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.

____________

SUBMITTED JUNE 19, 2006—DECIDED JULY 5, 2006

____________

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 imprisonment. 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 concluding 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 determinate 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 essentially 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 Department 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 opportunity 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 including 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 whenever 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 deprecate 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 explore 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 discretionary 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