 1973. We do not agree.
In 1945, this regulation was number 15. Except for a few minor changes, irrelevant to the present analysis, it is identical to Regulation 15 as it existed in 1945.
In 1945, this regulation was number 13. Except for a few minor changes, irrelevant to the present analysis, it is identical to Regulation 13 as it existed in 1945.
Even if the term "fit” were interpreted to mean rehabilitated, Regulation 12 could not support the conclusion that rehabilitation was the sole factor to be considered in determining whether parole was to be granted. Under such an interpretation, Regulation 12 would merely provide that if an inmate was found to be not rehabilitated ("fit”), parole would automatically be denied. It would not support the converse proposition that if an inmate was determined to be rehabilitated that release on parole would be mandated. Such a conclusion simply does not logically follow.
Note that the minimum/maximum distinction only applies to indeterminate sentencing as was the case in Welsh. Sentences for murder in 1945 were determinate rather than indeterminate and thus under Welsh "the adequacy of the punishment" equaled the length of the sentence, in this case, life. See Ill.Rev.Stat. ch. 38, § 801 (1945). We do not believe, however, that Welsh is distinguishable upon this ground.
Compare Prater v. U.S. Parole Commission, Warden, U.S. Penitentiary, 575 F.Supp. 284 (S.D.Ind.1983) where the district court denied a similar ex post facto claim against the federal Parole Commission on grounds in accord with the present case.
The respondents requested that we reconsider our decision in U.S. ex rel. Scott v. Ill. Parole and Pardon Bd., 669 F.2d 1185 (7th Cir.1982). We decline to do so. Amicus asserts that we are required to look to state law when interpreting Illinois’ parole statute. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979); Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Averhart v. Tutsie, 618 F.2d 479, 481-82 (7th Cir.1980). Amicus contends that there is Illinois case law which in fact indicates that the Illinois statute does not create an expectation of parole requiring protection under due process as previously held in Scott. They cite specifically to Harris v. Irving, 90 Ill.App.3d 56, 45 Ill.Dec. 394, 412 N.E.2d 976 (5th Dist.1980), and People ex rel. Burbank v. Irving, 108 Ill.App.3d 697, 64 Ill.Dec. 303, 439 N.E.2d 554 (3d Dist.1982). Neither of these cases directly addresses the issue and therefore we will not at this time reconsider our holding in Scott.
Our circuit recently held that a rationale provided by Illinois Prisoner Review Board, similar in many respects to the above-noted rationale, was adequate under the dictates of Welsh. Sayles v. Welborn, 725 F.2d 436 (7th Cir.1984). Ironically, Magistrate Cohn was also involved in that case and likewise found the rationale provided therein sufficient to satisfy Welsh. Note that the present decision to overrule Welsh will not change the result in Sayles since special deterrence remains one of the valid grounds upon which to deny parole.
A major part of the evidence the Magistrate relied upon for his conclusion that the Board viewed Heirens as rehabilitated came from statements made by Board Chairman Irving at Heirens’ November 1979 parole hearing. It should be noted that this was one man’s view, and as clearly made evident in the Board’s rationale following the Magistrate’s December 12, 1982 order, Irving’s opinion was not that of a majority of the Board. Furthermore, the Board as a whole has never stated that they believe Heirens to be rehabilitated and a good parole risk.
It is not surprising that Parole Boards more closely scrutinize the degree of rehabilitation of parole applicants convicted of assaultive crimes as compared with applicants convicted of property crimes. If the property offender repeats his crime on parole the likelihood that human life will be harmed is much less than if an offender who has already shown his tendency to engage in assaultive behavior repeats his crime. See Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash.U.L.Q. 243, 249-50.