IL- Juveniles can be required to register as sex offenders

10-9-2009 Illinois:

The supreme court held that registration is not punishment and that juveniles can be required to register even though they aren’t entitled to a jury trial on the charges.

The Sex Offender Registration Act, 730 ILCS 150/1 et seq, is not unconstitutional as applied to juvenile offenders, the Illinois Supreme Court has held. The case is Birkett v Konetski, No 102667, 2009 WL 1416070.

Trial court ruling: juveniles not required to register

Jared P., a minor, was adjudicated delinquent after a bench trial for committing the offenses of criminal sexual assault and criminal sexual abuse. At his sentencing hearing, he argued that he should not be required to register under the Sex Offender Registration Act, 730 ILCS 150/1 et seq, because he was not entitled to a jury trial on the charges, which subjected him to an adult sentencing scheme, including the duty to register.

The circuit judge placed the minor on probation until the age of 21 and found that requiring a person to register as a sex offender is sufficiently serious that the right to a jury trial should attach. The judge declined to require the minor to register as a condition of his probation.

The state unsuccessfully moved to reconsider and then filed a mandamus action with leave of the Illinois Supreme Court. In the meantime, the minor appealed, and the appellate court modified the dispositional order to reflect an adjudication of a single count of criminal sexual assault.

The supreme court noted that the Sex Offender Registration Act classifies a juvenile adjudicated delinquent for committing the offense of criminal sexual assault as a “sex offender.” 730 ILCS 150/2(A)(5), (B)(1). Sections 3 and 3-5(a) of that statute mandate registration for adult and juvenile sex offenders, and section 5 requires circuit judges to notify sex offenders released on probation of their duty to register, the court observed.

The circuit judge had no discretion to decline to comply with the statute’s reg istration requirements, the court said, and his order exempting Jared P. from the registration requirement was in clear violation of the statute’s plain language. Therefore, the court found, the matter met the requirements for mandamus.

Supreme court: registration not punishment

The court then proceeded to consider the minor’s constitutional arguments against registration. First, it discussed whether PA 95-658 and PA 94-168, both of which were enacted after the minor’s delinquency adjudication, applied retroactively to him and, if so, whether retroactive application violated his constitutional rights to procedural due process and against cruel and unusual punishment, disproportionate penalties, and ex post facto laws.

In PA 95-658, the legislature added section 3-5 to the statute, requiring juvenile sex offenders to register but also providing for termination of registration under certain circumstances. PA 94-168 changed the meaning of “sexual predator” to provide that any person convicted of criminal sexual assault after July 1, 1999, falls within that classification. Both acts applied to the minor, the court found.

The court found that requiring the minor to register as a sex offender is not comparable to the imprisonment an adult would receive for conviction of the same offense. Though the minor argued that the registration requirements constrained his liberty, including his freedom to travel and to associate with others, the court noted that he was never required to serve any detention but was merely placed on probation.

The court also reaffirmed its prior holdings that the statutory registration requirements do not constitute punishment. Rather, it said, the registration statute is regulatory in nature, intended to foster public safety.

Furthermore, the court noted, the amendments of PA 95-658 significantly mitigated the impact of the registration requirement on the minor. It did so by eliminating the provisions that would have required him to register as an adult when he reached age 17 and gave minors the right to petition for termination of registration after five years – a right not available to adults.

For all of those reasons, the court found that the minor’s registration obligation was not sufficiently burdensome to mandate the right to a jury trial.

Because registration is not a punishment, the court also found that the registration act violates neither the Eighth Amendment’s prohibition against cruel and unusual punishment nor the proportionate penalties clause of the Illinois Constitution. For the same reason, the court rejected the minor’s argument that PA 94-168’s working to reclassify him from a sex offender to a sexual predator violated the ex post facto provisions of the federal and state constitutions.

Finally, the court declined to grant the minor’s request for a supervisory order allowing him to petition for removal from the sex offender registry five years after the date he should have been ordered to register instead of five years from the date the circuit judge actually advises him of his duty to register in accordance with the mandamus order of the supreme court. The court granted the state mandamus relief and directed the circuit judge to vacate the order exempting the minor from registration and to advise him of his duty to register as an offender under the Sex Offender Registration Act. ..Source.. by Helen Gunnarsson, Lawpulse