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April 5, 2018

Supreme Court of Illinois rejects claim that state prohibition on sex offenders in parks is violative of substantive due process

The Supreme Court of Illinois today in Illinois v. Pepitone, 2018 IL 122034 (Ill. April 5, 2018) (available here), overturned a lower court ruling that found a sex offender restriction to violate substantive due process.  Here is how the opinion starts and concludes:

Section 11-9.4-1(b) of the Criminal Code of 2012 provides, “It is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.” 720 ILCS 5/11-9.4-1(b) (West 2016). The sole issue in this case is whether that statute is facially violative of substantive due process. The trial court rejected defendant Marc Pepitone’s due process claim, but the appellate court majority accepted it and reversed his conviction. 2017 IL App (3d) 140627. For the reasons that follow, we reverse the judgment of the appellate court and affirm the defendant’s conviction and sentence....

We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.  Avila-Briones and Pollard correctly identified a constitutional nexus.  In Avila-Briones, 2015 IL App (1st) 132221, ¶ 84, the appellate court stated: “[B]y keeping sex offenders who have committed offenses against children away from areas where children are present ***, the legislature could have rationally sought to avoid giving certain offenders the opportunity to reoffend.”  The Avila-Briones court added that whether the statutory scheme covering sex offenders is “a finely tuned response to the threat of sex offender recidivism is not a question for rational-basis review; that is a question for the legislature.” Id.  And in Pollard, 2016 IL App (5th) 130514, ¶ 41, the appellate court concluded, “There is also a direct relationship between the *** presence restrictions of sex offenders and the protection of children.” See Standley v. Town of Woodfin, 661 S.E.2d 728, 731 (N.C. 2008) (upholding a municipal ordinance barring registered sex offenders from entering town parks and stating that the town “has a legitimate government interest in desiring to decrease and eliminate sexual crimes in its parks, and prohibiting those most likely to commit criminal sexual acts — persons previously convicted of such conduct — from entering the town’s parks is a rational method of furthering that goal”).  Because section 11-9.4-1(b) is rationally related to a legitimate government interest, the appellate court erred in holding that the statute is facially unconstitutional under substantive due process. People v. Jackson, 2017 IL App (3d) 150154, which followed the appellate court’s decision in this case, is overruled to the extent that it also found section 11-9.4-1(b) unconstitutional.

April 5, 2018 at 10:42 PM | Permalink

Comments

F all people who support the SEX Offender Registries or any of the harassment that is tied to it. Those people are not Americans. They are harassing terrorists and should be treated as war criminals.

While the terrorists who support this harassment enjoy their park ban that will do literally not a single thing that is useful, they will pay dearly. Instead of only complaining, take action in actual reality every day.

Posted by: FRegistryTerrorists | Apr 6, 2018 10:39:32 AM

I would think that entry into a public park is a privilege of state citizenship [putting aside how the P/I Clause of the 14A is applied these days] so some rational basis test would be a questionable approach. A convicted sex offender might meet a higher test though. Also, "facially" entry would be broad. There would be a range of "as applied" examples (e.g., entry with their child or to view a speech there] that might be more difficult.

Posted by: Joe | Apr 6, 2018 12:14:35 PM

@Joe

Yes, it is th you last example that I think is the rub. I don't understand why this doesn't fail a 1st amendment test. After a sidewalk, a public park is the acme of a "public forum". So how can they ban someone from a public forum whether as speaker or attendee?

Posted by: Humdee | Apr 6, 2018 1:56:22 PM

Joe | Apr 6, 2018 12:14:35 PM: Well, you can bet that these scumbag criminal regimes have never, ever stopped asking me to pay far, far more than my fair share to support things like public parks. If these criminal regimes are so interested in trying to pretend that they are protecting anyone by keeping me from going various places then they need to stop stealing from me to fund those places. Frankly, perhaps people who are listed on the glorious Registries should be exempted from most taxes. Fair is fair.

Also, if some citizens are prevented from being certain places then it should be 100% illegal for any politician or paid public employee to do anything official in those places. They certainly should not be allowed to give any public speeches, make appearances, or anything similar to that.

And related, since companies like Facebook and others actively attempt to keep some citizens from using them, no government should be allowed to use them. It ought to be illegal. Any government that does use them should be sued.

Lastly, people need to remember to always vote to keep big governments broke. Always vote to shrink them and their resources. Clearly they are too big.

Posted by: FRegistryTerrorists | Apr 6, 2018 2:11:09 PM

Humdee and Joe, assuming that the opinion is accurate on the procedural history, it looks like Pepitone only raised substantive due process and ex post facto claims and did not raise any First Amendment claim. Pepitone then conceded that there was no fundamental right to enter a park.

If this case had been argued properly, then maybe there would be a basis for some higher level of scrutiny. But based on the concessions, the "proper" review was rational basis review.

Posted by: tmm | Apr 6, 2018 2:26:44 PM

It is great to "know" that Joe and tmm do not have any basic human "rights" or self-worth except for those privileges granted to them by the "State" (remember a government supposedly of the people).

Basis tests and level of scrutiny were created in the minds of our glorious USSC, and these figments of imagination are merely a means to permit the government (heads bowed please) to circumvent fundamental human rights and the Constitution through the most heinous mental masturbation and basic self-deception.

Continue on please. Stalinistic slippery slopes are not respected by me, but who cares what I know.

Posted by: albeed | Apr 6, 2018 8:00:20 PM

Yes, I didn't read the opinion as a whole first, but my argument would be different than the one presented.

Posted by: Joe | Apr 6, 2018 8:06:47 PM

It is great to "know" that Joe and tmm do not have any basic human "rights" or self-worth except for those privileges granted to them by the "State" (remember a government supposedly of the people).

I'm not really denying some sort of natural rights here but we live in a society so rights on some realistic level are those recognized by the government that we have established & voted in. Rights there are influenced by things long accepted as worthy of protection. Anyway, to the degree a public park is at issue, there is logic in rights growing out of the government that created it.

Posted by: Joe | Apr 6, 2018 8:10:10 PM

Extremely simple-minded logic!

Posted by: albeed | Apr 7, 2018 8:17:14 AM

"Extremely simple-minded logic!"

Ironic comment.

Posted by: Joe | Apr 7, 2018 1:18:14 PM

my misunderstanding is the universal applicability of the statute in the sense that what is the test and vetting process of persons entering a park for example are persons who have ever done harm to animals barred (many animals exist in and visit parks) anyone who's ever damaged public property, anyone's who's brandished a firearm in public, anyone's who's assaulted a person..etc ad nauseam. In other words is the public's interest protected in its entirety?

Posted by: jovan | Apr 7, 2018 1:21:32 PM


A few takes (and, yes, I have read both the appellate and supreme court decisions)...

The IL Supreme Court basically says that any law created with good intentions must be assumed to be a good law (wrong)

They essentially say it's not their place to question the legislature (be a "superlegislature"). Wrong. Judging constitutionality and over-broadness of laws is its job.

The court submits in the decision's open that the Constitution guarantees that people shall enjoy "life, liberty, and the pursuit of happiness". They also suggest that the claim being argued was a right to be in the park and not a First Amendment claim. However, in arguing about the over-broadness of the statute, the defendant presented that that he can't visit places such as museums, art galleries, plant conservatories, and many places where lectures are given and classes are offered. And often children are never or rarely present. There is a central First Amendment right to be allowed in the public commons / public square, and that is clear here--even if each one is not specifically enumerated.

Frighteningly, the court spent great length noting that much of the recent empirical recidivism data shows that sex offenders recidivate at low rates. This data pushes back at older "frightening and high" comments. The court says that it is not their place, but the legislature's place to do that research, so they'll stick by the "fake news" of the old data. Scary.

An argument that wasn't raised in this court case was the question of whether sex offender registries and requirements are regulations or punishments-- by law,the legislature can only regulate, not punish. The words "punish" and "punishment" were used by the Supreme Court 5 times in the decision. "Regulate"/"Regulation"/ "Regulatory" were not used once. Curious.

Really, this opinion shows that the court didn't want to be the one responsible for finalizing the change. It's a political decision from a political body. They've punted the issue back to the legislature which probably won't make any changes either, lest it appear "soft on crime."

Given the general dysfunction in the IL state government as a whole, this reversal wasn't much of a surprise. Sad.

Writing as a college professor, an Illinoisans ("former" ASAP) and someone interested in social justice issues.

Posted by: Kevin | Apr 12, 2018 4:36:48 PM

Do courts/people assume that these legislatures have good intentions when they write these laws? Surely they are not that naive. These legislators are criminals. End of story.

What I can't understand is why people just ignore all crimes unless they involve SEX. What is the particular, exact reason that these criminal legislators do not also ban people who have shot other people with guns? And I suppose since we all apparently only care about children, then that would just be people who have shot children with guns. Shooting adults is fine. Obviously that is just one obvious example, of hundreds or thousands.

It is Friday and many people have the large, "extra" allotment of free time of the weekend. I call on those people to make sure that this "park, etc. ban" has a real impact in actual reality - right now and in the future. If you are a Registered Citizen, please do go out of your way to be around random children anonymously as often as you can. Do it this weekend. Form relationships with many, many people who will never know that you are a Registered pariah. Really, make it a goal every day and get it done. That is what the Registries deserve. It is the proper, moral, American response. The Registries are worthless, but make them very counterproductive.

Also, make sure you cause these criminal regimes as many problems as you possibly can. The same goes double for their law enforcement criminals. People should never, ever help them. Do any work that you can to keep them broke and dysfunctional. That will lower their ability to commit crimes and harass people.

Have a great weekend as people free from the harassing, un-American terrorists.

Posted by: FRegistryTerrorists | Apr 13, 2018 5:09:20 PM

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