People v. Pollard

NOTICE
2016 IL App (5th) 130514
Decision filed 05/10/16. The
text of this decision may be NO. 5-13-0514
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 12-CF-965
)
CEDRIC POLLARD, ) Honorable
) John Baricevic,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE SCHWARM delivered the judgment of the court, with
opinion.
Justices Chapman and Stewart concurred in the judgment and opinion.
OPINION
¶1 The defendant, Cedric Pollard, appeals the constitutionality of the Sex Offender
Registration Act (the Registration Act or SORA) (730 ILCS 150/1 et seq. (West 2014)),
the Sex Offender Community Notification Law (the Notification Law) (730 ILCS
152/101 et seq. (West 2014)), and additional statutes, including those restricting his
residency and presence in areas frequented by children (720 ILCS 5/11-9.3, 11-9.4-1
(West 2014)), requiring him to renew his driver's license annually (730 ILCS 5/5-5-3(o)
(West 2014)), and precluding him from petitioning for a name change (735 ILCS 5/21-
101 (West 2014)). The defendant argues that this statutory scheme, which he labels as
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"the SORA Statutory Scheme," imposes lifelong affirmative disabilities and restraints
that violate the due process guarantees of the fourteenth amendment to the United States
Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois
Constitution (Ill. Const. 1970, art. I, § 2), in addition to the proportionate penalties
guarantees of the eighth amendment to the United States Constitution (U.S. Const.,
amend. VIII) and article I, section 11, of the Illinois Constitution (Ill. Const. 1970, art. I,
§ 11). Following the persuasive, well-reasoned opinion in People v. Avila-Briones, 2015
IL App (1st) 132221, we affirm.
¶2 I. BACKGROUND
¶3 The defendant was indicted on one count of predatory criminal sexual assault of a
child (720 ILCS 5/11-1.40(a)(1) (West 2012)) for knowingly committing an act of sexual
penetration with a minor under 13 years of age on July 1, 2012. The defendant pled
guilty to the offense of predatory criminal sexual assault and was sentenced to 16 years'
incarceration with the Department of Corrections, followed by a 3-year-to-lifetime period
of mandatory supervised release. The defendant directly appeals his conviction.
¶4 II. SEX OFFENDER STATUTORY SCHEME
¶5 "The Registration Act was passed by the General Assembly 'in response to
concern over the proliferation of sex offenses against children.' " People v. Cornelius,
213 Ill. 2d 178, 194 (2004) (quoting People v. Adams, 144 Ill. 2d 381, 386 (1991)). "By
requiring sex offenders to register with local law enforcement agencies, 'the legislature
sought to create an additional method of protection for children from the increasing
incidence of sexual assault and sexual abuse.' " Id. (quoting Adams, 144 Ill. 2d at 387).
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"The Registration Act was designed to aid law enforcement agencies in allowing them to
'monitor the movements of the perpetrators by allowing ready access to crucial
information.' " Id. (quoting Adams, 144 Ill. 2d at 388). "Similarly, the Notification Law,
by disseminating the information gathered through the Registration Act, is intended to
protect the public." Id.
¶6 A. Sex Offender Registration Act
¶7 The defendant's conviction for predatory criminal sexual assault qualifies him as a
"sexual predator" under the Registration Act. 730 ILCS 150/2(E)(1) (West 2014)
("sexual predator" means any person convicted of predatory criminal sexual assault of a
child). As a sexual predator, the defendant has a duty to register in person with the law
enforcement agency in the municipality or county where he resides within three days of
his release from prison. 730 ILCS 150/3(a), (c)(4) (West 2014). He will also have to
register with the law enforcement agency in any municipality or county where he is
temporarily domiciled for at least three days. 730 ILCS 150/3(a) (West 2014). If he is
temporarily absent from his current address for three or more days, he must notify law
enforcement, providing his travel itinerary. Id. If he lacks a fixed residence, he must
report weekly, in person, to the law enforcement agency where he is located. Id. If the
defendant works for or attends an institution of higher learning, he must register with not
only the police department in the jurisdiction where the school is located, but also "the
public safety or security director of the institution of higher education." 730 ILCS
150/3(a)(i), (ii) (West 2014). Within three days of obtaining or changing employment, he
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must report, in person, the business name and address of his employer. 730 ILCS
150/3(d) (West 2014).
¶8 Each time he registers, the defendant must provide information about himself,
including:
"a current photograph, current address, current place of employment, [his]
telephone number, including cellular telephone number, the employer's telephone
number, school attended, all e-mail addresses, instant messaging identities, chat
room identities, and other Internet communications identities that the sex offender
uses or plans to use, all Uniform Resource Locators (URLs) registered or used by
the sex offender, all blogs and other Internet sites maintained by the sex offender
or to which the sex offender has uploaded any content or posted any messages or
information, extensions of the time period for registering *** and, if an extension
was granted, the reason why the extension was granted and the date the sex
offender was notified of the extension. The information shall also include a copy
of the terms and conditions of parole or release signed by the sex offender and
given to the sex offender by his or her supervising officer or aftercare specialist,
the county of conviction, license plate numbers for every vehicle registered in the
name of the sex offender, the age of the sex offender at the time of the commission
of the offense, the age of the victim at the time of the commission of the offense,
and any distinguishing marks located on the body of the sex offender." 730 ILCS
150/3(a) (West 2014).
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¶9 The defendant must provide positive identification and documentation that
substantiates proof of the registering address. 730 ILCS 150/3(c)(5) (West 2014).
Registration may include fingerprints and must include a current photograph, to be
updated annually. 730 ILCS 150/8(a) (West 2014). He shall pay a $100 initial
registration fee and a $100 annual renewal fee. 730 ILCS 150/3(c)(6) (West 2014). The
defendant must reregister annually, and the law enforcement agency with which the
defendant is registered may require him to appear, on request, up to four more times per
year. 730 ILCS 150/6 (West 2014). If the information the defendant previously provided
changes, he will have to notify the law enforcement agency he registered with, in person,
within three days. 730 ILCS 150/3, 6 (West 2014).
¶ 10 Because the defendant is classified as a sexual predator, he will be required to
comply with these provisions for the rest of his life. 730 ILCS 150/7 (West 2014). If the
defendant fails to comply with any of these requirements, he may be convicted of a Class
3 felony. 730 ILCS 150/10(a) (West 2014).
¶ 11 B. Sex Offender Community Notification Law
¶ 12 The Notification Law works in tandem with the Registration Act. See Cornelius,
213 Ill. 2d at 181. Pursuant to the Notification Law, law enforcement authorities must
disclose a sex offender's name, address, date of birth, place of employment, school, e-
mail address, instant messaging identities, chat room identities, "other Internet
communications identities," and the offense or adjudication of the sex offender to the
following persons and entities in the county: institutions of higher education, public
school boards, child care facilities, libraries, public housing agencies, the Illinois
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Department of Children and Family Services, social service agencies providing services
to minors, volunteer organizations providing services to minors, and any victims of any
sex offenses (not just the victim of the sex offense for which the sex offender has been
convicted). 730 ILCS 152/120(a), (a-2), (a-3) (West 2014). The police must also inform
these people and institutions of any URLs "registered or used by the sex offender," blogs
or Internet sites "maintained by the sex offender or to which the sex offender has
uploaded any content or posted any messages or information." Id. The police, "in [their]
discretion," are allowed to disclose this information "to any person likely to encounter a
sex offender, or sexual predator." 730 ILCS 152/120(b) (West 2014). For all other
members of the public, this information must be made available on request. 730 ILCS
152/120(c) (West 2014).
¶ 13 Law enforcement may place "the information specified"−including the offender's
name, address, date of birth, e-mail addresses, instant messaging identities, chat room
identities, and other Internet communications identities, all URLs, all blogs, the offense
for which the offender was convicted, the offender's photograph, and employment
information−on the Internet or in other media. 730 ILCS 152/120(d) (West 2014). Law
enforcement may also publish the photographs of sex offenders where any victim was 13
years of age or younger in a newspaper or magazine of general circulation in the
municipality or county or may disseminate the photographs of those sex offenders on the
Internet or on television. 730 ILCS 152/120(c) (West 2014).
¶ 14 The Illinois State Police must also maintain a statewide sex offender website
making sex offenders' registration information available to the public. 730 ILCS
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152/115(a), (b) (West 2014). The State Police "must make the information contained in
the Statewide Sex Offender Database accessible on the Internet by means of a hyperlink
labeled 'Sex Offender Information' on the Department's World Wide Web home page."
730 ILCS 152/115(b) (West 2014). Sex offenders must be searchable "via a mapping
system which identifies registered sex offenders living within 5 miles of an identified
address." Id.
¶ 15 C. Residency, Employment, and Presence Restrictions
¶ 16 Further, the defendant will be prohibited from living in certain areas based on his
status as a child sex offender. He may not knowingly reside within 500 feet of a school
that children under the age of 18 attend or within 500 feet of "a playground, child care
institution, day care center, part day child care facility, day care home, group day care
home, or a facility providing programs or services exclusively directed toward persons
under 18 years of age." 720 ILCS 5/11-9.3(b-5), (b-10) (West 2014). He may not
knowingly reside within 500 feet of the victim of the sex offense, provided the victim is
under 21 years old. 720 ILCS 5/11-9.3(b-15) (West 2014)
¶ 17 Defendant will also be restricted in his employment and other activities. He may
not work or volunteer at a day care, part day care, child care institution, school providing
before and after school programs, day care home, group day care home, or other facility
providing programs or services exclusively directed toward persons under the age of 18.
720 ILCS 5/11-9.3(c) (West 2014). He may not "participate in a holiday event involving
children under 18 years of age, including but not limited to distributing candy or other
items to children on Halloween, wearing a Santa Claus costume on or preceding
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Christmas, being employed as a department store Santa Claus, or wearing an Easter
Bunny costume on or preceding Easter." 720 ILCS 5/11-9.3(c-2) (West 2014). While he
can participate in holiday activities with his own child "in the home," "other non-familial
minors" may not be present at such a celebration. Id. He may not work at, or "be
associated with," any county fair when children are present. 720 ILCS 5/11-9.3(c-5)
(West 2014). If he owns and lives in an apartment building, he may not rent out one of
the units in the building to a parent of a child under the age of 18. 720 ILCS 5/11-9.3(c-
6) (West 2014). He may not drive an ambulance, fire truck, or other emergency vehicle.
720 ILCS 5/11-9.3(c-8) (West 2014). Nor can he drive an ice cream truck or other
"vehicle which is specifically designed, constructed or modified and equipped to be used
for the retail sale of food or beverages." Id. He may not knowingly offer or provide
programs or services to children. 720 ILCS 5/11-9.3(c-7) (West 2014). He may not
communicate, other than for a lawful purpose, using the Internet or any digital media,
with a person under 18 years of age, unless the offender is a parent or guardian. 720
ILCS 5/11-9.3(b-20) (West 2014). If the defendant violates any of the above restrictions
on where he can live or work, he will have committed a Class 4 felony. 720 ILCS 5/11-
9.3(f) (West 2014).
¶ 18 Other statutory provisions applicable to defendant by virtue of his conviction will
penalize him for being near schools. The defendant is prohibited from knowingly being
present in "any school building, on real property comprising any school, or in any
conveyance owned, leased, or contracted by a school to transport students to or from
school or a school related activity" when children are present, unless he is attending a
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conference at a school concerning his own child. 720 ILCS 5/11-9.3(a) (West 2014). He
shall not knowingly be present "within 100 feet of a site posted as a pick-up or discharge
stop for a conveyance owned, leased, or contracted by a school to transport students to or
from school or a school related activity" when children are present. 720 ILCS 5/11-
9.3(a-5) (West 2014). He may not knowingly loiter within 500 feet of school property
when children are present. 720 ILCS 5/11-9.3(b) (West 2014). He may not knowingly
be present at any facility providing programs directed toward children. 720 ILCS 5/11-
9.3(c) (West 2014). If he violates these provisions, he will have committed a Class 4
felony. 720 ILCS 5/11-9.3(f) (West 2014).
¶ 19 Likewise, the defendant shall not knowingly be present in any "public park" (720
ILCS 5/11-9.4-1(b) (West 2014))−defined as any "park, forest preserve, bikeway, trail, or
conservation area under the jurisdiction of the State or a unit of local government" (720
ILCS 5/11-9.4-1(a), (b) (West 2014))−or loiter within 500 feet of any "public park" (720
ILCS 5/11-9.3(b-2), 11-9.4-1(c) (West 2014)). If he is present in or loitering near a
public park, he will have committed a misdemeanor, and any future violations will be a
Class 4 felony. 720 ILCS 5/11-9.4-1(d) (West 2014).
¶ 20 D. Other Provisions
¶ 21 Furthermore, the defendant will be required to renew his driver's license annually.
730 ILCS 5/5-5-3(o) (West 2014). He will also be prohibited from changing his name.
735 ILCS 5/21-101 (West 2014).
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¶ 22 III. ANALYSIS
¶ 23 The defendant requests this court to declare the SORA Statutory Scheme facially
unconstitutional pursuant to the fourteenth amendment to the United States Constitution
(U.S. Const., amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const.
1970, art. I, § 2). In the alternative, the defendant requests this court to declare the SORA
Statutory Scheme unconstitutional as applied to him pursuant to the eighth amendment to
the United States Constitution (U.S. Const., amend. VIII) and article I, section 11, of the
Illinois Constitution (Ill. Const. 1970, art. I, § 11). The defendant's arguments, i.e., that
the SORA Statutory Scheme is different than the versions determined to be constitutional
in prior case law, has become so onerous that it has crossed the threshold from a civil
regulatory scheme to a system of punishment, and therefore, violates the constitutional
prohibitions on cruel and unusual punishment, as well as his right to procedural and
substantive due process, mirror those made in Avila-Briones, 2015 IL App (1st) 132221,
¶ 1. In rejecting the defendant's contentions on appeal, we follow the First District court's
persuasive reasoning in Avila-Briones. Id.
¶ 24 "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). "This court has a duty to construe a statute in a manner that upholds its validity
and constitutionality if it can be reasonably done." Id. "If a statute's construction is
doubtful, a court should resolve that doubt in favor of the statute's validity." Cornelius,
213 Ill. 2d at 189-90. "Whether a statute is constitutional is a question of law that we
review de novo." Malchow, 193 Ill. 2d at 418.
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¶ 25 A. Standing
¶ 26 Initially, we note that the defendant has standing to raise his substantive and
procedural due process claims and his eighth amendment/proportionate penalties claims.
"In order to have standing to bring a constitutional challenge, a party must show that he is
within the class aggrieved by the alleged constitutionality." Avila-Briones, 2015 IL App
(1st) 132221, ¶ 27 (citing In re M.I., 2013 IL 113776, ¶ 32). He " 'must have suffered or
be in immediate danger of suffering a direct injury as a result of enforcement of the
challenged statute.' " Id. (quoting People v. Greco, 204 Ill. 2d 400, 409 (2003)). "The
claimed injury must be: (1) distinct and palpable; (2) fairly traceable to defendant's
actions; and (3) substantially likely to be prevented or redressed by the grant of the
requested relief." Id. (citing Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 119-20
(2004)).
¶ 27 The SORA Statutory Scheme provisions that the defendant challenges will
automatically apply to him on his release from prison. As a result of his conviction, he
will be subject to the SORA Statutory Scheme, including registration restrictions,
residency restrictions, employment restrictions, restrictions on where he may be present,
and restrictions on his privileges to drive or change his name, for the rest of his life, and
no contingency needs to occur before these laws apply to him. He will be subject to a
lifetime of government surveillance and restraint and must alter his behavior in a way that
the vast majority of the public never will. Further, a favorable ruling from this court
invalidating these restrictions would redress these injuries. He therefore has standing to
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raise his eighth amendment/proportionate penalties challenges and his due process
challenges to the SORA Statutory Scheme. See id. ¶¶ 31-43.
¶ 28 B. Due Process
¶ 29 The fourteenth amendment to the United States Constitution and article I, section
2, of the Illinois Constitution protect individuals from the deprivation of life, liberty, or
property without due process of law. U.S. Const., amend. XIV; Ill. Const. 1970, art. I,
§ 2. The case law acknowledges two distinct strands of due process analysis: substantive
due process and procedural due process. See Doe v. City of Lafayette, 377 F.3d 757, 767-
68 (7th Cir. 2004); In re J.R., 341 Ill. App. 3d 784, 791 (2003). With regard to
substantive due process, the appropriate inquiry is "whether the individual has been
subjected to 'the arbitrary exercise of the powers of government, unrestrained by the
established principles of private rights and distributive justice.' " City of Lafayette, 377
F.3d at 768 (quoting Bank of Columbia v. Okely, 17 U.S. 235, 244 (1819)). Procedural
due process allows the government to deprive a citizen of "life, liberty, or property" only
in accordance with certain procedural protections. See id. at 767-68.
¶ 30 i. Substantive Due Process
¶ 31 The defendant argues that the SORA Statutory Scheme violates the due process
protections of the federal and Illinois constitutions by imposing punishment without
considering the circumstances of each offender. Substantive due process bars the
government from arbitrarily exercising its power without the reasonable justification of
serving a legitimate interest. Daniels v. Williams, 474 U.S. 327, 331 (1986). "When
confronted with a claim that a statute violates the due process guarantees of the United
12
States and Illinois Constitutions, courts first must determine the nature of the right
purportedly infringed upon by the statute." In re J.W., 204 Ill. 2d 50, 66 (2003).
¶ 32 Where the right infringed upon is a constitutionally protected fundamental right,
the statute is subject to strict scrutiny analysis. Cornelius, 213 Ill. 2d at 204. Pursuant to
strict scrutiny analysis, the statute must serve a compelling government interest and be
narrowly tailored to serve that interest. Id. If the statute does not affect a fundamental
constitutional right, then the test for determining whether the statute complies with
substantive due process requirements is the rational basis test. People v. Wright, 194 Ill.
2d 1, 24 (2000). To satisfy this test, a statute need only bear a rational relationship to the
purpose the legislature sought to accomplish in enacting the statute. Cornelius, 213 Ill.
2d at 203-04. "Pursuant to this test, a statute will be upheld if it 'bears a reasonable
relationship to a public interest to be served, and the means adopted are a reasonable
method of accomplishing the desired objective.' " J.W., 204 Ill. 2d at 67 (quoting
Adams, 144 Ill. 2d at 390).
¶ 33 The defendant argues that the right to be free from a lifetime of burdensome,
intrusive monitoring and restrictions constitutes a fundamental right to liberty. The
defendant argues that the SORA Statutory Scheme impinges on his fundamental right to
liberty because it will continue to regulate all aspects of his life. The defendant argues
that the SORA Statutory Scheme is not properly tailored to protect the public because it
fails to provide a method to determine an offender's future risk to the community or a
method to petition to be relieved of the burdens of registering after demonstrating no
future risk of offending.
13
¶ 34 Specifically, the defendant takes issue with SORA's lifetime in-person reporting
requirement (730 ILCS 150/1 et seq. (West 2014)); the restriction of his residence and his
presence in areas frequented by children (720 ILCS 5/11-9.3, 11-9.4-1 (West 2014)); the
requirement that he renew his driver's license annually (730 ILCS 5/5-5-3(o) (West
2014)); and the prohibition from petitioning for a name change (735 ILCS 5/21-101
(West 2014)).
¶ 35 The narrow category of recognized "fundamental rights" includes the rights to
marry, to have children, to direct the education and upbringing of one's children, to
marital privacy, to use contraception, to bodily integrity, to abortion, and to refuse
unwanted lifesaving medical treatment. Washington v. Glucksberg, 521 U.S. 702, 720-21
(1997). Our supreme court has held that sex offender registration provisions do not affect
fundamental rights. J.W., 204 Ill. 2d at 67; see also People v. Fredericks, 2014 IL App
(1st) 122122, ¶ 40 (lifetime sex offender registration is not a constraint on liberty). Our
supreme court has further held that the sex offender notification provisions, including
Internet dissemination of sex offenders' personal information, do not impact fundamental
rights because "the right to be free from the shame, stigma[,] and embarrassment
resulting from a conviction for sexually abusing a child is not the kind of fundamental
right contemplated by our constitution." (Internal quotation marks omitted.) Cornelius,
213 Ill. 2d at 204; see also Paul v. Davis, 424 U.S. 693, 701 (1976) (damage to reputation
does not deprive individual of protected liberty or property interest); Avila-Briones, 2015
IL App (1st) 132221, ¶ 74.
14
¶ 36 Moreover, Illinois courts have rejected the suggestion that residency restrictions
on sex offenders violate fundamental rights. See People v. Leroy, 357 Ill. App. 3d 530,
534 (2005) (rejecting claim that residency restriction affected fundamental right to decide
who to live with because defendant did not have fundamental right "to live with his
mother and enjoy her support within 500 feet of a school"). Further, the prohibitions on
the defendant's presence near school property or public parks do not affect fundamental
rights. See People v. Stork, 305 Ill. App. 3d 714, 720-21 (1999) (statute prohibiting sex
offender's presence on school grounds did not affect fundamental constitutional right);
Brown v. City of Michigan City, 462 F.3d 720, 733 (7th Cir. 2006) (right to enter park not
fundamental right); City of Lafayette, 377 F.3d at 769-71 (asserted right to enter parks to
loiter is not implicit in the concept of ordered liberty and is not fundamental right); see
also Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 75-76.
¶ 37 Likewise, requiring the defendant to renew his driver's license annually does not
affect a fundamental right because the right to drive and the right to possess a driver's
license is not a fundamental right. Guerrero v. Ryan, 272 Ill. App. 3d 945, 951 (1995)
(continued use and possession of driver's license is not a fundamental right). Moreover,
the defendant does not cite any authority to support the contention that he has a
fundamental right affected by the prohibition on changing his name. See In re Marriage
of Charnogorsky, 302 Ill. App. 3d 649, 660 (1998) (finding no authority to support notion
that naming one's child is fundamental right); see also Avila-Briones, 2015 IL App (1st)
132221, ¶ 75.
15
¶ 38 Having concluded that the SORA Statutory Scheme does not impact the
defendant's fundamental rights, we apply rational basis review. See J.W., 204 Ill. 2d at
67. Pursuant to rational basis review, we address two questions: (1) whether there is a
legitimate state interest behind the statutes; and, if so, (2) whether there is a reasonable
relationship between that interest and the means the legislature chose to pursue it. People
v. Johnson, 225 Ill. 2d 573, 584-85 (2007); see also Avila-Briones, 2015 IL App (1st)
132221, ¶ 81.
¶ 39 It is well established that there is a legitimate state interest behind the SORA
Statutory Scheme. It serves the goal of protecting the public from sex offenders. See
J.W., 204 Ill. 2d at 68 (notification law designed to protect public from sex offenders);
Malchow, 193 Ill. 2d at 420 (registration and notification provisions regarding sex
offenders create additional measure of protection for children from the increasing
incidence of sexual assault and child abuse); Adams, 144 Ill. 2d at 390 (sex offender
registration provisions designed to protect public from sex offenders). Thus, we turn to
whether the statutory scheme bears a rational relationship to that goal.
¶ 40 The defendant argues that without a mechanism to determine which offenders
pose a risk of recidivating, the SORA Statutory Scheme cannot be deemed rationally
related to protecting the public from those with a high risk of reoffending. The defendant
argues that the SORA Statutory Scheme is therefore overinclusive in that it may impose
burdens on individuals who pose no threat to the public because they will not reoffend.
¶ 41 "As our supreme court has held, SORA and the Notification Law help law
enforcement and private individuals keep track of sex offenders by providing information
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about their presence and offenses." Avila-Briones, 2015 IL App (1st) 132221, ¶ 84
(citing Cornelius, 213 Ill. 2d at 205, and J.W., 204 Ill. 2d at 67-68). There is a direct
relationship between the registration and notification of sex offenders and the protection
of children. J.W., 204 Ill. 2d at 67-68; Adams, 144 Ill. 2d at 391. There is also a direct
relationship between the residency, employment, and presence restrictions of sex
offenders and the protection of children. As noted by the First District court in Avila-
Briones, 2015 IL App (1st) 132221, ¶ 84:
"[B]y keeping sex offenders who have committed offenses against children away
from areas where children are present (e.g., school property and parks) and out of
professions where they could come in contact with children (e.g., driving an ice
cream truck, being a shopping-mall Santa Claus) or vulnerable people (e.g.,
driving an emergency services vehicle), the legislature *** rationally sought to
avoid giving certain offenders the opportunity to reoffend."
¶ 42 Moreover, although the defendant suggests alternate means of accomplishing the
legislature's objective in this case, i.e., evaluation of his future dangerousness as a sex
offender and a chance of reprieve, "it is well settled that the rational basis test does not
require that the statute be the best means of accomplishing the legislature's objectives."
J.W., 204 Ill. 2d at 72. As long as the legislation has a rational relationship to the
government objectives, it is valid even if it is to some extent overinclusive,
underinclusive, or both. In re Estate of Muldrow, 343 Ill. App. 3d 1148, 1154 (2003)
(citing New York City Transit Authority v. Beazer, 440 U.S. 568, 592 n.39 (1979)); see
also Avila-Briones, 2015 IL App (1st) 132221, ¶ 83. Although the SORA Statutory
17
Scheme may be overinclusive, thereby imposing burdens on offenders who pose no threat
to the public because they will not reoffend, there is a rational relationship between the
registration, notification, and restrictions of sex offenders and the protection of the public
from such offenders. Avila-Briones, 2015 IL App (1st) 132221, ¶ 84. "It is best left to
the legislature and not the courts to determine whether a statute is wise or whether it is
the best means to achieve the desired result." J.W., 204 Ill. 2d at 72; see also Smith v.
Doe, 538 U.S. 84, 103 (2003) (legislature's findings were consistent with grave concerns
over the high rate of recidivism among convicted sex offenders and their dangerousness
as a class). "If there is any conceivable basis for finding a rational relationship, the
statute will be upheld." J.W., 204 Ill. 2d at 72.
¶ 43 Accordingly, the SORA Statutory Scheme survives rational basis scrutiny,
advancing the government's legitimate goal to protect children from sexual predators.
See Cornelius, 213 Ill. 2d at 205 (Internet dissemination provisions found in section
115(b) of the Notification Law, allowing for Internet dissemination of sex offender data,
bore rational relationship to the purpose the legislature intended to achieve in enacting
the statute, i.e., to assist law enforcement and to protect the public from sex offenders,
and did not violate substantive due process rights); J.W., 204 Ill. 2d at 67-68 (sex
offender registration and notification provisions, requiring defendant to register for life,
reasonably served the purpose of assisting law enforcement in protecting children against
sex offenders, thus satisfying the requirements of substantive due process (citing Adams,
144 Ill. 2d at 390-91, and Malchow, 193 Ill. 2d at 420)).
18
¶ 44 In sum, we find that the SORA Statutory Scheme does not affect fundamental
rights enshrined in the substantive due process clause and is rationally related to the goal
of protecting the public from the possibility that sex offenders will commit additional sex
offenses against children. Avila-Briones, 2015 IL App (1st) 132221, ¶ 2. We therefore
reject the defendant's claim that the statutes at issue violate substantive due process.
¶ 45 ii. Procedural Due Process
¶ 46 "Procedural due process claims challenge the constitutionality of the specific
procedures used to deny a person's life, liberty, or property." People ex rel. Birkett v.
Konetski, 233 Ill. 2d 185, 201 (2009). Procedural due process requires that a person in
danger of serious loss of life, liberty, or property be given notice of the case against him
and opportunity to present any objections. Mathews v. Eldridge, 424 U.S. 319, 348
(1976); Konetski, 233 Ill. 2d at 201. Due process is a flexible concept, and not all
situations that require procedural safeguards require the same kind of procedure.
Konetski, 233 Ill. 2d at 201. Courts should consider the following factors to evaluate a
procedural due process claim: (1) the private interest that will be affected by the official
action; (2) the risk of an erroneous deprivation of such interest through the procedures
used and the probable value, if any, of additional or substitute procedural safeguards; and
(3) the government's interest, including the function involved and the fiscal and
administrative burdens that an additional or substitute procedural safeguard would entail.
Mathews, 424 U.S. at 335; Konetski, 233 Ill. 2d at 201. "A procedural due process claim
presents a legal question subject to de novo review." Konetski, 233 Ill. 2d at 201.
19
¶ 47 We find that even if the SORA Statutory Scheme affected the defendant's liberty
or property interests, no additional procedures would be necessary to satisfy due process.
See Avila-Briones, 2015 IL App (1st) 132221, ¶ 89. The defendant contends that the
missing procedural safeguard in this case is a mechanism by which the state should
winnow those registrants who pose little danger to society from the sex offender registry.
According to the defendant, such a procedure would ensure that the restrictions of the
SORA Statutory Scheme burden only those who pose a risk of committing additional
sexual crimes. As noted by the First District court in Avila-Briones, 2015 IL App (1st)
132221, ¶¶ 91-92:
"[T]he United States Supreme Court rejected a nearly identical argument in
Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003). There, the
Court held that Connecticut was not required to hold a 'hearing to determine
whether [sex offenders] are likely to be "currently dangerous" ' before requiring
them to register. Id. at 4. The Court noted that Connecticut's sex offender
registration system 'turn[ed] on an offender's conviction alone−a fact that a
convicted offender has already had a procedurally safeguarded opportunity to
contest.' Id. at 7. Because the defendant's current dangerousness was 'of no
consequence' under Connecticut law, individuals were not entitled to a hearing to
prove something that had no relevance to their registration. Id. ***
[The] [Illinois appellate] court has adopted the rationale of Connecticut
Department of Public Safety when faced with arguments that sex offenders in
Illinois should have an opportunity to show whether they are likely to reoffend.
20
People v. Stanley, 369 Ill. App. 3d 441, 448-50 (2006); In re J.R., 341 Ill. App. 3d
784, 795-96 (2003). That is because Illinois's system, like Connecticut's, is based
entirely on the offense for which a sex offender has been convicted. A sex
offender's likelihood to reoffend is not relevant to that assessment. As the Court
held in Connecticut Department of Public Safety, defendant had no right to a
procedure where he could prove a fact that had no relevance to his registration."
¶ 48 The defendant is required to register under the SORA Statutory Scheme as a result
of his conviction. The defendant was given important procedural safeguards applicable
to the criminal proceeding leading to his conviction, before he became subject to the
SORA Statutory Scheme, including the right to notice, the right to counsel, the right to a
jury trial, the right to confront witnesses, the privilege against self-incrimination, and the
standard of proof beyond a reasonable doubt. See Konetski, 233 Ill. 2d at 201-02. Given
these circumstances, we find that the defendant's obligations are not sufficiently
burdensome to mandate the additional procedural protection of a mechanism to determine
his risk of recidivism. Accordingly, the defendant has failed to carry his burden to
clearly establish that the SORA Statutory Scheme violates his constitutional right to
procedural due process. See Avila-Briones, 2015 IL App (1st) 132221, ¶ 92.
¶ 49 C. Eighth Amendment/Proportionate Penalties
¶ 50 The defendant argues that the SORA Statutory Scheme violates the proportionate
penalties guarantees of the eighth amendment to the United States Constitution (U.S.
Const., amend. VIII) and article I, section 11, of the Illinois Constitution (Ill. Const.
1970, art. I, § 11). The eighth amendment states that "[e]xcessive bail shall not be
21
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
U.S. Const., amend. VIII. The United States Supreme Court has held that the eighth
amendment encompasses a "narrow proportionality principle" that prohibits "extreme
sentences" that are "grossly disproportionate" to the crime. (Internal quotation marks
omitted.) Graham v. Florida, 560 U.S. 48, 59-60 (2010).
¶ 51 The proportionate penalties clause found in article I, section 11, of the Illinois
Constitution states that "[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. The proportionate penalties clause prohibits,
inter alia, criminal penalties that are "cruel, degrading, or so wholly disproportionate to
the offense committed as to shock the moral sense of the community." (Internal
quotation marks omitted.) People v. Sharpe, 216 Ill. 2d 481, 487 (2005). When
interpreting this restriction, our supreme court has held that the proportionate penalties
clause is coextensive with the eighth amendment's proportionality requirement. People v.
Patterson, 2014 IL 115102, ¶ 106. We therefore analyze the defendant's eighth
amendment and proportionate penalties arguments by the same standards. See Avila-
Briones, 2015 IL App (1st) 132221, ¶ 55.
¶ 52 "Both provisions apply only to the criminal process where the government takes
direct action to inflict punishment." Konetski, 233 Ill. 2d at 207. The United States
Supreme Court and the Illinois Supreme Court have held that sex offender registration
and notification requirements do not constitute punishment. Smith, 538 U.S. at 105-06
(Alaska's sex offender registration and notification requirements not punitive); Konetski,
22
233 Ill. 2d at 207 (sex offender registration requirements not punishment); Cornelius, 213
Ill. 2d at 206-07 (widespread dissemination of offenders' information on Internet did not
render sex offender notification provisions punitive); J.W., 204 Ill. 2d at 75 (sex offender
registration requirements not punitive); Malchow, 193 Ill. 2d at 424 (sex offender
registration and notification not punitive).
¶ 53 The defendant acknowledges the binding precedent finding sex offender
registration and notification provisions nonpunitive. The defendant argues, however, that
the current SORA Statutory Scheme is more onerous than the previous legislation and
that the prior statutory scheme addressed in the prior cases no longer exists. The
defendant argues that the 2013 amendments to the SORA Statutory Scheme expand who
must register as a sex offender, expand the number of agencies with which a registrant
must register in person, reduce the time period to register, and require registration of
travel plans, registration of workplace, and registration with the public safety or security
director of any higher education institution where employed or attending. 730 ILCS
150/1 et seq. (West 1998); 730 ILCS 150/1 et seq. (West 2014). The defendant contends
that the SORA Statutory Scheme has become punitive because it also expands the
quantity of information a registrant must provide when registering, increases the length of
time most registrants are required to register, and increases the initial and annual
registration fees. Id. The defendant further notes that the current SORA Statutory
Scheme punishes noncompliance more severely. 730 ILCS 150/10 (West 1998); 730
ILCS 150/10 (West 2014).
23
¶ 54 The defendant argues that the requirements constitute affirmative disabilities and
restraints similar to probation or mandatory supervised release, warranting a finding that
they are punitive. The defendant requests this court to reevaluate the current SORA
Statutory Scheme and determine that the SORA Statutory Scheme has evolved and
transformed from a regulatory scheme into a punitive regime that violates the
proportionate penalties provisions in the United States and Illinois Constitutions.
¶ 55 The defendant in Avila-Briones, 2015 IL App (1st) 132221, made similar
arguments. The court in Avila-Briones, however, declined to revisit the issue of whether
the SORA Statutory Scheme constituted punishment because, even assuming that it did, it
did not violate the eighth amendment or the proportionate penalties clause. Id. ¶ 51. We
follow the same reasoning.
¶ 56 The defendant asserts his proportionality claims by arguing that the SORA
Statutory Scheme, as applied to offenders who can show they are no risk to the public, is
disproportionate. Thus, the defendant argues that the challenged punishment is
disproportionate to the crime in his particular case. See Graham, 560 U.S. at 59-61;
Avila-Briones, 2015 IL App (1st) 132221, ¶ 56. We find that it is not.
¶ 57 The defendant in this case was 50 years old when he committed an act of sexual
penetration with a minor female who was 5 years old when the act was committed. The
Illinois Supreme Court has held that protecting children is "a government objective of
surpassing importance" (internal quotation marks omitted) and that children suffer
psychological damage as a result of sexual assault that "may be even more pernicious"
than physical damage. People v. Huddleston, 212 Ill. 2d 107, 132, 135 (2004); see also
24
Avila-Briones, 2015 IL App (1st) 132221, ¶ 60. Further, "lifetime monitoring of sex
offenders serves legitimate penological goals." Avila-Briones, 2015 IL App (1st)
132221, ¶ 61; see also Smith, 538 U.S. at 103 (state could conclude that a conviction for a
sex offense provides evidence of substantial risk of recidivism). The defendant's
registration as a sex offender and prohibitions regarding his residence, employment, and
presence focus on keeping child sex offenders, such as the defendant, away from children
and diminishing the likelihood that they will repeat their crimes. See Avila-Briones, 2015
IL App (1st) 132221, ¶ 61.
¶ 58 "Furthermore, the United States Supreme Court has held that lifelong terms of
incarceration do not violate the eighth amendment, even when the offender has been
convicted of offenses that are minor compared to having sex with a minor." Id. ¶ 66
(citing Ewing v. California, 538 U.S. 11, 28-31 (2003) (25 years to life for stealing three
golf clubs); Harmelin v. Michigan, 501 U.S. 957, 994-96 (1991) (life without parole for
possessing 672 grams of cocaine); and Rummel v. Estelle, 445 U.S. 263, 275-85 (1980)
(life sentence for stealing $120 under false pretenses)). Although the defendant will be
monitored and constrained by the limits on his freedom for the rest of his life, assuming
that the prohibitions and requirements of the SORA Statutory Scheme are punishment,
they are punishment far less severe than prison. See id. (citing United States v. Williams,
636 F.3d 1229, 1232 (9th Cir. 2011), United States v. Bridges, 760 F.2d 151, 154 (7th
Cir. 1985), and United States v. Walden, 578 F.2d 966, 972 (3d Cir. 1978)).
¶ 59 Thus, we conclude that, even if the SORA Statutory Scheme were considered a
system of "punishment," it is not grossly disproportionate to the defendant's offense. We
25
therefore reject the defendant's claims that the SORA Statutory Scheme violates the
eighth amendment or the proportionate penalties clause of the Illinois Constitution. See
Avila-Briones, 2015 IL App (1st) 132221, ¶ 67.
¶ 60 IV. CONCLUSION
¶ 61 For the reasons stated, we affirm the defendant's conviction and sentence. The
SORA Statutory Scheme does not infringe on the defendant's fundamental rights under
the substantive due process clause, is rationally related to the goal of protecting the
public, and does not violate the procedural due process clause by failing to give the
defendant a hearing on his likelihood to reoffend. Even if the SORA Statutory Scheme
constituted "punishment," it is not a grossly disproportionate punishment for the
defendant's crime.
¶ 62 Affirmed.
26
2016 IL App (5th) 130514
NO. 5-13-0514
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 12-CF-965
)
CEDRIC POLLARD, ) Honorable
) John Baricevic,
Defendant-Appellant. ) Judge, presiding.
__________________________________________________________________________
Opinion Filed: May 10, 2016
__________________________________________________________________________
Justices: Honorable S. Gene Schwarm, P.J.
Honorable Melissa A. Chapman, J., and
Honorable Bruce D. Stewart, J.,
Concur
__________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Patricia Mysza,
for Deputy Defender, Joshua M. Bernstein, Assistant Appellate
Appellant Defender, Office of the State Appellate Defender, First Judicial
District, 203 North LaSalle, 24th Floor, Chicago, IL 60601
__________________________________________________________________________
Attorneys Hon. Brendan F. Kelly, State's Attorney, St. Clair County Courthouse,
for 10 Public Square, Belleville, IL 62220; Patrick Delfino, Director,
Appellee Stephen E. Norris, Deputy Director, Kelly M. Stacey, Staff Attorney,
Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois
Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
__________________________________________________________________________