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09/22/94 JOHN DOE v. TERRENCE GAINER

September 22, 1994

JOHN DOE, APPELLEE,
v.
TERRENCE GAINER, DIRECTOR OF STATE POLICE, ET AL., APPELLANTS.



Nickels

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

This appeal presents the issue of the constitutionality of sections 5-4-3(a)(3) and (c) of the Unified Code of Corrections (Code) (730 ILCS 5/5-4-3(a)(3), (c) (West 1992)). Section 5-4-3 requires persons convicted of sexual offenses to submit a specimen of blood for genetic marker indexing. Sections 5-4-3(a)(3) and (c) require prisoners convicted of sexual offenses before the enactment of section 5-4-3 to provide the required specimensof blood prior to their release from prison. Plaintiff filed suit pro se seeking a ruling that the sections were unconstitutional and the circuit court of Johnson County so held. We reverse.

Facts

Plaintiff is an inmate at the Shawnee Correctional Center serving an indeterminate sentence of 20 to 60 years for convictions in 1973 of rape and deviate sexual assault. Plaintiff is eligible for parole and has received annual parole hearings. In November 1992, the medical staff at the correctional center attempted to obtain a specimen of blood from plaintiff pursuant to section 5-4-3 of the Code. Plaintiff refused to provide the required specimen and thereafter filed suit pro se on December 30, 1992, seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and section 2-701 of the Civil Practice Act (42 U.S.C. § 1983 (1988); 735 ILCS 5/2-701 (West 1992)). Defendants are the Director of the Illinois State Police and the Director of the Illinois Department of Corrections.

Plaintiff asked the circuit court to declare section 5-4-3(c) unconstitutional as applied to him and to enjoin defendants from enforcing the blood requirement against him. Specifically, plaintiff argued that section 5-4-3(a)(3) of the Code applied the blood specimen requirement of section 5-4-3 retroactively to him. Plaintiff also argued that section 5-4-3(c) prohibited his release on parole until he surrendered a specimen of blood. Plaintiff concluded that sections 5-4-3(a)(3) and (c) acted together to violate: (1) the prohibition of ex post facto laws by constricting his ability to earn parole or release, thereby making more onerous the punishment for his crimes committed before the sections' enactment; and (2) principles of due process by threatening his liberty interests in discretionary and mandatory parole.

The trial court agreed with plaintiff and ordered:

"That the retroactivity provision of (former) Ill. Rev. Stat., Ch. 38, Par. 1005-4-3(a)(3)(c) [sic] (now) 730 ILCS 5/5-4-3(a)(3)(c) [sic] be and is declared void as being violative of the ex post facto and due process clauses of the Constitutions of the United States and Illinois as applied to the plaintiff for the reasons set forth in plaintiff's complaint[.]"

The trial court further enjoined defendants and their agents from denying plaintiff's final discharge, parole, or release pursuant to sections 5-4-3(a)(3) and (c) due to plaintiff's refusal to provide a blood specimen, and ordered any references to plaintiff's refusal to submit a specimen of blood expunged from his prison master record file. The court also denied the Prisoner Review Board (Board) access to the information.

The State appealed the trial court's decision directly to this court pursuant to Supreme Court Rule 302(a), which provides for direct review where a trial court has declared a statute of Illinois or the United States invalid. (134 Ill. 2d R. 302(a).) We note that the trial court's order found sections 5-4-3(a)(3) and (c) void as applied to plaintiff. However, because the pertinent provisions in sections 5-4-3(a)(3) and (c) apply only to prisoners such as plaintiff who were convicted of a sexual offense prior to the enactment of section 5-4-3, we find the court de facto found those provisions invalid on their face.

Section 5-4-3: Genetic Marker Indexing

Section 5-4-3 of the Code establishes a databank consisting of the genetic identity of persons convicted of sexual offenses or institutionalized as sexually dangerous persons. This information is to be maintained by the Illinois Department of State Police and is to be used only by law enforcement officials.

Sections 5-4-3(a)(3) and (c)

Section 5-4-3(a)(3) requires a blood specimen to be ...


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