People v. Pepitone
2018 IL 122034
Ill.2018Background
- In 1998 Marc Pepitone pleaded guilty to predatory criminal sexual assault of a child and was sentenced to six years’ imprisonment.
- In 2013 police discovered Pepitone in a municipal park; he was arrested for violating 720 ILCS 5/11-9.4-1(b), which makes it unlawful for a sexual predator or child sex offender to knowingly be present in any public park building or on public park property.
- Pepitone moved to dismiss asserting a facial substantive due process challenge; the trial court denied the motion, a jury convicted him, and he received conditional discharge and community service.
- The appellate court reversed, holding section 11-9.4-1(b) facially invalid under substantive due process as overbroad and criminalizing innocent conduct by barring mere presence in parks.
- The Illinois Supreme Court granted review to decide whether the statute is facially violative of substantive due process and ultimately reversed the appellate court, upholding the statute under rational-basis review and remanding for consideration of Pepitone’s as-applied ex post facto claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 720 ILCS 5/11-9.4-1(b) is facially violative of substantive due process | Pepitone: statute criminalizes innocent conduct (mere presence in parks), is overbroad and not reasonably related to protecting children | State: legislature has legitimate interest in protecting children; barring certain sex offenders from parks is rationally related to that interest | Statute upheld: not facially unconstitutional under substantive due process; rational-basis review satisfied |
| Whether the statute is unconstitutionally overbroad or lacks culpable mental state | Pepitone: statute reaches vast innocent activities and lacks mens rea, akin to prior cases invalidating laws that punish innocent conduct | State: statute targets status/condition (convicted child sex offender) as element; conduct is knowingly being present, so not analogous to statutes condemning innocent conduct | Overbreadth argument rejected: statute imposes liability on a class (convicted offenders); rational relation to legislative goal exists |
| Applicability of precedents invalidating laws for criminalizing innocent conduct | Pepitone: appellate majority relied on those precedents to strike the statute | State: those precedents are inapplicable where statute regulates conduct by convicted offenders and where rational basis exists | Court distinguishes precedent: statutes here are permissible under deferential rational-basis review |
| Need for remand on ex post facto as-applied claim | Pepitone requested remand if facial claim rejected | State did not oppose remand | Court remanded to appellate court to address ex post facto as-applied challenge |
Key Cases Cited
- People v. Madrigal, 241 Ill. 2d 463 (2011) (invalidating a statute that criminalized substantial amounts of innocent conduct)
- People v. Minnis, 2016 IL 119563 (2016) (recognizing legislature’s authority to address sex-offender recidivism and deferring to legislative judgments)
- Smith v. Doe, 538 U.S. 84 (2003) (discussing legislative concerns about sex-offender recidivism)
- McKune v. Lile, 536 U.S. 24 (2002) (plurality opinion referencing high risk of recidivism among sex offenders)
- Collins v. City of Harker Heights, 503 U.S. 115 (1992) (distinguishing substantive and procedural due process principles)