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People v. Malchow

September 21, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. CARL MALCHOW, APPELLANT.


The opinion of the court was delivered by: Justice Rathje

Agenda 15-May 2000.

At issue in this appeal is whether defendant has met his burden of showing that the Sex Offender Registration Act (Registration Act) (730 ILCS 150/1 et seq. (West 1998)) and the Sex Offender and Child Murderer Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 1998)) are unconstitutional. We hold that he has not.

BACKGROUND

On December 17, 1997, the State indicted defendant, Carl Malchow, with one count of failure to register as a sex offender (730 ILCS 150/10 (West 1998)). The State alleged that defendant was required to register as a sex offender because of his 1988 conviction of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12-16). Defendant moved to declare the Registration Act and the Notification Law unconstitutional. The trial court denied the motion. Following a stipulated bench trial, the court found defendant guilty. The court sentenced him to 18 months' conditional discharge and fined him $500. Defendant appealed, and the appellate court affirmed defendant's conviction. The court reaffirmed its earlier holding in People v. Logan, 302 Ill. App. 3d 319 (1998), that the Registration Act and the Notification Law are constitutional. 306 Ill. App. 3d 665. The court, however, reversed defendant's sentence because it was illegal and void. Because the trial court failed to sentence defendant to the mandatory minimum of seven days' confinement in the county jail, the appellate court remanded the cause for resentencing. 306 Ill. App. 3d 676. We granted defendant's petition for leave to appeal to determine whether the Registration Act and the Notification Law are constitutional.

Defendant argues that the Registration Act and the Notification Law are unconstitutional for the following reasons: (1) they violate the constitutional prohibition against the ex post facto application of laws; (2) they impose cruel, unusual, and disproportionate punishment; (3) they impermissibly infringe upon a person's right to privacy; (4) they subject a defendant to double jeopardy; (5) they violate the due process and equal protection clauses; and (6) Public Act 89-8, which made the Registration Act and Notification Law applicable to defendant, was passed in violation of the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)).

The Registration Act and Notification Law set out a comprehensive scheme providing for the registration and community notification of sex offenders. Pursuant to the Registration Act, all persons who are sex offenders (730 ILCS 150/2(A) (West 1998)) under the Act are required to register with local law enforcement officials (730 ILCS 150/3 (West 1998)). The category of sex offenders includes any person who is convicted of one of the Registration Act's enumerated sex offenses or who is certified as a sexually dangerous person pursuant to the Sexually Dangerous Persons Act (725 ILCS 205/0.01 et seq. (West 1998)).

The registrant must provide identification and documentation that substantiates proof of residence at the registering address and must pay a $10 registration fee and $5 annual renewal fee. *fn1 730 ILCS 150/3(c)(6) (West 1998). Additionally, the registrant must provide a written and signed statement, and registration may also include the registrant's fingerprints and photograph. 730 ILCS 150/8 (West 1998). Registrants must keep law enforcement officials notified of any change in address and must report periodically to the appropriate law enforcement agency. 730 ILCS 150/6 (West 1998). The duty to register lasts for 10 years after a conviction, or, in the case of a sexually dangerous person who is released or found to be no longer sexually dangerous and discharged, for the rest of his or her natural life. 730 ILCS 150/7 (West 1998). Failure to comply with the Registration Act is a Class 4 felony. 730 ILCS 150/10 (West 1998).

Pursuant to the Notification Law, the Department of State Police is required to maintain a sex offender database for the purpose of identifying sex offenders and making information about them available to the persons specified in the Act. 730 ILCS 152/115 (West 1998). The appropriate law enforcement agency is responsible for disclosing the name, address, date of birth, and offense or adjudication of all sex offenders required to register pursuant to the Registration Act. The information is disclosed to the school board, school principals, and child care facilities in the county where the offender resides. 730 ILCS 152/120(a) (West 1998). Additionally, that same information may be disclosed to any person likely to encounter a sex offender (730 ILCS 152/120(b) (West 1998)), and the information is also made available for public inspection at municipal police departments and county sheriff's offices. 730 ILCS 152/120(c) (West 1998).

ANALYSIS

Standard of Review

A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity. In re K.C., 186 Ill. 2d 542, 550 (1999). This court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it can be reasonably done. People v. Fisher, 184 Ill. 2d 441, 448 (1998). Whether a statute is constitutional is a question of law that we review de novo. Fisher, 184 Ill. 2d at 448.

Ex Post Facto Law

Defendant first argues that the Registration Act and the Notification Law violate the constitutional prohibitions against ex post facto laws. 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 assure that statutes give fair warning of their effect. Fletcher v. Williams, 179 Ill. 2d 225, 229 (1997). A law is ex post facto if it is both retroactive and disadvantageous to the defendant. Fletcher, 179 Ill. 2d at 230. A law disadvantages a defendant if it 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. People v. Franklin, 135 Ill. 2d 78, 107 (1990).

There is no question that the Registration Act and the Notification Law have retroactive effect. At the time of defendant's offense, he was not required to register as a sex offender. Under the version of the Act at issue in this case, he is required to register. See 730 ILCS 150/2(A)(1), (B)(1), 3(c)(2) (West 1998).

Defendant further contends that the Registration Act and the Notification Law disadvantage him because they increase the punishment for previously committed offenses. Resolution of this contention turns on the question of whether the provisions of the Registration Act and the Notification Law constitute punishment. In People v. Adams, 144 Ill. 2d 381 (1991), we upheld an earlier version of the Registration Act. As part of that decision, we held that requiring sex offenders to register is not punishment. Adams, 144 Ill. 2d at 386-90. Adams does not completely dispose of defendant's argument, however, because the community notification provisions were not in effect at the time of that decision. We thus consider defendant's ex post facto argument as it relates to the Notification Law.

In Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), the United States Supreme Court considered whether Kansas' Sexually Violent Predator Act constituted punishment. The defendant in that case argued that the Kansas law violated the ex post facto clause because it imposed additional punishment for past conduct for which he had already been convicted and forced to serve a prison sentence. The Supreme Court first considered the legislative intent behind the law and held that the Kansas legislature intended to create a civil commitment scheme. Hendricks, 521 U.S. at 361, 138 L. Ed. 2d at 515, 117 S. Ct. at 2082. The Supreme Court then examined several factors to determine whether the law had a punitive effect despite its non-punitive intent, and concluded that it did not. Hendricks, 521 U.S. at 362-69, 138 L. Ed. 2d at 515-19, 117 S. Ct. at 2082-85. Subsequently, several states have used the "intent-effects" test to determine whether sex offender registration and/or notification laws amount to punishment in violation of the ex post facto clause. See, e.g., Keller v. Fayetteville Police Department, 339 Ark. 274, 5 S.W.3d 402 (1999); People v. Logan, 302 Ill. App. 3d 319, 327-31 (1998); State v. Pickens, 558 N.W.2d 396 (Iowa 1997); State v. Cook, 83 Ohio St. 3d 404, 700 N.E.2d 570 (1998); Meinders v. Weber, 604 N.W.2d 248 (S.D. 2000).

We first consider the legislative intent behind the Notification Law. In Adams, we held that the legislature's intent in requiring registration of sex offenders was to create an additional measure of protection for children from the increasing incidence of sexual assault and child abuse. Adams, 144 Ill. 2d at 387. We likewise believe that protection of the public, rather than punishing sex offenders and child murderers, is the intent of the Notification Law.

Defendant argues that public notification is the modern day equivalent of "branding and shaming," and that "historically, stigmatization and banishment have been considered punitive measures." A simple reading of the act shows, however, that the intent of the Notification Law is not to stigmatize and shame sex offenders. Rather, the Act is carefully tailored so that the information is disseminated in such a way to protect the public. The name, address, date of birth, and offense or adjudication of sex offenders is given to school boards and child care facilities. Additionally, the information may be given to anyone likely to encounter a sex offender. Otherwise, the information, which is already a matter of public record, is kept at law enforcement headquarters and is available on request. The limited dissemination of the information clearly demonstrates that the Notification Law is intended to protect the public rather than to punish sex offenders.

Even if the legislature's intent is not to create a punitive scheme, in certain circumstances the legislature's intent will be disregarded where the party challenging the statute demonstrates by "the clearest proof" that the statute's effect is so punitive that it negates the legislature's ...


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