People v. Pepitone
75 N.E.3d 297
Ill. App. Ct.2017Background
- Marc A. Pepitone, a convicted child sex offender (1999 predatory criminal sexual assault of a child), was arrested in March 2013 after a Bolingbrook officer found him in a public park and told him he was forbidden from park property; Pepitone said he was unaware of any ban.
- He was charged under 720 ILCS 5/11-9.4-1(b) (2012) (it is unlawful for a sexual predator or child sex offender to knowingly be present in any public park building or on public park property).
- At trial the State introduced Pepitone’s prior conviction; a jury found him guilty. He received 24 months conditional discharge, 100 hours of community service, and fines.
- Pepitone moved to dismiss pretrial on constitutional grounds (substantive due process and ex post facto); the trial court denied the motion. He appealed after conviction.
- The Third District appellate majority held section 11-9.4-1(b) facially unconstitutional under substantive due process (rational-basis review) because it criminalizes vast amounts of innocent conduct and is not reasonably tailored to protecting the public/children. The court reversed the conviction.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Pepitone) | Held |
|---|---|---|---|
| Whether 720 ILCS 5/11-9.4-1(b) is facially unconstitutional under substantive due process (rational basis) | Statute reasonably furthers public safety by keeping convicted child sex offenders away from parks where children may be present | Total banishment from all public parks at all times sweeps too broadly, criminalizing innocent conduct unrelated to any risk of reoffense | Court: Statute is facially unconstitutional — it lacks a reasonable relationship to its protective purpose and criminalizes innocent conduct |
| Whether statute violates ex post facto clause because prior conviction predated statute | (Argued by State in defense) enforcement is proper against those with qualifying prior convictions | Pepitone argued retroactive punishment; statute imposes new burdens based on prior conviction | Court did not reach ex post facto claim because facial invalidity resolved the appeal |
Key Cases Cited
- People v. Wick, 107 Ill. 2d 62 (1985) (statute struck for criminalizing innocent conduct absent unlawful purpose)
- People v. Zaremba, 158 Ill. 2d 36 (1994) (statute invalid for lacking culpable mental state and reaching innocent conduct)
- In re K.C., 186 Ill. 2d 542 (1999) (statute imposing absolute liability struck for covering innocent acts)
- People v. Wright, 194 Ill. 2d 1 (2000) (record-keeping statute invalid where it criminalized innocent lapses)
- People v. Carpenter, 228 Ill. 2d 250 (2008) (statute criminalizing possession of vehicles with secret compartments struck for sweeping innocent privacy-protecting conduct)
- Doe v. City of Lafayette, 377 F.3d 757 (7th Cir. 2004) (discussed as distinguishable — individualized ban justified where evidence showed specific danger)
- People v. Falbe, 189 Ill. 2d 635 (2000) (statute must be reasonably designed to remedy the evils targeted by legislature)