dissenting:
I respectfully dissent from the majority opinion that the challenged provisions of the Illinois Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2002)) (Registration Act) and the Illinois Sex Offender and Child Murderer Community Notification Law (730 ILCS 152/101 et seq. (West 2002)) (Notification Law) pass muster under the Illinois Constitution. In doing so, I want to emphasize that I believe the State has a legal and moral responsibility to protect the most vulnerable members of our communities from the probable danger posed by recidivist sexual offenders. I dissent only because the statutes sweep too broadly and too indiscriminately and therefore violate certain guarantees to individuals, who also have rights protected by our state constitution.
This appeal challenges the constitutionality of certain provisions of the Registration Act and the Notification Law which require that information about individuals designated as sex offenders be published on the Internet via the Illinois Department of State Police website.
FACTUAL AND PROCEDURAL BACKGROUND
On October 7, 2000, the defendant, David Grochocki, went camping with his three children, his friend James, and James’s son and daughter Terri. It rained, however, and rather than camp outside, the group stayed in a hotel. They arrived at around noon, and the defendant and James drank beer and rum while the children played. That night, David stayed in a room with his daughters and Terri. James stayed in another room with the boys. During the night, Terri awoke to discover the defendant seated in a chair next to her bed with his feet on the mattress. He had no pants on, and was masturbating while saying “Oh Terri, it feels so good — I’ve always wanted you.” Alarmed, Terri fled the room and later told her parents, who reported the incident to the police. The defendant maintains that he was extremely intoxicated on the night in question and does not remember the incident.
Prior to trial, the defendant was assessed by Jeffery Martin, a licensed social worker. In his evaluation, Martin stated that he considered the defendant to have a low risk of recidivism. He based this conclusion on the fact that the defendant did not touch the victim during the commission of the offense and did not exhibit any indication of sexual compulsions. Further, Martin explained that the defendant’s behavior was directed at a specific individual and that the defendant did not have a generalized desire to molest children. Martin also noted that the defendant had responded well to psychological treatment and alcoholism therapy, was an active member of the community, and had no prior history of acting out in similar ways.
The defendant was convicted in the Will County circuit court of sexual exploitation of a child and was sentenced to conditional discharge, presumably, as the majority notes, because of mitigating factors, including those noted above. Pursuant to section 2 of the Registration Act, the defendant was required to register as a sex offender and, pursuant to the Notification Law, he was placed on the sex-offender database. Biographical information, such as his address, date of birth, height, weight, and a picture, were published on the Internet.
ANALYSIS
The defendant argues that the provisions of the Registration Act and Notification Law that allow his picture, address and criminal history to be published on the Internet violate the privacy guarantee, proportionate penalties clause, and due process clause of the Illinois Constitution. He also claims that the trial court erred in sentencing him to conditional discharge rather than court supervision. I believe that the two statutes violate the privacy, proportionate penalties, and due process clauses and would not reach the sentencing issue.
PRIVACY
First, the defendant argues that the Registration Act and Notification Law violate his constitutional right to privacy since they require the public dissemination of his personal information on the Internet. The Illinois Supreme Court has already been presented with the question of whether previous versions of the Registration Act and Notification Law violate the privacy clause of the state constitution, but the court refused to address the issue due to inadequate briefing. People v. Malchow, 193 Ill. 2d 413, 426, 739 N.E.2d 433, 441-42 (2000). This question is, therefore, one of first impression.
The Illinois Constitution provides that “[t]he people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, [and] invasions of privacy.” Ill. Const. 1970, art. I, § 6. The Illinois Constitution expressly recognizes a zone of personal privacy, which is stated broadly and without restriction. In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 391, 604 N.E.2d 929, 934 (1992).
If a state action implicates the right to privacy, the invasion of that privacy must be reasonable. Will County Grand Jury, 152 Ill. 2d at 392, 604 N.E.2d at 935. To determine reasonableness, the court must balance the individual’s right to privacy against the State’s or society’s right to the information. Will County Grand Jury, 152 Ill. 2d at 392, 604 N.E.2d at 935.
The Illinois Supreme Court has recently expanded the scope of the privacy guarantee of the Illinois Constitution. In Will County Grand Jury, the court found that it was an invasion of privacy for a grand jury to subpoena physical evidence from a witness when there was no showing of individualized suspicion. Will County Grand Jury, 152 Ill. 2d at 393, 604 N.E.2d at 935-36. The court reasoned that, although it is important to allow a grand jury wide latitude in gathering and examining evidence, the right must be balanced against the right of the individual to be free from having his personal characteristics examined unreasonably. The court found that, absent reasonable suspicion that a person was actually involved in a crime, the grand jury does not have the power under the privacy clause to require a person to participate in a lineup, give fingerprint samples, or relinquish personal documents. Will County Grand Jury, 152 Ill. 2d at 392-93, 604 N.E.2d at 935.
Kunkel v. Walton, 179 Ill. 2d 519, 689 N.E.2d 1047 (1997), involved a statutory mandate that a person who files a claim for injury or disease automatically waives the privilege of confidentiality with his health care provider. The court reasoned that the statute violated the privacy clause, arguing that the “confidentiality of personal medical information is, without question, at the core of what society regards as a fundamental component of individual privacy” (Kunkel, 179 Ill. 2d at 537, 689 N.E.2d at 1055), and found that a blanket abrogation of privilege, without a determination of the relevance of the subject information, was unreasonable. Kunkel, 179 Ill. 2d at 538-39, 689 N.E.2d at 1056.
The statutes at issue here allow the State to publish personal information about sexual offenders on a website, on television, and through the print media. 730 ILCS 152/120 (West 2002). The information published about the offender is limited to public information, such as the defendant’s address, his picture, the crime of which he has been convicted, his birth date, and his conviction date. 730 ILCS 152/ 120 (West 2002). The defendant argues that the publication of this information, to a wide audience, amounts to an unreasonable invasion of privacy on par with those examined in Kunkel and Will County Grand Jury.
To evaluate the defendant’s claim, it must first be determined whether the disclosures made on the website are even presumptively covered by the privacy clause. The majority objects that in both Kunkel and Will County Grand Jury the nature of the information disclosed (medical records, personal documents, fingerprints) was substantially more personal than that published in this case. The information in those cases is not the type generally available in the public domain, and it is reasonable to say that most people expect it to be private. In this case, the information is in the public domain and is available, absent the registry, to anyone who diligently seeks it out. Information concerning height, weight, street address, and record of conviction is not highly personal in the same way that medical records and personal documents are. However, despite the fact that we deal here with more generic and more easily accessible personal information, I believe that the privacy clause covers the disclosures.
It is my view that the privacy clause of the Illinois Constitution confers a general right to informational privacy. As our supreme court has noted, “a person has a reasonable expectation that he will not be forced to submit to a close scrutiny of his personal characteristics, unless for a valid reason.” Will County Grand Jury, 152 Ill. 2d at 391-92, 604 N.E.2d at 935. The belief that the disclosure of personal information is covered by the privacy clause was also shared by members of the Bill of Rights Committee of the convention that enacted the Constitution of 1970. One committee member specifically raised the example of the State compiling a database that listed height, weight, and age, indexed by social security number. It was the opinion of the committee that such a compilation could well violate the proposed privacy clause. 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1525. Whether or not such a scheme actually violates the clause, clearly the drafters of our constitution believed that the privacy clause created a right to informational privacy that includes within its scope the compilation or disclosure of general personal information.
I conclude, therefore, that a person has a reasonable expectation, absent a valid justification to the contrary, that the State will not create an easily accessible database containing personal, though public, information. The precedents indicate that a balancing test is appropriate to determine whether any particular disclosure violates the privacy guarantee. Kunkel, 179 Ill. 2d at 538, 689 N.E.2d at 1055; Will County Grand Jury, 152 Ill. 2d at 392, 604 N.E.2d at 935. Specifically, the defendant’s interest in his own privacy must be weighed against the State’s asserted interest in disclosure and the scope of that disclosure.
Viewed in this context, the instant case is significantly similar to both Will County Grand Jury and Kunkel. In Will County Grand Jury, the grand jury’s attempt to subpoena evidence from persons absent a reasonable suspicion that those persons were involved in a crime was arbitrary and unreasonable. Will County Grand Jury, 152 Ill. 2d at 400, 604 N.E.2d at 939. Arbitrary, too, was the statute in Kunkel that removed privilege protection from all medical records of a person filing a claim for damages, even records that had no relevance to the filed claim. As the court noted, disclosure of highly personal medical information “having no bearing on the issues in the lawsuit is a substantial and unjustified invasion of privacy.” Kunkel, 179 Ill. 2d at 539, 689 N.E.2d at 1056. The fatal flaw in each case was that the attempted or intended access swept too broadly.
I believe the dissemination of information in this case is unreasonable in two ways. First, the database makes available information about individuals who pose no further danger to the community. Second, the database makes the information available to individuals who have no conceivable need for it. The state interest asserted as justification is the protection of the public from dangerous sex offenders. I have no quarrel with this justification as a general matter. The State has an obligation to protect vulnerable populations. To effectuate this goal the State has mandated the registration of everyone convicted of certain sexual violations. Undoubtedly, those subject to the provisions of the Registration Act and Notification Law are easily distinguishable from the general population, since they have been convicted of a sexual offense. However, there is a clear distinction to be drawn within the group between those who pose a continuing danger to society and those who do not. The problem is that the statute draws no distinction between those two groups.
On one level, the two statutes involve only a minimal invasion of privacy because they only authorize the collection and distribution of information that is already in the public record. If the person actually poses some future danger, this minimal invasion of privacy is reasonable in light of the public interest the legislature has attempted to serve by the passage of the statutes. If, on the other hand, reoffense is highly unlikely, as appears to be the situation with Mr. Grochocki, the privacy invasion is unreasonable.
It is unreasonable to allow the broad dissemination of information about nondangerous former sex offenders, since those individuals retain a privacy interest in the information that is not outweighed by the asserted government interest. Such dissemination does not serve the purpose of the legislation since these individuals pose no danger to the community. Yet the Registration Act and Notification Law do not distinguish between dangerous and nondangerous offenders. Because registration is mandatory and judges are given no discretion to determine which convicted offenders should and which should not be required to register, the statutes sweep too broadly. For these reasons, I believe they violate the privacy guarantee of the Illinois Constitution.
The majority argues that the defendant has no privacy interest in the information contained in the database, because the information is already contained in the public record. Under the majority’s analysis, the State could create a DUI database, a traffic ticket database, a divorce database, or any other database utilizing information from court filings and the public record, without fear of running afoul of the privacy clause.
It could be argued that such databases would be unreasonable and that the State could not articulate a reason to justify them. I am inclined to agree with that analysis, and it conveniently illustrates my point in this case. The State cannot articulate a reason to disseminate information about sex offenders who pose no further threat to the community. The dissemination is only justified if it is tied to a legitimate need. Absent any justification, the dissemination is an unreasonable invasion of privacy. Such is the case here.
I also believe that, even assuming the defendant belongs on the database, the wide dissemination of the database on the Internet violates the privacy clause. By placing the registry on the Internet, the State has made it available to people worldwide. The information is available to those who have no need for it and who are in no danger from even a proven recidivist. Such wide availability does not narrowly serve the governmental purpose of protecting the public from recidivist sex offenders, in part because the information is available to a vast group that has no need for it and derives no legitimate benefit from it. Such extensive dissemination, I believe, is too broad to pass muster under the privacy clause.
The legislature apparently shared this concern when the amendment that created the Internet database was passed. The Notification Law states that “[t]he Department of State Police may require that a person who seeks access to the sex offender information submit biographical information about himself or herself before permitting access to the sex-offender information. The Department of State Police may limit access to the sex-offender information to information about sex offenders who reside within a specified geographic area in proximity to the address of the person seeking the information.” 730 ILCS 152/115 (West 2000). As yet, the Department of State Police has not enacted any limitations. It is apparent, though, that the problem of unlimited access was contemplated by the legislature.
I am unwilling to concede that the State has the unlimited right to create an electronic database of information about a class of individuals, just because that information is contained in the “public record.” This, however, is the position that the majority adopts. The fact that the information is contained in the public record makes little difference to the analysis. The public availability of documents at a courthouse is qualitatively different than a state-created, electronic database made available on the Internet. While an individual does not generally have a privacy interest in public records, I believe that an individual’s privacy interest is implicated by the widespread dissemination at issue here. I find the majority’s argument unpersuasive and I would reverse the trial court.
PROPORTIONATE PENALTIES CLAUSE
The defendant next argues that the Registration Act and Notification Law violate the proportionate penalties clause of the Illinois Constitution. The clause provides 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. A penalty violates the clause if it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community. People v. Bailey, 167 Ill. 2d 210, 236, 657 N.E.2d 953, 966 (1995).
Although the supreme court has held that the Registration Act and the Notification Law are not punitive in nature (Malchow, 193 Ill. 2d at 422-23, 739 N.E.2d at 440; People v. Adams, 144 Ill. 2d 381, 386-90, 581 N.E.2d 637, 640-42 (1991)), those decisions predate the most recent amendments that allow publication of information on the Internet. The issue must, therefore, be addressed anew.
To determine whether a particular state action is punitive in nature, one must engage in a two-part analysis. First, it is appropriate to determine whether the legislature intended for the alleged sanction to be punitive. Malchow, 193 Ill. 2d at 421, 739 N.E.2d at 438. The supreme court has already decided that the legislature intended prior versions of the Registration Act and Notification Law to be nonpunitive in nature. Malchow, 193 Ill. 2d at 421, 739 N.E.2d at 438; Adams, 144 Ill. 2d at 387, 581 N.E.2d at 641. There seems no compelling reason to find differently here. The court reasoned that registration and notification were designed to “create an additional measure of protection” for children and the public. While it is true that the court assumed only limited notification when it reached its conclusion (Malchow, 193 Ill. 2d at 420, 739 N.E.2d at 438), there is no reason to find differently in this case just because the notification requirement is more sweeping. Remaining on the face of the statute is the express desire to protect the public from potential reoffenders. The legislature has expanded the means by which it intends to achieve that goal, but there is no indication that it also intended to create a punitive scheme when it passed the amendments at issue here.
However, a statute may nonetheless be punitive, despite the intent of the legislature. The second part of the analysis requires an examination of the effect of the statute, independent of the legislature’s intent. Even if the legislature did not intend for the “sanction” to be punitive, it will still be found punitive on a finding of the “clearest proof’ that the statute’s effect is so punitive that it negates the legislative intent. Malchow, 193 Ill. 2d at 421, 739 N.E.2d at 439, citing Kansas v. Hendricks, 521 U.S. 346, 361, 138 L. Ed. 2d 501, 515, 117 S. Ct. 2072, 2082 (1997). To make this determination, we examine whether (1) the sanction involves an affirmative disability or restraint, (2) the sanction has historically been regarded as a punishment, (3) the sanction comes into play on a finding of scienter, (4) the operation of the sanction will promote retribution and deterrence, (5) the behavior to which the sanction applies is a crime, (6) an alternative purpose to which the sanction may rationally be connected is assignable to it, and (7) the sanction appears excessive in relation to the alternative purpose assigned. Malchow, 193 Ill. 2d at 421, 739 N.E.2d at 439, citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 661, 83 S. Ct. 554, 567-68 (1963).
The Registration Act and Notification Law do not involve any affirmative restraints or disabilities. They merely require a registrant to file with the Department of State Police and to submit certain information, with a continuing obligation to update some information when it changes. These requirements are not disabilities or restraints, since they do not limit the registrant’s freedom to act but, rather, impose an obligation to perform certain acts. Although it may be argued that registrants suffer from private discrimination because of their inclusion on the database, this argument does not relate to the instant question since it does not describe an affirmative disability created by the statute but rather asserts the existence of speculative collateral consequences. Malchow, 193 Ill. 2d at 422, 739 N.E.2d at 439. Since there are no affirmative restraints, this factor weighs against a finding of punitive effect.
Next, we must determine whether the widespread publication of sex-offender information is something that traditionally has been viewed as punishment. The court in Malchow believed that limited publication was not similar to traditional “public notification” punishments like branding, stockading, pillorying or banishment (193 Ill. 2d at 422, 739 N.E.2d at 439-40), basing its conclusion on the fact that the dissemination was limited to “school boards, child care facilities, and those likely to encounter sex offenders.” Malchow, 193 Ill. 2d at 422, 739 N.E.2d at 439-40. The situation is different here to the extent that we are presented with widespread dissemination on the Internet. The information is not limited to those with an actual need to know, but is available to anyone, regardless of need. Although the “ ‘[dissemination of such information has never been regarded as punishment when done in furtherance of a legitimate government interest’ ” (Malchow, 193 Ill. 2d at 422, 739 N.E.2d at 440, quoting E.B. v. Verniero, 119 F.3d 1077, 1099-1100 (3rd Cir. 1997)), it is my view that it may be punishment if the dissemination does not actually serve the asserted interest. Notification directed at those who have no need for it does not serve the interest of protecting the public. Instead, it is no different from other punishments of public shame, such as pillorying and stockading.
The United States Supreme Court has recently taken a different position on this issue, arguing that wide dissemination of sex-offender information was “not so excessive a regulatory requirement as to become a punishment.” Smith v. Doe, 538 U.S. 84, 105, 155 L. Ed. 2d 164, 185, 123 S. Ct. 1140, 1153 (2003). Specifically, the Court found that the general mobility of state populations created a state interest sufficient to support statewide dissemination. Smith, 538 U.S. at 105, 155 L. Ed. 2d at 185, 123 S. Ct. at 1154. We are not bound by this reasoning, since the State can choose to allow greater protection under its own constitution to its affected citizens, and I would elect not to follow it. In theory, the mobility of the population may create a need for wide dissemination, but when dissemination of the information is directed at those not proximate to the offender, the need is too speculative to render the effect of the statute nonpunitive. Rather, unlimited publication is stigmatizing and humiliating, much like punishments such as stockading and pillorying.
The same is true to the extent that registration and unlimited notification include offenders who present no further danger to the community. With regard to those offenders, the stated governmental interest does not justify notification. There is no need to protect the public from those who pose no further danger. Since the government purpose is not served, the only effect with respect to nondangerous offenders is to punish, by singling out the offender for special scrutiny and public shame. The United States Supreme Court disagrees and has found that the state has a legitimate right to make “reasonable categorical judgments” that the commission of certain crimes result in particular regulatory consequences, without the additional protection of an individualized risk assessment. Smith, 538 U.S. at 103-04, 155 L. Ed. 2d at 184, 123 S. Ct. at 1153. I disagree. Although the State may create rules that apply universally to a specific group, it must still proffer a reasonable justification for doing so. Although sex offenders, statistically, have a higher rate of recidivism than other offenders (Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 4, 155 L. Ed. 2d 98, 103, 123 S. Ct. 1160, 1163 (2003)), this does not mean that potential recidivists cannot be distinguished from other offenders. To the extent that offenders can be identified as presenting no further danger to society, the State cannot articulate a legitimate interest in publicizing their personal information. For these reasons, I believe this factor weighs heavily in favor of finding the statutes punitive.
Next, I believe that the Registration Act and Notification Law apply to acts that are already criminal and only come into effect on a finding of scienter. Only those convicted of sex offenses can be placed on the database, and conversely, once a person has been convicted of a covered sex offense, it is impossible to remain unregistered. In this way, registration and notification are inextricably linked to the commission of the underlying sex crime. Since the underlying crime is so intimately tied together with the registration and notification provisions, the scienter needed to convict one for the underlying offenses is also that necessary to make one subject to the registration and notification statutes. I would find that, under the current statutes, registration and notification are the unavoidable results of a finding of scienter and conviction in the underlying crime. These factors weigh in favor of a finding of punitive effect.
I now consider whether the sanction promotes retribution or deterrence. Other courts have noted that notification statutes may have some deterrent effect, but have concluded that the deterrence was insignificant compared to the government interest served. Smith, 538 U.S. at 102, 155 L. Ed. 2d at 183, 123 S. Ct. at 1152; Malchow, 193 Ill. 2d at 423, 739 N.E.2d at 440. This is arguably true in a case involving limited notification, like Malchow. Here, the unlimited notification, coupled with the failure of the statute to discriminate between dangerous and nondangerous offenders, often serves no other purpose than to deter and exact retribution. I believe this factor supports a finding of punitive effect.
We must also determine whether there is an alternative purpose to notification, other than punishment, that can rationally be associated with the statutes. The alternative purpose advanced here is that the Registration Act and Notification Law allow the public to take precautions against the dangers of recidivist sex offenders. The State argues that the ease with which the public can access offender information on the Internet enhances the ability of the public to protect itself. I believe that this justification can rationally be associated with the acts.
However, we must also determine whether the statutes are excessive in relation to this alternative purpose. I believe that they are. As noted above, the Registration Act and Notification Law make no attempt to distinguish between offenders who present an ongoing danger and those who do not. Also, the acts mandate that the information be widely distributed on the Internet, making the database available to people who have no conceivable need for it. This strikes me as extremely excessive and unwarranted. It would not be difficult to more carefully tailor registration and notification to achieve the interest advanced by the State. Although it may achieve that goal now, it does so while at the same time sweeping too broadly and punishing individuals who should not be subject to the acts. I believe this factor warrants a finding of punitive effect.
Overall, I would find that most of the factors in the Mendoza-Martinez test warrant a finding that the acts, while not intended to be punitive, in fact have punitive effects. Therefore, it is my conviction that Internet dissemination of sex-offender information, in some cases at least, and specifically in the case of David Grochocki, amounts to punishment. Nevertheless, this does not end our inquiry, since we must also determine whether the punishment is disproportionate.
A penalty is disproportionate when it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community. People v. Bailey, 167 Ill. 2d 210, 657 N.E.2d 953 (1995). I believe that the punishment of being placed on the sex-offender Internet database is degrading, to the extent that the resulting notification is more extensive than necessary to serve the State’s asserted interest and to the extent that it includes those within its reach who do not present any further danger to the community. Under those circumstances, notification does nothing more than to humiliate and subject to public scorn those required to register. No interest is served and the punishment, which lasts for at least 10 years past any prison time served, and in some cases for the rest of the offender’s life, is entirely disproportionate to the offense and violates our constitution. I would find that the Sex Offender Registration Act and the Sex Offender and Child Murderer Notification Law violate article I, section 11, of the Illinois Constitution and would reverse the finding of the trial court.
DUE PROCESS
The final constitutional challenge to the Registration Act and Notification Law is that they violate the due process clause of the Illinois Constitution. The constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” Ill. Const. 1970, art. I, § 2. Illinois courts “may, in construing the Illinois Constitution’s guarantee of due process, look for guidance and inspiration to constructions of the Federal due process clause by the Federal courts [; however,] the final conclusions on how the due process guarantee of the Illinois Constitution should be construed are for [Illinois courts] to draw.” Rollins v. Ellwood, 141 Ill. 2d 244, 275, 565 N.E.2d 1302, 1316 (1990).
The defendant argues that community notification represents him as a danger to the community and that the acts do not provide him a method to rebut that presumption. According to the defendant, this violates the “stigma plus” test derived from Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). For the following reasons, I agree.
To state a claim for government defamation, the plaintiff must show (1) the utterance of a statement about him or her that is sufficiently derogatory to injure his or her reputation, (2) that the statement is capable of being proved false, and that he or she claims it is false, and (3) some tangible and material state-imposed burden or alteration of his or her status or of a right in addition to the stigmatizing statement. Paul, 424 U.S. at 701-02, 710-11, 47 L. Ed. 2d at 413-14, 419, 96 S. Ct. at 1160-61, 1165-66.
The defendant contends that the registration and notification requirements of the statutes pose a significant threat to a liberty interest. Specifically, he argues that his inclusion on the sex-offender website asserts by implication that he is a continuing danger to the community and that he is entitled to a hearing to disprove the implication and to have himself removed from the site. Evidence presented at trial tended to indicate that the defendant presents a virtually nonexistent chance of re-offence. Therefore, it is argued, he and those similarly situated deserve an opportunity to prove that they are not a danger to the community. The defendant believes that the implication of dangerousness amounts to a governmental defamation that runs afoul of the Illinois due process guarantee.
The online sex-offender database does not directly assert that those individuals included pose a present danger to the community. However, the website also does not indicate that registrants are not necessarily dangerous. The site is silent on the State’s view of the threat posed by registrants. It is noted, however, that the purpose of sex-offender registration is to protect the public against the danger posed by sex offenders. People v. Malchow, 306 Ill. App. 3d 665, 671, 714 N.E.2d 583, 588 (1999). Absent a concern that those convicted of sex offenses pose some greater threat to the public than the ordinary citizen or indeed the “ordinary” felon, there would presumably be no need for community notification. Implicit in the inclusion of an individual on the sex-offender registration website is an understanding that the registrant presents a heightened threat to the community.
The representation that an individual is a danger to the community because of a prior conviction of a sex offense, without some level of proof that the statement is true, is sufficiently injurious to amount to a governmental defamation. I have no doubt that the allegation that an individual presents a danger to the community, and in particular to the most vulnerable elements of the population, will tend to damage the reputation of the individual at whom the assertion is directed. Those subject to such an assertion may find themselves (and consequently their families) isolated from the mainstream of society and subject to discrimination in employment, housing and in all manner of social interaction. To be clear, I wish to emphasize that the governmental defamation here is not the assertion that an individual has been convicted of a sex offense but, rather, that the individual poses an ongoing danger to society. I would find, then, that inclusion on the Internet database and the related implicit characterization of dangerousness is sufficiently derogatory to meet the first part of stigma plus.
I also would find that the acts impose a tangible and material state-imposed burden or alteration of the registrants’ rights and status. The Registration Act requires those convicted of sex offenses to register with the State and to continually update pertinent information for a fixed period of time. In some cases this period lasts for 10 years, and in other cases, the burden to update lasts for the remainder of the registrant’s life. 730 ILCS 150/7 (West 2002). Registrants are required to notify the State when they move or change jobs (730 ILCS 150/6 (West 2002)) and are required to submit and update photographs (730 ILCS 150/8 (West 2002)). These burdens are not shared by the rest of the population, not even by the rest of the criminal population, but represent a significant state-imposed intrusion into the lives of registrants. They are sufficient to satisfy the second element of the stigma plus test.
I do not dispute that community notification can be a valuable tool for protecting vulnerable populations from recidivist sex offenders. Without a doubt, there are individuals who pose a significant danger to the public. This concern has led to the enactment of similar notification laws in each of our sister states. Doe v. Department of Public Safety, 271 F.3d 38, 42 (2d Cir. 2001). That being said, the State casts the net too broadly when it requires registration and online notification of convicted sex offenders who present no further threat to the community. Especially onerous is the fact that the notification is directed to the entire world community, rather than targeted to segments of the population that are potentially threatened by recidivist sex offenders.
It is my conclusion that registrants are entitled to an opportunity to prove that they are not a danger to society, and are not at risk to reoffend, and to have themselves exempted from the requirements of the Registration Act and Notification Law. I am mindful of recent United States Supreme Court precedent that would appear to reach a different conclusion than the one I have reached today. See Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 155 L. Ed. 2d 98, 123 S. Ct. 1160 (2003).
As a preliminary matter, I note that Doe is not binding, since the defendant’s claims are based on protections provided by the Illinois Constitution. Even were that not the case, however, Doe is factually distinguishable from this case. In arriving at its decision, the Court in Doe relied heavily on the fact that the Connecticut sex-offender database website explicitly stated that the state had not determined, and made no representations, that registrants posed a danger to the community. The Connecticut statute itself contained a similar disclaimer. Doe, 538 U.S. at 5, 155 L. Ed. 2d at 103-04, 123 S. Ct. at 1163. As already mentioned, the Illinois website and statute do not contain disclaimers. Instead, registrants are included in the database without comment, allowing the reasonable conclusion by the viewer that those included are a danger to the public.
Also, I have serious doubts as to whether a disclaimer of any kind would be sufficient to rebut the presumption of dangerousness that inheres in the fact of inclusion in the database. The Court noted that the Connecticut legislature has made a determination that registrants should be in the database “solely by virtue of their conviction record and state law” (emphasis omitted) (Doe, 538 U.S. at 7, 155 L. Ed. 2d at 105, 123 S. Ct. at 1164, quoting Noe v. Department of Public Safety, 271 F.3d at 44). The Court concludes that the question of whether a registrant is currently dangerous is not relevant to the statutory scheme and therefore not relevant to due process. Doe, 530 U.S. at 7, 155 L. Ed. 2d at 105. 123 S. Ct. at 1165.
I believe the Court’s reasoning ignores the fact that statutes of this kind are premised on the unstated understanding that convicted sex offenders pose a greater threat to the public than other individuals. Otherwise, there would be no need to notify the public of their presence in the community. The Connecticut statute, like the statutes in Illinois, has created a rigid distinction in which convicted sex offenders are presumed dangerous enough to warrant the inclusion of a picture, address, and other identifying information on an Internet website. While I believe that the State may be warranted in requiring registration and notification in cases where an actual or probable risk of harm exists, it is not justified in requiring the registration of individuals who pose no further danger. This violates due process. Without the possibility of an individualized determination of the danger posed by registrants, I conclude that the registration requirement is too broad, even in the presence of a disclaimer like the one in Doe. On this point, I respectfully disagree with the majority’s finding that the acts, as amended, do not violate due process, and I would reverse on this issue.
CONCLUSION
For the foregoing reasons, I would find that the Illinois Sex Offender Registration Act and the Illinois Sex Offender and Child Murderer Community Notification Law violate the privacy, proportionate penalties and due process clauses of the Illinois Constitution. The acts implicitly assert that registrants pose a danger to the community, which may or may not be true. Registrants must be allowed an opportunity to rebut the presumption of dangerousness and to demonstrate, if possible, that they pose no further threat to the community. If registrants do not pose a further danger to the community, they have an interest in the privacy of their personal information that outweighs the State’s interest in its disclosure. Also with respect to privacy, Internet publication is, by its very nature, far more extensive than required to serve the governmental purpose and is therefore unreasonable. Furthermore, to the extent that the database includes those who are not a danger to the community, the Registration Act and Notification Law punish those individuals in a manner disproportionate to the crime for which they were originally convicted. As I would have found that the Registration Act and Notification Law violate the Illinois Constitution, I would not have reached the defendant’s sentencing challenge. I respectfully dissent.