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Legal Catch-22

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Dear editor:

Grant Pick's article (February 16) titled "No Mercy" mistakenly said "that punishment after the fact can't be hiked" is "ipso facto." Ipso facto means the very nature of the case. What was obviously meant was the Ex Post Facto clause of the U.S. Constitution, Article I, Section 10.

The Ex Post Facto clause is unique in that it protects the unpopular from retroactive application of new laws directed toward vengeance.

C-numbers are suffering from a violation of the Ex Post Facto clause, especially those sentenced before 1973. In 1973 Illinois adopted three criteria to govern the granting of parole. Two are the same criteria as in the old law--the risk and prison behavior criteria. In 1973 this was expanded to include that parole will be denied if it "deprecates the seriousness of the offense or promotes disrespect for the law." Under the old law this criterion was used for discharge, that is, final release is "not imcompatible with the welfare of society" which courts have ruled to mean the same thing.

To understand how this new paroling criterion violates the Ex Post Facto clause requires a study of how the old parole laws worked. When a prisoner became eligible for parole he met with the parole board and they determined if he was capable of becoming a law-abiding citizen (risk) and if his prison behavior warranted parole. A favorable finding by the board resulted in a parole being granted. The prisoner continued to serve his sentence while on parole. After the prisoner had successfully served his parole term his case was again considered by the parole board. The board then made the judgment if his final release was not incompatible with the welfare of society based on his behavior while on parole. A favorable judgment resulted in a recommendation to the governor to commute any balance remaining on the sentence to time served. Invariably the sentence was commuted to time served, resulting in a discharge.

Now, if we move this discharge criterion to being a paroling criterion, the whole system becomes inoperative. It becomes a catch-22 situation. A prisoner can't be paroled because he can't satisfy the discharge criterion until after he is paroled first. This whole procedure for satisfying a sentence before 1973 was a part of the sentence as though it had been written into the sentence. Legally a pre-1973 C-number can never be paroled to fulfill his sentence when the old discharge criterion is used as a paroling criterion.

This is definitely a violation of the Ex Post Facto clause and it is especially burdensome when the parole board admits that the prisoner is a good risk for parole and his prison behavior warrants it.

Essential to an Ex Post Facto judgment is the comparison of the new law with the old law, not with prior practice unsanctioned by the old law.

Yes, C-numbers are in prison in violation of the Ex Post Facto clause but who cares--they are unpopular people.

J. Edward Pecka

Vienna, IL

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