Find Legal Information

JUSTICE WELCH delivered the opinion of the court:

The defendant, Patrick Leroy, was charged in the circuit court of St. Clair County with unlawful failure to renew his address registration as a child sex offender. On February 5, 2002, the defendant pled guilty to the charge and was sentenced to one year's probation. On August 27, 2002, a petition to revoke the probation was filed, charging that the defendant lived within 500 feet of an elementary school. In an order issued December 27, 2002, the court found that the defendant admitted the charge, and the court ordered the defendant to move within 30 days. A second petition to revoke the probation was filed on January 30, 2003, alleging that the defendant owed $40 in probation fees. An amended petition to revoke was then filed, alleging that the defendant had not moved as ordered. On March 7, 2003, the court entered an order finding that the defendant admitted the charge, and the court sentenced the defendant to 30 days in jail and 12 months' intensive probation. At a hearing on April 11, 2003, the defendant stipulated that he lived within 500 feet of a school and that he was not the owner of the home but had lived there his whole life. The defendant was 36 years old at the time of the hearing. The defendant's mother owned the home in question, which is located in East St. Louis. In an order issued April 17, 2003, the court found that the defendant was in violation of his probation. On May 2, 2003, the court terminated the defendant's probation and prohibited him from residing at the home. The defendant now appeals, contending that the statute he violated is unconstitutional in that the statute (1) violates the defendant's substantive due process rights, (2) violates the defendant's procedural due process rights, (3) violates the defendant's right to equal protection under the law, (4) is an ex post facto law, (5) violates the defendant's right against self-incrimination, (6) constitutes cruel and unusual punishment, and (7) is overly broad. For the reasons that follow, we affirm the order of the circuit court.

The statute in question, section 11-9.4(b-5) of the Criminal Code of 1961 (720 ILCS 5/11-9.4(b-5) (West 2002)) (hereinafter subsection (b-5)), reads in pertinent part as follows:

"It is unlawful for a child sex offender to knowingly reside within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age. Nothing in this subsection (b-5) prohibits a child sex offender from residing within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age if the property is owned by the child sex offender and was purchased before the effective date of this amendatory Act of the 91st General Assembly."

We begin our analysis of subsection (b-5) with the Illinois Supreme Court's pronouncement that "[a] statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity." People v. Malchow, 193 Ill. 2d 413, 418 (2000). A reviewing court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it can be reasonably done. Malchow, 193 Ill. 2d at 418. Whether a statute is constitutional is a question of law that is reviewed de novo. Malchow, 193 Ill. 2d at 418. Against this backdrop, we now consider each argument raised by the defendant on appeal.

The defendant's first argument on appeal is that subsection (b-5) is unconstitutional because it violates the defendant's substantive due process rights. Specifically, the defendant contends that he has a fundamental right to live with his mother and enjoy her support and that subsection (b-5) infringes upon that right because it prevents him from living with his mother. The State counters that even if one assumes that the right of an adult male to live with his mother and enjoy her support is a fundamental right, subsection (b-5) does not prevent the defendant from living with his mother; rather, it merely prevents him from living with her at her present location, because that location is within 500 feet of a school. Accordingly, the State would restate the defendant's argument as whether the defendant has a fundamental right to live with his mother and enjoy her support within 500 feet of a school, an argument the State says is without merit.

The plain language of subsection (b-5), quoted above, demonstrates that the statute does not dictate with whom a child sex offender may live; to the contrary, it merely restricts where, geographically, a child sex offender may live in relation to a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age. 720 ILCS 5/11-9.4(b-5) (West 2002). Accordingly, we agree with the State that the essence of the defendant's argument is that he has a fundamental right to live with his mother and enjoy her support within 500 feet of a school. We also agree with the State that no such fundamental right exists. Accordingly, we review the defendant's claim of a violation of substantive due process under the rational-basis standard rather than under the strict-scrutiny standard urged by the defendant. See People v. Stork, 305 Ill. App. 3d 714, 720-21 (1999) ("The rational-basis test is the proper standard of review for claims of a violation of substantive due process when the statute under consideration does not affect a fundamental constitutional right"). An application of the rational-basis test involves identifying the public interest the statute is intended to protect, examining whether the statute bears a reasonable relationship to that interest, and determining whether the method used to protect or further that interest is reasonable. Stork, 305 Ill. App. 3d at 721. Furthermore, rational-basis review is highly deferential to the judgments made by the legislature. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 125 (2004). Consequently, reviewing courts do not focus on the wisdom of the statute or whether it is the best means to achieve the desired result; rather, they will uphold the law as long as there is a conceivable basis for finding the statute rationally related to a legitimate state interest. Stokovich, 211 Ill. 2d at 125-26.

Applying this test, we reach the following conclusions. With regard to the public interest subsection (b-5) seeks to protect, we conclude that the state has a legitimate and compelling interest in protecting children from adult offenders. See, e.g.,People v. Williams, 133 Ill. 2d 449, 455 (1990). In conjunction with that interest, the state has broad powers, subject to constitutional confines, to avert potentially dangerous situations. Williams, 133 Ill. 2d at 457. As we have stated before, the prohibitive subsections of section 11-9.4 of the Criminal Code of 1961 (720 ILCS 5/11-9.4 (West 2002)) are intended to protect children from known child sex offenders. People v. Diestelhorst, 344 Ill. App. 3d 1172, 1184 (2003). Prohibiting known child sex offenders from having access to children in schools bears a reasonable relationship to protecting school children from known child sex offenders. People v. Stork, 305 Ill. App. 3d 714, 722 (1999). Accordingly, we conclude that by prohibiting child sex offenders from living within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age, subsection (b-5) also bears a reasonable relationship to the goal of protecting children from known child sex offenders and sets forth a reasonable method of furthering that goal. Although the record is bare of any statistics or research correlating residency distance with sex offenses, we conclude that it is reasonable to believe that a law that prohibits child sex offenders from living within 500 feet of a school will reduce the amount of incidental contact child sex offenders have with the children attending that school and that consequently the opportunity for the child sex offenders to commit new sex offenses against those children will be reduced as well. Although it is not clear from the record how the distance of 500 feet was decided upon, we believe that 500 feet is a reasonable distance. We note that among the 13 states that have enacted some form of residency restriction applicable to sex offenders, the 500-foot restriction of subsection (b-5) is the least restrictive in geographical terms. Ala. Code