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Writing Sex Offender Laws Based on Fake Recidivism Numbers Is Rational, Court Says

The Illinois Supreme Court unanimously upholds a law banning sex offenders from public parks.

Wikimedia Commons / Albert HerringWikimedia Commons / Albert HerringLast 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. The decision, written by Justice Mary Jane Theis, shows how fear overrides logic in dealing with sex offenders and how toothless "rational basis" review can be, allowing legislators not only to draw their own judgments but to invent their own facts.

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."

Despite the park ban's substantial and lifelong impact on the recreational options of sex offenders, Pepitone did not claim the law implicated a "fundamental liberty interest." It was therefore subjected to rational basis review, a highly deferential test requiring only a rational relationship between the law and a legitimate government objective. In concluding that the law failed even that test, the appeals court noted (among other things) that "the statute places individuals who are highly unlikely to recidivate in the same category as serial child sex offenders."

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.

Kennedy said "the rate of recidivism of untreated offenders has been estimated to be as high as 80%." Urging passage of the Illinois park ban, a state legislator claimed sex offenders commit new crimes "40 or 50 or 60 percent of the time." Studies that track sex offenders after they are released from prison find much lower recidivism rates. A 2014 meta-analyis covering almost 8,000 sex offenders, for example, found a five-year recidivism rate of about 20 percent among "high-risk" offenders but less than 3 percent among the rest. After 15 years, the recidivism rate rose to 32 percent for the high-risk offenders and 5 percent for the others.

Theis is aware of the controversy over Kennedy's Trumpesque claim. "Regarding recidivism rates," she notes, "the defendant insists that the McKune plurality's 'frightening and high' comment has been debunked." It has. Repeatedly. And courts have begun to notice. But never mind. "Regardless of how convincing that social science may be," Theis says, "'the legislature is in a better position than the judiciary to gather and evaluate data bearing on complex problems.'"

In this case, both the legislature and the judiciary have assumed crucial facts that simply are not true, as far as we can tell based on all of the research that has been done during the last few decades. Theis is saying laws should nevertheless be written and upheld based on those demonstrably false assumptions until legislators decide to gather data. Call that whatever you want, but it surely is not rational.

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  • Brett Bellmore||

    Keep in mind that "rational basis" is actually a misnomer. It's actually "Not gibbering insanity" basis. As long as the legislator wouldn't have to have been chewing on the furniture to have thought the bill reasonable, it passes review. Actually being rational has nothing to do with it.

  • Citizen X - #6||

    Last week the Illinois Supreme Court upheld a state law banning sex offenders from public parks

    Where are Illinois's sex offenders supposed to masturbate, then?

  • Chipper Morning Baculum||

    They are still allowed to ride the bus, aren't they?

  • Citizen X - #6||

    It's hard to really spread out and flail around on a bus.

  • Rhywun||

    Not if there are children aboard, presumably.

  • TLBD||

    Is recidivism them getting caught?

    Because I doubt they would admit to it even in an anonymous survey.

  • JunkScienceIsJunk||

    Yes, the study cited in the article is based on sexual offenses.

  • TLBD||

    So all it is really telling us is that they don't get caught the second time.

  • Michael S. Langston||

    Sure. In much the same way that if your name isn't on the list, that only tells us you haven't been caught either.

  • JunkScienceIsJunk||

    That's one interpretation. But it seems unlikely given that 1) recidivism rates for other crimes of similar incidence are often high, and 2) there's increased scrutiny on these offenders.

  • WC46||

    Just like it doesn't tell that the brother or father or uncle you love dearly may be the very one molesting your little boy or little girl. Just like it doesn't tell you the youth minister at your church may be molesting your little boy or little girl. Just like it doesn't tell that your best friend next door may be the one molesting your little boy or little girl.

    When are you mindless morons going to learn that it is SOCIAL PROXIMITY that allows for child sexual abuse to take place and go on unnoticed for days, weeks, months, or even years? It's someone close to you and your child; someone you know, like, love and trust. Get it through your head!!! Or are you too dumbed down by the education system to do your own thinking?

  • Kyfho Myoba||

    Sometimes they track recidivism from the mandatory polygraphs that some state require for "therapy".

  • silver.||

    I'm disappointed that the result was unanimous. I know that nobody is wanting to go to bat for the rights of child sex offenders, but should it really be routine to uphold a law established on bunk data?

  • JuanQPublic||

    The problem is that even within that population, there is a very wide spectrum of offenses, but all are treated as the worst-case scenario. That's really the core problem: they refuse to approach this on a case-by-case basis, which would both be far less heinous and would actually protect the public. As it stands, based on evidence and data they are ignoring, they appear to not be interested in actually protecting children, but rather maintaining a posture.

  • ||

    That's really the core problem:

    The problem is the list is an oxymoronic compromise striving to hit an imaginary balance between rehabilitation, punitive action, objective feasibility, and Constitutionality.

    If recidivism were 100%, the list would be pointless. If recidivism were 0%, the list would still be pointless. If the list were 50% recidivists, it's pretty clear that it hasn't significantly deterred *or* rehabilitated 50% of it's offenders. The only way the list makes sense is if some significant percentage of offenders on the list professed thankfulness for the list and that, had they not been on it, they would've re-offended.

  • JuanQPublic||

    The only way the list makes sense is if some significant percentage of offenders on the list professed thankfulness for the list and that, had they not been on it, they would've re-offended.

    The more pathological varieties on the list would be those people who would be hypothetically thankful. Who, in fact, are a small minority of the total offenders.

    So again, failing to distinguish on a case-by-case basis is the problem. And as many have rightfully pointed out, if this small minority of highest-risk offenders is the reason for the current policy for all offenders, why are they being released in the public in the first place? That alone shows a huge inconsistency.

  • JuanQPublic||

    And, yes, agreed.

  • JunkScienceIsJunk||

    ""Regardless of how convincing that social science may be," Theis says, "'the legislature is in a better position than the judiciary to gather and evaluate data bearing on complex problems.'"

    Ah, the separation of powers. They only use it when it's convenient. In this case, to pass the buck.

  • Fist of Etiquette||

    They should get that 9-year-old plastic straw kid to do a study. No, wait, on second thought, bad idea.

  • Rhywun||

    500 million percent recidivism daily!

  • sarcasmic||

    Fake but accurate.

  • FlameCCT||

    Are we sure Dan Rather isn't on the IL Supreme Court?

  • WC46||

    I don't care what the issue is. I don't care how politically popular an idea or course of action is. What I do care about is that the courts, in situations like this, show so much personal bias. When judges willingly ignore legitimate scientific fact and then have the audacity to suggest that the legislators, who are obviously driven solely by the desire to remain popular and hold office for as long as possible, are in a better position to evaluate that science is sheer bovine fodder.

    This needs to get to the S.C.O.T.U.S. After all, Packingham v. North Carolina had to go that route. The lower appellate courts ruled the restriction against registrants using Facebook as unconstitutional, but the state supreme court declared it unconstitutional. The state filed for certiorari and S.C.O.T.U.S. granted the motion and overturned the North Carolina Supreme Court. State Supreme Courts, I hate to say, in far too many instruments are puppets of the state and will used the most tortured of "reasoning" to let the state have its way. This needs to be fought to the S.C.O.T.U.S. If the Supreme Grants certiorari in this case and rules against the state, the decision would effectively shoot down presence and by extension residency restrictions altogether, which is what needs to be done. .

  • WC46||

    I mistyped. The lower appellate courts in North Carolina ruled the state law banning registered offenders from Facebook was unconstitutional. The North Carolina Supreme Court overturned the appellate court and said the law was fine. The appellant filed an appeal and the S.C.O.T.U.S overruled the N.C. Supreme Court. This is the route that this challenge will have to go since the state Supreme Court ruling is such a joke on this issue. They as much as said they ignored sound scientific fact. That should go against them strongly if the S.C.O.T.U.S. doen't do what they are sometimes notorious for; refusing to grand certiorari on such controversial topics. If S.C.O.T.U.S. follows the track they took in deciding Packingham v. North Carolina, this too will get shot down. It will just take time to work its way through the process.

  • antiestablismentarianism||

    The problem with your scenario of taking it up through the courts is that many of these cases are denied cert. Does v. Snyder (Michigan) was denied as was the one from Pennsylvania.

    If just one of these cases makes it, SCOTUS will upend the entire registry and most people know this. I think that's the reason why they keep getting denied cert. The judges on SCOTUS know that from a legal standpoint, the registry laws around the country are unconstitutional, but part of them would rather keep the status quo. They may also be waiting for the country to realize how draconian these laws are and gain popular support prior to overturning them. Either way, the fate of our country lies in the hands of 9 people.

    I say the fate of the country because if these laws are allowed to restrict liberties as an administrative measure, how much longer will it be before the rights of other people are affected in the same way. Look at the gun control mess right now where they want to restrict people's rights based on mental health evaluations. People are restricted from flying on an airplane because of their name, national origin, and/or religion. These are just the start and almost mirror the way the Nuremburg laws in Germany started stripping rights away.

  • WC46||

    Look at the 6th Circuit Court of Appeals in the suit filed against the Michigan Sex Offender Registry.

    The court shot down the retroactive application of the registry and its restrictions. They fully recognized that the registry of today with its "byzantine code of restrictions that dictate every aspect of a registrant's life" bears no resemblance to the registry contemplated in Smith v. Doe, which is the case out of Alaska that has been cited in court rulings that have shot down virtually every previous challenge to the registry law.

    The 6th Circuit recognized that the data does not support the effectiveness of the registry. The lruling of the the Supreme Court allowed this wonderful ruling against the retroactive application of the registry to stand. SCOTUS denied certiorari to the state of Michigan. The SCOTUS, in denying certiorari to the state of Michigan said that the lower 6th Circuit court got it right. That was a huge victory for registered citizens.

    In fact, if you read the Does v. Snyder ruling from the 6th Circuit closely, you see that the language suggests the 6th Circuit court would be willing to entertain a full-blown challenge to the registry itself.

  • WC46||

    I think I see why you say this isn't a real victory. If SCOTUS had taken the case on review and then upheld the 6th Circuit ruling, that would have made a much deeper impact on the registry. A circuit court of appeals ruling is merely a convincing argument and not binding nationwide, but a U.S. Supreme Court ruling is authoritative and is nation-wide in scope. So yes the SCOTUS is notorious for denying certiorari when politically popular laws would stand a great chance of being overturned.

  • Kyfho Myoba||

    No. SCOTUS is at least as bad. They recently ruled that ex post facto punishment, er, I mean, administrative regulation of Alaskan sex offenders is perfectly constitutional.

  • loveconstitution1789||

    Banning a certain group from a public place is unconstitutional and a violation of Equal Protection under the law.

  • ||

    Welcome to Illinois!

  • sarcasmic||

    Equal protection, mens rea, ex post facto, all quaint ideas that no longer apply in this modern age. There is no way the people who came up with that stuff could have imagined the world today. Everyone knows this. Duh.

  • JuanQPublic||

    There is no way the people who came up with that stuff could have imagined the world today.

    The "world today", as in a world that is far safer, more peaceful and more interconnected than any time in human history.

  • JunkScienceIsJunk||

    "Safer" depends on what metric you use. If your metric is based on how many people suffer injuries and death, we're certainly safer now than we were 200 years ago. But if you extend that metric to include the number of people who are forcibly rounded up by other people and put in cages, we're less safe now than we were 200 years ago.

    (Slavery notwithstanding, but that has little to do with the topic at hand...)

  • JuanQPublic||

    I can't argue with that, at least in the U.S.

  • WC46||

    There should be no such thing as a strict liability law because mens rea does not have to be proven. All that needs to be established is that a person did the deed. No regard for criminal intent or lack thereof required.

    Unending punishment of a class of people under the guise of civil regulation is the choice weapon of despotism.

  • Cynical Asshole||

    Theis says, "'the legislature is in a better position than the judiciary to gather and evaluate data bearing on complex problems.'"

    Gather and evaluate data? BWAAHAHAHAHAHAHAHAHAHA!!!111!111!!!!!!!!

  • Citizen X - #6||

    Yeah, that's either really cynical sarcasm, or the worst misunderstanding of how legislatures behave that i've ever seen.

  • BYODB||


    "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."


    So, justice system, I might ask you why you let these dangerous predators out of jail in the first place if you're still going to keep them effectively in jail.


    No offense, but what would you expect the recidivism rate to be if you criminalize everything a person can do?

  • EscherEnigma||

    So, justice system, I might ask you why you let these dangerous predators out of jail in the first place if you're still going to keep them effectively in jail.


    You want a good faith answer or a snarky one?

    If you want snarky, try this:
    Parole officers are cheaper then prison beds.

    If you want a good faith answer, I would first ask you to consider restraining orders in cases where no crime has been committed yet, or there have been charges pending trial. No one has been convicted by a jury or admitted guilt, is it fair to restrict their lawful actions based on what they might do?

    For that matter, what about felon rights in general? Once someone serves their time, should they be able to vote, own a gun, get custody of the children they went to jail for abusing? Get a security clearance? Become a judge? Is it legitimate for the government to treat them in any way different from a non-felon?

    To be clear, I'm not trying to justify sex offender lists, felon voting rights, restraining orders or anything else. Well, not yet at least. But from a judicial standpoint, they all have similar underpinnings of non-punishment restrictions on someone's otherwise-legal actions. So if you angle in from "why are we letting them out of jail if we're going to continue restricting them?", you should be prepared to argue either that other similar cases are fundamentally different, or that they should also be struck down.

  • BYODB||


    If you want a good faith answer, I would first ask you to consider restraining orders in cases where no crime has been committed yet, or there have been charges pending trial. No one has been convicted by a jury or admitted guilt, is it fair to restrict their lawful actions based on what they might do?

    Where no crime has been committed yet the police and judiciary should have no authority to curtail you're rights, especially without any provable harm, so I'm not sure what you're getting at with curtailing individual rights based upon no crime or measurable infraction. You could make a case with conflicting natural rights, but it would need to be a pretty big concern.

    Once someone serves their time, should they be able to vote, own a gun, get custody of the children they went to jail for abusing?

    Well, they did their time so presumably yes they should be able to do all those things except perhaps the last one since presumably they lost custody which is forever.

    So if you angle in from "why are we letting them out of jail if we're going to continue restricting them?", you should be prepared to argue either that other similar cases are fundamentally different, or that they should also be struck down.

    It's more than that, it's that there is never an end point for those restrictions and 'sex offender' is not narrowly defined.

  • BYODB||

    Oh, in terms of your custody question specifically that is what the appeals process should be for. Can you prove that your abuse was temporary or accidental or otherwise something that isn't likely to recur? Well then sure, presumably those rights could be restored but this also sort of pretends there isn't another parent with rights to consider as well, not to mention the rights of the child itself.

    Those issues are a bit more granular and require more thought concerning conflicting natural rights on an individual basis than what I can give, but I can say how such a process should function to respect everyone's rights until a decision can be rendered because it was well described over 200 years ago.

  • BYODB||

    Frankly, it comes down to a disconnect in what people think the justice system is for.

    There are some that believe it's for 'rehabilitation' and some that believe it's for 'punishment'.

    Your opinion on that divide will inform your opinion, but I'm not part of the rehab school. Rehabilitation is what psychologists do, not prisons, and a lot of this mess could be fixed by burning the laws that punish without a victim.

    I resent the left for trying to turn prisons into reeducation camps, and not just because the data doesn't support their theory. I also resent the right for criminalizing social issues, for what that's worth.

  • Tony||

    What do you mean by reeducation camps? You really don't have to do both sidesism here. How society treats crime and criminals is at the core of the difference between liberals and conservatives, and this is one issue on which libertarians and liberals align. If we're going to have prisons, might as well let prisoners pursue their education and do useful things rather than sit around in cages becoming permanently mentally damaged. I'm anti-prison myself. While conservatives, acting out of blunt stupidity as they often do, can't figure out a better way to deal with a problem than to lock it up in some remote cage. Though that may be slowly changing what with the increasing presence of the obvious in the abuses our criminal justice system.

  • Quo Usque Tandem||

    Tony; I'm seriously curious; do you actually know any felons? Like real criminals, or just the hypothetical kind who just want understanding and an opportunity to better themselves?

  • Tony||

    Are you referring to people who are on the other end of the "mentally damaged" journey I referred to? Or do you feel that there are a lot of people simply born to commit crime?

    If the latter, why does America have such an overwhelming number of them? What about our country sucks so much that a large majority of the world's prisoners are Americans?

  • BYODB||

    I think perhaps using Charles Manson as an example might make the point a bit more clear even to someone like you.

  • JunkScienceIsJunk||

    Are you guys really adopting anti-libertarian stances here just so you can argue with Tony? The fact that the US throws too many people in prison is one of the central tenets of libertarianism in this country.

  • Quo Usque Tandem||

    As to the cause of criminality, I cite environment above all others; being the family unit [or various foster homes] in which people grow up. Basic personality traits are formed very early in life, and psychopaths are formed quite young. People have kids because sex makes women pregnant. Not because they will be good parents [or even want the children] or provide loving homes.

    Once that die is cast, you do not change your fundamental personality. My point being that while the prison system generally sucks, inmates are not much interested in pursing a legit lifestyle. Considerable amounts of money have been wasted on that, and we are sadly left with incarceration for persons who just want to fuck you, figuratively if not literally.

  • Tony||

    So you contend that America uniquely in the world has such a crappy social fabric that we create most of the world's criminals despite having 5% of its population? I don't get it. I thought we were an entrepreneurial mecca that, while not perfect, is more free and thus better than most other places.

  • BYODB||

    Riddle me this: What is the page count difference in actual laws between America and most of the rest of the world?

    Follow up question: what is one inevitable result of the criminalization of victimless 'crimes' that you yourself advocate for on this very forum?

  • Tony||

    Don't know, and no I don't.

  • BYODB||

    ...so you have never advocated for the expansion of the regulatory state on this website, Tony?

    Gee whiz, you really are extra dense today.

  • Tony||

    You said victimless. I'd never want to see a business or plutocrat cited for actions that don't harm anyone.

  • JunkScienceIsJunk||

    As to the cause of criminality, I cite environment above all others; being the family unit [or various foster homes] in which people grow up.

    Why are there so many families with a good kid and a bad kid then?

    Basic personality traits are formed very early in life, and psychopaths are formed quite young.

    It's presumptuous to think that anything other than a tiny sliver of incarcerated folks are "psychopaths."

    Considerable amounts of money have been wasted on that

    Where and when? Not in the US.

  • I am the 0.000000013%||

    Why are there so many families with a good kid and a bad kid then

    Birth order and gender favoritism

  • BYODB||


    If we're going to have prisons, might as well let prisoners pursue their education and do useful things rather than sit around in cages becoming permanently mentally damaged

    You pretty clearly misunderstand what 'reeducation' means in this context. Additionally, while I have a pretty strong grasp of both conservative and liberal philosophy as it applies to criminal justice I also know that you do not.

    Essentially what you reveal with your statement is that you don't believe in prisons, and yet the regulatory state you prefer can do nothing except manufacture people to place into prison. It's not surprising that once again your lack of casual relationships makes reasoning impossible for you.

    I've pointed this out to you before, but you're not a liberal. You don't even understand liberals. Guys like Loveconstitution don't really get this, but those of us with a classically liberal streak know you aren't one.

  • Tony||

    I wish occasionally you'd help my idiot self along and explain what you mean rather than just insult me. I'm here to learn. What do you mean by reeducation exactly? And do I need any tinfoil for this exercise?

  • BYODB||

    ...reeducation is the forcible changing of an opinion, generally speaking. Do you honestly lack the basic ability to Google or have any exposure to the concept in your higher education? I find it doubtful.

    It's presumed in some circles that crime is the result of some educational failing rather than a choice even while there is a ton of proof that humans choose to do harm to one another on an almost daily basis.

    Truly a flawed view of humanity based upon idealism rather than any empirical observation. Man is simply not perfectible.

  • JunkScienceIsJunk||

    It's presumed in some circles that crime is the result of some educational failing rather than a choice

    Sure. And yet other circles presume that crime is the result of violating a set of orders. (Or merely being accused of violating a set of orders.) The numbers bear this out in America, so it's not a crazy idea.

    I think Tony's main point here is perfectly valid. If we're advocating prison for people, there should be some utility in it. And when you look at the crimes that land you in prison in the US, you get quite a different picture than if you look at most other developed countries. So Tony's question to you is one I'm also waiting to hear the answer to -- what is it about the US that is so special that it requires we cage more of our citizenry?

    Or is it that the culture itself is one that likes caging people? I'd say this is more likely. And I bet so would Tony.

  • BYODB||


    what is it about the US that is so special that it requires we cage more of our citizenry?

    The volume and nature of our laws, plus our enforcement efforts are perhaps a little less corrupt or more so depending. It's a big country and I don't want to lump Chicago or New Orleans in with, say, Montana. Recall how most of the American homicide rate comes from just one or two major cities in the entire country.

    We have a lot of laws meant to influence behavior, but you know the downside of that is that if people don't conform to your behavior modification laws...well they go to jail.

    This is before even considering more empirical differences like how we measure these things.

    I mean, does anyone seriously think that, say, Russia or China are better than us in terms of criminal justice? Why do they have fewer people jailed? Is it because they vanished?

    Does Mexico even bother counting anymore, or putting people in jail? Aren't their cops out there accepting bribes and working a double shift with the cartel?

    Look, I'll level with you in that I obviously don't know the totality of the reasons why but we do know how we can improve it and using jails as behavior modification for process crimes is a shitty thing to do. You can go to jail for a longer period of time for having possession of a drug than from actually hurting someone, and that's just one example out of a thousand of why our jails are full.

  • JunkScienceIsJunk||

    The problem isn't just one or two major cities. It's such an expansive effect that you could really pick any major city and see the same trends. Yes, you're correct about Mexico and their corruption, and Russia/China and their assaults on freedom. But that doesn't absolve the US government, which is equally guilty (of both things). That's the thing most people don't understand. When they salute their flag and proclaim freedom for all, they don't realize that other authoritarian countries are doing the same thing. It's an illusion and it's perpetuated by national pride.

    Instead of Russia and China, we should take a look at other countries who are more similar to the US culturally. Why are their numbers SO much different from the US, both in terms of crime rates and incarceration rates/expenditures? I would argue that Reason.com has nailed the answer to this in their many articles: crime and punishment, as a general strategy, begets crime and punishment. Look no further than the drug war for an obvious example of this.

  • WC46||

    BYODB, you did say one thing I agree with totally. A man got 50 years in prison for stealing $1.2 Million worth of fajitas. 50 years for stealing food (granted a crap-load of food, but food...an item!!!). A child rapist in TN only serves 25 years for raping a child. What is more heinous? Stealing just over a million dollars worth of fajitas or raping a child? You see the child rapist in TN gets 1/2 the time this man got for stealing food. Now THAT is ridiculous by any standard!!

  • Tony||

    And as far as I'm concerned if you're not for radical adjustment to our criminal justice system, you are no libertarian. Since we're telling each other what political worldviews we don't belong to.

  • BYODB||

    It's not just me that notes you're no classical liberal. Other classical liberals on this website have noted it as well, and said as much. You ignore them, too, I might add.

  • Tony||

    That's true, I'm an actual liberal. Meaning my political worldview has evolved since the 19th century to keep up with the real world.

  • BYODB||

    Just own the fact you're a Progressive and stop tarnishing the liberal brand you fuck.

  • Tony||

    So all through my childhood up until like last year liberals were people who were for big government and social justice and all that crap that Democrats support. The word liberal in the jowls of Rush Limbaugh became a slur thanks to Republican messaging (ah the good old days), so we started calling ourselves progressives. They mean the same thing as far as I know. Only recently did libertarians, I suppose, decide their moniker sounded like a description of people who go to clubhouses and wear weird hats, and wanted to start being called "classical liberals" or "liberals" for short. I don't blame you. Much better word. But it's mine.

  • BYODB||


    The word liberal in the jowls of Rush Limbaugh became a slur thanks to Republican messaging (ah the good old days), so we started calling ourselves progressives. They mean the same thing as far as I know.

    Then you don't know much. Progressivism is over 100 years old and is virtually identical today as it was then. I think you're just trolling now, though, since you used up all your hackneyed slogans.

  • Tony||

    Ah so now is when I put on the foil hat. Do tell me more about what I believe.

  • JunkScienceIsJunk||

    "How society treats crime and criminals is at the core of the difference between liberals and conservatives"

    Not only "treats", but "defines". Which is why I generally refuse to adopt the democrats' use of the word "liberal". And this is often (but not always) a pretty big distinguishing factor between democrats and liberals.

  • BYODB||

    I mostly, if not entirely, agree with you here. It might seem minor to someone like Tony, but it's actually pretty major which I why I always try to draw a distinction between crimes that have a victim and those that do not. Namely because one of those categories should exist, and the other should not.

    I pray I don't need to explain which is which.

  • Tony||

    Look it's just a word. Frank Luntz should have taught us a long time ago that there's no point in trying to hang onto a word once it's been successfully defined by your enemies. As a liberal I should know, since that was a bad word for a good two decades thanks to Mr. Luntz. Just say libertarian. Unless like I you think it's a little culty sounding.

  • JunkScienceIsJunk||

    I read that as "cunty sounding" at first, which might be more appropriate actually.

    I don't share a lot of views with a certain segment of libertarians, so I find myself being placed in a situation where I'm expected to defend their latent conservative tendencies more often than I'd like.

    That's ok. "Liberal" already accurately fits my viewpoint. As democrats become more and more conservative and hawkish, I'm expecting them to dump that moniker in the near future. I wish republicans would cut the shit using that term on them. I hear it out of their mouths more than anyone else's.

  • EscherEnigma||

    How society treats crime and criminals is at the core of the difference between liberals and conservatives, and this is one issue on which libertarians and liberals align.


    Seeing as prisons in any given state tend to be pretty miserable and no state is doing anything markedly different, this seems like a dubious claim at best.

    The closest you get to finding a partisan divide is on what should be criminal, not how we treat criminals. And even that is mostly the same with only a bit of quibbling around the edges.

  • Tony||

    Well I think the issue is important enough to be definitional. If you're for more locking people up for minor infractions, you're no liberal. And while Democrats are generally pussies who are afraid of offending scared white soccer moms, they do in fact favor major changes to criminal justice. And we're getting even Republicans on board with reform nowadays so chin up.

  • BYODB||


    If you're for more locking people up for minor infractions, you're no liberal.

    I agree with the statement, but I find it bizarre that you're never able to connect the dots between an expansive regulatory state and it's inevitable consequences in terms of criminal justice outcomes.

    A regulation, when not followed, must be punished. All the mouthing of words about 'considering the ability to pay' or the like are dancing around the underlying fact that it probably shouldn't be a thing at all if you need to start selectively applying justice unequally.

    It's one reason why I don't think you believe half of what you say, since you clearly understand less than half of it.

  • EscherEnigma||

    Well I think the issue is important enough to be definitional.
    And your personal preference is not currently reflected among liberals or conservatives.

    It's a pet issue, not a partisan issue.

  • Tony||

    As of 2016 it's on both major party policy platforms. Let's don't let cynicism get in the way of possible real progress.

  • EscherEnigma||

    @Tony
    You're arguing both that
    (A) How society treats crime and criminals is at the core of the difference between liberals and conservatives
    and
    (B) it's on both major party policy platforms

    To be clear, I just read the 2016 section on criminal justice reform in both planks. There's some differences (death penalty, Republicans emphasize over-bearing federal government, Democrats emphasize minority issues), but they're largely the same and most folks would be on board with legislation that matched either.

    Yet nothing is done. It's almost like it's not actually a core part of either political party, and is only on the planks because it was a pet issue for someone on the committee. You know, like how combatting pornography is still in the Republican Plank even though the party as a whole doesn't give a damn?

  • JunkScienceIsJunk||

    Tony is referring to hypothetical liberal policies, not actual ones. When Hillary gave speeches about reducing mass incarceration, but it was really about as well thought out and concrete as the republicans' plan for health care, it made them all feel good but we knew that it wasn't legitimate.

    It's the kind of myth that republicans hold on to when trying to present themselves as a party interested in reducing government spending. I mean, it makes for a nice speech, but that's about it.

  • Tony||

    It's just an extremely difficult political issue, while locking undesirables up might be the easiest one in the world. You, like, have to apply an actual conscience and a desire to make humankind better without regard to donors and easily agitated public fear.

  • JunkScienceIsJunk||

    I agree, but the democrats are taking the opposite approach. They should be saying "tough on crime" shit to get elected, and once elected, they should deal with the mass incarceration issue. But when politicians like Obama get elected and, for example, ramp up immigration restrictions beyond what his predecessor did... And then push to compile a list of offenders so that the next administration could easily ship them out of the country (if you're a fan of hockey, we call this an assist)... then it makes me question whether the democrats actually believe in reducing mass incarceration. From the looks of it, they're all in.

  • Paloma||

    Sometimes punishment needs to happen before anyone can actually rehabilitate.

  • EscherEnigma||

    So with the context that you don't think prisons should try to "rehabilitate", I'm going to go out on a limb and guess you think they are there for punishment.

    Which actually makes the whole argument easier. Because under a "punishment only" mindset, time served is irrelevant to recidivism, and as such should not be taken as an indicator that a person is no longer a threat. In that case, since we are not alleging that released convict X is no longer a threat, it can be prudent to take additional measures following release to minimize the threat.

    Or to put it another way... If I put Jimmy in time-out for pulling Suzy's hair, and have no expectation that the time-out has made it less likely that Jimmy will pull Suzy's hair again, then it's entirely rational for me to require Jimmy avoid Suzy once Jimmy is out of time out to prevent further hair pulling.

    The punishment-only model actually makes preventive measures following release more rational.

    So in that case, you're better off arguing it as a rights thing then as a "why would you release this dangerous criminal" thing.

    Of course, this whole post gets blown out of the water if you're actually part of the "to prevent further harm" side regarding the purpose of prisons, but since you expressed two options and then explicitly said you didn't buy into one camp, it seems fair to assume you didn't consider it at all, meaning it's probably not your position.

  • BYODB||


    So with the context that you don't think prisons should try to "rehabilitate", I'm going to go out on a limb and guess you think they are there for punishment.

    I explicitly state it as a more or less binary option, so you're right even while there are implied and explicit caveats to that in terms of what constitutes a crime.

    ...since you expressed two options and then explicitly said you didn't buy into one camp, it seems fair to assume you didn't consider it at all, meaning it's probably not your position.

    Ah, I think I see. You're right, it was supposed to be sarcasm (or at the very least to be interpreted as gross hyperbole). I thought I was being a little clearer based on the last sentence I wrote:

    No offense, but what would you expect the recidivism rate to be if you criminalize everything a person can do.

    I was attempting, perhaps unsuccessfully, to poke fun at their idiot way of defining recidivism in a state where unintentional actions have consequences far out of proportion. If everything is criminal, why, you'd expect recidivism to be near 100%!

    In your defense, Poe's Law is indeed a thing.

  • EscherEnigma||

    In your defense, Poe's Law is indeed a thing.
    In my defense, I covered my bases. You responded to the "good faith" rather the "snark".

  • BYODB||

    That's because I took issue with some specific things you said in your good faith reply, I wasn't trying to imply my original comment was my honest opinion. Did you also think I meant that things should be rigged so that 100% of what an ex-con does is illegal in order to get the pre-determined recidivism rate of 100%?

    I guess I can understand it if you did, it wans't a very clear comment.

    My first comment is almost always a sarcastic spit take, so I bring it on myself.

  • EscherEnigma||

    To be clear, I didn't base anything on the obviously sarcastic line.

    And while I think it's obvious that there has been some miscommunication as you didn't meaningfully respond to anything I said in my last real response ("So with the context that you don't think prisons should try to [...]"), just quibbled over textual interpretations, I'm honestly not invested enough in this conversation to unravel that and get back to the actual (potential) discussion.

    And so, without hostility, good-day.

  • Paloma||

    If Jimmy has no time out at all, why should we think he would be rehabilitated, i.e. stop pulling Suzy's hair just because someone "educated" him about the evils of hair pulling? Avoiding Suzy does nothing to rehabilitate Jimmy, and he'd probably just go pull Kathy's hair instead.

  • Just Say'n||

    "Kennedy's Trumpesque claim"

    Sane person: Woah- the Illinois Supreme Court is off their rocker

    Sullum: Oh yeah, well Trump or something

    Sane person: Yeah, you're not well

    Sullum: RUSSIA!

  • Tony||

    "It is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park"

    So just take so many drugs you don't know that's where you are.

  • Christine N||

    I beg to differ on the use of Rational Basis.

    When a politically powerless and hated specific named group is the only one targetted by a law, and that law does not apply to everyone, it is supposed to get heightened scrutiny.

    It is true that laws that apply to all only get heightened scrutiny when they disadvantage one of the "protected" classes like based on religion, being a minority, or sexual orientation.

    This law however, specifically does not apply equally to all and you would think justices would know how to apply proper scrutiny. It is one of the main reasons for separation of powers and to protect people from a biased majority that has it out for a politically powerless minority.

    These particular judges are all cowards that want to defer their own jobs to the legislation and further send the judicial branch into being even more powerless than they already are.

  • WC46||

    They're cowards. As rabid as society toward sex offenders no judge wants to be the one who puts the fatal bullet in the registry and all its restrictions.

    In Colorado, the attorney who represented 3 sex offenders started receiving death threats after she won a case that got a federal judge to rule the Colorado sex offender registry unconstitutional due to the fact her clients had been victims of vigilantes. The judge ruled the registry amounts cruel and unusual punishment because it opens registrants to vigilantism.

  • WC46||

    They're cowards. As rabid as society toward sex offenders no judge wants to be the one who puts the fatal bullet in the registry and all its restrictions.

    In Colorado, the attorney who represented 3 sex offenders started receiving death threats after she won a case that got a federal judge to rule the Colorado sex offender registry unconstitutional due to the fact her clients had been victims of vigilantes. The judge ruled the registry amounts cruel and unusual punishment because it opens registrants to vigilantism.

  • Quo Usque Tandem||

    Somewhat like the 4th Circuit Court of Appeals that applied intermediate scrutiny on the Maryland ban on "assault" rifles. It did not matter that such weapons account for a very small percentage of actual crimes, or that restricting their availability would make a measurable dent in the crime rate. They upheld the ban because it would "make people feel safer."

  • Michael Ejercito||

    Intermeduate scrutiny is not a very high bar. See Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981)

    Strict scrutiny should be applied.

  • Mickey Rat||

    Do you want a representative form of government setting policy, or oligarchs in judicial robes setting policy? The judiciary is not supposed to be a superlegislature. The question before the court should be does the legislature have the power to ban anyone or at least convicted criminals from public parks at all, rather than court nitpicking on what bases the legislature made a specific decision.

  • FRegistryTerrorists||

    Americans don't support the SEX Offender Registries (SORs). Un-American harassing terrorists do. They are terrorists who cannot mind their own business or leave other families alone.

    It is clear:

    1. The SORs are not really for public safety, protecting children, or any of those other lies.

    2. The SORs are not needed or significantly beneficial.

    3. People in the U.S. cannot responsibly have and use SORs.

    4. The SORs are gravely harming America.

    All Americans need to individually identify any person who supports the SORs and wage war against that person.

  • Self36||

    On the ISOR website. some people are listed as "Sexual Predator", only to find they only have 1 conviction from 40 yrs ago and the victim was a adult, but have a felony conviction after 2011 a non sex offense.

    illinois park sex offender law is dumb, Because if a person who had to register for 10 or 20 yrs; the offender has children; completes the 10 or 20 yrs registration. And placed back on the ISOR list for a non sex offenses.....for life because their old 30 40, 50+ year old sex offenses conviction now requires a lifetime registery if convicted after 2011 therefore labeled Sexual Predator. Subsequently now cannot take their children to the park, but yet they are allowed to go to their children Schools.

    Some sex offenders can go to a public school to pick up their children sit in teacher-parent conferences, school talent shows, sports activities..etc. but if (public school) decided to take a field trip to the zoo which happened to be located in a (public park) the sex offender parent cannot attend, and the children of sex offenders might feel alienated, get teased and worst bullied. when school is out and kids are out at the parks with their parent/s; children of (sex offenders labeled as Sexual Predators only because of the length of they're registration) cannot not go with their own parents to a family reunion?

    Illinois seems to be so obsessed with making laws that clash with other laws and fundamental parenteral and children rights.

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