Putting the Brakes on the Preventive State: Challenging Residency Restrictions on Child Sex Offenders in Illinois under the Ex Post Facto Clause

2011 Illinois:

State laws restricting where convicted sex offenders can legally reside first came into common use in the mid-1990s.2 Since then, a number of states and municipalities, including Illinois, have implemented restrictions prohibiting sex offenders3 from living within certain distances from schools, parks, and other areas where children gather.4 These prohibited distances range from 500 to 2000 feet,5 and often encircle multiple entities within a community. As a result, sex offenders are often severely limited as to where they can legally reside. These laws have forced some offenders to remain in prison6 or live in makeshift tent cities because there is nowhere else for them to live.7 In Georgia, for example, state probation officials advised sex offenders to live in a muddy camp on the outskirts of the county until they could locate a legally permissible home.8 In Florida, some sex offenders were forced to live under a remote bridge because they could not find housing that complied with the county‘s residency law.9 In Illinois, 1000 sex offenders are currently eligible for parole but the state refuses to release them from prison because they cannot secure suitable housing.10 These are but some consequences of the increasingly strict regulatory scheme confronting sex offenders in the United States today.

This Comment explores whether a viable challenge to residency restrictions on child sex offenders in Illinois exists under the ex post facto clauses of the federal and state constitutions. It also recounts the history of sex offender regulation in Illinois and explores the social and political environment that fostered the emergence of residency restrictions in the state. Part I provides a brief overview of the history and purpose of the ex post facto clause. It also highlights the recent resurgence of preventive lawmaking; that is, laws that work to prevent crime rather than detect and investigate it, and laws that impose direct restraints on the liberty of those considered particularly dangerous by the state. Part II briefly recounts the legislative history of sex offender regulation in Illinois, and provides an overview of the political and social realities that shaped the legislative debate. Part III uses recent state court decisions in Illinois, Indiana, and Kentucky to evaluate the constitutionality of residency restrictions on child sex offenders in Illinois, ultimately arguing that such restrictions violate the ex post facto clauses of the federal and state constitutions. Finally, this Comment concludes by considering the need for judicial intervention given the resurgence of the preventive state.

For the remainder of this paper: by Michelle Olson