Illinois Supreme Court Upholds Sex Offense Registry, Considers SORR
The Illinois Supreme Court has upheld the constitutionality of the Illinois sex offender registration scheme. It has also ruled that sex offender residence restrictions are not facially unconstitutional but remanded an “as applied” challenge to the lower court. The plaintiff had been representing himself pro se.
On the question of residence restrictions, the plaintiff cited recidivism studies, as well as studies demonstrating that residence restrictions are ineffective at protecting the community and in fact potentially harmful. The court suggested, however, that these studies were not material to the residence restriction’s constitutionality. That is because the court was unconvinced that the plaintiff had proven that residence restrictions infringe upon a fundamental right. Residence restrictions do not, for example, prohibit a registrant from “living with his family in a residence consistent with the statute,” nor the registrant’s “right to intrastate travel.”
And because they were not proven to infringe upon a fundamental right, residence restrictions, in the court’s view, needed only to pass the “rational basis” test to be constitutional. So even if residence restrictions may be ineffective, they are not irrational, because “it is reasonably conceivable [italics added] that preventing child sex offenders from residing within 500 feet of a home day care where children gather will protect children. By distancing child sex offenders from areas where children are present, the legislature rationally sought to avoid giving child sex offenders the opportunity to reoffend.” And the residence restriction is not proven to be punishment because it “does not resemble the historical punishment of banishment, does not resemble imprisonment, is not intended as retribution, bears a reasonable relationship to the rational nonpunitive purpose of keeping children safe from child predators, promotes a reasonable method of accomplishing that goal, and is not excessive to its purpose.”
Regarding both residence restrictions and the state’s overall registry scheme, “plaintiff alleged that, since his 2003 conviction, he had not reoffended and had no other criminal charges or convictions. Plaintiff alleged that he had been rehabilitated with no violations and did not possess any recidivist characteristics. Plaintiff thus argues that he has lived a lawful life for the last two decades and has long passed what is known as the ‘desistance threshold,’ where a convicted person’s risk is at the same level as the general population. Plaintiff argues that recidivism rates drop steeply for individuals in their fifties and sixties so that longer periods of registration and community control are inefficient and make it difficult for the public to determine the true risk an individual offender may pose…plaintiff argues that, because he is no longer a risk to the public, the sex offender registration, notification, presence, and residency provisions violate his right to procedural due process and that any post-offense amendments to these provisions violate the prohibition against ex post facto laws.”
But the court was not convinced that the registry scheme violated procedural due process or ex post facto. Regarding procedural due process, “Plaintiff’s dangerousness or likelihood to reoffend is irrelevant to his subjection to these provisions, which are triggered based on his conviction [alone]. Accordingly, plaintiff does not have a due process right to a hearing to establish a fact that is not relevant or material under Illinois law…Plaintiff suggests that the provisions at issue may be overinclusive, imposing burdens on sex offenders like himself who pose no threat to the public because they will not reoffend. However,… the threat of sex offender recidivism is not a question for rational basis review; that is a question for the legislature.”
Regarding ex post facto punishment, the court observed that the state’s registration scheme, i place at the time of plaintiff’s offense, was already found to be non-punitive by precedent and therefore was not ex post facto punishment. And the court was unconvinced that subsequent amendments could constitute punishment if the overall scheme was not. Under the precedent set by the U.S. Supreme Court in Smith v. Doe, “we must examine whether the scheme is so punitive in purpose or effect that the State’s intention to deem it civil is negated.” The court concluded, “the statutory scheme involving sex offenders and child sex offenders has a nonpunitive purpose of public safety, which is advanced by alerting the public to the risk of sex offenders in their community and creating a buffer between sex offenders and congregations of children.”
These are highlights from the court’s full opinion, which may be found here.
Several state supreme courts have ruled their state registration schemes to be punitive. Several others have ruled the opposite. The Illinois Supreme Court, with this disappointing ruling, joins the latter club.
This case shows why it is important to not only hire an attorney but to hire the right attorney to argue on your behalf, because you never know what sort of precedent you may be establishing for those similarly-situated.
Guy Hamilton-Smith wrote the following on X:
If courts say the legislature is entitled to make whatever judgments it wants about unpopular classes of people, and legislatures aren’t going to respond to evidence about said class of people, because they want to win elections, then what?
Obviously legislatures can’t say, for example, that people of Japanese descent are threats and must be put in camps, right? That’s not a reasonable judgment.
But in order to determine what is reasonable, that requires engagement with facts and evidence, which courts don’t do.
I mean just on a philosophical level, if you have fifty scientists saying X, and the legislature says Y, and no scientists saying Y, then is Y reasonable? At what point does it stop being reasonable?
These questions are perhaps unanswerable.
Illinois’ residence restrictions are the smallest in the country at 500 feet. Furthermore, Illinois’ residence restriction was passed in 2000, so even though the plaintiff was convicted in 2003 he doesn’t have an ex post facto claim. Not that I care for the legislation or think it’s effective, but it’s a little hard to argue it really qualifies as unconstitutional. It only covers 1/25th of the radius of the 2500 foot restrictions in most Florida cities.
Some states have zero residence restrictions. They recognize that these restrictions give communities a false sense of security.
IL adopted the first residency restriction in 2000. It later amended them 3 more times, the last was adding home daycares to the list of restrictions, which was the restriction I was fighting.
For whatever it is worth, I’ve spoken with the Plaintiff in the case and I am somewhat less sure that the result is necessarily due to his pro se status — I think these issues just often face an uphill battle in the courts, especially where judges are elected. I think pro se litigants often get the short end of the stick from courts and court staff because a lot of pro se folks don’t know what they’re doing, but I’m not sure this fellow was one of them. I do think having a lawyer is generally the right idea, but often lawyers don’t want to wade into cases like this even if they’re conversant in the issues.
In any event, it is a disappointing decision, to be sure. It’s especially disappointing because Illinois in 2017 formed a legislative task force to look at these laws and they concluded that, amongst other things, residency restrictions should be repealed and have no basis in science.
But of course the legislature is never going to repeal them because of political concerns. It is no answer for courts to say you should take it up with the legislature when the legislature has *already* been presented with said evidence and refuses to budge. The ongoing Snyder litigation is another good example of legislatures refusing to do anything that might hurt reelection chances by appearing to go soft on SOs. Very frustrating.
Lima Bean:
Some states such as Michigan have no residency restrictions so their residency restrictions are zero which is much smaller than Illinois’ residency restrictions.
Of course the lawmaker’s egos will always prevent them from admitting wrongdoing. When it comes to the registry, they will always test boundaries to see what they can get away with. make no mistake, the lawmakers are proud of this train wreck. They treat it like a religion while we continue to crawl in circles looking for an out, but there is none. They were smart enough close all the loopholes.
This is Martin the pro se plaintiff from IL. I think your last comment was pretty harsh considering I’m a disabled veteran with 2 children who is going through a divorce for the last 18 months. While it’s easy to say “hire a great attorney,” it’s a lot harder to *pay* for said attorney. There are things I would love to go into about the decision, like the ILSC further constricting an equal protection challenge, or how they said property rights aren’t fundamental, the list is too long for that. Instead I’ll just say this instead: I’ve been harassed for years, my children have been harassed, during this appeal I was brutally attacked resulting in major neck surgery and permanent nerve damage, my wife filed for divorce bc of the attack and then recently opened a DCFS investigation (which turned out to be unfounded in 5 days). Ive had enough. While people who were more informed on my case and arguments and the decision applauded my courage and willingness to fight, you (the author) suggest that I shouldn’t have done it, that I should’ve just put my whole family into bankruptcy. Shame on you! Oh and when I write something, I sign my name to it.
Martin Kopf
To the author of this article:
Yes this is Martin again. I just want to say this: at least I had the guts to do whatever I could to save my family from financial ruin. Cuz as a veteran, that’s how I roll: I protect the ones I love.
I took my shot. Win or lose, I couldn’t look my boys in their eyes knowing I didn’t try.
I’m a veteran. I’m a person of action, and except for one instance (my conviction) I have ALWAYS helped those who couldn’t help themselves.
I, as well as the legal experts who have followed this case, consider this a partial victory. At least I have the chance to prove that the law is unconstitutional as-applied to me.
Martin Kopf
And we all owe you a debt of gratitude for the attempt, sir. You have my admiration.
I think you put forth a very good case with the facts to back it up.
You miss every shot you don’t take. And you put up a great fight in this lawsuit what good his decades of research if they just bow to political pressure?
There is the registrant In Florida with the last name Clements and he is filing a lot of his cases pro se (by him self) anyway he had a case go all the way to the Supreme Court and they got shot down but he made some really good strong points and he has numerous cases still out that he has filed since the supreme court case so he hasn’t given up yet man, so don’t give up keep fighting and it takes a lot of courage to put your name on these lawsuits as well as these post.
Thank you both for your supportive comments. That really means a lot.
Eugene, do you know Clements? If you do, maybe you could pass along my contact info.
Thanks
Martin
Martin
Thanks for being brave. About 23 years ago I filed a lawsuit against a large company, and I did Pro se. The judge and arbitrators both advised against it. A week before the trial, someone contacted me stating the 7 lawyers for the defense would not be showing up in person due to me not having a lawyer.
I arrived at the hearing room and was told one person from the company would be on a video chat for the company’s defense. I told my story for about 30 minutes and gave all my evidence. Then the company rep tried to chew me up and spit me out.
When it was all over and done, the judge told me I would get a decision by mail within 6 weeks. Three days later I got a letter in the mail from the judge congratulating me on my bravery and wonderful testimony. I had won.
I won’t mention the company for various reasons. I bet the next time there is a similar case, the lawyers will show up. I admit if seven lawyers had shown up in person, they would have eaten me alive. The one on the video call was way too confident they would win for me to take him seriously, so I was not nervous at all.
Cherokee, thank you for your kind words and support. It is appreciated more than you will ever know.
I also did a pro se against an insurance company. I beat them for $10k more than I was asking for due to the diminished value of a vehicle after being in an accident. I actually ran into the attorney at another courthouse. I reminded her of who I was and she turned to the other attorneys around her and said I hope you’re not going up against this guy. He gave me the biggest pro se defeat in my career. It was one of my proudest moments and makes me smile to this day.
So thanks again. These 2 anecdotes only prove that if one puts in the time and effort into research, pro se victories are possible!
And I’m not done fighting the registry either. I won’t quit because I’m fighting for my two children.
Martin Kopf
Martin:
I think you are misconstruing the author’s intent. He was simply stating that it is preferable that litigants have competent attorneys. I can appreciate your financial situation, however, you are located in Illinois. Illinois Voices is one of the few organizations in the U.S. that is actively litigating these laws in court. By working with them you will have the benefit of their experience and fundraising capacity. It takes an ability to research the law to be effective in court.
I am surprised that you can’t locate Mr. Clements. It’s odd that you cannot locate someone on the public sex offender registry. I put his last name into 11th Circuit Court decisions and his full name was the first one to come up. I put his name into Florida’s sex offender search and it comes right up. I found his address in under two minutes this way.
Mr. Clements is why people should not file in pro per. His last case was decided on February 21, 2024 where he sued the governor of Florida on the issue of getting married to someone who is under 18. The appeals court shot him right down because he failed to even make an arguable case. The decision before that was decided only a few months ago when he sued 3M. This was actually a series of decisions that was shot down each time for not presenting an arguable claim each time.
Mr. Clements is one of the writ writers that gets bad law onto the books and this is what the author was alluding to. I hope that you continue to fight on, but it is best that you fight on with groups such as FAC, ACSOL and Illinois Voices who have experience in dealing with the issues and attorneys who also have the fundraising infrastructure set up.
I am also a veteran and have learned that it is best to function as part of a team rather than going it alone, and this is what you need to do, reassess your strategy and chances for success working alone as opposed to being part of a team.
FAC States:
“This case shows why it is important to not only hire an attorney but to hire the right attorney to argue on your behalf, because you never know what sort of precedent you may be establishing for those similarly-situated.”
I’m not sure where you are, or what your experience is. But I am completely unable to find ANY attorney to address my vast and complex federal, and state Sex offender registry related concerns.
I have absolutely no doubt this is a very common concern and experience for most offenders.