NO. 5-03-0333

	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. 01-CF-1118

							)

PATRICK LEROY,					)  Honorable

							)  Robert J. Hillebrand,

     Defendant-Appellant.				)  Judge, presiding.

________________________________________________________________________

	JUSTICE WELCH delivered the opinion of the court:

	The defendant, Patrick Leroy, was charged in the circuit court of St. Clair County

with unlawful failure to renew his address registration as a child sex offender.  On February

5, 2002, the defendant pled guilty to the charge and was sentenced to one year's probation. 

On August 27, 2002, a petition to revoke the probation was filed, charging that the defendant

lived within 500 feet of an elementary school.  In an order issued December 27, 2002, the

court found that the defendant admitted the charge, and the court ordered the defendant to

move within 30 days.  A second petition to revoke the probation was filed on January 30,

2003, alleging that the defendant owed $40 in probation fees.  An amended petition to revoke

was then filed, alleging that the defendant had not moved as ordered.  On March 7, 2003, the

court entered an order finding that the defendant admitted the charge, and the court sentenced

the defendant to 30 days in jail and 12 months' intensive probation.  At a hearing on April

11, 2003, the defendant stipulated that he lived within 500 feet of a school and that he was

not the owner of the home but had lived there his whole life.  The defendant was 36 years

old at the time of the hearing.  The defendant's mother owned the home in question, which is located in East St. Louis.  In an order issued April 17, 2003, the court found that the

defendant was in violation of his probation.  On May 2, 2003, the court terminated the

defendant's probation and prohibited him from residing at the home.  The defendant now

appeals, contending that the statute he violated is unconstitutional in that the statute (1)

violates the defendant's substantive due process rights, (2) violates the defendant's procedural

due process rights, (3) violates the defendant's right to equal protection under the law, (4) is

an ex post facto law, (5) violates the defendant's right against self-incrimination, (6) constitutes cruel and unusual punishment, and (7) is overly broad.  For the reasons that

follow, we affirm the order of the circuit court.

	The statute in question, section 11-9.4(b-5) of the Criminal Code of 1961 (720 ILCS

5/11-9.4(b-5) (West 2002)) (hereinafter subsection (b-5)), reads in pertinent part as follows:

		"It is unlawful for a child sex offender to knowingly reside within 500 feet of

a playground or a facility providing programs or services exclusively directed toward

persons under 18 years of age.  Nothing in this subsection (b-5) prohibits a child sex

offender from residing within 500 feet of a playground or a facility providing

programs or services exclusively directed toward persons under 18 years of age if the

property is owned by the child sex offender and was purchased before the effective

date of this amendatory Act of the 91st General Assembly."

We begin our analysis of subsection (b-5) with the Illinois Supreme Court's pronouncement

that "[a] statute is presumed constitutional, and the party challenging the statute bears the

burden of demonstrating its invalidity."  People v. Malchow, 193 Ill. 2d 413, 418 (2000).  A reviewing court has a duty to construe a statute in a manner that upholds its validity and

constitutionality if it can be reasonably done.  Malchow, 193 Ill. 2d at 418.  Whether a statute is constitutional is a question of law that is reviewed de novo.  Malchow, 193 Ill. 2d at 418.  Against this backdrop, we now consider each argument raised by the defendant on appeal.

	The defendant's first argument on appeal is that subsection (b-5) is unconstitutional

because it violates the defendant's substantive due process rights.  Specifically, the defendant

contends that he has a fundamental right to live with his mother and enjoy her support and

that subsection (b-5) infringes upon that right because it prevents him from living with his

mother.  The State counters that even if one assumes that the right of an adult male to live

with his mother and enjoy her support is a fundamental right, subsection (b-5) does not

prevent the defendant from living with his mother; rather, it merely prevents him from living

with her at her present location, because that location is within 500 feet of a school. 

Accordingly, the State would restate the defendant's argument as whether the defendant has

a fundamental right to live with his mother and enjoy her support within 500 feet of a school,

an argument the State says is without merit.

	The plain language of subsection (b-5), quoted above, demonstrates that the statute

does not dictate with whom a child sex offender may live; to the contrary, it merely restricts

where, geographically, a child sex offender may live in relation to a playground or a facility

providing programs or services exclusively directed toward persons under 18 years of age. 

720 ILCS 5/11-9.4(b-5) (West 2002).  Accordingly, we agree with the State that the essence

of the defendant's argument is that he has a fundamental right to live with his mother and

enjoy her support within 500 feet of a school.  We also agree with the State that no such

fundamental right exists.  Accordingly, we review the defendant's claim of a violation of

substantive due process under the rational-basis standard rather than under the strict-scrutiny

standard urged by the defendant.  See People v. Stork, 305 Ill. App. 3d 714, 720-21 (1999) ("The rational-basis test is the proper standard of review for claims of a violation of

substantive due process when the statute under consideration does not affect a fundamental

constitutional right").  An application of the rational-basis test involves identifying the public

interest the statute is intended to protect, examining whether the statute bears a reasonable relationship to that interest, and determining whether the method used to protect or further

that interest is reasonable.  Stork, 305 Ill. App. 3d at 721.  Furthermore, rational-basis review is highly deferential to the judgments made by the legislature.  Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 125 (2004).  Consequently, reviewing courts do not focus on the wisdom of the statute or whether it is the best means to achieve the desired result; rather,

they will uphold the law as long as there is a conceivable basis for finding the statute

rationally related to a legitimate state interest.  Stokovich, 211 Ill. 2d at 125-26.

	Applying this test, we reach the following conclusions.  With regard to the public

interest subsection (b-5) seeks to protect, we conclude that the state has a legitimate and

compelling interest in protecting children from adult offenders.  See, e.g., People v. Williams, 133 Ill. 2d 449, 455 (1990).  In conjunction with that interest, the state has broad powers,

subject to constitutional confines, to avert potentially dangerous situations.  Williams, 133 Ill. 2d at 457.  As we have stated before, the prohibitive subsections of section 11-9.4 of the

Criminal Code of 1961 (720 ILCS 5/11-9.4 (West 2002)) are intended to protect children

from known child sex offenders.  People v. Diestelhorst, 344 Ill. App. 3d 1172, 1184 (2003).  Prohibiting known child sex offenders from having access to children in schools bears a

reasonable relationship to protecting school children from known child sex offenders. 

People v. Stork, 305 Ill. App. 3d 714, 722 (1999).  Accordingly, we conclude that by prohibiting child sex offenders from living within 500 feet of a playground or a facility

providing programs or services exclusively directed toward persons under 18 years of age,

subsection (b-5) also bears a reasonable relationship to the goal of protecting children from

known child sex offenders and sets forth a reasonable method of furthering that goal. 

Although the record is bare of any statistics or research correlating residency distance with

sex offenses, we conclude that it is reasonable to believe that a law that prohibits child sex

offenders from living within 500 feet of a school will reduce the amount of incidental contact child sex offenders have with the children attending that school and that consequently the

opportunity for the child sex offenders to commit new sex offenses against those children

will be reduced as well.  Although it is not clear from the record how the distance of 500 feet

was decided upon, we believe that 500 feet is a reasonable distance.  We note that among the

13 states that have enacted some form of residency restriction applicable to sex offenders,

the 500-foot restriction of subsection (b-5) is the least restrictive in geographical terms.  Ala.

Code §15-20-26 (Supp. 2000) (2000 feet); Ark. Code Ann. §5-14-128 (Lexis Supp. 2003)

(2000 feet); Cal. Penal Code §3003(g) (Deering Supp. 2005) (certain sex offenders on parole

may not live within a quarter mile from a primary school); Fla. Stat. Ann. §947.1405(7)(a)(2)

(West 2001) (1000 feet); Ga. Code Ann. §42-1-13 (Supp. 2004) (1000 feet); Iowa Code Ann.

§692A.2A (West 2003) (2000 feet); Ky. Rev. Stat. Ann. §17.495 (West 2003) (1000 feet);

La. Rev. Stat. Ann. §14.91.1 (West 2004) (1000 feet); Ohio Rev. Code Ann. §2950.031

(Matthew Bender 2003) (1000 feet); Okla. Stat. Ann. tit. 57, §590 (West 2004) (2000 feet);

Or. Rev. Stat. §§144.642, 144.643 (1999) (general prohibition on supervised sex offenders

living near places where children reside); Tenn. Code Ann. §40-39-211 (Supp. 2004) (1000

feet).

	The defendant's second argument on appeal is that subsection (b-5) violates

procedural due process because the statute creates no means for petitioning a court for a

hearing to grant an exemption and because the result of the statute is to prohibit the

defendant from returning to his childhood home, which "effectively renders him homeless." 

We begin by addressing the second contention of the defendant: that the statute effectively

renders him homeless by prohibiting him from returning to his childhood home.  The

defendant has presented no evidence to support this assertion; indeed, the factual record in

this case indicates that as of May 2, 2003, the date the circuit court entered its order, the

probation department had verified that the defendant was no longer living with his mother but was living instead in nearby Belleville.  Accordingly, the argument presented by the

defendant is both premised on fallacious logic–for it cannot be reasonably argued in the

absence of factual support that in this day and age and in this mobile society homelessness

will necessarily result when one is prohibited from residing in one particular home–and 

factually inaccurate.  We find this argument completely without merit.

	With regard to the defendant's claim that subsection (b-5) violates procedural due

process because the statute creates no means for petitioning a court for a hearing to grant an

exemption, the defendant misapprehends the statute regarding this claim as well.  Presumably

the defendant is referring to his desire to seek an exemption premised on the fact that he has

lived in his mother's home for most, if not all, of his life, although no coherent argument to

that effect is presented in the defendant's brief.  First, the plain language of the statute,

quoted above, creates a built-in exemption for offenders who owned and purchased their

homes prior to the provision's effective date of July 7, 2000.  720 ILCS 5/11-9.4(b-5) (West

2002).  Accordingly, it cannot be argued in good faith that the statute contains no means for

receiving an exemption.  Second, with regard to seeking a hearing to request an exemption

premised on how long the defendant has resided in the home in question, an individual who

asserts a right to a hearing under the aegis of procedural due process must show that the facts

the individual seeks to establish in that hearing are relevant under the statutory scheme. 

Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 8, 155 L. Ed. 2d 98, 105, 123 S. Ct. 1160, 1165 (2003).  This the defendant cannot do.  Subsection (b-5) turns entirely on

the status of the defendant as a child sex offender.  720 ILCS 5/11-9.4(b-5) (West 2002). 

The defendant's status is based on his prior conviction for a sex offense, a fact he has already

had a procedurally safeguarded opportunity to contest.  Subsection (b-5) does not inquire

into how long an individual previously resided in a now-prohibited home that the individual

does not own; accordingly, the fact the defendant seeks a hearing to prove–that he has lived in the home, without ever owning it, most, if not all, of his life–is not at all relevant under

subsection (b-5).

	The defendant's third argument on appeal is that subsection (b-5) violates the

defendant's right to equal protection under the law.  Specifically, the defendant contends that

subsection (b-5) violates equal protection because it discriminates on the basis of the ability

to own land, because under the subsection's exemption those who own their own homes are

not forced to move, while those who do not own their own homes are forced to move.  The

State counters that the exemption of subsection (b-5) is time-specific, not class-specific, and

that accordingly it does not create a classification based on wealth and does not discriminate

on the basis of an offender's ability to purchase land.  We agree with the State.  The plain

language of the statute clearly states that an exemption exists for property owned by a child

sex offender and purchased before the effective date of July 7, 2000.  720 ILCS 5/11-9.4(b-

5) (West 2002).  The statute on its face creates a time-specific distinction, not a class-specific

one.  Accordingly, the wealthiest of child sex offenders may not "buy into" the exemption,

as the exemption is based on owning and purchasing the home prior to July 7, 2000;

likewise, contrary to the factually inaccurate statement in the defendant's brief that "[a]

person who is poor will never be able to fall within the exemption," a poor person who

owned and purchased his property prior to July 7, 2000, will likewise fit squarely under the

exemption.  We find this contention of the defendant completely without merit.

	The defendant's fourth argument on appeal is that subsection (b-5) is a prohibited ex post facto law because it "applies to sex offenders convicted before the statute's enactment."  See U.S. Const., art. I, §§9, 10; Ill. Const. 1970, art. I, §16.  These constitutional provisions

restrain Congress and the state legislatures from enacting arbitrary or vindictive legislation

and ensure that statutes give fair warning of their effect.  People v. Malchow, 193 Ill. 2d 413, 418 (2000).  A law is ex post facto if it is both retroactive and disadvantageous to the defendant.  Malchow, 193 Ill. 2d at 418.  A law is disadvantageous to a defendant when that law criminalizes an act that was innocent when done, increases the punishment for a

previously committed offense, or alters the rules of evidence by making a conviction easier. 

Malchow, 193 Ill. 2d at 418.  Although not coherently developed in the defendant's brief, presumably the defendant's argument in this case is that subsection (b-5) violates the

prohibition against increasing the punishment for a previously committed offense.  To

determine if that is the case, we must first consider whether the restriction established by

subsection (b-5) constitutes "punishment" (Malchow, 193 Ill. 2d at 419) and thus whether subsection (b-5) establishes criminal proceedings.  See Kansas v. Hendricks, 521 U.S. 346, 361, 138 L. Ed. 2d 501, 514, 117 S. Ct. 2072, 2081-82 (1997) (noting that the principle of ex post facto applies only to criminal laws); Stein v. Howlett, 52 Ill. 2d 570 (1972) (same).

	When faced with the question of whether a given statute imposes a punishment, a

reviewing court must first ascertain whether the legislature meant the statute to establish

"civil" proceedings.  Smith v. Doe, 538 U.S. 84, 92, 155 L. Ed. 2d 164, 176, 123 S. Ct. 1140, 1146-47 (2003).  If the legislature intended to impose a punishment, the inquiry is complete. 

Smith, 538 U.S. at 92, 155 L. Ed. 2d at 176, 123 S. Ct. at 1147.  If, however, the intention of the legislature was to enact a regulatory scheme that is civil and nonpunitive, the

reviewing court must further examine whether the statutory scheme is so punitive in either

purpose or effect that it negates the state's intention to deem it civil.  Smith, 538 U.S. at 92, 155 L. Ed. 2d at 176, 123 S. Ct. at 1147.  In making this determination, the reviewing court

should ordinarily defer to the legislature's stated intent, and only the clearest proof will

suffice to override legislative intent and transform what has been denominated a civil remedy

into a criminal penalty.  Smith, 538 U.S. at 92, 155 L. Ed. 2d at 176, 123 S. Ct. at 1147.

	As discussed above, we believe that the prohibitive subsections of section 11-9.4 of

the Criminal Code of 1961 are intended to protect children from known child sex offenders.  See People v. Diestelhorst, 344 Ill. App. 3d 1172, 1184 (2003).  Where a legislative restriction is an incident of the state's power to protect the health and safety of its citizens,

the restriction will be considered to evidence an intent to exercise that regulatory power, and

not a purpose to add to a punishment.  Smith, 538 U.S. at 93-94, 155 L. Ed. 2d at 177, 123 S. Ct. at 1148.  Accordingly, we conclude that the intent of the Illinois General Assembly

in passing subsection (b-5) was to create a civil, nonpunitive statutory scheme to protect the

public rather than to impose a punishment.

	Having concluded that the intent behind the subsection was civil and not punitive, we

next must consider whether the effect of the law is so punitive that it negates the state's

attempt to craft civil restrictions.  Smith, 538 U.S. at 92, 155 L. Ed. 2d at 176, 123 S. Ct. at 1147.  Whether a punitive effect results despite a statute's nonpunitive purpose is generally

evaluated by employing the seven-factor test first enunciated in the 1963 United States

Supreme Court decision of Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963).  Smith, 538 U.S. at 97, 155 L. Ed. 2d at 179, 123 S. Ct. at 1149.  More recent precedent indicates that where, as here, the enactment in question applies only to past

conduct that was, and still is, criminal, the following five of the seven factors are the most

relevant: (1) whether the restriction has historically been regarded as a punishment, (2)

whether the restriction imposes an affirmative disability or restraint, (3) whether the

restriction promotes the traditional aims of punishment, namely retribution and deterrence,

(4) whether the restriction has a rational connection to a nonpunitive purpose, and (5)

whether the restriction is excessive with respect to this purpose.  Smith, 538 U.S. at 97, 155 L. Ed. 2d at 180, 123 S. Ct. at 1149.  Although these factors are neither exhaustive nor

dispositive, they are " 'useful guideposts' " (Smith, 538 U.S. at 97, 155 L. Ed. 2d at 179-80, 123 S. Ct. at 1149 (quoting Hudson v. United States, 522 U.S. 93, 99, 139 L. Ed. 2d 450, 459, 118 S. Ct. 488, 493 (1997))), and we shall employ them in our analysis of subsection (b-5).

	With regard to the first factor–whether the restriction has historically been regarded

as a punishment–the defendant contends that "[t]he effect of permanently preventing [the

defendant] from living in the only home he has had for thirty-six years is banishment,"

which, in turn, has historically been regarded as a punishment.  We do not agree that the

defendant in this case has been banished.  In colonial times, the most serious offenders

within a community were banished, after which they could neither return to their original

community nor, reputations tarnished, be admitted easily into new communities.  Smith, 538 U.S. at 98, 155 L. Ed. 2d at 180, 123 S. Ct. at 1150.  The record in this case is completely

devoid of evidence that the defendant cannot return to his original community of East St.

Louis or that he cannot be admitted easily into a new community.  Indeed, as discussed

above, the record indicates that as of May 2, 2003, the date the circuit court entered its order

in this case, the probation department had verified that the defendant was no longer living

with his mother but was living instead in nearby Belleville.  There is absolutely no evidence

that the defendant has been unable to assimilate himself into this new community or that, did

he so desire, he would be unable to procure appropriate housing in his hometown of East St.

Louis.  This absence of evidence is in stark contrast to the factual context before the court

in Doe v. Miller, 298 F. Supp. 2d 844 (S.D. Iowa 2004), wherein the court concluded that the practical effect of Iowa's 2000-foot residency restriction was to completely ban sex

offenders from living in a number of Iowa's smaller towns and cities and to relegate sex

offenders in the state's major communities to living in industrial areas, in some of the cities'

most expensive developments, or on the very outskirts of town, where available housing was

limited.  We have before us no such evidence on the practical effect of subsection (b-5) in

St. Clair County or for that matter anywhere else in Illinois.  Furthermore, although the

defendant is prohibited from "residing" at the home his mother owns in East St. Louis because that home is located within 500 feet of a school, he is not precluded from visiting

his mother at that home on a daily basis and thereby enjoying her support.  Put simply, the

restrictions placed on the defendant by subsection (b-5) in no way resemble the historical

punishment of banishment, and only a tortured reading of the term banishment could lead

us to conclude otherwise.  On the record before us, we cannot conclude that the restrictions

of subsection (b-5) are a historic form of punishment.

	We turn now to the second factor–whether the restriction imposes an affirmative

disability or restraint.  To determine this, a reviewing court must consider how the effects

of the statute in question are felt by those subject to it.  Smith, 538 U.S. at 99-100, 155 L. Ed. 2d at 181, 123 S. Ct. at 1151.  If the disability or restraint is minor and indirect, its effects

are unlikely to be punitive.  Smith, 538 U.S. at 100, 155 L. Ed. 2d at 181, 123 S. Ct. at 1151.  Although subsection (b-5) does specifically restrict persons subject to it from living in certain

areas, it does not otherwise restrict the movement and activities of such persons.  See People v. Malchow, 193 Ill. 2d 413, 421 (2000).  Likewise, we are mindful that restricting the freedom of those deemed dangerous "is a legitimate nonpunitive governmental objective and

has been historically so regarded."  Kansas v. Hendricks, 521 U.S. 346, 363, 138 L. Ed. 2d 501, 516, 117 S. Ct. 2072, 2083 (1997).  Accordingly, although we would not characterize

the disability or restraint imposed by subsection (b-5) as minor or indirect, we are not

convinced that the presence of this factor alone is sufficient to create a punitive effect from

subsection (b-5)'s nonpunitive purpose.

	With regard to the third factor–whether the restriction promotes the traditional aims

of punishment, namely, retribution and deterrence–we begin our analysis with the retribution

factor.  As discussed above, the purpose of the prohibitive subsections of section 11-9.4 is

to protect children from known child sex offenders.  People v. Diestelhorst, 344 Ill. App. 3d 1172, 1184 (2003).  Also as discussed above, subsection (b-5) bears a reasonable relationship to the purpose of protecting children from known child sex offenders and sets forth a

reasonable method of furthering that purpose.  There is no evidence that the subsection is

designed as a form of retribution, nor does the defendant argue that it is.  We reject the idea

that subsection (b-5) promotes the traditional retribution aim of punishment.  As to the

deterrence factor, we noted above that it is reasonable to believe that a law that prohibits

child sex offenders from living within 500 feet of a school will reduce the amount of

incidental contact child sex offenders have with the children attending that school and that

consequently the opportunity for the child sex offenders to commit new sex offenses against

those children will be reduced as well.  Accordingly, it is possible that the subsection might

deter future crimes.  However, even an obvious deterrent purpose does not necessarily make

a law punitive.  Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 780, 128 L. Ed. 2d 767, 779, 114 S. Ct. 1937, 1946 (1994).  In fact, any number of governmental

programs might deter crime without imposing punishment.  We agree with the United States

Supreme Court that to hold that the mere presence of a deterrent purpose renders a statute

criminal would severely undermine the government's ability to engage in effective regulation. 

See Smith, 538 U.S. at 102, 155 L. Ed. 2d at 183, 123 S. Ct. at 1152.  We reject the idea that subsection (b-5) promotes the traditional deterrence aim of punishment.  We conclude that

the subsection's purpose is the protection of the public and that it does not significantly

promote either retribution or deterrence.

	As to the fourth factor–whether the restriction has a rational connection to a

nonpunitive purpose–we have repeatedly noted that the purpose of subsection (b-5) is to

protect children from known child sex offenders.  Given this purpose, it is reasonable to

conclude that restricting child sex offenders from residing within 500 feet of a playground

or a facility providing programs or services exclusively directed toward persons under 18

years of age might also protect society.

	As to the fifth and final factor–whether the restriction is excessive with respect to its

purpose–we conclude that it is not.  As noted above, among the 13 states that have enacted

some form of residency restriction applicable to sex offenders, the 500-foot restriction of

subsection (b-5) is the least restrictive in geographical terms.  Likewise, as noted above,

although the law restricts residency to some extent, it does not otherwise restrict the

movement and activities of child sex offenders.  As the United States Supreme Court has

noted, the excessiveness inquiry of ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem

it seeks to remedy.  Smith, 538 U.S. at 105, 155 L. Ed. 2d at 185, 123 S. Ct. at 1154.  The question is whether the regulatory means chosen are reasonable in light of the nonpunitive

objective.  Smith, 538 U.S. at 105, 155 L. Ed. 2d at 185, 123 S. Ct. at 1154.  Having concluded that prohibiting child sex offenders from living within 500 feet of a playground

or a facility providing programs or services exclusively directed toward persons under 18

years of age bears a reasonable relationship to the purpose of protecting children from known

child sex offenders and sets forth a reasonable method of furthering that purpose, we decline

to now find subsection (b-5) excessive with respect to that purpose.

	Our review of the effect of subsection (b-5) under the Mendoza-Martinez factors convinces us that subsection (b-5) is not so punitive that it negates the state's attempt to craft

civil restrictions.  Accordingly, subsection (b-5) does not constitute an ex post facto law, and the defendant's fourth argument on appeal fails.

	The defendant's fifth argument on appeal is that subsection (b-5) violates the

defendant's right against self-incrimination.  Specifically, the defendant argues that because

he was required to register as a sex offender and reveal his address pursuant to section 3 of

the Sex Offender Registration Act (730 ILCS 150/3 (West 2002)), he was forced to

incriminate himself with respect to subsection (b-5).  We begin by noting that the defendant's argument is not with subsection (b-5), which contains no registration requirements, but with

section 3, which contains the registration requirement to which the defendant objects (730

ILCS 150/3 (West 2002)).  We note as well that points not argued by a party are waived and

"shall not be raised in the reply brief, in oral argument, or on petition for rehearing."  188 Ill.

2d R. 341(e)(7).  Those points notwithstanding, we find, after giving due consideration to

the defendant's argument, that subsection (b-5) does not violate the defendant's right against

self-incrimination.

	The United States Supreme Court has found various statutory registration schemes

directed at specific criminal offenses to violate the fifth amendment's privilege against self-

incrimination.  However, in all those cases the disclosures condemned by the Court were

only those extracted from a " 'highly selective group inherently suspect of criminal

activities' ", and the privilege was applied only in " 'an area permeated with criminal

statutes,' " not in an essentially noncriminal and regulatory area of inquiry.  California v. Byers, 402 U.S. 424, 430, 29 L. Ed. 2d 9, 18, 91 S. Ct. 1535, 1539 (1971) (quoting Albertson v. Subversive Activities Control Board, 382 U.S. 70, 79, 15 L. Ed. 2d 165, 172, 86 S. Ct. 194, 199 (1965)).  The Court noted that in the cases where the privilege applied, compliance

with the statutory disclosure requirements would confront the individual so complying with

substantial hazards of self-incrimination.  Byers, 402 U.S. at 430, 29 L. Ed. 2d at 18, 91 S. Ct. at 1539.  For example, in one of the cases in question, involving noncompliance with

federal gambling tax and registration requirements, the Court noted that its ruling had rested

on the reality that at that time almost everything connected with gambling was illegal under

comprehensive state and federal statutory schemes and that, accordingly, "in almost every

conceivable situation compliance with the statutory gambling requirements would have been

incriminating."  Byers, 402 U.S. at 430, 29 L. Ed. 2d at 19, 91 S. Ct. at 1539.  Largely because of these pervasive criminal prohibitions, gamblers were considered by the Court to be a " 'highly selective group inherently suspect of criminal activities.' "  Byers, 402 U.S. at 430, 29 L. Ed. 2d at 18, 91 S. Ct. at 1539 (quoting Albertson, 382 U.S. at 79, 15 L. Ed. 2d at 172, 86 S. Ct. at 199).  Although at first blush convicted child sex offenders might appear

also to be a highly selective group inherently suspect of criminal activities, that is not the

case in terms of either the application or the effect of subsection (b-5).  The residency

prohibitions and the concomitant exemption of subsection (b-5) apply to all convicted child

sex offenders, not just those in violation of the subsection.  For the majority of these

individuals, compliance with section 3 of the Sex Offender Registration Act vis-a-vis subsection (b-5) is a matter of routine and does not implicate illegal activity.  Accordingly,

this is not a case where compliance with the statutory disclosure requirements will in most

cases confront the individual so complying with "substantial hazards of self-incrimination." 

Although the disclosure of inherently illegal activity is inherently risky and thus is protected

by the privilege against self-incrimination, the disclosures required by section 3 do not

implicate inherently illegal activity and so do not generate the same risks.  Furthermore,

section 3 is a part of a nonpunitive statutory scheme, the purpose of which is not to garner

information for future criminal prosecutions but to provide "an additional measure of

protection for children from the increasing incidence of sexual assault and child abuse." 

People v. Malchow, 193 Ill. 2d 413, 420 (2000).  Accordingly, for purposes of a fifth amendment analysis under Byers and its progeny, the registration requirement of section 3 exists within an essentially noncriminal and regulatory area of inquiry rather than "an area

permeated with criminal statutes."  To determine whether a statute violates the privilege

against self-incrimination, the issue must be resolved by balancing the public need for

protection against the individual claim to constitutional protection.  California v. Byers, 402 U.S. 424, 427, 29 L. Ed. 2d 9, 17, 91 S. Ct. 1535, 1538 (1971).  We are mindful as well that

"[i]t is well[-]settled that the government need not make the exercise of the Fifth Amendment cost[-]free."  McKune v. Lile, 536 U.S. 24, 41, 153 L. Ed. 2d 47, 62, 122 S. Ct. 2017, 2029 (2002).  For the reasons discussed above, we conclude that a careful balancing of the purpose

of section 3 of the Sex Offender Registration Act against the claim that the privilege against

self-incrimination should exempt an offender who is violating subsection (b-5) from having

to provide the offender's address favors the public interest involved and weighs against

extending the privilege against self-incrimination.  For that reason, the defendant's fifth

argument fails.

	The defendant's sixth argument on appeal is that subsection (b-5) constitutes cruel and

unusual punishment.  Specifically, the defendant, reiterating an earlier argument, argues that

subsection (b-5) "amounts to banishment from the family home."  Having earlier in this

opinion rejected the argument that the defendant in this case has been banished, and having

noted that the record in this case is completely devoid of evidence that the defendant cannot

return to his original community of East St. Louis or that he cannot be admitted easily into

a new community, we find no merit to the defendant's argument that his alleged

"banishment" by subsection (b-5) constitutes cruel and unusual punishment.

	The defendant's seventh and final argument on appeal is that subsection (b-5) is overly

broad "because it applies to individuals without regard to individual circumstances or

exceptions."  The defendant acknowledges that overbreadth analysis is confined to alleged

denials of first amendment rights, but he argues that subsection (b-5) impinges upon his right

to freely assemble because the subsection prohibits him from living with his family.  We do

not agree.  First, as discussed above, the subsection does not prohibit the defendant from

living with his family.  The plain language of subsection (b-5), quoted above, demonstrates

that the statute does not dictate with whom a child sex offender may live; to the contrary, it

merely restricts where, geographically, a child sex offender may live in relation to a

playground or a facility providing programs or services exclusively directed toward persons under 18 years of age.  720 ILCS 5/11-9.4(b-5) (West 2002).  Second, although the

subsection does restrict residency to some extent, the defendant is in no way precluded from

visiting his mother at her home on a daily basis and thereby enjoying her support and

company.  Third, even assuming, arguendo, that subsection (b-5) does somehow infringe upon the defendant's freedom to lawfully assemble, where a first amendment right is an

"integral" part of the conduct prohibited by a statute, the right is not constitutionally

protected for purposes of the overbreadth doctrine.  People v. Jamesson, 329 Ill. App. 3d 446, 453 (2002).  Accordingly, we reject the defendant's contention that subsection (b-5) is

overly broad.

	For the foregoing reasons, we affirm the order of the circuit court.

	Affirmed.

	HOPKINS, J., concurs.

	JUSTICE KUEHN, dissenting:

	Patrick Leroy became a child sex offender in 1987, when the State of Illinois

convicted him of criminal sexual assault.  We are not told of the circumstances surrounding

that offense, and the challenged law at issue here does not really care about any of the details

that underlie a given child sex offender's crime.  We only know that Leroy had to spend more

than six years of his life confined with other state prisoners in order to satisfy the punishment

imposed for having committed his crime.

	As things have turned out, serving a term of imprisonment fell short of expiating

Patrick Leroy's misconduct.  Leroy must now suffer another restraint upon his personal

liberty, an added consequence attendant to his aged criminal conviction.  On July 7, 2000, 13 years after Leroy broke the law, the Illinois legislature enacted Public Act 91-911 (Public

Act 91-911 or the Act) (adding 720 ILCS 5/11-9.4(b-5) (West 2000)), a law that imposed a

500-foot residency restriction around playgrounds, schools, daycare centers, and the like and

applied that ban retroactively to any child sex offender living at a residence in which he or

she had no ownership interest.  Thus, the family home where Patrick Leroy had been raised

from birth, a home titled in his mother's name alone, suddenly became forbidden ground, a

place where Leroy could no longer live without committing a felony offense.  

	The State of Illinois expelled Patrick Leroy from his home of 36 years.  Since the

expulsion is without time limitation, the ouster potentially constitutes a lifetime ban from the

Leroy family home.  As long as children attend the Miles Davis Elementary School, or as

long as the playground that adjoins the school exists, no one who has ever been convicted

of any offense that carries the mark of sexually offending against a child can live where

Patrick Leroy once lived.        

	It took some time for the authorities to order Leroy out of his house.  When they

finally got around to seeking compliance with Public Act 91-911, almost 18 years had passed

since Leroy had engaged in the criminal conduct that branded him a child sex offender.  In

May of 2003, Leroy bid farewell to his mother, and to the Leroy family home that he and she

had shared for 36 years.    

	Leroy now lives by himself in a home located in Belleville, Illinois.     

	My colleagues do not believe that what has happened to Patrick Leroy offends any

of the fundamental freedoms guaranteed as this nation's birthright.  I believe that this law

offends the constitutional prohibition against the enactment of ex post facto laws.  In addition, I find nothing rational about the residency restriction's relationship to the state's

legitimate interest in protecting children from child sex offenders.  Therefore, I believe that

it offends this individual's constitutional promise of due process of law.  For the reasons that follow, I respectfully dissent. 

	The legislative intent behind Public Act 91-911 is beyond question.  Legislators

wanted to find a way to better protect children from people capable of taking sexual

advantage of them.  This desire resulted in Public Act 91-911, which removed some known child sex offenders from their homes, if they were located too close to playgrounds, schools,

daycare centers, and any other facilities devoted exclusively to providing services to children

or teenagers.  For reasons unrelated to their legislative design, legislators permitted known

child sex offenders who were purchasing their homes to continue living in close proximity

to places where children gather. 

	   In addition, our lawmakers passed Public Act 91-911 in order to create a barrier that

would prohibit all future child sex offenders from living too close to these kinds of places. 

	Thus, it constitutes a felony offense for future child sex offenders, and for any past

child sex offender not home-buying at the time Public Act 91-911 went into effect, to live

anywhere within 500 feet of numerous places where children commonly assemble.

	Public Act 91-911 was not passed for the purpose of further punishing convicted child

sex offenders.  However, a punitive effect unquestionably flows from this enactment.  The

retroactive application of the Act's residency restriction to people like Patrick Leroy, who

have no ownership interest in their homes, violates our constitutional guarantee against the

imposition of ex post facto punishment.   

	The first factor in weighing the potential punitive effect of an otherwise regulatory

act is whether it resembles a historical form, or traditional means, of punishment.  My

colleagues scoff at the notion that Public Act 91-911 creates a restriction comparable to

banishment, a punishment inflicted in colonial times.  I believe that a banishment clearly

resembles an expulsion of someone from his lifelong residence. 

	The majority takes this position:

	"We do not agree that the defendant in this case has been banished.  In colonial times,

the most serious offenders within a community were banished, after which they could

neither return to their original community nor, reputations tarnished, be admitted

easily into new communities.  Smith, 538 U.S. at 98, 155 L. Ed. 2d at 180, 123 S. Ct. at 1150.  The record in this case is completely devoid of evidence that the defendant

cannot return to his original community of East St. Louis or that he cannot be

admitted easily into a new community.  Indeed, *** the probation department had

verified that the defendant was no longer living with his mother but was living instead

in nearby Belleville.  There is absolutely no evidence that the defendant has been

unable to assimilate himself into this new community or that, did he so desire, he

would be unable to procure appropriate housing in his hometown of East St. Louis.

***  Put simply, the restrictions placed on the defendant by subsection (b-5) in no

way resemble the historical punishment of banishment, and only a tortured reading

of the term banishment could lead us to conclude otherwise."  Slip op. at 10-11.

	It is correct that the defendant has not been banished.  Public Act 91-911 does not call

for the banishment of child sex offenders.  If it did, our inquiry would already be over.  The

Act would clearly impose added punishment in violation of the constitutional ban against ex post facto penalties.   	

	Public Act 91-911 only created a retroactive residency restriction that, in its

application to certain known child sex offenders, resembles banishment.  The majority's

conclusion to the contrary stems, at least in part, from a misunderstanding of what constitutes

that traditional means of punishment. 

	A person is banished when he or she is expelled from a community and forbidden to

return.  Banishment has nothing to do with tarnishing reputations or making it difficult for

someone to assimilate into new communities, as the majority opinion suggests.  The majority defines banishment with a sentence from Smith v. Doe that it takes out of context.  The sentence concludes a lengthy discussion of a collection of punishments imposed in earlier

times, and the conclusion refers to the effect that other lesser punishments had, when applied

in tandem with the banishment of the most serious offenders.  The discussion leading up to

the sentence that forms the majority's definition of banishment clarifies the mistake:

		"Some colonial punishments indeed were meant to inflict public disgrace. 

Humiliated offenders were required 'to stand in public with signs cataloguing their

offenses.'  [Citations.]  At times the labeling would be permanent: A murderer might

be branded with an 'M,' and a thief with a 'T.'  [Citations.]  The aim was to make these

offenders suffer 'permanent stigmas, which in effect cast the person out of the community.'  [Citations.]  The most serious offenders were banished, after which they could neither return to their original community nor, reputation tarnished, be admitted

easily into a new one."  (Emphasis added.)  Smith v. Doe, 538 U.S. 84, 97-98, 155 L. Ed. 2d 164, 180, 123 S. Ct. 1140, 1150 (2003).

	The reference to tarnished reputations that prevent a person's easy admission into new

communities after having been banished was not an intended consequence of banishment,

but it was the overall consequence of being banished, after first being publicly disgraced by

other traditional means of punishment.  

	Thus, the analysis of whether Public Act 91-911 resembles the historical punishment

of banishment should be confined to whether its restriction is similar to the permanent

expulsion of someone from the community in which he or she lives.

	The majority rejects the similarity between the Act's retroactive residency restriction

and banishment, by finding that the record "is completely devoid of evidence that the

defendant cannot return to his original community of East St. Louis."  Slip op. at 10.  The

majority further finds that there "is absolutely no evidence that the defendant *** would be unable to procure appropriate housing in his hometown of East St. Louis."  Slip op. at 10. 

 I again agree that Patrick Leroy has not been banished from East St. Louis.  

	In looking for evidence that Leroy has been banished, my colleagues are looking for

the wrong thing.  The inquiry should question whether the retroactive application of the

residency restriction contained in Public Act 91-911 resembles banishment, rather than ask

whether the restriction in fact banishes Leroy from his hometown.   

	It could be very difficult for Patrick Leroy to find comparable housing within the city

limits of East St. Louis, Illinois, without offending the commands of Public Act 91-911. 

Notwithstanding, our examination of whether the retroactive application of this Act's

residency restriction is similar to the colonial punishment of banishment should not focus

upon whether Leroy can, or cannot, find somewhere else to live in East St. Louis.  

	When we understand what constitutes banishment and we consider the essence of its

punitive aim, we find at its core the permanent expulsion of a criminal offender from his or

her home.  When a colonial offender was banished, he was ordered to leave his desired living

space and was barred for life from ever returning to it.  The underlying penal effect was the

permanent loss of companionship and home of choice. 

	We do not have to torture the English language in order to conclude that what

happened to Patrick Leroy resembles how people used to be punished in colonial times.  Our

inquiry into whether the retroactive residency restriction imposed by this law violates

constitutional ex post facto constraints should progress from a finding that the restriction imposed resembles a historical form, and a traditional means, of punishment.  We should

find that criminalizing Patrick Leroy's long-standing home of choice, and imposing an

indeterminate ban upon his ever living there again, constitutes an eviction very much akin

to a banishment imposed in earlier times.  To indefinitely expel a man from his family home,

and separate him from family members with whom he has lived his entire life, seems decidedly similar to a method of punishment employed in colonial times.  The only

significant difference between a colonial banishment of some unwanted offender and the

Act's retroactive expulsion of Patrick Leroy from where he wanted to live is how this

reinvented form of permanent exclusion from home and family violates the constitutional

protection against ex post facto punishment.  As far as I know, our colonial ancestors would not have contemplated the banishment of people from their midst almost 18 years after they

offended some colonial law.       

	If my colleagues feel that the restriction must completely force Leroy out of his

hometown in order to resemble banishment, they might consider the unique circumstances

surrounding his hometown, circumstances forged by a post-World War II economic boom,

followed by the past four decades of relentless urban decay.  While Leroy failed to provide

evidence about this circumstance, we are not required to blind ourselves to events that, as a

matter of common knowledge, we know to exist.

	The historical evolution of East St. Louis has resulted in a present-day community that

possesses a plethora of schools and playgrounds.  At the same time, there is a paucity of

decent housing.   

	The schools and playgrounds are by-products of an economic expansion that East St.

Louis experienced immediately after the second world war.  Countless factories and

manufacturing plants provided employment that grew East St. Louis into a workingman's

town.     

	Middle-class housing, in tightly packed neighborhoods, provided homes where East

St. Louis workers could raise a family.  As the adult population topped 80,000 people, the

child population exploded.  The baby boom, during which most couples procreated threefold,

swept into East St. Louis in the mid-1950s.  The Eisenhower years presented a time when

a lot of East St. Louis children were in need of a lot of schools.  Public and private schools, with adjoining asphalt playgrounds, were built throughout the crowded East St. Louis

neighborhoods.  

	The decade of the sixties brought the beginning of a great sea-change that would

eventually alter the East St. Louis landscape.  Over the years that ensued, the manufacturing

and production plants would disappear, along with the families that once populated the

town's crowded neighborhoods.  Nicely maintained middle-class homes became slums,

which were condemned and torn down.  What was once decent housing became weed-ridden

vacant lots.  Today, remaining homes like the one Leroy was ordered to leave tend to cluster

around areas where schools still operate.  

	There are still a large number of public and private schools in operation, despite the

fact that East St. Louis has close to two-thirds fewer inhabitants.  A lot of the schools that

no longer operate because of this phenomenon still stand, along with their asphalt

playgrounds, into which swing sets, jungle gyms, and basketball hoops are implanted. 

	East St. Louis still has 25 schools in operation.  A number of former school buildings

still stand, despite their closure.  Their adjoining playgrounds render the surrounding

neighborhoods off-limits to the likes of Patrick Leroy.  In addition, all the Catholic schools

that still operate, or that still stand with playgrounds intact, create large residential zones

forbidden to Patrick Leroy.  

	There are also teen centers, daycare facilities, and other publicly funded facilities

dedicated to the betterment of the minority youth of East St. Louis, and these facilities add

to that part of East St. Louis in which Patrick Leroy is forbidden to live. 

	My colleagues take solace in the fact that Leroy found housing in Belleville.  Leroy's

ability to find a nonoffending place in which to live within the town of Belleville has nothing

to do with the inquiry, although it is curious that Leroy abandoned his hometown of 36 years

and took up residence in another place.  Even if I believed that my colleagues' approach to this inquiry was appropriate, I would still conclude, because of the unique history of Leroy's

hometown, a history that results in Leroy being banned from living in such a large percentage

of available housing, that the Act's residency restriction is akin to the historical punishment

of banishment, as applied to Patrick Leroy.

	My colleagues observe the obvious–that Public Act 91-911 imposes an affirmative

disability and restraint of more-than-minor consequence.  However, they give this factor only

passing attention, dismissing it with the comment, "[A]lthough we would not characterize

the disability or restraint imposed by subsection (b-5) as minor or indirect, we are not

convinced that the presence of this factor alone is sufficient to create a punitive effect from

subsection (b-5)'s nonpunitive purpose."  Slip op. at 11.

	I am completely at odds with the majority about this factor.  I would reach an exactly

opposite conclusion.  I believe that this one factor alone creates the kind of punitive effect that should bar the retroactive application of the residency restriction imposed by Public Act

91-911.

	The majority's cursory deflection of the disability imposed by the retroactive

application of the residency restriction contained in Public Act 91-911 unduly minimizes

how significant and offensive its restraint really is to non-home-buying past offenders. 

Prohibiting someone from living where he has lived his entire life imposes a substantial

disability.  Our legislature recognized as much, allowing known child molesters who were

in the process of purchasing their homes to remain in them, regardless of how close the home

was to a school, playground, or daycare center and regardless of how recent or reprehensible

the home-buying child molester's conduct was.  

	Our history has always placed great emphasis upon, and given great deference to, the

place where an American chooses to live.  The inalienable rights that compose our most

cherished values are inextricably tied to an American's ability to settle, and to live, in a place of his or her choosing.  

	Privacy interests protected by the fourth amendment are more stringently guarded

when a person's home is at issue.  And no governmental unit or agency, including the State

of Illinois, can constitutionally take a person's home from that person, unless the property

is needed for a public use and full compensation is paid.  U.S. Const., amend. V.  The

Constitution's protection of private property from governmental intrusion and usurpation is

no doubt responsible for our legislature's decision to allow home-buying child molesters to

live near playgrounds, schools, and daycare centers while, at the same time, deciding to expel

all other known child sex offenders from their homes.  The legislature could not apply the

residency restriction retroactively to known child sex offenders who could assert that such

an application constituted a state-taking of property without public purpose or just

compensation.    

	  The majority is far too lightly concerned about the disability and restraint imposed

by the retroactive application of this Act's residency restriction to non-home-buying

offenders who committed their crimes in the distant past.    

	The restriction's retroactive application does not simply prohibit Patrick Leroy from

living in certain areas around this state.  Unlike the many child sex offenders who are

purchasing their homes, the residency restriction's imposition effectively removes Patrick Leroy from his home.  The restriction casts him from his lifelong residence.  The permanent

expulsion of Leroy from a home in which he has lived his entire life, and the forced

separation from his only family member, an aging mother who could use his ever-present

care and companionship, is extremely punitive in its effect, particularly in light of the fact

that Leroy has not committed another sex offense for more than 18 years and the fact that

there is no evidence to suggest that he is apt to reoffend in the future.  In my view, the

retroactive disability and restraint imposed by this Act is very comparable to a restraint upon physical freedom, like imprisonment, for the punitive effect directly infringes upon

traditionally guarded freedoms and otherwise protected personal liberties.  The majority fails

to see how the residency restriction promotes traditional aims of punishment–deterrence and

retribution.  I disagree with this myopia. 

	While my colleagues readily observe how the Act's residency restriction might deter

future crimes, they recast the inquiry from a discussion of whether the restriction at issue

promotes deterrence, a traditional aim of punishment, to a discussion of how all regulatory

schemes can carry a deterrent effect and how those regulations are not necessarily punitive

in nature because of that fact.  By focusing upon the assertion that all regulatory schemes that

impose restrictions could be said to carry a deterrent effect, my colleagues skirt the issue,

discounting the residency restriction's ability to promote deterrence, a traditional aim of

punishment, just like they dismissed the question of whether this Act's restriction imposes

the kind of disability and restraint that carries a punitive effect.  In truth, this restriction

provides deterrence every bit as effectively as other forms of punishment, a circumstance that

no one even questions.  The restriction clearly promotes a traditional aim of punishment.  

	The second common aim of punishment is retribution.  We are told, "There is no

evidence that [the residency restriction contained in Public Act 91-911] is designed as a form

of retribution ***."  Slip op. at 12.  Again, the majority avoids any analysis of the real

question posed, by misdirection.  Our inquiry should not ask whether the legislature designed the residency restriction to exact retribution but should rather question whether the residency restriction's application tends to promote or advance retribution, a common aim of punishment.   

	While I am quite certain that legislators did not design the residency restriction

contained in Public Act 91-911 to exact retribution, and thereby correct for wrongdoing, in

which case the enactment would be designed to punish and therefore clearly violate the constitutional ban against ex post facto punishments, I believe that the restriction's application tends to promote retribution, a traditional aim of punishment.  

	 Public Act 91-911 imposes a blanket residency restriction based upon only one

criterion–conviction of the kind of criminal offense that marks the offender a "child sex

offender."  It does not discriminate based upon whether or not a particular individual actually

presents some danger to children.  The age of the conviction, the age of the offender, the

nature of the crime, and the choice of the victim do not matter.  

	 While there are numerous examples of how this Act's residency restriction advances

a retributive purpose that commonly underlies the imposition of punishment, we need only

look to Patrick Leroy's circumstance in order to understand how the Act's restriction tends

to advance retribution, a traditional aim of punishment.  The restriction casts Leroy out of

his house because of an 18-year-old conviction, the details of which are unimportant to the

expulsion's imposition.  Without a better understanding of the nature of his offense,

particularly his choice of victim, we cannot assess Leroy's likelihood for recidivism.  Since

we neither know nor care whether Leroy's removal from his home advances the safety of

children attending Miles Davis Elementary School, we need to acknowledge that the

automatic eviction, at least to a degree, promotes retribution for wrongdoing.  

	We might well ask ourselves two questions.  What reason exists, in the absence of

retribution, to expel Leroy from living in the Leroy family home when, as the majority points

out, the prohibition does not preclude his daily unconstrained visitations there?  Absent a

tendency to promote retribution, what legitimate purpose would legislators have in removing

Patrick Leroy from his home, given the fact that he has lived there for 10 years without

reoffending, despite his close proximity to the hundreds upon hundreds of children who have

matriculated to Miles Davis Elementary School during the same time span?   

	A restriction imposed without consideration for the likelihood of a particular offender to reoffend has to be grounded, at least in part, in furtherance of retribution.  Here, the

restriction is imposed without regard to the particulars of the offense, including the offender's

choice of victim.  The nature of the crime and the choice of the victim constitute important

considerations in predicting what a prior offender's proximity to a given child-laden facility

could mean in terms of reoffending.  For example, a man branded a child sex offender for

having had consensual sex with a 17-year-old girl could safely reside in close proximity to

toddlers gathered at a daycare center but present a problem living across the street from a

high school.  On the other hand, a pedophile grandfather, branded a child sex offender for

fondling his young grandchildren and their friends, presents a potential problem living across

the street from a daycare center but could safely reside in close proximity to a high school.

Since this Act treats all offenders alike, without consideration of whether a particular

offender is likely to reoffend, its retroactive residency restriction promotes and furthers

retribution, a traditional aim of punishment. 

	Finally, the residency restriction attaches without time limitation, expelling Patrick

Leroy from his home and excluding his return forever, without regard for the likelihood of

public danger.  The retroactive application of the Act's residency restriction exceeds that

which is necessary to protect children and enters the realm of retribution.

	Although Public Act 91-911 has a purpose other than the simple punishment of child

sex offenders, a serious question arises regarding whether the legislation rationally serves

its alternative purpose of protecting children from child molesters.  This part of my analysis

relates to my reasons for thinking that due process has been violated, as well as one of my

reasons for believing that Public Act 91-911 has a punitive effect that constitutionally

prohibits retroactive application.  

	If what we seek is to better protect children from child sex offenders, how do we

possibly accomplish that aim by imposing a 500-foot residency restriction around schools, playgrounds, daycare centers, and the like?  When we consider what the legislature is trying

to accomplish by banning certain past child sex offenders, and all future child sex offenders,

from living in certain zones, close in proximity to facilities that deal exclusively with

children, we must necessarily question what goal a 500-foot residency restriction hopes to

attain.  

	State statutes that impose 2000-foot residency restrictions bear at least some

reasonableness in their relationship to the interest that the legislation hopes to serve.  Those

restrictions place children out of sight and mind, beyond senses that could stir the

perversions of known child sex offenders.  At least arguably, a 2000-foot restriction reduces

opportunity, diminishes temptation, and thereby decreases the risk that a proven child sex

offender will reoffend.  

	Illinois child sex offenders can reside close enough to playgrounds, schools, and

daycare centers to tempt their inner desires and promote their ability to reoffend.  A 500-foot

residency restriction inhibits nothing.  Child sex offenders can live just outside the restricted

area, gaze out their kitchen window, and covet the children that they see playing on a school

playground some 500 feet away.  

	The restriction does not prevent child sex offenders from either seeing or

communicating with children.  It does not remove opportunity and temptation, the rationale

that attempts to provide constitutional support for this kind of law.  Any Illinois child sex

offender can easily sit on his front porch with a cheap pair of binoculars and closely eye the features of any child that he chooses.  Indeed, he can watch a target of his sexual fancy from

just the right distance not to find notice, and his watchful eye can still rest beyond any area

where his kind are prohibited from living.  Any Illinois child sex offender can still call out

to children, lure them to the house, engage in sexual exposure, or do all manner of things that

child sex offenders do, with all the ease that befalls a child molester who moves into closer range with the aid of a car.  As long as child sex offenders can live around 500 feet from

where children gather, they can still look at and crave the objects of their sexual desire. 

When they can still see children, and can still be heard by children, child sex offenders can

still lust after children and take all the steps needed to reoffend against them. 

	The innocent children of this state, frolicking upon playgrounds, within eyeshot of

some child sex offender, remain every bit the temptation that they present to child sex

offenders at large, regardless of where those offenders live.  Simply put, the statutory

restriction is pointless.  The restriction bears no rational relationship to a legitimate state

interest.  It is a mindless effort that does nothing to prevent any child sex offender intent on

reoffending from doing so.  The restriction does not remove temptation or opportunity, for

the restriction does not remove child sex offenders from either earshot or eyeshot of children. 

	Whatever prompted our legislature to arrive at a 500-foot barrier is unknown.  Perhaps

cases like Doe v. Miller, 298 F. Supp. 2d 844 (S.D. Iowa 2004), that have struck down 2000- foot residency restrictions played into the decision to reduce the scope of the ban.  Whatever

it was, the result is a statutory prohibition that bears no rational relationship to the interest

that it seeks to serve.  Children going to school are no safer with a safety net that bans child

sex offenders from living 500 feet from their school than they were before that legislation

was passed.  The opportunity and temptation remain around the schools and playgrounds of

this state.  

	The word "rational" connotes insight and logic.  This legislation constitutes a totally

blind imposition of disability and restraint.  A man who was convicted 18 years ago of an

offense that brands him a child sex offender, who had consensual sex with a 17-year-old

underage teen and who has not reoffended since, must relocate, if not purchasing his home,

even if that home rests 499 feet from an infant daycare center.  But a recently released child

molester, with a lengthy history of molesting very young children, and a diagnosed pedophile to boot, can live in any house he chooses, so long as it rests at least 501 feet from a place

attended on a daily basis by infant children, the prime targets of his known sexual

propensities.  Moreover, that same individual can move back into a house next door to a

child daycare center provided that he was purchasing the house prior to the Act's effective

date.  

	I fail to understand how the restriction imposed by Public Act 91-911 bears any

rational relationship to the protection of children from people capable of taking sexual

advantage of them.  I suspect that Patrick Leroy, after 18 years without committing another

child sex offense, is no longer one of those people.  Hopefully he is not, for his expulsion

from the house in which he used to live, a home located just a short distance from Miles

Davis Elementary School, will not protect the school's students from him, if he is intent upon

reoffending.  As previously noted, Patrick Leroy can return "on a daily basis" to the home

from which he has been removed.  I would assume that on any given visit, he could do the

kind of things our legislators feared that he might otherwise do, if he lived there.  As my

colleagues observe, Leroy has the right to be precisely where legislators did not want him

to be, every morning when the children of Miles Davis Elementary School arrive, and every

afternoon when the same children leave.  Since school is a daytime event, Leroy has

essentially all the access that he had before the State of Illinois, for no rational reason,

banned him from the place where he wanted to live.     

	Public Act 91-911, viewed in light of the Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963), factors, exceeds its legislative intent to craft a

civil regulatory scheme for the protection of children and is, in all truth, punitive in nature. 

It cannot be applied to Patrick Leroy, whose conviction predates the imposition of its

disability and restraint by 13 years, without violating the constitutional guarantee against ex post facto punishment.  And because the restriction bears no rational relationship to the legitimate state interest it was intended to serve, because it in no way furthers the safety of

children from known child sex offenders, the restriction violates Leroy's right to due process

of law.

	For these reasons, I respectfully dissent.

                                     	NO. 5-03-0333

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

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THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the

							)  Circuit Court of

     Plaintiff-Appellee,				)  St. Clair County.

							)

v.							)  No. 01-CF-1118

							)

PATRICK LEROY,					)  Honorable

							)  Robert J. Hillebrand,

     Defendant-Appellant.				)  Judge, presiding.

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Opinion Filed:	April 12, 2005

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Justices:	Honorable Thomas M. Welch, J.

	Honorable Terrence J. Hopkins, J.

	Concurs   

	Honorable Clyde L. Kuehn, J.

	Dissents

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Attorneys	Daniel M. Kirwan, Deputy Defender, Rita K. Peterson, Assistant Defender, Office

for	of the State Appellate Defender, Fifth Judicial District, 730 E. Illinois Highway 15,

Appellant	Suite #1, Mt. Vernon, IL 62864

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Attorneys	Hon. Robert Haida, State's Attorney, St. Clair County, 10 Public Square, Belleville,

for	IL 62220; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Trent

Appellee	M. Marshall, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor,

	730 E. Illinois Highway 15, P.O. Box 2249, Mt. Vernon, IL 62864

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