                                    2015 IL App (1st) 132221

                                                                             FOURTH DIVISION
                                                                             December 24, 2015


No. 1-13-2221

THE PEOPLE OF THE STATE OF ILLINOIS,                  )                      Appeal from the
                                                      )                      Circuit Court of
       Plaintiff-Appellee,                            )                      Cook County.
                                                      )
v.                                                    )                      No. 12 CR 3504
                                                      )
OSIRIS AVILA-BRIONES,                                 )                      Honorable
                                                      )                      Noreen Valeria-Love,
       Defendant-Appellant.                           )                      Judge Presiding.

       JUSTICE ELLIS delivered the judgment of the court, with opinion.
       Justices Howse and Cobbs concurred in the judgment and opinion.

                                            OPINION

¶1     In this appeal, defendant Osiris Avila-Briones, who was convicted of aggravated criminal

sexual abuse for having sex with a 16-year-old girl when he was 23 years old, asks us to revisit the

constitutionality of the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West

2012)), the Sex Offender Community Notification Law (Notification Law) (730 ILCS 152/101 et

seq. (West 2012)), and other statutes applicable to sex offenders (collectively, the "Statutory

Scheme"). Defendant acknowledges that previous versions of these laws have been upheld but

claims that the current versions of these laws are very different than the versions at issue in prior

case law. He alleges that the Statutory Scheme has become so onerous that it has crossed the

threshold from a civil regulatory scheme to a system of punishment. And, according to defendant,

that system of punishment violates the constitutional prohibitions on cruel and unusual

punishment, as well as his rights to procedural and substantive due process.

¶2      We need not revisit whether the Statutory Scheme constitutes punishment or not because,

even assuming that it did, it would not violate the eighth amendment or proportionate penalties
No. 1-13-2221


clause. A lifetime of restrictions similar to parole or probation is not a grossly disproportionate

sentence for defendant's offense, and the Statutory Scheme serves legitimate penological goals.

We also disagree with defendant's contention that the Statutory Scheme violates substantive due

process. It 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 new crimes. Finally, we reject defendant's procedural due process claim because

defendant is not entitled to additional procedures to evaluate his risk of reoffending where his risk

of reoffending is irrelevant to his status as a sex offender under Illinois law.

¶3                                       I. BACKGROUND

¶4     As defendant does not challenge the sufficiency of the evidence against him or any of the

trial proceedings, we will discuss the facts of the case only to the extent necessary to understand

defendant's constitutional challenges.

¶5     In May 2011, defendant, who was 23 years old at the time, began to have a relationship

with M.H., a 16-year-old girl. Between July 2011 and early November 2011, defendant and M.H.

had vaginal intercourse between 10 and 20 times. On November 17, 2011, the police were called to

M.H.'s family's house, where defendant and M.H. were fighting. M.H. went to the hospital, where

she learned she was pregnant. Defendant was arrested, and a police officer testified that defendant

admitted to having sex with M.H. after he learned that she was underage. At trial, defendant

testified that he did not know M.H. was 16 and that he never told the police that he had sex with her

despite knowing she was underage.

¶6     After a bench trial, defendant was convicted of 10 counts of aggravated criminal sexual

abuse. The trial court sentenced him to six years' incarceration, the minimum sentence available in

light of defendant's previous convictions for burglary and possession of a stolen motor vehicle. See

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730 ILCS 5/5-4.5-95(b) (West 2012) (requiring Class X sentencing range for offender convicted

of three Class 2 or greater offenses). Defendant appeals.

¶7                                        II. ANALYSIS

¶8                              A. The Statutory Provisions at Issue

¶9     For clarity's sake, before turning to the parties' arguments, we will set out the various

statutes that make up the Statutory Scheme. We have divided these statutes into three categories:

(1) registration and notification requirements; (2) residency, employment, and presence

restrictions; and (3) other provisions.

¶ 10                       1. Registration and Notification Requirements

¶ 11   Defendant's conviction for aggravated criminal sexual abuse qualifies him as a "sexual

predator" under SORA. 730 ILCS 150/2(E)(1) (West 2012). As a sexual predator, 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 2012). 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, and must provide that agency with his travel

itinerary while there. 730 ILCS 150/3(a) (West 2012). If defendant works for or attends an

institution of higher learning, he will have to 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)(2)(i), (ii) (West 2012).

¶ 12   Each time he registers, he must provide the authorities with a host of information about

himself, including:

       "[A] current photograph, current address, current place of employment, [his] telephone

       number, including cellular telephone number, [his] employer's telephone number, school

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No. 1-13-2221


       attended, all e-mail addresses, instant messaging identities, chat room identities, and other

       Internet communications identities that the sex offender 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 as

       provided in this Article 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

       2012).

He must provide proof of his address via "positive identification and documentation." 730 ILCS

150/3(c)(5) (West 2012). He will also have to pay a $100 fee every time he registers. 730 ILCS

150/3(c)(6) (West 2012).

¶ 13   Defendant will be required to re-register annually. 730 ILCS 150/6 (West 2012). But the

law enforcement agency with which defendant is registered may require him to appear, on request,

up to four more times per year. Id. If defendant lacks a fixed residence, he will be required to

register on a weekly basis. Id. If any of the information that defendant previously provided

changes, he will have to notify the last law enforcement agency he registered with, in person,

within three days. 730 ILCS 150/3, 6 (West 2012).

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No. 1-13-2221


¶ 14    Defendant will be required to comply with these provisions for the rest of his life. 730

ILCS 150/7 (West 2012). If defendant fails to comply with any of these requirements, he may be

convicted of a Class 3 felony (730 ILCS 150/10(a) (West 2012)), carrying a sentence of up to five

years' incarceration. 730 ILCS 5/5-4.5-40(a) (West 2012). Any subsequent failures to register are

Class 2 felonies (730 ILCS 150/10(a) (West 2012)), which ordinarily have a sentencing range of 7

to 14 years' incarceration (730 ILCS 5/5-4.5-35(a) (West 2012)), but, because of defendant's prior

convictions, will have a sentencing range of 6 to 30 years' incarceration. 730 ILCS 5/5-4.5-95(b)

(West 2012). He will be required to pay a mandatory mininum $500 fine for each failure to

register. 730 ILCS 150/10(a) (West 2012).

¶ 15    The Notification Law works in tandem with SORA. Under the Notification Law, law

enforcement authorities must disclose sex offenders' names, addresses, dates of birth, places of

employment, schools, email addresses, instant messaging identities, chat room identities, and

"other Internet communications identities" 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 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 2012). The police must also inform these

people and institutions of any uniform resource locators (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." 730 ILCS 152/120(a-2) (West

2012). The police, "in [their] discretion," are also allowed to disclose this information "to any

person likely to encounter a sex offender, or sexual predator." 730 ILCS 152/120(b) (West 2012).

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No. 1-13-2221


For all other members of the public, this information must be made available on request. 730 ILCS

152/120(c) (West 2012).

¶ 16   The Illinois State Police must also maintain a website making sex offenders' registration

information available to the public. 730 ILCS 152/115(b) (West 2012). Sex offenders must be

searchable "via a mapping system which identifies registered sex offenders living within 5 miles of

an identified address." Id.

¶ 17                  2. Residency, Employment, and Presence Restrictions

¶ 18   Moreover, 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 2012).

¶ 19   Defendant will also be restricted in his employment and other activities. He cannot work or

volunteer at a day care or other "facility providing programs or services exclusively directed

toward persons under the age of 18." 720 ILCS 5/11-9.3(c) (West 2012). He cannot "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

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 2012). 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 cannot work at, or "be associated with," any county fair when children

are present. 720 ILCS 5/11-9.3(c-5) (West 2012). If he owns and lives in an apartment building, he

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No. 1-13-2221


cannot 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 2012). He cannot drive an ambulance, fire truck, or other emergency vehicle.

720 ILCS 5/11-9.3(c-8) (West 2012). 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.

¶ 20   If 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 2012)), which carries a sentencing

range of three to six years' incarceration. 730 ILCS 5/5-4.5-45(a) (West 2012).

¶ 21   Other statutory provisions applicable to defendant by virtue of his conviction will penalize

him for being near schools. Because defendant committed his offense against an individual under

the age of 18, he is considered a "child sex offender" under sections 11-9.3 and 11-9.4-1 of the

Criminal Code of 2012. 720 ILCS 5/11-9.3(d)(1)(i)(A), (d)(2)(ii), 11-9.4-1(a) (West 2012). As a

child sex offender, he will be 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 conference at a school concerning his own child. 720 ILCS 5/11-9.3(a)

(West 2012). He cannot 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 or school related activity" when children are present. 720 ILCS

5/11-9.3(a-5) (West 2012). If he violates these provisions, he will have committed a Class 4

felony. 720 ILCS 5/11-9.3(f) (West 2012).

¶ 22   Likewise, defendant cannot knowingly be present in any "public park" (720 ILCS

5/11-9.4-1(b) (West 2012))—defined as any "park, forest preserve, bikeway, trail, or conservation

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No. 1-13-2221


area under the jurisdiction of the State or a unit of local government" (720 ILCS 5/11-9.4-1(a)(i)

(West 2012))—or to loiter within 500 feet of any "public park." 720 ILCS 5/11-9.4-1(c) (West

2012). 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 2012).

¶ 23                                      3. Other Provisions

¶ 24     Finally, defendant takes issue with two other provisions that do not fit in either of the above

categories. First, he will be required to renew his driver's license annually. 730 ILCS 5/5-5-3(o)

(West 2012). Second, he will be prohibited from changing his name. 735 ILCS 5/21-101 (West

2012).

¶ 25                                          B. Standing

¶ 26      Before reaching the substance of defendant's constitutional arguments, we must first

address the State's claim that defendant lacks standing to challenge some of the above-described

statutes. Specifically, the State contends that defendant cannot challenge the residency,

employment, or presence restrictions, or the driver's-license and name-change provisions

(described above in section I.A.2 and I.A.3), because those laws are independent of SORA and the

Notification Law and they are "not applicable to [defendant]." Defendant contends that the injuries

inflicted by these statutes—the restrictions on his behavior—are not hypothetical because he will

be required to abide by them for the rest of his life, without exception, or face criminal prosecution.

¶ 27     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. In re M.I., 2013 IL 113776, ¶ 32. And

that "person must have suffered or be in immediate danger of suffering a direct injury as a result of

enforcement of the challenged statute." 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)

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No. 1-13-2221


substantially likely to be prevented or redressed by the grant of the requested relief. Village of Lake

Villa v. Stokovich, 211 Ill. 2d 106, 119-20 (2004).

¶ 28   Importantly, standing "often turns on the nature and source of the claim asserted." Warth v.

Seldin, 422 U.S. 490, 500 (1975). Here, defendant argues that the Statutory Scheme constitutes

cruel, unusual, and disproportionate punishment. He also claims that it violates his rights to

substantive and procedural due process. Because the nature of these claims differs, we must

analyze his standing to bring these claims separately. We first look to the justiciability of

defendant's eighth amendment and proportionate penalties clause claims, then turn to his

due-process challenges.

¶ 29                B. Standing for Eighth Amendment/Proportionate Penalties

¶ 30   It is clear enough that, in order to have standing to raise a claim of cruel and unusual

punishment or disproportionate penalties, a defendant must have actually received punishment.

People v. Matkovick, 101 Ill. 2d 268, 277 (1984) (defendant lacked standing to raise

eighth-amendment challenge to sentencing provision of law banning lookalike drugs because

"there ha[d] been no adjudication of guilt *** and no sentence imposed"). Obviously, defendant

has already received his punishment—he was found guilty of a sex offense that triggered not only

SORA and the Notification Law, but also a host of restrictions on his movement, residency and

employment, as well as restrictions related to driver's licenses and name changes.

¶ 31   At first blush, it may seem odd that we would consider the constitutionality of separate

statutes that are not, on their faces, sentencing laws. But defendant alleges that these statutes

operate as additional punishment for his conviction for aggravated criminal sexual abuse. And

whether or not these laws actually constitute "punishment" goes to the merits of defendant's

eighth-amendment and proportionate-penalties claims. The merits of a claim do not affect its

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justiciability. Arizona State Legislature v. Arizona Independent Redistricting Comm'n, 576 U.S.

___, ___, 135 S. Ct. 2652, 2663 (2015); Warth, 422 U.S. at 500; see also Harris Trust & Savings

Bank v. Duggan, 95 Ill. 2d 516, 527 (1983) (distinguishing between merits of challenge and

standing to raise it). If we were to determine that defendant lacked standing to challenge these laws

because they do not constitute "punishment" for his conviction, we would be hinging defendant's

standing on the merits of his argument. Such an analysis would improperly conflate these two

distinct inquiries.

¶ 32    It is likewise unusual for a defendant to raise the challenges to these non-sentencing laws

on direct appeal from his criminal conviction, when a litigant typically does so in a civil action.

The trial court, after all, did not impose these restrictions as part of its sentence. Instead, these laws

automatically applied to defendant, no matter the trial court's sentence. But that does not alter the

fact that defendant checks all the boxes on the requirements for standing. He must show that he

suffered actual or imminent injury, and that the outcome of this proceeding will redress that injury.

Whether by operation of law or by judicial decree, the conditions imposed on defendant caused

him an injury. Due to his conviction, he is prohibited from knowingly living within 500 feet of a

school, day care, or other facility providing services to children. He can never take certain jobs

where he is in contact with children, drive any emergency services vehicle, or drive a food truck.

He can never knowingly go in a public park or local or state forest preserve. The alleged

unconstitutionality—the harshness of these laws as part of his alleged punishment—will affect

defendant and sets him apart from most individuals.

¶ 33    Moreover, there is no contingency that needs to occur before these laws apply to defendant:

he will be subject to them, for the rest of his life, no matter what occurs. Compare, e.g., In re C.C.,

2015 IL App (1st) 142306, ¶ 15 (respondent lacked standing to challenge suspended adult sentence

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No. 1-13-2221


where at least one contingency had to occur before sentence would ever be imposed); Alfred

Engineering, Inc. v. Illinois Fair Employment Practices Comm'n, 19 Ill. App. 3d 592, 601 (1974)

(finding plaintiffs lacked standing to challenge regulations because "any injury *** is speculative

and wholly dependent upon a series of future contingencies"). As a result of defendant's

conviction, he will be subject to a lifetime of government surveillance and restraint that will,

without doubt, apply to him on his release.

¶ 34    Finally, it is indisputable that a favorable ruling from this court—invalidating these

restrictions—would redress these injuries. We therefore find that defendant has standing to raise

his claims under the eighth amendment and the proportionate-penalties clause.

¶ 35    We find further support for the notion that defendant has standing in cases addressing

defendants' standing to challenge the conditions of their supervised release. For example, in United

States v. Loy, 237 F.3d 251, 253-54 (3d Cir. 2001), the court held that the defendant, on direct

appeal from his conviction for possessing child pornography, had standing to bring a vagueness

challenge to a condition of his supervised release prohibiting him from possessing any

pornography. The government argued that the defendant had not suffered any injury because he

had not been arrested or charged with violating the conditions of his parole. Id. at 257. The court

rejected that argument, noting that "the fact that a party may be forced to alter his behavior so as to

avoid penalties under a potentially illegal regulation is, in itself, a hardship." Id. The court

reiterated the principle that " 'it is not necessary that [a party] first expose himself to actual arrest or

prosecution to be entitled to challenge a statute that he claims deters the exercise of his

constitutional rights.' " Id. (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)). Also, the

defendant's claim was appropriate for judicial review because it involved a straightforward and

purely legal issue, federal sentencing statutes showed Congress's intent to allow defendants to

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challenge their sentences on direct appeal, and deciding the defendant's claim on direct appeal

promoted judicial efficiency. Id. at 258, 261.

¶ 36   In this case, defendant argues that, in effect, the laws automatically applicable to him by

virtue of his conviction amount to lifetime supervised release conditions. Like the defendant in

Loy, defendant will have to be on guard to ensure that his day-to-day behavior does not run afoul of

the tight controls on his movements and behaviors. Also like the defendant in Loy, defendant here

raises purely legal questions. And judicial economy would certainly be served by ruling on

defendant's claims now, rather than requiring him to file a separate civil suit challenging the

statutes at issue or to purposely violate the statutes in order to seek judicial review.

¶ 37   We recognize that the federal standards for standing applied in Loy differ from those in

Illinois. See Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 491 (1988) ("We

are not *** required to follow the Federal law on issues of justiciability and standing."). But we

may still look to federal authority as persuasive. Mekertichian v. Mercedes-Benz U.S.A., L.L.C.,

347 Ill. App. 3d 828, 835 (2004). And as our supreme court tells us, "[T]o the extent that the State

law of standing varies from Federal law, it tends to vary in the direction of greater liberality; State

courts are generally more willing than Federal courts to recognize standing ***." Greer, 122 Ill. 2d

at 491. Thus, we find the above federal authority to be persuasive.

¶ 38   We hold that defendant has standing to challenge the statutory scheme at issue under the

eighth amendment and proportionate penalties clause.

¶ 39                          C. Standing for Due Process Challenges

¶ 40   For similar reasons, we also conclude that defendant has standing to raise his substantive

and procedural due process claims. In Messenger v. Edgar, 157 Ill. 2d 162, 166, 173, 176 (1993),

the plaintiff, who had filed for divorce, sought a declaratory judgment that section 501.1 of the

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Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/501.1 (West 1992)) violated her

rights to substantive and procedural due process. Section 501.1 provided that, when an individual

filed for divorce, an automatic stay would be imposed preventing either party to the divorce from

disposing of any property via an " 'extraordinary expenditure or transaction.' " Messenger, 157 Ill.

2d at 167 (quoting 750 ILCS 5/501.1 (West 1992)). The defendants argued that the plaintiff lacked

standing to challenge the law because "there was no evidence that [the] plaintiff made or intended

to make any extraordinary transaction or expenditure." Messenger, 157 Ill. 2d at 170. The supreme

court disagreed, noting that, once she filed her summons in the divorce proceeding, the stay

automatically applied to her. Id. at 171. Thus, her request for declaratory judgment presented "a

concrete dispute" that involved the plaintiff's "right to her property." Id. at 171-72. While the court

acknowledged that her injury was "merely threatened" because she had not made—and did not say

that she intended to make—an extraordinary transaction or expenditure, it noted that "the lack of

immediate ascertainable damages" did not deprive her of standing. Id. at 172. And the court found

that the plaintiff's alleged injury was sufficiently particular, "as opposed to a generalized grievance

common to all members of the public." Id. Finally, the court noted that, if the plaintiff succeeded,

her alleged injury would be redressed, as the automatic stay would be lifted. Id.

¶ 41   Like the automatic-stay provision at issue in Messenger, the provisions defendant

challenges in this case will automatically apply to him on his release. And, like the plaintiff in

Messenger, defendant in this case alleges that these provisions will impact his fundamental right to

liberty. Whether these laws, in fact, do infringe on defendant's fundamental rights goes to the

merits of his due-process claims, which should not affect his standing to bring them. Arizona State

Legislature, 576 U.S. at ___, 135 S. Ct. at 2663; Warth, 422 U.S. at 500. Moreover, like the

plaintiff in Messenger, defendant is not bringing a generalized grievance common to all members

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of the public. As a result of his conviction, he will be required to constrain and alter his behavior in

a way that a vast majority of the public never will.

¶ 42    Messenger also shows that the fact that defendant has not yet violated any of the statutes at

issue does not necessarily deprive him of standing. Just as the plaintiff in Messenger had not

violated the automatic stay or indicated that she wanted to engage in behavior prohibited by the

stay, defendant has not violated any of the statues at issue or alleged that he wants to do anything

prohibited by the statutes. But, as the court in Messenger held, that does not mean that defendant

will not be affected by the laws. As we discussed above, he certainly will be.

¶ 43    We conclude that defendant has standing to raise both his eighth-amendment and

due-process challenges to the Statutory Scheme. Having made that determination, we turn to the

merits of these arguments.

¶ 44                       C. Eighth Amendment/Proportionate Penalties

¶ 45    Defendant first argues that the Statutory Scheme violates the prohibition on cruel and

unusual punishment in the United States Constitution (U.S. Const., amend. VIII) and the

proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). The State

contends that the Statutory Scheme cannot violate these constitutional provisions because the

Statutory Scheme does not constitute punishment.

¶ 46    Only governmental action that inflicts “punishment” may be restricted by the eighth

amendment and the proportionate penalties clause. People ex rel. Birkett v. Konetski, 233 Ill. 2d

185, 207 (2009); see also People v. Malchow, 193 Ill. 2d 413, 424 (2000) (sex offender registration

did not violate eighth amendment because it was not punishment); People v. Grochocki, 343 Ill.

App. 3d 664, 670 (2003) ("[T]he proportionate penalties clause is inapplicable because

dissemination of his sex-offender status is not 'punishment' or a 'penalty.' "). Defendant recognizes

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that, in the past, the Illinois Supreme Court has held that earlier versions of some of these laws do

not constitute punishment. But he contends that the Statutory Scheme has changed so much that

we should reevaluate whether it constitutes punishment.

¶ 47   In Malchow, 193 Ill. 2d at 418-24, the Illinois Supreme Court held that the 1998 version of

SORA (730 ILCS 150/1 et seq. (West 1998)) was not an improper ex post facto law and did not

violate the eighth amendment because it did not constitute punishment. Under the 1998 SORA, the

sex offender's name, address, date of birth, and offense was given to school boards and child care

facilities, and other individuals could request that information from law enforcement. Id. at 420. In

part because of the "limited dissemination" of the sex offender's personal information, the court

found that the legislature intended SORA "to protect the public rather than to punish sex

offenders." Id.

¶ 48   After Malchow, the United States Supreme Court decided Smith v. Doe, 538 U.S. 84,

105-06 (2003), where the Court held that Alaska's sex offender registration law did not constitute

punishment. That law required convicted sex offenders to provide local law enforcement

authorities with their names, aliases, identifying features, addresses, places of employment, dates

of birth, conviction information, driver's license numbers, information about vehicles to which

they had access, and postconviction treatment histories. Id. at 90. Sex offenders were required to

register annually for 15 years, unless they had been convicted of an aggravated sex offense or of 2

or more sex offenses, when they were required to register every 3 months for life. Id. The law also

provided for public dissemination of sex offenders' names, aliases, addresses, photographs,

physical descriptions, license plate numbers, places of employment, dates of birth, crimes of

conviction, and compliance with the registration requirement. Id. at 91. But the law also provided

that the offenders' fingerprints, driver's license numbers, anticipated changes of address, and

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history of medical treatment would remain confidential. Id. at 90-91. The Court rejected the

comparison of Alaska's registration system to parole or supervised release, which have been

regarded as punishment. Id. at 101. The Court found that, under the registration law, sex offenders

were "free to move where they wish and to live and work as other citizens, with no supervision," as

opposed to parolees, face "a series of mandatory conditions." Id.

¶ 49   Our supreme court also addressed the widespread dissemination of sex offenders'

information on the Internet in People v. Cornelius, 213 Ill. 2d 178 (2004). There, the court

addressed the 2002 versions of Illinois's SORA (730 ILCS 150/1 et seq. (West 2002)) and

Notification Law (730 ILCS 152/101 et seq. (West 2002)). Cornelius, 213 Ill. 2d at 181-82. Under

those laws, sex offenders were required to register with municipal or county law enforcement

officials within 10 days of establishing a residence in the municipality or county, giving law

enforcement their names, current addresses, current places of employment, photographs, and

fingerprints. Id. at 181-82. The Notification Law required the Illinois State Police to maintain an

Internet database that disclosed sex offenders' registration information. Id. at 183. The court found

that the widespread dissemination of this information did not make the Notification Law punitive,

relying on Smith. Id. at 207-08.

¶ 50   In In re J.W., 204 Ill. 2d 50, 54-55 (2003), our supreme court addressed a proportionality

challenge to SORA's application to a 12-year-old juvenile delinquent. The court again held that

SORA was not punishment, relying on Malchow's conclusion that SORA is not a punitive statute,

as well as the fact that juvenile sex offenders did not have their registration information disclosed

via the Internet and that public access to the juvenile's information was "limited to those whose

safety might be compromised for some reason related to the juvenile sex offender." Id. at 73-75.

Similarly, in Konetski, 233 Ill. 2d at 206-08, the court rejected an eighth-amendment challenge to

                                               - 16 -
No. 1-13-2221


SORA's application to a juvenile sex offender, finding that the United States Supreme Court's

decision in Roper v. Simmons, 543 U.S. 551 (2005), did not change the conclusion in J.W. that

SORA is not punishment.

¶ 51   Defendant acknowledges the holdings of these cases but contends that the current version

of the Statutory Scheme far exceeds the burdens in place when any of these cases were decided.

Defendant's argument certainly has some merit. As we discussed above, the Statutory Scheme has

become more onerous with regard to the amount of information a sex offender must disclose, the

number of agencies to which the offender must disclose that information, and how often a sex

offender must register. And in this case, defendant challenges laws that directly restrict where he

can live, work, and even move about his community. But we decline to revisit the issue of whether

the statutory scheme constitutes punishment because, even assuming that it did, we hold that it

does not violate the eighth amendment or the proportionate penalties clause. 1

¶ 52   Defendant claims that the Statutory Scheme constitutes grossly disproportionate

punishment that violates the eighth amendment of the United States Constitution and the

proportionate penalties clause of the Illinois Constitution, because it imposes a lifelong system of

punishment that defendant analogizes to parole or probation.


       1
          We acknowledge that we have a duty to avoid constitutional questions—such as the
merits of defendant's eighth-amendment claim—whenever possible. In re E.H., 224 Ill. 2d 172,
180 (2006). But in avoiding the question of whether the Statutory Scheme should now be
considered "punishment," we are avoiding a constitutional question—a constitutional question
that may have greater reach than the question of whether the Statutory Scheme is cruel and unusual
punishment, as the decision on whether the Statutory Scheme constitutes "punishment" could
affect future ex post facto jurisprudence, which is not at issue here. See Malchow, 193 Ill. 2d at 424
(supreme court's determination that sex offender notification law "[did] not constitute punishment"
for purposes of ex post facto challenge meant that it did not constitute "punishment" for eighth
amendment purposes, either). By reaching the merits of defendant's eighth-amendment and
proportionate-penalties claims and finding them without merit, we are thus resolving this case on a
narrower constitutional ground.

                                                - 17 -
No. 1-13-2221


¶ 53   All statutes carry a strong presumption of constitutionality. People v. Sharpe, 216 Ill. 2d

481, 487 (2005). The legislature has broad discretion in setting criminal penalties. People v.

Taylor, 102 Ill. 2d 201, 208 (1984); Sharpe, 216 Ill. 2d at 487. The legislature's power is not

unlimited, however, as the sentences it prescribes must satisfy constitutional constraints. People v.

Morris, 136 Ill. 2d 157, 161 (1990). Our review of this question of law is de novo. People v.

Masterson, 2011 IL 110072, ¶ 23.

¶ 54   The eighth amendment states that "[e]xcessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted." U.S. Const., amend. VIII. The United

States Supreme Court has interpreted the eighth amendment to "encompass[ ] a narrow

proportionality principle" that prohibits "grossly disproportionate" sentences. (Internal quotation

marks omitted.) Harmelin v. Michigan, 501 U.S. 957, 997, 1001 (1991).

¶ 55   The proportionate penalties clause 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 places two limits on the legislature's ability to prescribe criminal sentences: (1) it

prohibits criminal penalties that are "cruel, degrading, or so wholly disproportionate to the offense

as to shock the moral sense of the community"; and (2) it prevents offenses with the same elements

from having different sentences. (Internal quotation marks omitted.) Sharpe, 216 Ill. 2d at 487,

521. When interpreting the first of these restrictions, 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.   Because     defendant's

proportionate-penalties challenge in this case is based on the first restriction in the proportionate



                                                - 18 -
No. 1-13-2221


penalties clause, we analyze his eighth-amendment and proportionate-penalties arguments by the

same standards.

¶ 56    The United States Supreme Court has recognized two ways in which a defendant may

succeed on a proportionality claim under the eighth amendment. Graham v. Florida, 560 U.S. 48,

59 (2010). The first way is to show that the punishment is "inherently barbaric" and thus

unconstitutional "under all circumstances." Id. The second way is to show that the challenged

punishment is disproportionate to the crime in a particular case. Id. Defendant does not attempt the

first method in this case, as he concedes that the Statutory Scheme may be suitable punishment for

"the most monstrous child molesters." Thus, we consider only whether the Statutory Scheme, as

applied to defendant, is disproportionate.

¶ 57    Our supreme court has not directly addressed the issue of whether the Statutory

Scheme—or any of the individual statutes that comprise it—constitutes cruel and unusual

punishment. Turning to other jurisdictions, however, we find persuasive case law. In State v.

Mossman, 281 P.3d 153, 156-57 (Kan. 2012), the Kansas Supreme Court held that lifetime

post-release supervision was not grossly disproportionate as applied to the 25-year-old defendant,

who had pled guilty to having sex with a 15-year-old girl. The factual basis for the defendant's plea

showed that the defendant stayed with the girl's family with the permission of her stepfather, and

that she and the defendant began a " 'sexual relationship' " while he lived there. Id. at 157. As a

result of his plea, the defendant was subjected to mandatory, lifetime post-release supervision

under Kansas law, which required that he commit no new offenses and that could require him to

pay costs, fines and restitution; to complete educational requirements; to perform community

service; and to report to a supervising officer. Id. If he committed a new offense, he would be

subject to a possible life sentence in prison. Id.

                                                 - 19 -
No. 1-13-2221


¶ 58   On appeal, the Kansas Supreme Court first analyzed the seriousness of the offense and the

facts of the case. Id. at 160. In finding that the defendant's offense was a serious one, the court

noted that sex offenses against minors are "considered particularly heinous crimes" that have

"particularly devastating effects on victims, including physical and psychological harm." (Internal

quotation marks omitted.) Id. The court also pointed to the high rate of recidivism among child sex

offenders. Id. The court rejected the defendant's suggestion that the victim consented to having sex

with him because she "encouraged [his] behavior." Id. The court stressed that Kansas law treated

15-year-olds as "legally incapable of consenting to sexual intercourse," and that "[a]n adult, such

as [the defendant], who comes in contact with a minor, even a seemingly mature minor, is expected

to protect the child from the child's poor judgment, not take advantage of that poor judgment." Id.

While the court recognized that a psychological evaluation had showed that the defendant had a

low risk of recidivism, the court also noted that the same evaluation showed that defendant lacked

impulse control and had a history of drug use, "which put him at some risk of reoffending." Id. at

161.

¶ 59   The court, citing Graham, 560 U.S. at 71-74, then noted the importance of whether lifetime

post-release supervision served legitimate penological goals "such as deterrence, incapacitation,

and rehabilitation." Mossman, 281 P. 3d at 161. The court noted that post-release supervision was

"largely designed to act as a deterrent to future crime," which was a legitimate goal in light of sex

offenders' risk of recidivism. Id. Again recognizing the defendant's low score on the recidivism

evaluation, the court also highlighted his "lack of impulse control and rebellious character." Id.

And, the court noted, post-release supervision " 'helps incapacitate sex offenders by keeping them

under the watchful eye of probation officers.' " Id. (quoting United States v. Williams, 636 F.3d

1229, 1234 (9th Cir. 2011)). Finally, the court rejected the defendant's argument that post-release

                                               - 20 -
No. 1-13-2221


supervision failed to combat recidivism because the number of offenders subject to it "dilute[d] the

ability to effectively rehabilitate or supervise offenders." Mossman, 281 P.3d at 161. While the

court agreed that "postrelease supervision is not a guarantee against recidivism," it did not follow

that supervision was not legitimately related to the penological goal of preventing recidivism. Id.

¶ 60   The facts of this case are very similar to those of Mossman. Defendant in this case was only

two years younger than the defendant in Mossman, and he had sex with a girl only one year older

than the victim in Mossman. Like the Kansas Supreme Court, our supreme court has stressed 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 harm. People v. Huddleston, 212 Ill. 2d 107, 132,

135 (2004). And, like the court in Mossman, we reject defendant's attempt to diminish the

seriousness of his crime because he did not use force. Regardless of the absence of force, a

16-year-old is incapable of exercising sexual consent under Illinois law. See People v. Lloyd, 2013

IL 113510, ¶ 30 ("[T]he prescribed age of consent in Illinois is 17, although in a few instances

where the accused is a family member or a person in a position of trust or authority, the age of

consent is 18 [citation]."). Even if defendant believed her to be mature enough to consent to sex,

that does not excuse his exploitation of M.H.'s inherent immaturity. See id. ¶ 35 ("[I]t is of no

concern how advanced, knowledgeable, or willing a particular minor might be about sexual

activity because he or she is incapable of giving legal consent.").

¶ 61   We also agree with the Kansas Supreme Court's determination that lifetime monitoring of

sex offenders serves legitimate penological goals. As we outlined above, as a result of defendant's

conviction for aggravated criminal sexual abuse, he will be required to register as a sex offender,

comply with the ongoing reporting and registration requirements of SORA, and will be prohibited

                                               - 21 -
No. 1-13-2221


from living, working, or going near places where minors are frequently present. These features all

focus on keeping individuals convicted of sex offenses against minors, like defendant, away from

minors and diminishing the likelihood that they will repeat their crimes.

¶ 62   We acknowledge that the Statutory Scheme does not precisely match the circumstances of

defendant's particular offense. For example, defendant's crime does not indicate that he would be

likely to target preadolescent children, making the restrictions on his presence near a day care

facility seem unnecessary. But for purposes of our proportionality analysis, we must simply

determine whether a statute serves legitimate penological goals. We are not tasked with

determining whether a certain sentence best serves certain penological goals. That delicate

balancing should be reserved for the legislative process.

¶ 63   Notably, unlike Mossman, defendant can point to no evidence in the record showing that he

is unlikely to recidivate. And although he has no prior convictions for sex offenses, his prior

convictions for burglary, possession of cannabis, possession of a stolen motor vehicle, and

domestic battery suggest that he lacks some impulse control and a general tendency to recidivate.

¶ 64   Defendant compares his case to People v. Miller, 202 Ill. 2d 328, 330, 341 (2002), where

our supreme court held that a mandatory life sentence for a 15-year-old defendant convicted of two

counts of murder under an accountability theory violated the proportionate penalties clause. In

striking down the defendant's sentence as shocking to the moral sense of the community, the court

highlighted the defendant's age and his diminished culpability as an accomplice:

       "This moral sense is particularly true, as in the case before us, where a 15-year-old with one

       minute to contemplate his decision to participate in the incident and stood as a lookout

       during the shooting, but never handled a gun, is subject to life imprisonment with no

       possibility of parole—the same sentence applicable to the actual shooter." Id. at 341.

                                               - 22 -
No. 1-13-2221


That diminished culpability, along with the defendant's "greater rehabilitative potential" as a

juvenile, led the court to conclude that a natural life sentence was grossly disproportionate to the

severity of the defendant's conduct. Id. at 341-42.

¶ 65    This case is not analogous to Miller. Defendant was not an adolescent; he was 23 years old

at the time of his offense. And he was not convicted under an accountability theory. Thus,

defendant had neither the inherent rehabilitative potential, nor the diminished culpability, of the

juvenile defendant in Miller. Moreover, defendant was not sentenced to life in prison like the

defendant in Miller; he was sentenced to six years' incarceration, accompanied with lifetime sex

offender registration requirements and restrictions on his residence, employment, and movements.

Defendant's sentence and accompanying restrictions, harsh as they may be, are not as onerous as

the juvenile's life sentence in Miller.

¶ 66    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. See, e.g., Ewing v. California, 538 U.S. 11, 28-31

(2003) (25 years to life for stealing golf clubs); Harmelin, 515 U.S. at 994-96 (life without parole

for possessing 672 grams of cocaine); Rummel v. Estelle, 445 U.S. 263, 275-85 (1980) (life

sentence for stealing $120 under false pretenses). 2 And defendant has not been sentenced to a

lifetime in prison, or even a particularly lengthy prison term. Admittedly, he will be monitored and


        2
          We acknowledge that the defendants in Ewing, Harmelin, and Rummel were each
sentenced under recidivist provisions that required the imposition of harsh sentences for repeat
offenders, which suggests that their lengthy sentences were imposed due to the defendants' pattern
of criminality, not simply for their relatively minor offenses of conviction. But defendant has
displayed his own pattern of recidivism: he was sentenced in the Class X range (6 to 30 years'
incarceration) because of his two prior convictions for burglary and possession of a stolen motor
vehicle. See 730 ILCS 5/5-4.5-95(b) (West 2012) (requiring Class X sentencing range for offender
convicted of three Class 2 or greater offenses).

                                               - 23 -
No. 1-13-2221


bound by strict limits on his freedom for the rest of his life, but even the system of "harsh

probation" with which he takes issue is not the same as a lifetime of incarceration. See Williams,

636 F.3d at 1232 ("[A]lthough supervised release limits a criminal's liberty and privacy, it is a

punishment far less severe than prison."); United States v. Bridges, 760 F.2d 151, 154 (7th Cir.

1985) ("The imposition of a lifetime parole term is neither tantamount to a sentence of life

imprisonment nor per se cruel and unusual punishment."); United States v. Walden, 578 F.2d 966,

972 (3d Cir. 1978) ("We do not accept appellant's argument that the [lifetime] parole term is

'tantamount to life imprisonment.' ").

¶ 67   We conclude that, even if the Statutory Scheme were a system of "punishment"—a

question we do not decide—it is not grossly disproportionate to defendant's offense. We therefore

reject defendant's claims that the Statutory Scheme violates the prohibition on cruel and unusual

punishment or disproportionate penalties.

¶ 68                                      D. Due Process

¶ 69   Defendant next argues that the Statutory Scheme violates the due process clauses of the

United States and Illinois Constitutions. U.S. Const. amend. XIV; Ill. Const. 1970, art. I, § 2. He

alleges that it violates his right to substantive due process because it infringes on his fundamental

constitutional rights and is an irrational method of protecting the public. He also alleges that it

violates his right to procedural due process because it infringes on his liberty interests without

proper procedural safeguards. We address both of these arguments in turn.

¶ 70                                1. Substantive Due Process

¶ 71   When addressing a substantive due process claim, we must first determine "the nature of

the right purportedly infringed upon by the statute." Cornelius, 213 Ill. 2d at 203. If the statute

infringes on a fundamental right, we apply strict scrutiny to the statute. People v. R.G., 131 Ill. 2d

                                                - 24 -
No. 1-13-2221


328, 342 (1989). Under strict scrutiny, the statute must serve a compelling government interest and

be narrowly tailored (i.e., be the least restrictive means) to serve that interest. Cornelius, 213 Ill. 2d

at 204. If the statute does not impact a fundamental right, then we apply the rational-basis test to

the statute. Id. at 203. Under the rational-basis test, the statute must simply bear a rational

relationship to any legitimate government interest. People v. Boeckmann, 238 Ill. 2d 1, 7 (2010).

¶ 72    In conducting a substantive due process analysis, we "must begin with a careful description

of the asserted right, for '[t]he doctrine of judicial self-restraint requires us to exercise the utmost

care whenever we are asked to break new ground in this field.' " Reno v. Flores, 507 U.S. 292, 302

(1993) (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)). Because the substantive

portion of the due process clause protects only those fundamental rights that are "deeply rooted in

this Nation's history and tradition [citations], and implicit in the concept of ordered liberty, such

that neither liberty nor justice would exist if they were sacrificed," we must use our nation's

"history, legal traditions, and practices" as "the crucial guideposts for responsible

decisionmaking." (Internal quotation marks omitted.) Washington v. Glucksberg, 521 U.S. 702,

721 (1997).

¶ 73    Here, defendant claims that "the right to be free from a lifetime of burdensome, intrusive

monitoring and restrictions constitutes a fundamental right." He recognizes that Illinois courts

"have not recognized the right to be free from registration as a fundamental right" but claims that

we should recognize a fundamental right to be free from the type of government surveillance

imposed on him.

¶ 74    As defendant has recognized, the weight of authority shows that laws similar to the

Statutory Scheme do not affect fundamental rights. Our supreme court has stated that SORA does

not affect fundamental rights. J.W., 204 Ill. 2d at 67. With respect to the Notification Law, our

                                                  - 25 -
No. 1-13-2221


supreme court has held that Internet dissemination of sex offenders' personal information does 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).

¶ 75   Similarly, Illinois courts have rejected the notion that employment or residency restrictions

on sex offenders violate their fundamental rights. See, e.g., Rodrigues v. Quinn, 2013 IL App (1st)

121196, ¶¶ 1-2, 7 (provision requiring revocation of nursing license for individual convicted of sex

offense did not implicate fundamental rights because "right to pursue a profession is not a

fundamental right for due process purposes" (internal quotation marks omitted)); 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"). Nor do we find that the driver's-license

provision affects fundamental rights 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). And

defendant has not cited any authority—nor have we found any—to support the notion 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).

¶ 76   Finally, while we have found no Illinois precedent specifically addressing whether

prohibitions on sex offenders' presence near school property or public parks affects their

fundamental rights, we find the Seventh Circuit Court of Appeals' analysis in Doe v. City of

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No. 1-13-2221


Lafayette, 377 F.3d 757, 770-71 (7th Cir. 2004), to be persuasive. There, the City of Lafayette,

Indiana issued the plaintiff a letter informing him that he had been banned from all public parks in

the city. Id. at 758. The plaintiff had a "long history of arrests and convictions for sexually related

crimes," most of which involved children. Id. He sued the city, alleging that the letter deprived him

of his fundamental rights under the substantive due process clause. Id. at 768. The court rejected

the plaintiff's contention that substantive due process included "a generalized right to movement."

Id. at 769. The court also rejected the notion that the plaintiff had a fundamental right "to enter the

parks to loiter or for other innocent purposes." Id. The court recognized that such a right was "not

unimportant," but found that it was an "uncomfortable fit" with the previously-recognized

fundamental rights relating to marriage, bodily integrity, and familial rights. Id. at 770. And the

court could find only indirect "historical or precedential support for a fundamental right to enter

parks for enjoyment." Id. at 771. Here, defendant has pointed to no authority for the notion that

Illinois's ban on his presence in certain areas affects his fundamental rights. Consequently, like the

court in Doe v. City of Lafayette, we decline to recognize a new fundamental right relating to

defendant's presence on school property or in public parks.

¶ 77   Defendant cites Weems v. United States, 217 U.S. 349 (1910), in support of his contention

that the Statutory Scheme infringes on his fundamental rights. In Weems, the defendant, a

disbursing officer for the United States Government in the Philippines (the Philippines were a

United States colony at the time), was convicted of falsifying a public document. Id. at 357-58.

The defendant was sentenced to 12 to 20 years' imprisonment, during which time he would be

"employed at hard and painful labor" while "always carry[ing] a chain at the ankle, hanging from

the wrist." (Internal quotation marks omitted.) Id. at 364. While serving his prison term, he was

deprived of "the rights of parental authority, guardianship of person or property, participation in

                                                - 27 -
No. 1-13-2221


the family council, [and] marital authority," and was prohibited of disposing of his own property.

Id. at 364. The sentence also subjected the defendant to "surveillance" after his release, which

required him to notify the authorities of his address, prohibited him from moving "without the

knowledge and permission" of the police, obliged him to "observe the rules of inspection," and

required that he "adopt some trade, art, industry, or profession should he not have known means of

subsistence of his own." (Internal quotation marks omitted.) Id.

¶ 78   The Court held that the sentence violated the Philippines' prohibition on cruel and unusual

punishment, which, according to the Court, carried the same meaning as the eighth amendment. Id.

at 365-82. In discussing the surveillance portion of the defendant's sentence, the Court stated:

       "His prison bars and chains are removed, it is true, after twelve years, but he goes from

       them to a perpetual limitation of his liberty. He is forever kept under the shadow of his

       crime, forever kept within voice and view of the criminal magistrate, not being able to

       change his domicil [sic] without giving notice to the authority immediately in charge of his

       surveillance, and without permission in writing. He may not seek, even in other scenes and

       among other people, to retrieve his fall from rectitude. Even that hope is taken from him

       and he is subject to tormenting regulations that, if not so tangible as iron bars and stone

       walls, oppress as much by their continuity, and deprive of essential liberty." (Internal

       quotation marks omitted.) Id. at 366.

¶ 79   Defendant argues that the above-quoted passage shows that a right against government

surveillance is deeply rooted in our Nation's history and, thus, is a fundamental right. But Weems

did not involve a fundamental-rights analysis under the substantive due process clause. Instead, it

involved an eighth-amendment challenge to a criminal sentence. Id. at 367. Moreover, Weems

involved a system of punishment far more harsh and intrusive than defendant's obligations as a sex

                                               - 28 -
No. 1-13-2221


offender. In fact, it involved incarceration, hard labor, constant shackling, and deprivation of the

right to marry or parent one's children—rights which are considered fundamental under the due

process clause. See Glucksberg, 521 U.S. at 720 (rights "to have children," "to marry," "to direct

the *** upbringing of one's children" are fundamental). Even the surveillance at issue in Weems,

by itself, was more intrusive than the statutory scheme in this case, as the defendant in Weems was

required to get the authorities' prior permission to move, whereas defendant must simply apprise

the authorities of any change in his address or other registration information. See Russell v.

Gregoire, 124 F.3d 1079, 1088 (9th Cir. 1997) (distinguishing surveillance in Weems from sex

offender registration because "[o]btaining permission to move is a much greater burden than

simple registration"); Artway v. Attorney General of the State of New Jersey, 81 F.3d 1235, 1266

(3d Cir. 1996) (distinguishing surveillance in Weems from sex offender registration because it

"differed from [registration] in at least one significant respect: the *** offender in Weems was

required to obtain written permission before he could move"). And although defendant cannot live

near schools, day cares, or other areas where children are often present, even this restriction does

not amount to the vague "permission"—permission that appeared to be capable of being granted or

denied entirely at the whims of the police—the defendant was required to obtain in Weems. While

undoubtedly burdensome, the sex offender regulations at issue in this case do not approach the

level of government intrusion at issue in Weems.

¶ 80   Defendant also cites Doe v. Attorney General, 686 N.E.2d 1007 (Mass. 1997), and State v.

Guidry, 96 P.3d 242 (Haw. 2004), in support of his claim that he has a fundamental right to be free

from government surveillance. But both of these cases dealt with procedural due process

arguments, not substantive due process arguments. Doe v. Attorney General, 686 N.E.2d at 1008;

Guidry, 96 P.3d at 245. This distinction is critical, because the substantive due process clause

                                               - 29 -
No. 1-13-2221


establishes that the government may not infringe on certain rights created by the due process

clause itself, whereas the procedural due process clause protects any life, liberty, or property

interest—whether created by the constitution or not—on which the government attempts to

infringe. See Evans v. Secretary Pennsylvania Department of Corrections, 645 F.3d 650, 663 (3d

Cir. 2011) ("[T]he interests protected by procedural due process are much broader than those

protected by substantive due process ***."); Gonzalez-Fuentes v. Molina, 607 F.3d 864, 880 n.13

(1st Cir. 2010) ("Courts must be careful not to inject the more demanding fundamental rights and

liberties analysis from the substantive due process sphere into the liberty interest analysis that

pertains to the procedural due process inquiry."); Bell v. Ohio State University, 351 F.3d 240,

249-50 (6th Cir. 2003) ("The interests protected by substantive due process are *** much narrower

than those protected by procedural due process."). Thus, Doe v. Attorney General and Guidry are

inapplicable to defendant's substantive due process claim.

¶ 81    Having found that the Statutory Scheme does not impact defendant's fundamental rights,

we apply rational basis review. As we stated above, rational-basis review requires us to ask two

questions: (1) whether there is a legitimate state interest behind the statutes; and, if so, (2) whether

the statutes are rationally related to that legitimate state interest. People v. Johnson, 225 Ill. 2d 573,

584 (2007).

¶ 82    Defendant does not contend that the Statutory Scheme does not serve a legitimate interest.

In fact, he recognizes that it serves "the goal of protecting the public from sex offenders." We

agree. See J.W., 204 Ill. 2d at 68 (Notification Law designed to protect public from sex offenders);

People v. Adams, 144 Ill. 2d 381, 390 (1991) (SORA designed to protect public from sex

offenders). Thus, we turn to whether the Statutory Scheme bears a rational relationship to that

goal.

                                                  - 30 -
No. 1-13-2221


¶ 83    Defendant argues that the Statutory Scheme is irrational because it "lacks any mechanism

by which a determination can be made as to a registrant's danger of re-offending." In other words,

defendant argues, it is "over-inclusive." But under rational-basis review, a statute "is not fatally

infirm merely because it may be somewhat underinclusive or overinclusive." Maddux v.

Blagojevich, 233 Ill. 2d 508, 547 (2009). Even a law that is " 'unwise, improvident, or out of

harmony with a particular school of thought' " is not necessarily irrational. Harris v. Manor

Healthcare Corp., 111 Ill. 2d 350, 369 (1986) (quoting Williamson v. Lee Optical of Oklahoma,

Inc., 348 U.S. 483, 488 (1955)). And the law " 'need not be in every respect logically consistent

with its aims to be constitutional.' " Id. (quoting Williamson, 348 U.S. at 487-88).

¶ 84    Although we recognize that the Statutory Scheme at issue may be over-inclusive—that is,

it may impose burdens on individuals who pose no threat to the public because they will not

reoffend—it still has a rational relationship to protecting the public. 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 about their presence and offenses. Cornelius, 213 Ill. 2d at

205; J.W., 204 Ill. 2d at 67-68. Similarly, by 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 could have rationally sought to avoid giving certain offenders the

opportunity to reoffend. Whether or not the Statutory Scheme is a finely-tuned response to the

threat of sex-offender recidivism is not a question for rational-basis review; that is a question for

the legislature.

¶ 85    We also find In re Taylor, 343 P.3d 867 (Cal. 2015), to be helpful by way of contrast. In

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No. 1-13-2221


Taylor, a group of sex offenders from San Diego County challenged a statute prohibiting any sex

offender from residing within 2000 feet of any school or park. Id. at 869. There, after hearing

extensive evidence on the difficulties that the sex offenders had in finding housing (id. at 871-76),

the trial court found that "registered sex offender parolees [were] effectively barred from access to

approximately 97 percent of the existing rental property" in the county, that the remaining 3

percent of available housing would be unavailable to most sex offenders due to high rents and low

vacancies, that parole officers in the county had taken affirmative steps to prevent parole agents

from helping sex offenders find housing, that the residency restrictions led to large groups of sex

offenders being homeless, and that the residency restrictions "hinder[ed] [sex offenders']

treatment, jeopardize[d] their health and undercut[ ] their ability to find and maintain

employment." Id. at 876-77. The trial court concluded that the residency restrictions "significantly

undermin[ed]" any effort to rehabilitate these sex offenders. Id. at 877. Thus, the trial court found

that the residency restriction was unreasonable. Id. The California Supreme Court affirmed the

trial court's findings. Id. at 880-82. The court held that the residency restriction could not "survive

rational basis scrutiny because it ha[d] hampered efforts to monitor, supervise, and rehabilitate

such parolees in the interests of public safety, and as such, bears no rational relationship to

advancing the state's legitimate goal of protecting children from sexual predators." Id. at 882.

¶ 86    Unlike Taylor, this case does not involve detailed factual findings showing that Illinois's

sex offender laws undermine the very goal that they were designed to serve. Defendant did not file

a civil suit and seek an evidentiary hearing before the trial court; he is raising these issues on direct

appeal from a criminal conviction—his right, but also his choice. Based solely on the record before

us, we cannot say that the laws at issue here are an irrational means to protect the public from sex

offenders.

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¶ 87                                2. Procedural Due Process

¶ 88   Finally, defendant contends that the statutory scheme at issue in this case violates

procedural due process. The procedural due process clause entitles individuals to certain

procedures before the State may deprive them of a life, liberty, or property interest. Konetski, 233

Ill. 2d at 201. "The fundamental requirements of due process are notice of the proceeding and an

opportunity to present any objections." Id. But not all situations require the same amount of

procedural safeguards. Id. Instead, we look to three factors to determine how much process is due:

(1) the private interest that will be affected by the government action; (2) the risk of an erroneous

deprivation of that private interest through the procedures used and the probable value of

additional procedural safeguards; and (3) the government's interest, including the function

involved and the fiscal and administrative burdens that additional procedures would entail. Id.

¶ 89   The first step in our analysis would ordinarily be asking whether the Statutory Scheme

deprives defendant of a life, liberty, or property interest. We need not resolve this question,

however, because, even if we were to assume that these laws affect defendant's liberty or property

interests, no additional procedures would be necessary to satisfy due process.

¶ 90   Defendant contends that the missing procedure in this case is a mechanism by which the

state should evaluate his risk of reoffending. According to defendant, such a procedure would

ensure that the burdensome restrictions of these laws are only placed on those who actually pose a

risk of committing additional sex crimes.

¶ 91   But the 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

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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 Court concluded, "Unless respondent can show that [Connecticut's]

substantive rule of law is defective (by conflicting with a provision of the Constitution), any

hearing on current dangerousness is a bootless exercise." (Emphasis in original.) Id. at 7-8.

¶ 92   This 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. 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. Defendant offers no persuasive reason to depart from these cases. We conclude

that defendant was not denied his right to procedural due process.

¶ 93                                    III. CONCLUSION

¶ 94   For the reasons stated above, we affirm defendant's conviction and sentence. Even if it

were true that the Statutory Scheme at issue constituted "punishment," it is not a grossly

disproportionate punishment for defendant's crime. The Statutory Scheme does not infringe on

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 defendant a hearing on his likelihood to reoffend.

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¶ 95   Affirmed.




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