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April 6, 2019

US District Court declares unconstitutional Illinois host-site rules that has led to indefinite detention of hundreds of sex offenders

Via the always terrific Marshall Project, I came across a notable opinion by US District Judge Virginia Kendall finding constitutionally problematic a remarkable set of rules used to restrict the release of sex offenders from prison in Illinois.  This local press report on this ruling provides these basics:

A federal judge in Chicago has found the Illinois Department of Corrections is violating the constitutional rights of prisoners convicted of certain sex crimes by making the restrictions on where they can live so stringent that inmates are often locked up long beyond their sentences.

In a ruling issued Sunday, Judge Virginia Kendall wrote that hundreds of offenders in the state’s prison system successfully complete their entire court-ordered sentences yet remain behind bars indefinitely.  Kendall found the corrections department is depriving them of fundamental rights, and if they had money and support, they’d be able to leave and begin serving out what’s called “mandatory supervised release.”

Mark Weinberg, an attorney for the plaintiffs, said the decision could mean relief for hundreds of people who have been in prison even though they’ve served their time.... Prisoners call the time they serve beyond their sentences — often many years — “dead time.”...

Will Mingus, executive director of the nonprofit Illinois Voice for Reform which advocates for more effective sex offender policies, says the state’s laws are counterproductive — they actually keep these prisoners from receiving the support that research shows will help them rehabilitate.  “The laws [the legislature is] creating are not solving the problem, they’re not creating safety, they’re creating the illusion of safety,” Mingus said. “Studies that have been done for years now you’ll see that having stable housing, having a job, having social support, those are the things that help people reintegrate into society and help reduce recidivism.”  Mingus said he understands it is difficult to have practical conversations around paroling and rehabilitating sex offenders, but he thinks the judge’s ruling is common sense.  “I think it’ll be a win for the people currently sitting in prison long past their out date because they simply cannot find a place to parole to,” Mingus said. 

Adele Nicholas, an attorney for the plaintiffs, says there are a couple of potential solutions the department of corrections could implement.  “One would be making available different forms of free housing that people who can’t afford a place to live could go to,” Nicholas said.  “Whether that’s allowing people to parole to homeless shelters, or making it so there are halfway houses people could live in, or work release.”  Currently, there are no halfway houses in Illinois that will accept someone convicted of a sex offense.

Kendall wasn’t clear on exactly what the solution will be to get the men released from prison quickly. She expects to hold a hearing April 22 to begin determining that, she wrote.

The full 61-page ruling in Murphy v. Raoul, No. 16 C 11471 (N.D. Ill. March 31, 2019), is available at this link.  Here is how it starts and ends:

The Paul Murphy is indigent and homeless.  He was convicted of possession of child pornography in 2012 and received a sentence of three years’ probation.  Five years after his release date, and nearly twice the number of years of his sentence, he remains incarcerated because the Department of Corrections cannot find an appropriate place for him live. 

Illinois, like many states, requires sentencing courts to follow a term of imprisonment with a term of mandatory supervised release.  Supervised release is a form of post-confinement monitoring intended to assist individuals in their transition from prison to liberty.  Most supervised release terms are determinate, but some — including those that apply to several sex offenses — are indeterminate, meaning they range from three years to natural life.  The clock on these terms does not start ticking until sex offenders are out of prison, but some never make it that far because they are indigent and the State demands that they first secure a qualifying host site before it will release them.  Many offenders successfully complete their entire court-ordered terms of incarceration yet remain detained indefinitely because they are unable find a residence due to indigence and lack of support.

The question presented is whether this practice violates the Constitution.  The plaintiffs are a class comprising the affected sex offenders and the defendants are the Attorney General of Illinois and the Director of the Illinois Department of Corrections.  Both parties moved for summary judgment.  The Court now grants the plaintiffs’ motion in part, denies it in part, and denies the defendants’ cross-motion in full.   At the very heart of the liberty secured by the separation of powers is freedom from indefinite imprisonment by executive decree.  The Attorney General and Director’s current application of the host site requirement results in the continued deprivation of the plaintiffs’ fundamental rights and therefore contravenes the Eighth and Fourteenth Amendments to the Constitution of the United States....

Sex offenders are criminals, plain and simple.  Yet the “one enduring lesson in the long struggle to balance individual rights against society’s need to defend itself against lawlessness,” is that it “‘is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy.  It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.’” United States v. Montoya de Hernandez, 473 U.S. 531, 567 (1985) (quoting Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting)).

The Illinois Legislature thought it best to rehabilitate sex offenders by reintegrating them, like all other convicted felons, into the community after prison.  The Constitution thus entitles them to the same conditional liberty that all other releasees receive.  Because the defendants’ current application of the host-site requirement permits the indefinite detention of the plaintiffs, it breaches the promises enshrined in the Bill of Rights.  The Court accordingly grants the plaintiffs’ motion for summary judgment as to their equal protection (Count II) and Eighth Amendment claims (Count IV), denies it as to their substantive (Count I) and procedural (Count III) due process claims, and denies the defendants’ cross-motion in full.

Although the Court today decides liability, it reserves ruling on the proper remedy to afford the plaintiffs.  The Court sets a status hearing for 4/22/2019 at 9:00 a.m. to discuss a trial date for the procedural due process claim and the need for a remedial hearing to determine the scope of equitable relief.

April 6, 2019 at 10:28 AM | Permalink


If SCOTUS overturns this U.S. District Court ruling, then civilly committed former sex offenders will have nothing to lose by rising up in insurrection as inmates did at Attica back during the early seventies. Nobody should tolerate a law that keeps one beyond his or her prison sentence. If that person were so dangerous, they should have given that person a longer sentence to begin with.

Posted by: willilam r. delzell | Apr 6, 2019 3:17:42 PM

I agree. Obe fix would have the court order the socalled mandatory supervision time not freeze untill released bur instead be counted from theur legal release date. That way uf the state qants to be retarded and keep them past thier legal release date if they are really stupud enough that the spend their whole supervised probation i. Prison....hust too damn bad. Release them or get ready to die when they killed you like the kudnapping criminals you are. Because legally once that release date hirs your legal right to hold them for anything but a new crime is done. You are now the criminal.

Posted by: Rodsmith | Apr 7, 2019 12:30:34 AM

Speaking of sentencing alternatives. What if the offer was sterilization in lieu of prison. Does that change the calculus? And if so, which way and why?

Posted by: justme | Apr 7, 2019 2:24:02 AM

No it only adds a new crime comitted by the state. In these cases we are talking about people who have already been to court ans received a sentence. They have FINISHED it. But because of a set of retarded useless rules added to the probation housing requirements. Not to the parole.....just probation that are impossible for someone just released from prion to meet are then illegally being held in prison.

The new crime of course would be extortion and torture and mulitation.

Posted by: Rodsmith | Apr 7, 2019 9:51:26 AM

Wisconsin, in a remarkably bad practice, requires lifetime GPS monitoring of some sex offenders even if their prison sentences are over and they are off paper. It's not a punishment, the courts have found; it's just a public safety measure.


Posted by: Gretchen Schuldt | Apr 8, 2019 5:54:18 AM

My son James R. Weeden, is in the correctional Facility in Robinson IL' I am his mother, He is way past his out date, yet can not be released. he said the parole board and the IOC keep passing their names back and forth, so no one gets out. I did research, and it stated that Robinson,, IL was the worst place for a sex offender to be released and I can not find a place for him to live.I am now looking to rent a house, with a understanding that he can live with me. which is still a challenge. I live in Fox Lake IL the first P.O. in LAKE COUNTY, I TURNED IN OVER 170 HOUSES TO MR Williams, he was very lax in looking them up, when he did always came up with the same excuse, and by that time they were already rented. I called State 3 times and was told, NO I could not change to a different P O and they were on their own, if they wanted to work or not, they still got paid. So therefore I am having a hard time finding a place for him to live... My daughter Jan, in researching public records last year, found that he was to be released Aug 14, court date 18th. I checked with the Clerk of Court in Waukegan Il and he said yes and gave me the room number. Some one from the Crime division was to go down and get him,and bring him up to court, no one did. The Judge appointed him a lawyer, I talked to her when I was told, have not heard from her again. So the whole system is lax... I can not find any more out since the April 6th hearing. If you have any more information, please forward it to me. thanking you in advance. Mary Weeden


Posted by: Mary Weeden | May 29, 2019 5:32:26 PM

Dear Mary you situation is mine as well I have been following this case they have been to court twice since April last date was June 18 they are in settlement conference as of this point you can follow it on court listeners it has not been updated for 6/18 but it will I hope this help with some releif.

Posted by: Robin moore | Jun 22, 2019 12:39:37 PM

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