When the constitutionality of a law is challenged, the most critical factor is the test used by the court in deciding whether it passes scrutiny. If it’s strict scrutiny, the law almost always gets crushed. But then, strict scrutiny is reserved for laws that implicate fundamental rights, which are fundamental because the Supremes say they are.
Last week the Illinois Supreme Court upheld a state law banning sex offenders from public parks, overturning a 2017 appeals court ruling that deemed the statute “unconstitutional on its face because it bears no reasonable relationship to protecting the public.” The seven members of the higher court unanimously disagreed, saying, “We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.”
In reaching that conclusion, the justices relied on alarming claims about recidivism among sex offenders, even while acknowledging that the claims have been discredited.
Meet the rational basis test.
Thus, the proper gauge for his substantive due process claim is the so-called rational basis test. Rizzo, 2016 IL 118599, ¶ 45 (“When legislation does not affect a fundamental constitutional right, this court, in a due process analysis, applies the rational basis test to determine the legislation’s constitutionality.”). Under that test, our inquiry is twofold: “[W]e must determine whether there is a legitimate state interest behind the legislation, and if so, whether there is a reasonable relationship between that interest and the means the legislature has chosen to pursue it.”
Much as strict scrutiny proves fatal to laws, rational basis is a big ol’ rubber stamp, where any argument that isn’t totally batshit crazy, and a few that are, will suffice. And People v. Pepitone certainly shows it.
Under Section 11-9.4-1(b) of the Illinois Criminal Code, “It is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.” In 2013 Marc Pepitone, who served a six-year prison sentence after pleading guilty to sexual assault of a child in 1998, was arrested for walking his dog in Bolingbrook’s Indian Boundary Park. In addition to dog walking, the Third District Appellate Court noted when it overturned Pepitone’s conviction, the law he violated criminalizes “a wide swath of innocent conduct” in public parks, including hiking, photography, bird watching, fishing, swimming, and bicycling; “attending concerts, picnics, rallies, and Chicago Bears games at Soldier Field”; and visiting “the Field Museum, the Shedd Aquarium, the Art Institute, the Adler Planetarium, or the Museum of Science and Industry, all of which are public buildings on park land.”
Absurdly overbroad? Ridiculously burdensome? Even more importantly, grounded in utterly false recidivism claims that have been thoroughly debunked? The intermediate court took note of this and rejected the law. Not so fast, the Illinois Supreme Court held.
The Illinois Supreme Court also thinks recidivism rates are relevant but is willing to accept whatever legislators say on the subject, even when there is no evidence to support it. “The State asserts that sex offenders have high rates of recidivism,” Justice Theis writes. “Those rates have been widely accepted by courts across the country, including the United States Supreme Court, which has mentioned ‘a frightening and high risk of recidivism’ for convicted sex offenders.” But that widely cited quote from Justice Anthony Kennedy, which comes from the plurality opinion in the 2002 case McKune v. Lile, was based entirely on an unverified claim in a 1986 Psychology Today article by a therapist who has repudiated it, saying he is “appalled” at the lingering impact of his three-decade-old estimate.
This is where the law gets all weird for people who are capable of logic. If a “fact” isn’t, in fact, a fact, then how can it form the basis for a rational decision? Oh, you non-lawyers, you.
The problem for the defendant is that, regardless of how convincing that social science may be, “the legislature is in a better position than the judiciary to gather and evaluate data bearing on complex problems.” Minnis, 2016 IL 119563, ¶ 41. Simply put, we are not a superlegislature.
So applying the test, the state has a legitimate interest in protecting children from sex predators, and there is a reasonable relationship between that legitimate interest and the law prohibiting sex offenders from being anywhere near children. But does the basis for the legislature’s decision, nonsensical and false recidivism rates, make the relationship unreasonable?
Legislatures make decisions for a great many reason, a great many of which are nonsensical. Elected officials don’t have to be intelligent or rational. Not even a little bit. They just have to get elected. That’s how our representative democracy works, and we’re inundated with laws that appeal to feelings without regard to effectiveness, unintended consequences or, as in this case, facts.
If someone can persuasively argue it, and other representatives decide they can make hay with it, they enact it. And their constituents love them to pieces for “doing something,” even if the something they do fails to fix the problem or causes far worse harm than they started with. That’s the point of legislatures, to make laws, whether good or bad, wise or foolish. We elect them and get what they give us, good and hard.
So was the Supreme Court right in its “simple” demurrer, “we are not a superlegislature”? When the legislature makes clear that its action is predicated on an ignorant falsehood, then its law would be arbitrary and capricious. Consider, for example, a law that was grounded in the earth being flat, or the sun rising in the west. Could any law be rational when premised on something that was clearly and undeniably false?
And that’s where the rational basis test rears its incredibly ugly head. If a legislature enacts a law that would be otherwise rational, but for the fact that it relies on a lie, then the legislature has completely blown its responsibility not to be dumber than dirt, but legislators are entitled to be useful idiots. Hey, we elected them. Maybe we should have given their capacity to employ facts and logic some more thought before pulling the lever.
Then again, the Illinois Supreme Court knows damn well that it’s the stop gap for arbitrary and capricious laws that deprive people of their constitutional rights because enough dumbasses in the legislature decided the earth was flat and sex offenders posed a threat to children based upon fake numbers.