CCRC files amicus brief in Illinois sex offender case

The CCRC has filed an amicus brief in the Illinois Supreme Court in support of the appellant in People v. Bingham, a case challenging the constitutionality of a state law requiring registration as a “sexual predator” based on the commission of a non-sexual offense.  The relevant facts of the case are as follows.

Jerome Bingham was convicted of attempted sexual assault in 1983 and served several years in prison on that charge.  At the time, Illinois did not have a sex offender registration requirement.  Thereafter, Bingham was convicted of a number of petty drug and theft offenses.  In 2012, Illinois enacted an amendment to its sex offender registration act (SORA) providing that its registration requirement would apply retroactively to anyone who had previously committed a qualifying sex offense and, subsequent to the 2012 act, committed any felony.  In 2013, Bingham stole goods worth $72 from a K-Mart storage lot.  Although this would ordinarily have been a misdemeanor, the fact that he had a prior similar offense permitted it to be charged as a felony, which it was, thereby subjecting him to the sex offender registration requirement.

Bingham contends that (a) it is irrational, and therefore a violation of Due Process under the state and federal constitutions, to subject him to sex offender registration based on his commission of an offense that has no sexual component whatsoever; and (b) that the retroactive imposition of the registration requirement to a sex offense committed before the enactment of the statute violates the Ex Post Facto Clause. The latter question turns on whether the kind of sex offender registration called for by the 2012 statute constitutes punishment or not; if the consequences are deemed civil, ex post facto restrictions would not apply.

CCRC’s amicus brief focuses primarily on the irrationality of labeling Bingham as a sex predator, and requiring him to register for life, when he has not committed any sex offense for more than 30 years.  In this regard, it argues that research casts doubt on the reasonableness of SORA’s methods for protecting the public from repeat sexual offenders, instead showing that the collateral consequences of registration tend to promote, rather than discourage, recidivism.

The brief also argues that the enhanced burdens imposed under the 2012 SORA amendments convert it to a punitive statute that is invalid under ex post facto prohibitions.  While the Supreme Court upheld a retroactive registration requirement against an ex post facto challenge in 2003, in recent years several state supreme courts and at least one federal court of appeals have invalidated enhanced registration requirements on ex post facto grounds.  We believe it is likely that the issue will make its way back to the Court in the not-too-distant future.