IL: 7th Circuit Upholds Illinois Residency Restrictions

The Seventh Circuit Court of Appeals has upheld residency restrictions adopted by the state of Illinois that prohibit anyone convicted of a sex offense involving a minor from living within 500 feet of a school, playground, child-care center, child day-care home and group day-care home. According to the decision, which was issued on July 11, the restrictions can even be applied to individuals who are no longer required to register as a sex offender.

The circuit court rejected arguments in the case that the residency restrictions violated the ex post facto clause of the U.S. Constitution as well as the substantive and procedural due process protections of the 14th Amendment and the takings clause of the 5th Amendment for the reasons stated below.

With regard to the ex post facto claim, the court determined that the residency restrictions are not punitive because they do not banish registrants. Instead, “(t)he Illinois residency statute merely keeps child sex offenders from living in very close proximity to places where children are likely to congregate; it does not force them to leave their communities.” The court added that “(a)lthough the Illinois residency restrictions limit where sex offenders may live, the statute does not control any other aspect of their lives….” The court acknowledged that the limitation regarding child day-care homes, which easily move, “creates some unpredictability” but “imposes no physical restraint”.

With regard to the due process claims, the court determined that the state law is “facially neutral and advances a compelling governmental interest: protecting children from recidivism by child sex offenders”. And although the court acknowledged that the state law limits where registrants may live, it “does not prevent them from establishing a home; it just constrains where they can do so.”

The court also stated that “(i)t’s self-evident that creating a buffer between a child day-care home and the home of a child sex offender may protect at least some children from harm”. The court then determined that the state legislature could have reasonably concluded that a conviction for a sex offense provides evidence of substantial risk of recidivism.

While the court acknowledged that the plaintiffs “maintain that sex offenders do not reoffend more than other criminals” and that there is “scant evidence” to support the state’s proclaimed public safety rationale for its residency restrictions, the court declared that its role was “not to second guess the legislative policy judgment by parsing the latest academic studies on sex-offender recidivism.”

In its decision, the court briefly discussed a recent 6th Circuit decision, Does v. Snyder, which determined that sex offender laws in the state of Michigan were punitive and therefore violated the ex post facto clause. According to the 7th Circuit, the Snyder decision is “easily distinguishable” because the Michigan laws included broader residency restrictions (1,000 feet of a school), as well as a tiered registry and the requirement to disclose internet identifiers.