Grennier, Richard L. v. Frank, Matthew ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3964
RICHARD L. GRENNIER,
Plaintiff-Appellant,
v.
MATTHEW J. FRANK, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-C-0081-C—Barbara B. Crabb, Chief Judge.
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SUBMITTED JUNE 19, 2006—DECIDED JULY 5, 2006
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Before COFFEY, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Since 1973, when he was
convicted of first-degree murder, Richard Grennier has been
a prisoner of Wisconsin. See Grennier v. State, 70 Wis. 2d
204, 234 N.W.2d 316 (1975). His sentence is life imprison-
ment. He also has convictions for arson and burglary.
Grennier wants to be released on parole, but his every
request has been denied with two observations: first that he
has not been punished sufficiently and second that the
populace would not be safe with him at large unless he has
completed treatment for his sexual disorders. (He began a
treatment program but flunked out because of misconduct.)
Grennier murdered a teenaged hitchhiker, mutilated her
body, and raped her corpse. He observes, however, that he
2 No. 05-3964
has not been convicted of a sex offense, and he maintains
that labeling him a “sex offender” on the basis of the
necrophilia and other information the state possesses about
his sexual proclivities violates the due process and ex post
facto clauses of the Constitution because it stigmatizes him
and hampers his chance for parole release.
Grennier’s suit rests on 42 U.S.C. §1983, which is proper
even though the end in view is release on parole. See
Wilkinson v. Dotson, 544 U.S. 74 (2005). The district judge
granted summary judgment to the defendants after conclud-
ing that Wisconsin’s parole system does not afford lifers any
liberty or property interest in the opportunity for release.
Prisoners with fixed terms presumptively are entitled to
parole after two-thirds of their sentences. See Wis. Stat.
§302.11(1). We held in Felce v. Fiedler, 974 F.2d 1484, 1491-
92 (7th Cir. 1992), that a liberty or property interest arises
at that point. But there is no such thing as “two-thirds of a
life sentence”; people in Grennier’s position never acquire
a presumptive entitlement to release. See Wis. Stat.
§302.011(1m). They are not even eligible until they have
served 20 years, and from that point forward the system is
wholly discretionary—no fact that any prisoner could prove
at a hearing would entitle him to release. Wis. Stat.
§304.06(1)(b).
It takes mandatory language (and thus an entitlement
contingent on facts that could be established at a hearing)
to create a liberty or property interest in an opportunity
to be released on parole. See Greenholtz v. Inmates, 442
U.S. 1, 7-11 (1979); Heidelberg v. Illinois Prisoner Review
Board, 163 F.3d 1025 (7th Cir. 1998) (Illinois parole
system). We have never considered (in a published opinion,
anyway) how Wisconsin’s parole system for offenders
serving life sentences should be classified, but the subject
is straightforward. We agree with the district court that
Grennier lacks a liberty or property interest. See also Jones
v. Puckett, 160 F. Supp. 2d 1016, 1023 (W.D. Wis. 2001).
No. 05-3964 3
Accordingly he has no entitlement to a hearing under the
due process clause. (In 1998 Wisconsin enacted a determi-
nate sentencing scheme that alters which inmates have
access to parole and on what terms. See State v. Stenklyft,
2005 WI 71 ¶¶16-27, 281 Wis. 2d 484, 697 N.W.2d 769. Our
description and conclusion is limited to the statutes that
govern older crimes.)
The claim under the ex post facto clause fails for essen-
tially the same reason. Statutes and regulations governing
parole are “laws” for purposes of this clause, and states may
not change their laws in ways that increase the punishment
for earlier crimes. See Garner v. Jones, 529 U.S. 244 (2000);
California Department of Corrections v. Morales, 514 U.S.
499 (1995). But Wisconsin has applied to Grennier the same
laws that were in force when he committed his crime.
Defendants allow that Wisconsin has become less willing
to release persons convicted of serious offenses and now
demands assurance that interests in deterrence, desert, and
public safety have been satisfied before a murderer will be
let free. Neither the ex post facto clause nor the due process
clause has anything to say about how discretion will be
exercised under an open-ended system, however. See
Blakely v. Washington, 542 U.S. 296, 308-10 (2004).
Grennier has no more entitlement to a liberal release policy
than he would have had to be sentenced by a judge who
favored home confinement over prison. The constitutional
interest is in the rules and statutes—the “laws” to which it
refers—rather than the attitudes of public officials who
administer a discretionary system. See Prater v. U.S. Parole
Commission, 802 F.2d 948 (7th Cir. 1986) (en banc). Parole
officials who become more concerned with public
safety—and who act on that concern by insisting that
prisoners complete sex-offender treatment programs before
release—do not violate the Constitution. See, e.g., McKune
v. Lile, 536 U.S. 24 (2002).
4 No. 05-3964
Grennier maintains that his situation differs from Lile’s
because Lile was convicted of a sex offense, while his
convictions are for murder, arson, and burglary. He relies
on four decisions that, as he reads them, hold that the
stigma of being called a “sex offender” is enough by itself to
deprive a person of liberty or property. See Coleman
v. Dretke, 395 F.3d 216 (5th Cir. 2004); Neal v. Shimoda,
131 F.3d 818 (9th Cir. 1997); Chambers v. Colorado Depart-
ment of Corrections, 205 F.3d 1237 (10th Cir. 2000); Kirby
v. Siegelman, 195 F.3d 1285 (11th Cir. 1999). If the criminal
trial does not provide the necessary process (as it did for
Lile), then some later hearing is required. Doubtless these
four decisions contain some language to that effect. But
they do not so hold, because in each the sex-offender
designation was pertinent to a decision that the court
believed to entail a protected interest (such as an opportu-
nity for parole under a non-discretionary system—say, one
providing that “every well-behaved prisoner except a sex
offender is entitled to parole after serving 20 years”). It was
the liberty or property interest stemming from statutes and
regulations, and not the “sex offender” label alone, that
required the hearing.
Paul v. Davis, 424 U.S. 693 (1976), holds that the
shame and humiliation of being called a criminal is not
enough by itself to require a hearing under the due process
clause. That case arose from a wanted-style poster includ-
ing names and pictures of “known shoplifters” so that stores
would know who to watch closely (or exclude). Being called
a sex offender is more serious than being called a shoplifter,
but the allegation in Paul was more widely circulated, and
the people wrongly added to the poster must have sustained
real injury to their reputations. The holding in Paul does
not depend, however, on the degree to which the defamatory
statement causes injury: the line is qualitative rather than
quantitative. The Court held that a particular kind of
governmental act (a public accusation of crime) does not
No. 05-3964 5
affect a liberty or property interest. Only when the state
goes further and makes a concrete decision that affects
liberty or property (such as a rule that shoplifters cannot be
public employees, or must spend time in prison) is a hearing
essential. Cf. Codd v. Velger, 429 U.S. 624 (1977); Townsend
v. Vallas, 256 F.3d 661, 669 (7th Cir. 2001).
Any other understanding would call for hearings when-
ever a public official gives reasons for a decision. Suppose
that instead of mentioning a treatment program the state’s
parole board had told Grennier that release would depre-
cate the seriousness of his offense because he had mutilated
the victim’s body. The jury found that Grennier killed the
victim but not that he had mutilated her; that is not an
element of murder. If he is right about the sex-offender
label, then he also would be entitled to a hearing on any of
the parole board’s other subsidiary factual beliefs. Yet the
framework of Greenholtz (and our holding in Heidelberg)
distinguishes between discretionary parole systems and
those that establish legitimate claims of entitlement based
on specific criteria. (Grennier does not contend that Sandin
v. Conner, 515 U.S. 472 (1995), has undermined Greenholtz
or Heidelberg, though Sandin did jettison for some purposes
the positivist approach of earlier decisions.) It would make
no sense to require a hearing whenever a parole board gives
reasons for its decision, but not when it remains silent.
Then hearings would be unnecessary when the decision was
wholly arbitrary (say, a coin flip), or when reasons were
concealed (leaving the prisoner in the position of K. in
Kafka’s The Trial, clueless about what he must do to obtain
freedom), but would be required when public officials acted
sensibly and candidly. How could that be right?
An argument that states must supply hearings to ex-
plore the soundness of any factual propositions that affect
official decisions would treat the process as the property.
The Supreme Court has held otherwise. See Olim v.
6 No. 05-3964
Wakinekona, 461 U.S. 238 (1983). Hearings must be used to
make decisions about liberty or property interests, but there
is no constitutional right to hearings in the absence of such
interests. Grennier does not have a liberty or property
interest in the prospect of parole under Wisconsin’s discre-
tionary system. It follows that the state need not afford him
hearings on any of the subsidiary factual questions—such
as whether his offense was especially brutal, what risk of
recidivism he would pose if released, and whether any of
those new crimes might be sex offenses.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-5-06