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The Illinois Supreme Court on Sept. 21 upheld the constitutionality of the state’s controversial laws requiring sex offenders to register with local officials, and requiring police to make information about them available to groups within the community where the offender resides. According to a majority of the justices, neither the Illinois Sex Offender Registration Act nor the Community Notification Law violates the constitutional prohibitions against ex post facto laws, cruel and unusual punishment or double jeopardy because the laws’ requirements do not constitute additional “punishment” for convicted sex offenders. Nor was the majority persuaded that the state laws violated convicted sex offenders’ right to privacy. “We believe the statute’s purpose is protection of the public and that it does not significantly promote either retribution or deterrence,” wrote Justice S. Louis Rathje on behalf of the majority. “The limited release of information to those likely to encounter sex offenders could hardly be characterized as ‘retribution,’ and it is unlikely that those not already deterred from committing sex offenses by the possibility of a lengthy prison terms will be deterred by the additional possibility of community notification,” the jurist added. People v. Malchow, No. 88228. Under the challenged registration law, all persons who are sex offenders are required to register with local law enforcement officials. “Sex offender” includes any person who is convicted of one of the law’s enumerated sex offenses or who is certified as a sexually dangerous person pursuant to the state’s Sexually Dangerous Persons Act. Under the related notification law, the state police are required to maintain a sex offender database for the purpose of identifying sex offenders and making information about them available to certain key persons, such as the local school board, school principals, and childcare facilities in the county where the offender resides. Additionally, that same information may be disclosed to any person likely to encounter a sex offender. And the information is also made available for public inspection at municipal police departments and county sheriffs’ offices. According to the court, “the intent of the Notification Law is not to stigmatize and shame sex offenders. Rather, the Act is carefully tailored so that the information is disseminated in such a way to protect the public. The name, address, date of birth, and offense or adjudication of sex offenders is given to school boards and childcare facilities. Additionally, the information may be given to anyone likely to encounter a sex offender.” The majority also was apparently swayed by the fact that the information involved is not disseminated to the community as a whole. “This limited distribution clearly is not analogous to stigmatization penalties such as branding, stockading, pillaring, or banishment,” wrote Rathje. “The limited dissemination of the information clearly demonstrates that the Notification Law is intended to protect the public rather than to punish sex offenders.” As for sex offenders’ constitutional right to privacy, Rathje stated: “The right to privacy under the United States Constitution has been interpreted to apply to personal decisions involving marriage, procreation, contraception, family relationships, and child rearing and education. The information to be disclosed under the Notification Law does not fall within any of the recognized areas of the right to privacy.” In a strong dissenting opinion, Justice James Heiple wrote that “Together, the Registration Act and the Notification Law have the clear and unmistakable effect of imposing additional punishment upon an offender who has already been tried, convicted, and has served his lawful sentence. These statutes, by design, will often result in shame and humiliation for ex-offenders, causing significant hardship as they attempt to reenter society as useful citizens.” Continued Heiple: “Whether this shame and humiliation might, in the view of some, be deserved is beside the point. What matters is that the State has already had its opportunity to impose whatever measure of retribution against defendant the criminal law allows. Once an offender has served his sentence, the punishment must stop. “Under the Registration Act and the Notification Law, however, the punishment continues long after an offender has served his sentence. As such, the provisions of these statutes have” much in common with the historic punishments of branding and banishment. Indeed, noted the jurist, “law enforcement officials are affirmatively required to disseminate a registrant’s personal information to numerous parties, including school boards, school principals, and child care facilities. In addition, the Notification Law vests officials with the discretion to convey registration information to any person deemed by the officials to be ‘likely’ to encounter any sex offender required to register under the Registration Act. “Officials are further required to make information on registered sex offenders available for public inspection and copying.” Finally, Heiple wrote, “recent amendments to the Notification Law expressly authorize police to publish information concerning certain sex offenders, including the offenders’ photographs, in newspapers, on television, or on the Internet.”

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