Successful Constitutional Challenge To SORA And Its Progeny Finds It To Be Punishment

People v. Tetter, 2018 IL App (3d) 150243 (January). Episode 463 (Duration 8:43)

SORA declared unconstiututional as applied to this defendant.

Gist

Defendant, age 21 at the time, began a relationship with S.K. who represented herself to be 18.

A jury found that defendant continued this relationship after learning S.K. was 16 and convicted him of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d)).

Issue

Defendant also raises, for the first time on appeal, a constitutional challenge claiming the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2012)), Sex Offender Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2012)), residence and presence restrictions within 500 feet of school zones or 100 feet of school bus stops (720 ILCS 5/11-9.3 (West 2012)), residence and presence restrictions within 500 feet of a public park (720 ILCS 5/11-9.4-1 (West 2012)), mandatory annual driver’s license renewal (730 ILCS 5/5-5-3(o) (West 2012)), and prohibiting defendant from petitioning to change his name (735 ILCS 5/21 101 (West 2012)) impose disproportionate punishment as applied to him.

We refer to these statutes collectively as “sex offender statutes” herein.

SORA And It’s Progeny

Our legislature subsequently passed numerous amendments imposing additional requirements and restrictions upon sex offenders.

Most importantly, it imposed specific restrictions on where sex offenders may be present or live. See 720 ILCS 5/11-9.3, 11-9.4-1 (West 2012). Sex offenders cannot have jobs where they work, at any time for any reason, within 500 feet of a school or public park or within 100 feet of a school bus stop. SORA also effectively bars offenders from working any job requiring extensive travel; sex offenders must notify, in person, both Illinois law enforcement and the destination’s law enforcement when they are away from home for three or more days. 730 ILCS 150/3(a) (West 2012).

The amendments since People v. Malchow, 193 Ill. 2d 413, 424 (2000) “directly restrict where [a sex offender] can live, work, and even move about his community.” People v. Avila-Briones, 2015 IL App (1st) 132221, ¶ 51.

Thus, we are faced with very different and more restrictive statutes than those addressed in Malchow or Smith, 538 U.S. at 98 (Alaska SORA constitutional).

After Probation

After completing sex offender probation, offenders are subject to the sex offender statutes for either 10 years or life—defendant’s conviction subjects him to lifetime registration. Under the sex offender statutes, off-parole sex offenders must register with the DOC, inform the DOC of certain life events (such as buying or using a new car, growing a beard, moving, or taking a vacation), consent to having Internet usage monitored, and most importantly, not live or be present near school zones, school bus stops, or public parks.

Parole Conditions

Because of the restrictions on movement the sex offender statutes are now akin to probation or supervised release. Probation and other forms of supervised release are considered punishment. Sex offenders, like defendant, are subject to dozens of additional parole conditions. See 730 ILCS 5/3-3-7(a)(7.5)-(7.13), (b)(7.5)-(7.6), (b-1) (West 2014). These conditions include sex offender treatment, not living in the same residential unit (including apartments or condominiums) with other known sex offenders, wearing an electronic monitoring device, not communicating with or contacting people on the Internet whom the offender believes to be under 18, consenting to searches of all devices with Internet access, not possessing prescription medications for erectile dysfunction, not “scrubbing” or erasing data on any computer device, residing only at an approved location, obtaining approval prior to accepting employment or pursuing education, not being employed or participating in any volunteer activity involving contact with children, refraining from entering designated geographic areas without approval, neither possessing nor having access to pornography or sexually stimulating material, not patronizing any adult entertainment establishment or telephone hotline, not residing near or being present in places where minors may congregate without advance approval, taking an annual polygraph exam, maintaining a travel log, and other restrictions.

After Parole

Off-parole sex offenders are more restricted in many ways than non-sex-offender parolees. While non-sex-offender parolees are monitored and prohibited from committing crimes, off-parole sex offenders may not reside or be present near places where the legislature has deemed them more likely to recidivate. Sex offender statutes restrict where defendant may live, work, or be present, in addition to the numerous obstacles imposed by the registration requirements. These requirements and restrictions, collectively, constitute an affirmative disability and restraint—defendant is restricted in most aspects of his daily life. Specifically, “safe zones” surrounding schools, school bus stops, and public parks, significantly restrict defendant’s lawful movement within the community. These zones restrict where he may live, drive, work, visit, or attend any social function for life. Although not to the same degree as prison, the sex offender statutes’ restrictions affirmatively disable and restrain offenders such as defendant. Therefore, this factor suggests that the sex offender statutes constitute punishment.

Punishment v. Civil Sanctions

However, since the legislature enacted sex offender statutes that restrict a convicted sex offender’s presence, residence, and liberty to move about society, the court has not addressed whether the sex offender statutes’ punitive effects negate the legislature’s intent to deem the laws civil.

For the reasons stated below, we find that they do. Our sex offender statutes satisfy the traditional definition of punishment.

What Is Punishment?

Citing published legal philosophy, the Snyder court defined “punishment” as involving pain or unpleasant consequences following from an offense against the law, applying to the offender, being intentionally administered by people other than the offender, and being imposed and administered by an authority constituted by a legal system against which the offense was committed.

Our sex offender statutes, like parole or MSR, satisfy this definition.

Analysis

We find that this factor also suggests that the sex offender statutes constitute punishment.

The trial court referred defendant to a licensed clinical psychologist for his evaluation. Defendant scored in the zero percentile on the child molestation, drug abuse, and alcoholism scales. In other words, a clinical psychologist chosen by the court, not defendant, concluded that he poses no greater risk than any other person to commit child sex crimes or those involving drug or alcohol abuse.

Nonetheless, the sex offender statutes require defendant to register for life and not set foot near school zones or public parks where children frequently congregate. Defendant is simply not the person at whom the sex offender statutes’ purposes are aimed. Its statutes are not tailored to regulate only dangerous offenders, those likely to recidivate, or those with little or no potential for rehabilitation; therefore, offenders like defendant must endure the statutes’ restrictions without society reaping any benefit.

These statutes go well beyond the dissemination of accurate, already-public information. We agree with the trial court’s assessment of defendant’s sentence:

“I can only say his life will never be the same. He will go through life now as a predator. He will be labeled a predator in every way. He—it will be very difficult to get a job. He’ll not be able to have a cell phone, use those apps that he uses or be on the Internet. He won’t be able to live where he wants to live. He won’t be able to associate with who he wants to be [sic]. His life will—will never be the same and—and in effect that is great punishment.”

If the sex offender statutes’ application were not irrevocable, our analysis might be different.

Disproportionate Sentence

We now address whether defendant’s punishment is unconstitutionally disproportionate to his crime.

Article I, section 11 of the Illinois Constitution provides,

“[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Ill. Const. 1970, art. I, § 11.

“A proportionality challenge contends that the penalty in question was not determined according to the seriousness of the offense ***.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). Our proportionate penalties clause coincides with the eighth amendment. The eighth amendment allows defendants to challenge sentences as disproportionate “given all the circumstances in a particular case.” Graham, 560 U.S. at 59.

In doing so, courts must be mindful that the eighth amendment contains a narrow proportionality principle, that does not require strict proportionality between crime and sentence but rather forbids only extreme sentences that are grossly disproportionate to the crime.

Holding

We find that the sex offender statutes constitute punishment as contemplated by the eighth amendment and the Illinois Constitution’s disproportionate penalties clause.

Given defendant’s background and his virtually zero risk to recidivate, we hold that his lifetime subjection to the sex offender statutes is grossly disproportionate to his crime.

As applied to him, lifetime subjection to the sex offender statutes’ registration requirements and restrictions violates the Illinois Constitution’s proportional penalties clause and the United States Constitution’s eighth amendment. For the foregoing reasons, we affirm defendant’s conviction, jail sentence, and probation term.

We vacate defendant’s subjection to the sex offender statutes’ registration requirements and restrictions.

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