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National

IL: Public Parks Ban is Constitutional (Supreme Court Reversal)

The Illinois Supreme Court reversed an appeals court ruling and found that the state’s ban on sex offenders entering public parks is constitutional.

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Quick Take on Illinois Supreme Court Opinion Issued Thursday, April 5

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

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  1. Illinois Contact

    Horrible, horrible unanimous decision in the Illinois Supreme Court today upholding this awful law: “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.” Not for any reason — to attend a concert, ride you bike, play golf, or (in Chicago) visit the Art Institute (on park property). The guy who was convicted was just walking his dog. You don’t have to go near a playground or approach a child, just BE PRESENT in the park!

      • steve

        There it is again…

        “Second, the State asserts that sex offenders have high rates of recidivism. Those rates have been widely accepted by courts across the country, including the United States Supreme Court, which has mentioned “a frightening and high risk of recidivism” for convicted sex offenders. McKune v. Lile, 536 U.S. 24, 34 (2002) (plurality opinion); see also Smith v. Doe, 538 U.S. 84, 103 (2003) (highlighting a state legislature’s “grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class”).”

        • Joe

          … and right below it:

          “The defendant responds that “empirical studies” rebut the State’s argument on
          both counts. Regarding recidivism rates, the defendant insists that the McKune plurality’s “frightening and high” comment has been debunked. See Does v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016) (mentioning “the significant doubt cast by recent empirical studies” on statements in Smith and McKune that the risk of recidivism is frightening and high); Ira M. Ellman & Tara Ellman, “Frightening and High”: The Supreme Court’s Crucial Mistake About Sex Crime Statistics, 30
          Const. Comment. 495 (2015). The defendant points to a Human Rights Watch article, finding that only 25% of former sex offenders reoffend (see No Easy
          Answers: Sex Offender Laws in the US, Human Rights Watch, https://www.hrw.org/report/2007/09/11/no-easy-answers/sex-offender-laws-us
          (last visited Feb. 26, 2018)) and to a federal Bureau of Justice Statistics publication
          that puts the recidivism rate much lower at 5.3% (see Patrick A. Langan, Erica L.
          Schmitt, & Matthew R. Durose, Bureau of Justice Statistics, Recidivism of Sex
          Offenders Released From Prison in 1994, at 1 (Nov. 2003), https://www.bjs.gov/
          content/pub/pdf/rsorp94.pdf). Regarding parks as locations for sexual assaults, the
          defendant refers to another Bureau of Justice Statistics publication that indicates
          only a small percentage of sexual assaults occur in parks. See Lawrence A. Greenfeld, Bureau of Justice Statistics, Sex Offenses and Offenders: An Analysis of
          Data on Rape and Sexual Assault (Feb. 1997), https://perma.cc/ZG4B-D9ZP.
          ¶ 24 The problem for the defendant is that, regardless of how convincing that social science may be,3 “the legislature is in a better position than the judiciary to gather and evaluate data bearing on complex problems.” Minnis, 2016 IL 119563, ¶ 41.
          Simply put, we are not a superlegislature.

          If the State Supreme Court cannot be expected to gather and evaluate data better than a bunch of politicians / legislators up for reelection every 4 years, this is a lost cause.

        • AlexO

          @Joe, Wow, just wow. How about the legislator then at least produces said data as evidence?

        • TS

          Lincoln would be very disappointed.

      • Joe

        “The defendant related that he was a child sex offender but that his registration requirement had expired in 2010.” He is not listed on the Illinois ML web site.

        What gives? What is the point of a limited registration term when all restrictions and requirements apply for a lifetime, regardless?

        • steve

          …“the legislature is in a better position than the judiciary to gather and evaluate data bearing on complex problems.” Minnis, 2016 IL 119563, ¶ 41.
          Simply put, we are not a super legislature.”

          Separation of Powers?

  2. Illinois Contact

    More notes of the devastating Illinois decision:

    If you read the decision (which the moderator provided), you wonder did these guys ever take Logic 101. In paragraph 22, they argue that the US Supreme Court has accepted “a frightening and high risk of recidivism” for convicted sex offenders. Then in paragraph 24 they admit that the “social science” of the defendant’s “empirical studies” is “convincing,” but then bow down to the legislature, “which is in a better position than the judiciary to gather and evaluate data bearing on complex problems.” So, first they rely on the US Supreme Court’s incorrect data, then they admit it was wrong, but then say they must defer to the politicians. What a garbled argument!

    I think the strategy should be to challenge this ruling in the US Supreme Court, and once and for all get them to admit their recidivism statistics were flawed. Can you do that? Not sure what the unfortunate Mr. Pepitone’s lawyers will do. Typically they have been working on this for a long time (since 2013 with innumerable motions, postponements, trials, etc), probably without much remuneration. Now that it’s remanded, what court does that go to? The Appellate?

    The law was Section 11-9.4-1(b) of the Criminal Code of 2012. So, if there’s a subsequent positive decision based on ex post facto, anyone convicted before 2012 would be exempt, right?

    I also notice that the decision was unanimous, no judge dissented. Amazing! Did no one read the excellently reasoned Appellate opinion?

    Also, you might want to note that Mr. Pepitone had parked his car illegally (“across three spaces”) and attracted the attention of a passing cop. So, if you’re thinking of enjoying one of Illinois’ beautiful parks this summer, don’t do anything noticeable!

    • JoeHillsGhost

      My impression of the Illinois Supreme Court from this, and other, decisions is that they tend to defer to the judgment of the legislature in presuming laws to be constitutional. That put Mr. Pepitone at a huge disadvantage from the start.

      Also note, after extensive comment on recidivism rates, there is this footnote:

      “One of the amicus briefs reminds us that it is “perhaps subjective” whether recidivism rates are
      low or high. Further, as the State observes, “[n]obody knows the true re-offense rate for child sex
      offenders” because only a small percentage of sex offenses are reported and only a small percentage
      of reported offenses result in arrests. However, “researchers widely agree that observed recidivism
      rates are underestimates of the true reoffense rates of sex offenders.”

      So, basically, the state adheres to the “frightening and high” lie and when challenged, say essentially, who cares the recidivism rates don’t matter anyway.

      It’s hard to make, much less win, an argument against such logic.

      • Tim Lawver

        It it were appropriate to defer to the presumptive then no review would ever be necessary, instead to effort is mooted. We are being sold a bag of crap. They do so merely to appear connected to the problem and seem relevant pre-crime in the public eye. We know of course the LEO will be no where to be found unrtill after a crime is committed. What a farce!

    • AJ

      @IL Contact (& TS):
      I think the strategy should be to challenge this ruling in the US Supreme Court, and once and for all get them to admit their recidivism statistics were flawed. Can you do that? Not sure what the unfortunate Mr. Pepitone’s lawyers will do. Typically they have been working on this for a long time (since 2013 with innumerable motions, postponements, trials, etc), probably without much remuneration. Now that it’s remanded, what court does that go to? The Appellate?
      —–
      If the case had been wholly based on violating the IL Constitution, it would be game over. But the suit also claims violation of the 14th Amdt., so it can be appealed to SCOTUS (the next and last stop for the case). I really hope they do pursue that route, and am even more hopeful SCOTUS would take it–it certainly flies in the face of the Packingham Parenthetical! If SCOTUS lets this decision stand, there truly is no escaping the registry absent a pardon.*

      *Offer void in LA, where even a pardon doesn’t free you from registration.
      =====
      Not sure what the unfortunate Mr. Pepitone’s lawyers will do. Typically they have been working on this for a long time (since 2013 with innumerable motions, postponements, trials, etc), probably without much remuneration.
      —–
      If I recall correctly, Pepitone’s lawyers are public defenders…so they are definitely not being well paid! On the other hand, they are probably assured continued availability and employment until this is finally resolved. The upshot is they probably have not been accepted to the SCOTUS bar and cannot argue the case there. So if SCOTUS accepts, Pepitone will get some legal help from a SCOTUS-appointed counsel. Unfortunately, even if SCOTUS were to accept, it wouldn’t be heard until the next October Term, meaning no decision until sometime in early or mid 2019.
      =====
      From listening to the oral arguments recently, I was fearing this decision. The (non-)RC’s attorneys had a tall order to argue, and didn’t do very well, IMO. All the State had to say was, “rational basis review,” over and over. What did surprise me was its being unanimous.

      • Lovecraft

        Rational basis agrument hasnt really ever worked. The case is stronger using the 1st amendment argument, but they would have to refile the complaint. Its time consuming, but may be our best path to scotus.

  3. Agamemnon

    Disgusting

  4. keri

    The judiciary just ceded, and delegated all their authority to the legislature. So much for a system of checks and balances . Now anytime there is a conflict with state, or state administrative law all the state has to do is point to this decision and say “the legislature knows best.”

    • JoeHillsGhost

      “The legislature knows best,” or as Oliver Wendell Holmes said, “If my fellow citizens want to go to Hell I will help them. It’s my job.”

  5. Tim l

    Keep electing Ds & Rs and expect different. The definition of insanity!

    At least this court sent it back to the lower court to review ex-post challenge advanced by Mr.Pepitome

  6. TS

    Excellent comments and observations here. I hope this gets appealed to which ever court is next after the state supreme court.

    Which court would be next to appeal to? I don’t know the ground to appeal on, but if they can find some, hope they appeal.

  7. Katharine

    A devastating decision, indeed. And one that includes some of the same flawed reasoning that went into IML. On page 8, paragraph 20 of this decision, the justices list a number of cases of sexual assaults against minors in parks, but fail to say whether any of those cases included an already-convicted sex offender defendant. I don’t suppose anyone has the time to look into those cases, but it would be interesting to know the truth about them. IML has the same fallacy — IIRC, the legislation points to numbers of cases of child sexual abuse by Americans abroad, without specifying whether any of those cases included registrants.

    • 4 Sensible Laws

      Yes, if one were to buy into the idiotic logic of these judges, then it appears that Registrants can be barred from any locale that offenses are known to have occurred in the past. Perhaps then, a presence restriction might not pass Illinois constitutional muster only on the Moon. Those judges are spineless fools.

  8. Illinois Contact

    Attorney Katherine Strohl, representing Pepitone, the defendant, submitted this written commentary to the Chicago Daily Law Bulletin on today’s IL Supreme Court opinion:

    “I am very disheartened that the Illinois Supreme Court has signed off on a presence restriction statute that has immeasurable cultural, political, recreational, educational, and familial ramifications for those to whom it applies, and which has no rational relationship to preventing child victimization.
    “Sex offenders” are politically powerless and thus rely on the Court to perform its function of judicial review. In asking the Court to uphold the Appellate Court’s decision that the parks ban is unconstitutional, the Court was tasked with ensuring that the General Assembly had not enacted a statute that infringed on the constitution. However, the Court explained that regardless of how convincing the social science Defendant presented may be, the Court is not a “superlegislature.”

    People who have been convicted of a sex crime are not a uniform group of people, though they are uniformly despised. But as despised as they may be, it is important to remember that they have already paid their debt to society and are now entitled to the same constitutional rights as every other taxpayer and citizen. Instead, they are the target of unrelenting legislation that is based on neither fact nor reason, and which courts across the country continue to give legislatures free license to enact.”

    So tragic. Strohl has not announced what further recourse is being considered. Hard to imagine that after fighting so long (and so brilliantly) that she will just quit.

    By the way, judges on the Illinois Supreme Court are elected for 10-year terms, so there is clearly a political factor playing here.

    Also, if you’re into this and and want to read the previous Appellate Court decision, which was in Pepitone’s favor and was overturned today, here’s that link. Clearly it was much better reasoned and, in my opinion, much more lawful. You can skip ahead to the good parts in paragraphs 22-25:

    http://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/3rdDistrict/3140627.pdf

  9. John

    Does this law apply to those who have committed any type of sex offense (including mooning, possession of CP, an 18 year old having consensual sex with his 17 year old GF, public urination, etc. etc. etc.) or is it limited to someone convicted of sexual assault on a child? Obviously many types of sex offenses in no way suggest that a person is liable to sexually assault a child, in a park or anywhere else.

    • JohnDoe

      Do to really imagine these idiots are going to distinguish the loads of different variations? If your offense has the convenient word of “child” in it then you’re likely included in the moronic ruling. Taking away a human’s basic rights to life, that’s what some of these Waste of Human Life judges are good at doing.

    • Robin

      Are there, in fact, any cases where any child was assaulted at/on, or taken from a school, park etc and later assaulted? Other than on shows like Law and Order SVU?

      Or other than parental kidnapping.

  10. Jason

    Janice, I think the decision today does NOT have a leg to stand on with the incompetence of the court not lifting a finger to prove their decision and thus needs to move forward in the courts, esspecially with the FACTS presented to thier deaf ears. The facts were on the table and were CLEARLY INDISPUTABLE… The only way we could lose this is through Stubbornness which was unprofessionaly displayed today. This is an easy win with the facts that gave us a win in the lower courts and with SCOTUS beginning to fix this out of control disaster that is growing by the minute!!!! The courts judges who unanimously made this horrible ruling should be punished by a higher court.

    • Jason

      Don’t these JUDGES who have FAILED us realize that the same people they’re UNCONSTITUTIONALLY banning from these parks have CHILDREN of our own who we supervise 24/7 and tuck into bed EVERY NIGHT??

  11. JohnDoe

    Another example of stupid, clueless judges. I mean how can you bring up a case with a moron that still thinks that all offenders are dangerous because that’s the ‘safe and popular’ thing to think? At this point it will take a direct head-on case against the registry that is backed by loads of empirical evidence. One screw-up by a lawyer who didn’t do his homework after getting a nice big oversized check in their pocket could possibly destroy their one chance to tackle the registry and make it nearly impossible for future plaintiffs to win.

  12. Chris F

    Elected judges make me sick.

    They are even worse than the elected politicians that started this mess, because the judiciary has to completely fail at its job to keep the legislation in check to rule like they did here.

    The only chances are in federal courts, with appointed judges.

    In this case, all these Supreme’s ruled like the one ignorant dissenter on the 3 panel appeals court.

    This “It’s the legislature’s job to change laws” BS should be grounds for immediate removal from the bench. It is Law 101, that the judiciary MUST step in and provide strict scrutiny whenever a law targets a politically powerless and hated group. The group DOES NOT have to be a “protected class” either. That only becomes a factor when a law targets all individuals equally, but disadvantages a protected class more than others. This law specifically and only targets an identified hated group. These judges need to go, but won’t, because they are elected by the same people that want laws targeting the people they fear, hate, or just don’t understand and want suppressed at any cost.

    Furthermore, they are absolute cowards to not address the indisputable evidence that “frightening and high” was incorrect. They don’t even deserve to be anywhere in a field of law, or one that has anything to do with the Constitution.

    Maybe SCOTUS would take this case, like they did Packingham, when North Carolina’s Supreme Court also did the cowardly thing of deferring to legislature instead of protecting the US Constitution like it’s lower appeals court did.

    • Tim Lawver

      COWARDS!

      This is exactly the right description of Illiniosans. Illinois is also financially and morally bankrupt. For the most part this state is run by dems supported by union $. The underfunded pension obligations of Illinois civil servants is a huge issue. Soon enough they’ll figure out they are not going to get the promised benefits, despite the courts holding that would be unconstitutional to withhold them. You can not get blood from a turnip.

      Recently, I’m seeing a mass exodus from the state.Yes people a leaving in droves, because of over taxation and increased regulation not to mention the deceased in the quality of life. The people will get what they deserve.

  13. Tim Moore

    I don’t get it. What do parks have to do with sexual offending? Not only do former offenders get blasted, but so do parks get labeled as dangerous places that attract offenders. They will have all of us hiding in our homes (or underpasses) and every place privatized and off limits. Ironically, this is where most of the offenses occur in homes.

  14. JW

    This opinion states Section 11-9.4-1(b) is punishment (“It punishes conduct by sex offenders” ¶ 26).

    I thought all the restrictions against sex offenders were merely a civil regulatory scheme.

  15. AdvocateforHumanRights

    Calling for all sex offenders in Illinois, and sex offenders from other states to visit parks in Illinois to rally against this politicized Illinois Supreme Court decision and unconstitutional. Drop leaflets throughout the parks in Illinois stating that a “Convicted Sex Offender” was rightfully using her or his public park.

    Please be fully aware that a lot of area in Chicago constitutes as public parkland. All of Lake Shore Drive (U.S. Route 41) that spans from the far north side of Chicago deep into the city’s south side is inside a public parkland. The Museum of Science of Industry, and Museum Campus (this campus includes the Field Museum, Shedd’s Aquarium, and Planetarium) and the Lincoln Park Zoo and other museums are inside public parks. There are also golf courses, tennis courts, restaurants, and event theater arts that are located inside Chicago public parks. Grant Park, Chicago’s cultural parkland (known as the city’s front yard) hosts cultural festivals such as the Taste of Chicago and Jazz Fest, and is home to Chicago’s Institute of Art. There is also Millennium Park that is an urban theme park of cultural and historical exhibits.

    Don’t be fooled by the ignorance of the Illinois Supreme Court. Get out and use the parks in Illinois because it is everyone’s right! No legislative or judicial branch of government can ever deny any citizen the right to use public service!

    Defy the Illinois Supreme Court System and defy the unconstitutional law in Illinois that wrongfully prohibits a sex offender from using a public park – and let your presence in Illinois be visible by dropping leaflets or signs throughout the parks. Tag street lights, lamp posts, trees, and park facilities with your tracks of convicted sex offender presence because it is YOUR RIGHT to use the park to your liking.

    Fight for your rights!

    • TS

      Don’t get caught for littering or gathering without a permit if the mass gets too large. Also, don’t park across three parking spots to draw attention.

    • HopingforHope

      So, help me understand. Does this apply to ALL public places throughout the entire state? What about watching your son or daughter play basketball, or softball? Beaches? Sports Stadiums are totally off limits? Navy Pier? What if you want to go camping, fishing?
      This is the most absurb thing I think I have ever heard.

  16. ioshiames

    I think the bottom line here is that laws that restrict movement or serve as punitive measures for certain individuals must have more than just the rational test. This is why we have stumbled with the courts. This type of legislation is new and the existing landscape is not able to address this loophole. We need to find a way to fix this.

    • Tim Moore

      I don’t see how the courts think it is rational to base laws on urban legend and wishful thinking. What is a law if it is ineffective? How well can a law be effective if it ignores reality?

  17. cool CA RC

    WOW

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