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Pedophiles to Pornographers: The states have been getting tougher on sex offenders

Sex offenders appear everywhere. They’re in Chicago, in Galena, in Cairo, and most places in between. There’s Michael Lee Clayton who lives on Willow in Effingham. There’s William Bence on 12th in Quincy. There’s Frederick Stanford on Harmon in Danville.

With 14,692 registered adult sex offenders posted on the Illinois State Police Web site, there’s a fair chance of finding one in any given neighborhood. The details of their crimes are withheld from the online registry, but the message is clear: Be wary. These people have committed crimes of a sexual nature, and they could do so again. Yet the collected data is as much a statement about the extra-ordinary lengths to which Illinois has gone to contain these criminals as it is about the pervasiveness of the crime.

There’s plenty of debate over what drives these offenders. Do they possess an inherent disorder, or do they attack other people simply for pleasure? But there’s widespread agreement that sex offenders have a high propensity to repeat their crimes. 

With that in mind, Illinois and other states have in recent years given extraordinary attention to this class of criminals. States have required them to register their whereabouts and, in some cases, get treatment — or stay behind bars. Further, states have expanded the list of crimes that qualify as sex offenses, often creating new offenses altogether, and they have enhanced punishment.

But over the next year, Illinois lawmakers are poised to consider this state’s tightest restrictions yet. Should they adopt a plan proposed by Attorney General Lisa Madigan, sex offenders could be subject to lifetime supervision. What’s more, her proposal would revive a flexible sentencing scheme designed to emphasize rehabilitation. That scheme, abandoned by the state 25 years ago, would establish a range of years to be served, rather than a fixed-length sentence, theoretically giving inmates an incentive to improve their behavior in order to qualify for parole. 

“Our goal is very easy,” Madigan says. “It’s to make sure that we are protecting women and children who live in the state of Illinois from sex offenders.”Nevertheless, that legislation was tabled after introduction. Proponents intend to hold hearings this summer, and prepare the measure for debate next spring. Chief among the concerns is the proposal’s potential cost.

Meanwhile, other measures dealing with sex offenders are pending this spring. They would give prosecutors more time to bring charges of child sex abuse; require sex offenders to give their e-mail addresses and screen names to the state police; require sex offenders who move to provide written documentation to law enforcement authorities within 30 days; require residential leases and purchase agreements for condominiums or housing cooperatives to explain how to get information about registered sex offenders; and prohibit child sex offenders from operating a business where children are photographed or such photos are sold.

The U.S. Supreme Court has granted states considerable leeway to restrict and monitor the activities of these offenders. In March, the high court strongly backed so-called Megan’s Laws, which require that information about sex offenders be disseminated to the public. Those laws, in place in every state, are named after a New Jersey girl raped and murdered by a twice-convicted sex offender who lived across the street from her family’s house. The high court also has consistently upheld statutes permitting indefinite confinement of sex offenders under civil order when it is deemed necessary to protect the public.

Madigan and other prosecutors stress that these criminals, in particular, can destroy communities with their acts.

Still, critics of the trend toward greater restrictions argue Illinois has already gone too far. “We’ve cast far too wide a net,” says Brian Otwell, Sangamon County public defender and president of the Illinois Public Defender Association. Referring to Madigan’s proposal for lifetime supervision and flexible sentencing, Otwell says, “This proposal is the worst example of that that I’ve seen so far.”

Restrictions on sex offenders in this state, as in other states, have evolved well beyond containment of the classic sex offender: the pedophile. For instance, there are at least 31 registrable offenses. People convicted of any of these crimes, including possession of child pornography, sexual relations within families and first degree murder of a child, must register with the Illinois State Police. The department provides basic information about these offenders at www.isp.state.il.us/sor/frames.htm.

They must register in person in each of 10 years after conviction. If a sex offender is sentenced to prison, the 10-year period begins at the date of discharge. Offenders who are adjudicated as sexually dangerous or sexually violent under Illinois laws that provide for indefinite civil commitment must register with law enforcement every 90 days for life. Current law also generally prohibits child sex offenders from living or loitering within 500 feet of a school. And child sex offenders are prohibited from approaching or communicating with a child in a public park.

Madigan’s proposal, though lawmakers won’t address it this spring, would provide for the most dramatic expansion to date of laws restricting sex offenders. 

Proponents stress that it’s conceptual in nature, and that changes likely will be made over the next year. “What you’re looking at won’t be the end result,” says Rep. Mary Kay O’Brien, a Watseka Democrat and the measure’s sponsor. Still, Madigan says she’s committed to the principles of lifetime supervision and flexible, so-called indeterminate, sentencing for this class of criminals. 

Illinois switched from indeterminate to determinate, or fixed-length, sentencing in 1978 as part of a national trend toward tougher sentencing laws. Though the flexible scheme was said to emphasize rehabilitation, critics maintained it left too much discretion to judges in setting an offender’s sentencing range, and to the parole board in deciding how much time the offender would spend in prison. Justice, these critics argued, was uncertain.

Determinate sentencing, approved simultaneously with a tough new category of crime called Class X, brought the promise of swift and sure punishment. Under a subsequent law, murderers and most violent criminals must serve 85 percent to 100 percent of their sentences. Others get credit for good behavior and can be released after serving half of their sentences.

Madigan’s proposal, at least in its initial form, would blend the two schemes by providing stiff punishment and the option of parole after a minimum term is complete. Certain nonviolent offenders apparently could be eligible for probation.

“Obviously you need to punish the criminal for the crime he’s committed,” Madigan says. “In addition, with sex offenders, you can keep somebody in prison for five years, but if you fail to treat that individual there is almost a 50 percent chance he will go out and reoffend. Therefore, you need the flexibility that is provided with indeterminate sentencing to allow that type of treatment to take place, to allow an evaluation of it, to make sure that we have done all that we can in terms of treatment so as to allow that person to re-enter a community and not put the people living in that community in danger of being victimized.”

The floor of this flexible sentencing range would be determined by the crime. The ceiling of the range, in all cases, would be a maximum of life imprisonment. That could effectively mean indefinite incarceration for some sex offenders. “If there are people who cannot be prevented from raping or assaulting women or children,” Madigan says, “they should not be in our communities or out on our streets.”

Beyond that, the sentencing formula in the measure is complex. Basically, an indeterminate range would be based on the current statutory range within which judges set determinate sentences. But the formula would severely lengthen the mandatory minimum sentence in some cases. 

In cases where the victim is a child or the offender knows he has HIV but nonetheless penetrates the victim, the floor of the sentence would be triple the upper limit of the current statutory range. In other words, a Class X offender who, under current law, would serve a term of six to 30 years would, under this provision, be required to serve a minimum of 90 years.

This raises concerns about whether punishment would be proportionate to the crime — something required by the Illinois Constitution. The sentencing range for first degree murder, after all, is 20 to 60 years. 

It also raises concerns about whether the new scheme would contradict the stated emphasis on rehabilitation.

“If the thought is you’re going to provide greater rehabilitation and then you have provisions of the bill that provide for mandatory minimums that are much greater than would ordinarily be given, then it seems to me you’re cutting against the argument that you’re making,” says John Piland, Champaign County state’s attorney and president of the Illinois State’s Attorneys Association.

Madigan spokeswoman Melissa Merz responds that proponents specifically asked for further study of the measure to deal with such concerns.

There are other issues to consider. As the proposal is now written, the Prisoner Review Board would be charged with hearing a sex offender’s petition for parole once he completes the minimum sentence. Madigan says detailed standards established by the Sex Offender Management Board should alleviate concerns about discretion on the part of the review board. Those standards, established in collaboration with the review board, the state Department of Corrections and the state Supreme Court’s Division of Probation Services, would be in place by July 2005.

“You are essentially going to have medical experts, psychologists and others who will be evaluating sex offenders in their treatment and whether or not they have successfully been rehabilitated,” Madigan says. “So it’s not just the Prisoner Review Board’s whim determining whether or not we release a sex offender back into the community.”

If released, a sex offender’s period of supervision would be 10 or 20 years to life. And lifetime supervision for these criminals has become the containment method of choice in several other states. According to the Center for Sex Offender Management, a Maryland-based project sponsored by the U.S. Department of Justice, 11 states had laws providing for lifetime supervision in late 2000 — the latest data available.

Not clear is whether all sex offenders would be subject to Madigan’s proposed mandates. Though the bill is written to include all persons who currently must register as sex offenders, O’Brien, the sponsor, says the scope of the law wouldn’t necessarily be that wide. “With statutory offenses where the sex is consensual, but because of age differences it’s not legal because the person can’t consent, I don’t know if that’s the type of person we want to attach this to,” she says. “I think we need to start with pedophiles. We need to find out where our highest rate of recidivism is and have it attach to them.”

Meanwhile, a companion proposal would strengthen the powers of the management board, an authority created by statute in 1998 to develop standards for the identification, treatment and monitoring of sex offenders. As of mid-April, that measure had passed the Illinois House and was pending in the Senate. It would require all sex offenders, as part of probation, conditional release or incarceration for a sex offense, to undergo treatment. Further, it would prohibit county probation departments, the state Department of Human Services or sex offenders from signing off on a contract with a treatment provider unless the provider is approved by the board. 

That treatment would be governed by standards proposed by the board. A board-proposed administrative rule, which would set uniform standards for treatment of adult sex offenders statewide, is pending before the legislature’s Joint Committee on Administrative Rules. The board also filed a rule that would govern the treatment of juvenile sex offenders, but pulled it to allow more time for members to observe Colorado’s experience with a new rule on treating these young offenders. Illinois has 574 juvenile sex offenders; their identities are not posted on the state police Web site.

The Illinois rule on treating adults, which could be effective as early as June, would require that sex offenders in treatment report to three-person teams consisting of a parole or probation officer, a treatment provider and a polygraph examiner. The framework is based on the Colorado program. Called the containment model, it’s built around the theory that a sex offender’s deviant behavior can be contained with proper treatment. 

That model is already practiced in Illinois on a limited basis. In association with the board, nine counties — Coles, Cook, DuPage, Kane, Lake, Lee, Madison, Sangamon and Will — run pilot projects, according to Verlin Meinz, an assistant appellate defender and board member. He says DuPage and Lake, in particular, have sophisticated and effective programs that preceded the pilot projects.

Beyond the treatment provider and the parole or probation officer, the polygraph examiner is considered key to this program, though such examinations generally are not admissible in court. The examiner works in conjunction with the treatment provider to ensure the offender is telling the truth about his history, behavior and thoughts. 

“Unless a person is able to admit to what they’ve done,” says Doug Simpson, chief of criminal prosecutions at the attorney general’s office and chair of the management board, “if they’re always hiding these deep dark little secrets like a lot of these guys tend to hide, they’re never going to be able to progress in treatment to a point where they’re going to be able to reduce their risk.”

The momentum toward greater — and uniform — containment of sex offenders in Illinois is clear. Of course, lawmakers will determine just how far the state will go. And, as Madigan notes, a lot will depend on how much the state is willing to spend. “There might be a way to do this incrementally that would allow us to provide greater protections,” she says. “The Cadillac costs a lot more than the Chevy. But having a Chevy is better than having no car at all.” 

Illinois Issues, May 2003

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