Quick Take on Illinois Supreme Court Opinion Issued Thursday, April 5
The Illinois Supreme Court handed down one opinion today in People v. Pepitone. At issue in this case was whether Section 11-9.4-1(b) of the Criminal Code of 2012, which prohibits sexual predators or child sex offenders to knowingly be present in any public park building or on real property comprising any public park, is facially violative of substantive due process. Jay Wiegman of the Office of the State Appellate Defender reviews the court's ruling.
Section 11-9.4-1(b) of the Criminal Code of 2012 prohibits “sexual predators” and “child sex offenders” from being knowingly present in any public park building or on real property comprising any public park. 720 ILCS 5/11 9.4 1(b) (West 2016). In People v. Pepitone, 2018 IL 122034, the Illinois Supreme Court considered whether this statute was facially violative of substantive due process and determined that it was not.
The defendant in Pepitone, who had been convicted in 1999 of predatory criminal sexual assault of a child and sentenced to a six-year prison term, was arrested in 2013 while walking his dog in a public park in Bolingbrook. A jury found him guilty of being a child sex offender in a public park, and he was sentenced to 24 months’ conditional discharge, 100 hours of public service, and $400 in fines and costs.
On direct appeal, a majority of the Appellate Court, Third Judicial District, invalidated the park provision as irrational and thus inconsistent with substantive due process. The majority departed from two other appellate court decisions that had rejected similar substantive due process challenges to the park provision and other sex offender statutes: People v. Avila-Briones, 2015 IL App (1st) 132221, and People v. Pollard, 2016 IL App (5th) 130514.
Instead, the appellate court majority followed Illinois Supreme Court cases in which the court invalidated statutes that criminalized innocent conduct. The majority also noted that the repealed statute preceding the park provision at issue in this case had tied the child sex offender’s presence to times when children were also present. Finally, the majority noted the extensive list of activities that occur in public parks, including visiting any Illinois State Park, going to public beaches in Chicago or attending Bears games, and determined that the sweep of the park provision was overly broad. In dissent, Justice Carter found that the means adopted by the statute were a reasonable way of effectuating the legislature’s objective of protecting the public from sex offenders. Because the majority accepted the defendant’s due process claim and thus reversed his conviction, the Appellate Court did not consider the ex post facto claim raised by the defendant.
A unanimous supreme court reversed the appellate court and affirmed the defendant’s conviction and sentence. Writing for the court, Justice Theis noted that when a statute is challenged on substantive due process grounds, the first step of the analysis is to determine whether the statute restricts or regulates a liberty interest and whether the liberty interest is a fundamental right. Because the defendant acknowledged that one’s presence in a public park is not a fundamental right, due process analysis applies the rational basis test to determine if a statute is constitutional.
Although there have been other statements as to the proper inquiry to be undertaken when applying the rational basis test, the court employed the analysis contained in People v. Johnson, 225 Ill.2d, 573 (2007), which states the most common version of the rational basis test. Thus, the court determined whether (1) there is a rational state interest behind the legislation, and if so, whether (2) there is a reasonable relationship between that interest and the means adopted by the legislature to accomplish it. The means need not be finely tuned; rather, it must only be reasonable.
Given the defendant’s concession that the legislature has a legitimate interest in protecting patrons of public parks from child sex offenders and sexual predators, the only question for the court’s question was whether the relationship between the statute’s aims and its means was rational. The court determined that there is a rational relationship between protecting the public, especially 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. In reaching this conclusion, the court noted a number of cases in which Illinois parks had been the locations for sexual assaults against minors, and cited a statement by one of the bill’s sponsors, who observed that sex offenders can use obscured views and other aspects of public parks to their advantage in committing offenses. The court rejected defendant’s argument that various studies may rebut the belief that sex offenders have high recidivism rates, and stated that the legislature is better positioned than the judiciary to gather and evaluate date bearing on such a complex problem.
The court also rejected the defendant’s overbreadth argument. The court stated that the statute does not criminalize “dog walking or punish any other innocent conduct. It punishes conduct by sex offenders.”
Finally, the court noted that while section 11-9.4-1(b) did not require the presence of minors in the park, as had its predecessor, an almost identical provision is now contained in 11-9.3(a-10), as are other sections that “clearly attempted to limit the application of section 11-9.4-1(b) and its penalty.”
After rejecting the defendant’s facial substantive due process challenge, the court granted the defendant’s alternative request that the matter be remanded to the Third District Appellate Court for consideration of the defendant’s as-applied ex post facto claim.