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.
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
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.
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.
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.
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.
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.