An Illinois appeals court ruled that a state law making it a crime for convicted sex offenders to set foot in public parks is unconstitutional because it can punish innocent conduct.
Friday’s ruling stems from the 2013 conviction of Marc A. Pepitone, a previously
convicted sex offender who was arrested while walking his dog in a public park in Bolingbrook, Ill., a southwest suburb of Chicago.
A Will County jury found Pepitone, who was convicted in 1999 of predatory criminal sexual assault, guilty of being a child sex offender in a public park, in violation of an Illinois law.
As written, the law at issue makes it a crime for convicted sex offenders to attend concerts, picnics, rallies, or Chicago Bears games at Soldier Field, for example, or visit popular places like the Field Museum, the Shedd Aquarium, the Art Institute, the Adler Planetarium, or the Museum of Science and Industry, all of which are public buildings on park land.
Pepitone was sentenced to 24 months of conditional discharge and 100 hours of public service and given a $400 fine, but he appealed the conviction, claiming the banishment of sex offenders from public parks is “unconstitutional on its face because it bears no reasonable relationship to protecting the public.”
Pepitone argued in his appeal that the law sweeps too broadly and therefore must be struck down. He said, “The specific issue is . . . whether an all-out banishment, of all child sex offenders, from all public parks . . . at all times. . .is a reasonable means of achieving the legislature’s stated goal of ‘protect[ing] users of public parks from child sex offenders and sexual predators.’”
The Illinois Appellate Court’s Third District agreed with Pepitone on Friday in a 2-1 ruling and reversed his conviction of being a child sex offender in a public park.
“We hold that section 11-9.4-1(b) is facially unconstitutional because it is not reasonably related to its goal of protecting the public, especially children, from individuals fitting the definition of a child sex offender or a sexual predator,” Justice Mary McDade wrote for the majority. “Nor is it drafted in such a way as to effect that goal without arbitrarily stripping a wide swath of innocent conduct and rights he has as a citizen and taxpayer from a person who has paid the penalty for his crime.”
McDade said the sweep of the law “is extraordinary.”
“Section 11-9.4-1(b) is an outright ban on all individuals with certain sex offense convictions from public park buildings and public park property without any requirement that anyone—particularly a child—be actually, or even probably, present,” the ruling states.
The appeals panel’s majority found that the law “criminalizes substantial amounts of innocent conduct” and “makes no attempt to assess the dangerousness of a particular individual.”
Quoting a previous ruling by the Illinois Supreme Court, McDade wrote, “’Statutes that potentially punish innocent conduct violate due process principles because they are not reasonably designed to achieve their purposes.’”
Justice Robert Carter dissented, disagreeing that the state law is facially unconstitutional.
“By keeping sex offenders who have committed sex offenses against children away from areas where children are present, the legislature could have rationally sought to avoid giving those sex offenders an opportunity to reoffend,” he wrote. “Whether the statute could be more finely-tuned to accomplish that goal is a question for the legislature, not for the courts.”
In December, a federal judge in Indiana struck down part of a similar city ordinance that prohibited sex offenders from loitering near parks, schools and other places children most commonly frequent, calling the ordinance “unconstitutionally vague.”