THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK LEROY, Defendant-Appellant, 357 Ill. App. 3d 530

JUSTICE WELCH delivered the opinion of the court: The defendant, Patrick Leroy, was charged in the circuit court of St. Clair County with unlawful failure to renew his address registration as a child sex offender. On February 5, 2002, the defendant pled guilty to the charge and was sentenced to one year’s probation. On August 27, 2002, a petition to revoke the probation was filed, charging that the defendant lived within 500 feet of an elementary school. In an order issued December 27, 2002, the court found that the defendant admitted the charge, and the court ordered the defendant to move within 30 days.

A second petition to revoke the probation was filed on January 30, 2003, alleging that the defendant owed $40 in probation fees. An amended petition to revoke was then filed, alleging that the defendant had not moved as ordered. On March 7, 2003, the court entered an order finding that the defendant admitted the charge, and the court sentenced the defendant to 30 days in jail and 12 months’ intensive probation. At a hearing on April 11, 2003, the defendant stipulated that he lived within 500 feet of a school and that he was not the owner of the home but had lived there his whole life.

The defendant was 36 years old at the time of the hearing. The defendant’s mother owned the home in question, which is located in East St. Louis. In an order issued April 17, 2003, the court found that the defendant was in violation of his probation. On May 2, 2003, the court terminated the defendant’s probation and prohibited him from residing at the home.

The defendant now appeals, contending that the statute he violated is unconstitutional in that the statute (1) violates the defendant’s substantive due process rights, (2) violates the defendant’s procedural due process rights, (3) violates the defendant’s right to equal protection under the law, (4) is an ex post facto law, (5) violates the defendant’s right against self-incrimination, (6) constitutes cruel and unusual punishment, and (7) is overly broad. For the reasons that follow, we affirm the order of the circuit court. The statute in question,

section 11 — 9.4(b—5) of the Criminal Code of 1961 (720 ILCS 5/11 — 9.4(b—5) (West 2002)) (hereinafter subsection (b — 5)), reads in pertinent part as follows: “It is unlawful for a child sex offender to knowingly reside within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age.

Nothing in this subsection (b — 5) prohibits a child sex offender from residing within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age if the property is owned by the child sex offender and was purchased before the effective date of this amendatory Act of the 91st General Assembly.” We begin our analysis of subsection (b — 5) with the Illinois Supreme Court’s pronouncement that “[a] statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity.” People v.

Malchow, 193 Ill. 2d 413, 418 (2000). A reviewing court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it can be reasonably done. Malchow, 193 Ill. 2d at 418. Whether a statute is constitutional is a question of law that is reviewed de novo. Malchow, 193 Ill. 2d at 418. Against this backdrop, we now consider each argument raised by the defendant on appeal. The defendant’s first argument on appeal is that subsection (b — 5) is unconstitutional because it violates the defendant’s substantive due process rights.

Specifically, the defendant contends that he has a fundamental right to live with his mother and enjoy her support and that subsection (b — 5) infringes upon that right because it prevents him from living with his mother. The State counters that even if one assumes that the right of an adult male to live with his mother and enjoy her support is a fundamental right, subsection (b — 5) does not prevent the defendant from living with his mother; rather, it merely prevents him from living with her at her present location, because that location is within 500 feet of a school.

Accordingly, the State would restate the defendant’s argument as whether the defendant has a fundamental right to live with his mother and enjoy her support within 500 feet of a school, an argument the State says is without merit.

The plain language of subsection (b — 5), quoted above, demonstrates that the statute does not dictate with whom a child sex offender may live; to the contrary, it merely restricts where, geographically, a child sex offender may live in relation to a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age. 720 ILCS 5/11 — 9.4(b—5) (West 2002). Accordingly, we agree with the State that the essence of the defendant’s argument is that he has a fundamental right to live with his mother and enjoy her support within 500 feet of a school.

We also agree with the State that no such fundamental right exists. Accordingly, we review the defendant’s claim of a violation of substantive due process under the rational-basis standard rather than under the strict-scrutiny standard urged by the defendant. See People v. Stork, 305 Ill. App. 3d 714, 720-21 (1999) (“The rational-basis test is the proper standard of review for claims of a violation of substantive due process when the statute under consideration does not affect a fundamental constitutional right”).

An application of the rational-basis test involves identifying the public interest the statute is intended to protect, examining whether the statute bears a reasonable relationship to that interest, and determining whether the method used to protect or further that interest is reasonable. Stork, 305 Ill. App. 3d at 721. Furthermore, rational-basis review is highly deferential to the judgments made by the legislature. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 125 (2004).

Consequently, reviewing courts do not focus on the wisdom of the statute or whether it is the best means to achieve the desired result; rather, they will uphold the law as long as there is a conceivable basis for finding the statute rationally related to a legitimate state interest. Stokovich, 211 Ill. 2d at 125-26. Applying this test, we reach the following conclusions. With regard to the public interest subsection (b — 5) seeks to protect, we conclude that the state has a legitimate and compelling interest in protecting children from adult offenders. See, e.g., People v. Williams, 133 Ill. 2d 449, 455 (1990).

In conjunction with that interest, the state has broad powers, subject to constitutional confines, to avert potentially dangerous situations. Williams, 133 Ill. 2d at 457. As we have stated before, the prohibitive subsections of

section 11 — 9.4 of the Criminal Code of 1961 (720 ILCS 5/11 — 9.4 (West 2002)) are intended to protect children from known child sex offenders. People v. Diestelhorst, 344 Ill. App. 3d 1172, 1184 (2003). Prohibiting known child sex offenders from having access to children in schools bears a reasonable relationship to protecting school children from known child sex offenders. People v. Stork, 305 Ill. App. 3d 714, 722 (1999).

Accordingly, we conclude that by prohibiting child sex offenders from living within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age, subsection (b — 5) also bears a reasonable relationship to the goal of protecting children from known child sex offenders and sets forth a reasonable method of furthering that goal.

Although the record is bare of any statistics or research correlating residency distance with sex offenses, we conclude that it is reasonable to believe that a law that prohibits child sex offenders from living within 500 feet of a school will reduce the amount of incidental contact child sex offenders have with the children attending that school and that consequently the opportunity for the child sex offenders to commit new sex offenses against those children will be reduced as well.

Although it is not clear from the record how the distance of 500 feet was decided upon, we believe that 500 feet is a reasonable distance. We note that among the 13 states that have enacted some form of residency restriction applicable to sex offenders, the 500-foot restriction of subsection (b — 5) is the least restrictive in geographical terms. Ala. Code § 15 — 20—26 (Supp. 2000) (2,000 feet); Ark. Code Ann. § 5 — 14—128 (Lexis Supp. 2003) (2,000 feet); Cal. Penal Code § 3003(g) (Deering Supp. 2005) (certain sex offenders on parole may not live within a quarter mile from a primary school); Fla. Stat.

Ann. § 947.1405(7)(a)(2) (West 2001) (1,000 feet); Ga. Code Ann. § 42 — 1—13 (Supp. 2004) (1,000 feet); Iowa Code Ann. § 692A.2A (West 2003) (2,000 feet); Ky. Rev. Stat. Ann. § 17.495 (West 2003) (1,000 feet); La. Rev. Stat. Ann. § 14.91.1 (West 2004) (1,000 feet); Ohio Rev. Code Ann. § 2950.031 (Matthew Bender 2003) (1,000 feet); Okla. Stat. Ann. tit. 57, § 590 (West 2004) (2,000 feet); Or. Rev. Stat. §§ 144.642, 144.643 (1999) (general prohibition on supervised sex offenders living near places where children reside); Tenn. Code Ann. § 40 — 39—211 (Supp. 2004) (1,000 feet).

The defendant’s second argument on appeal is that subsection (b — 5) violates procedural due process because the statute creates no means for petitioning a court for a hearing to grant an exemption and because the result of the statute is to prohibit the defendant from returning to his childhood home, which “effectively renders him homeless.” We begin by addressing the second contention of the defendant: that the statute effectively renders him homeless by prohibiting him from returning to his childhood home.

The defendant has presented no evidence to support this assertion; indeed, the factual record in this case indicates that as of May 2, 2003, the date the circuit court entered its order, the probation department had verified that the defendant was no longer living with his mother but was living instead in nearby Belleville.

Accordingly, the argument presented by the defendant is both premised on fallacious logic — for it cannot be reasonably argued in the absence of factual support that in this day and age and in this mobile society homelessness will necessarily result when one is prohibited from residing in one particular home — and factually inaccurate. We find this argument completely without merit.

With regard to the defendant’s claim that subsection (b — 5) violates procedural due process because the statute creates no means for petitioning a court for a hearing to grant an exemption, the defendant misapprehends the statute regarding this claim as well. Presumably the defendant is referring to his desire to seek an exemption premised on the fact that he has lived in his mother’s home for most, if not all, of his life, although no coherent argument to that effect is presented in the defendant’s brief.

First, the plain language of the statute, quoted above, creates a built-in exemption for offenders who owned and purchased their homes prior to the provision’s effective date of July 7, 2000. 720 ILCS 5/11 — 9.4(b—5) (West 2002). Accordingly, it cannot be argued in good faith that the statute contains no means for receiving an exemption.

Second, with regard to seeking a hearing to request an exemption premised on how long the defendant has resided in the home in question, an individual who asserts a right to a hearing under the aegis of procedural due process must show that the facts the individual seeks to establish in that hearing are relevant under the statutory scheme. Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 8, 155 L. Ed. 2d 98, 105, 123 S. Ct. 1160, 1165 (2003). This the defendant cannot do. Subsection (b — 5) turns entirely on the status of the defendant as a child sex offender. 720 ILCS 5/11— 9.4(b — 5) (West 2002).

The defendant’s status is based on his prior conviction for a sex offense, a fact he has already had a procedurally safeguarded opportunity to contest. Subsection (b — 5) does not inquire into how long an individual previously resided in a now-prohibited home that the individual does not own; accordingly, the fact the defendant seeks a hearing to prove — that he has lived in the home, without ever owning it, most, if not all, of his life — is not at all relevant under subsection (b — 5).

The defendant’s third argument on appeal is that subsection (b — 5) violates the defendant’s right to equal protection under the law. Specifically, the defendant contends that subsection (b — 5) violates equal protection because it discriminates on the basis of the ability to own land, because under the subsection’s exemption those who own their own homes are not forced to move, while those who do not own their own homes are forced to move.

The State counters that the exemption of subsection (b — 5) is time-specific, not class-specific, and that accordingly it does not create a classification based on wealth and does not discriminate on the basis of an offender’s ability to purchase land. We agree with the State. The plain language of the statute clearly states that an exemption exists for property owned by a child sex offender and purchased before the effective date of July 7, 2000. 720 ILCS 5/11 — 9.4(b—5) (West 2002). The statute on its face creates a time-specific distinction, not a class-specific one.

Accordingly, the wealthiest of child sex offenders may not “buy into” the exemption, as the exemption is based on owning and purchasing the home prior to July 7, 2000; likewise, contrary to the factually inaccurate statement in the defendant’s brief that “[a] person who is poor will never be able to fall within the exemption,” a poor person who owned and purchased his property prior to July 7, 2000, will likewise fit squarely under the exemption. We find this contention of the defendant completely without merit.

The defendant’s fourth argument on appeal is that subsection (b — 5) is a prohibited ex post facto law because it “applies to sex offenders convicted before the statute’s enactment.” See U.S. Const., art. I, §§ 9, 10; Ill. Const. 1970, art. I, § 16. These constitutional provisions restrain Congress and the state legislatures from enacting arbitrary or vindictive legislation and ensure that statutes give fair warning of their effect. People v. Malchow, 193 Ill. 2d 413, 418 (2000). A law is ex post facto if it is both retroactive and disadvantageous to the defendant. Malchow, 193 Ill. 2d at 418.

A law is disadvantageous to a defendant when that law criminalizes

an act that was innocent when done, increases the punishment for a previously committed offense, or alters the rules of evidence by making a conviction easier. Malchow, 193 Ill. 2d at 418. Although not coherently developed in the defendant’s brief, presumably the defendant’s argument in this case is that subsection (b — 5) violates the prohibition against increasing the punishment for a previously committed offense.

To determine if that is the case, we must first consider whether the restriction established by subsection (b — 5) constitutes “punishment” {Malchow, 193 Ill. 2d at 419) and thus whether subsection (b — 5) establishes criminal proceedings. See Kansas v. Hendricks, 521 U.S. 346, 361, 138 L. Ed. 2d 501, 514, 117 S. Ct. 2072, 2081-82 (1997) (noting that the principle of ex post facto applies only to criminal laws); Stein v. Howlett, 52 Ill. 2d 570 (1972) (same).

When faced with the question of whether a given statute imposes a punishment, a reviewing court must first ascertain whether the legislature meant the statute to establish “civil” proceedings. Smith v. Doe, 538 U.S. 84, 92, 155 L. Ed. 2d 164, 176, 123 S. Ct. 1140, 1146-47 (2003). If the legislature intended to impose a punishment, the inquiry is complete. Smith, 538 U.S. at 92, 155 L. Ed. 2d at 176, 123 S. Ct. at 1147.

If, however, the intention of the legislature was to enact a regulatory scheme that is civil and nonpunitive, the reviewing court must further examine whether the statutory scheme is so punitive in either purpose or effect that it negates the state’s intention to deem it civil. Smith, 538 U.S. at 92, 155 L. Ed. 2d at 176, 123 S. Ct. at 1147. In making this determination, the reviewing court should ordinarily defer to the legislature’s stated intent, and only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.

Smith, 538 U.S. at 92, 155 L. Ed. 2d at 176, 123 S. Ct. at 1147. As discussed above, we believe that the prohibitive subsections of

section 11 — 9.4 of the Criminal Code of 1961 are intended to protect children from known child sex offenders. See People v. Diestelhorst, 344 Ill. App. 3d 1172, 1184 (2003). Where a legislative restriction is an incident of the state’s power to protect the health and safety of its citizens, the restriction will be considered to evidence an intent to exercise that regulatory power, and not a purpose to add to a punishment. Smith, 538 U.S. at 93-94, 155 L. Ed. 2d at 177, 123 S. Ct. at 1147.

Accordingly, we conclude that the intent of the Illinois General Assembly in passing subsection (b — 5) was to create a civil, nonpunitive statutory scheme to protect the public rather than to impose a punishment. Having concluded that the intent behind the subsection was civil and not punitive, we next must consider whether the effect of the law is so punitive that it negates the state’s attempt to craft civil restrictions. Smith, 538 U.S. at 92, 155 L. Ed. 2d at 176, 123 S. Ct. at 1147.

Whether a punitive effect results despite a statute’s nonpunitive purpose is generally evaluated by employing the seven-factor test first enunciated in the 1963 United States Supreme Court decision of Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963). Smith, 538 U.S. at 97, 155 L. Ed. 2d at 179, 123 S. Ct. at 1149.

More recent precedent indicates that where, as here, the enactment in question applies only to past conduct that was, and still is, criminal, the following five of the seven factors are the most relevant: (1) whether the restriction has historically been regarded as a punishment, (2) whether the restriction imposes an affirmative disability or restraint, (3) whether the restriction promotes the traditional aims of punishment, namely retribution and deterrence, (4) whether the restriction has a rational connection to a nonpunitive purpose, and (5) whether the restriction is excessive with respect to this purpose.

Smith, 538 U.S. at 97, 155 L. Ed. 2d at 180, 123 S. Ct. at 1149. Although these factors are neither exhaustive nor dispositive, they are “ ‘useful guideposts’ ” (Smith, 538 U.S. at 97, 155 L. Ed. 2d at 179-80, 123 S. Ct. at 1149, quoting Hudson v. United States, 522 U.S. 93, 99, 139 L. Ed. 2d 450, 459, 118 S. Ct. 488, 493 (1997)), and we shall employ them in our analysis of subsection (b — 5).

With regard to the first factor — whether the restriction has historically been regarded as a punishment — the defendant contends that “[t]he effect of permanently preventing [the defendant] from living in the only home he has had for thirty-six years is banishment,” which, in turn, has historically been regarded as a punishment. We do not agree that the defendant in this case has been banished. In colonial times, the most serious offenders within a community were banished, after which they could neither return to their original community nor, reputations tarnished, be admitted easily into new communities.

Smith, 538 U.S. at 98, 155 L. Ed. 2d at 180, 123 S. Ct. at 1150. The record in this case is completely devoid of evidence that the defendant cannot return to his original community of East St. Louis or that he cannot be admitted easily into a new community. Indeed, as discussed above, the record indicates that as of May 2, 2003, the date the circuit court entered its order in this case, the probation department had verified that the defendant was no longer living with his mother but was living instead in nearby Belleville.

There is absolutely no evidence that the defendant has been unable to assimilate himself into this new community or that, did he so desire, he would be unable to procure appropriate housing in his hometown of East St. Louis. This absence of evidence is in stark contrast to the factual context before the court in Doe v. Miller, 298 F. Supp. 2d 844 (S.D.

Iowa 2004), wherein the court concluded that the practical effect of Iowa’s 2,000-foot residency restriction was to completely ban sex offenders from living in a number of Iowa’s smaller towns and cities and to relegate sex offenders in the state’s major communities to living in industrial areas, in some of the cities’ most expensive developments, or on the very outskirts of town, where available housing was limited. We have before us no such evidence on the practical effect of subsection (b — 5) in St. Clair County or for that matter anywhere else in Illinois.

Furthermore, although the defendant is prohibited from “residing” at the home his mother owns in East St. Louis because that home is located within 500 feet of a school, he is not precluded from visiting his mother at that home on a daily basis and thereby enjoying her support. Put simply, the restrictions placed on the defendant by subsection (b — 5) in no way resemble the historical punishment of banishment, and only a tortured reading of the term banishment could lead us to conclude otherwise.

On the record before us, we cannot conclude that the restrictions of subsection (b — 5) are a historic form of punishment. We turn now to the second factor — whether the restriction imposes an affirmative disability or restraint. To determine this, a reviewing court must consider how the effects of the statute in question are felt by those subject to it. Smith, 538 U.S. at 99-100, 155 L. Ed. 2d at 181, 123 S. Ct. at 1151. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive. Smith, 538 U.S. at 100, 155 L. Ed. 2d at 181, 123 S. Ct. at 1151.

Although subsection (b — 5) does specifically restrict persons subject to it from living in certain areas, it does not otherwise restrict the movement and activities of such persons. See People v. Malchow, 193 Ill. 2d 413, 421 (2000). Likewise, we are mindful that restricting the freedom of those deemed dangerous “is a legitimate nonpunitive governmental objective and has been historically so regarded.” Kansas v. Hendricks, 521 U.S. 346, 363, 138 L. Ed. 2d 501, 516, 117 S. Ct. 2072, 2083 (1997).

Accordingly, although we would not characterize the disability or restraint imposed by subsection (b — 5) as minor or indirect, we are not convinced that the presence of this factor alone is sufficient to create a punitive effect from subsection (b — 5)’s nonpunitive purpose. With regard to the third factor — whether the restriction promotes the traditional aims of punishment, namely, retribution and deterrence — we begin our analysis with the retribution factor. As discussed above, the purpose of the prohibitive subsections of

section 11 — 9.4 is to protect children from known child sex offenders. People v. Diestelhorst, 344 Ill. App. 3d 1172, 1184 (2003). Also as discussed above, subsection (b — 5) bears a reasonable relationship to the purpose of protecting children from known child sex offenders and sets forth a reasonable method of furthering that purpose. There is no evidence that the subsection is designed as a form of retribution, nor does the defendant argue that it is. We reject the idea that subsection (b — 5) promotes the traditional retribution aim of punishment.

As to the deterrence factor, we noted above that it is reasonable to believe that a law that prohibits child sex offenders from living within 500 feet of a school will reduce the amount of incidental contact child sex offenders have with the children attending that school and that consequently the opportunity for the child sex offenders to commit new sex offenses against those children will be reduced as well. Accordingly, it is possible that the subsection might deter future crimes. However, even an obvious deterrent purpose does not necessarily make a law punitive. Department of Revenue v.

Kurth Ranch, 511 U.S. 767, 780, 128 L. Ed. 2d 767, 779, 114 S. Ct. 1937, 1946 (1994). In fact, any number of governmental programs might deter crime without imposing punishment. We agree with the United States Supreme Court that to hold that the mere presence of a deterrent purpose renders a statute criminal would severely undermine the government’s ability to engage in effective regulation. See Smith, 538 U.S. at 102, 155 L. Ed. 2d at 183, 123 S. Ct. at 1152. We reject the idea that subsection (b — 5) promotes the traditional deterrence aim of punishment.

We conclude that the subsection’s purpose is the protection of the public and that it does not significantly promote either retribution or deterrence. As to the fourth factor — whether the restriction has a rational connection to a nonpunitive purpose — we have repeatedly noted'that the purpose of subsection (b — 5) is to protect children from known child sex offenders.

Given this purpose, it is reasonable to conclude that restricting child sex offenders from residing within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age might also protect society. As to the fifth and final factor — whether the restriction is excessive with respect to its purpose — we conclude that it is not. As noted above, among the 13 states that have enacted some form of residency restriction applicable to sex offenders, the 500-foot restriction of subsection (b — 5) is the least restrictive in geographical terms.

Likewise, as noted above, although the law restricts residency to some extent, it does not otherwise restrict the movement and activities of child sex offenders. As the United States Supreme Court has noted, the excessiveness inquiry of ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. Smith, 538 U.S. at 105, 155 L. Ed. 2d at 185, 123 S. Ct. at 1154. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective. Smith, 538 U.S. at 105, 155 L.

Ed. 2d at 185, 123 S. Ct. at 1154. Having concluded that prohibiting child sex offenders from living within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age bears a reasonable relationship to the purpose of protecting children from known child sex offenders and sets forth a reasonable method of furthering that purpose, we decline to now find subsection (b — 5) excessive with respect to that purpose.

Our review of the effect of subsection (b — 5) under the Mendoza-Martinez factors convinces us that subsection (b — 5) is not so punitive that it negates the state’s attempt to craft civil restrictions. Accordingly, subsection (b — 5) does not constitute an ex post facto law, and the defendant’s fourth argument on appeal fails. The defendant’s fifth argument on appeal is that subsection (b — 5) violates the defendant’s right against self-incrimination. Specifically, the defendant argues that because he was required to register as a sex offender and reveal his address pursuant to

section 3 of the Sex Offender Registration Act (730 ILCS 150/3 (West 2002)), he was forced to incriminate himself with respect to subsection (b — 5). We begin by noting that the defendant’s argument is not with subsection (b — 5), which contains no registration requirements, but with

section 3, which contains the registration requirement to which the defendant objects (730 ILCS 150/3 (West 2002)). We note as well that points not argued by a party are waived and “shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” 188 Ill. 2d R. 341(e)(7). Those points notwithstanding, we find, after giving due consideration to the defendant’s argument, that subsection (b — 5) does not violate the defendant’s right against self-incrimination.

The United States Supreme Court has found various statutory registration schemes directed at specific criminal offenses to violate the fifth amendment’s privilege against self-incrimination. However, in all those cases the disclosures condemned by the Court were only those extracted from a “ ‘highly selective group inherently suspect of criminal activities,’ ” and the privilege was applied only in “ ‘an area permeated with criminal statutes,’ ” not in an essentially noncriminal and regulatory area of inquiry. California v. Byers, 402 U.S. 424, 430, 29 L. Ed. 2d 9, 18, 91 S.

Ct. 1535, 1539 (1971), quoting Albertson v. Subversive Activities Control Board, 382 U.S. 70, 79, 15 L. Ed. 2d 165, 172, 86 S. Ct. 194, 199 (1965). The Court noted that in the cases where the privilege applied, compliance with the statutory disclosure requirements would confront the individual so complying with substantial hazards of self-incrimination. Byers, 402 U.S. at 430, 29 L. Ed. 2d at 18, 91 S. Ct. at 1539.

For example, in one of the cases in question, involving noncompliance with federal gambling tax and registration requirements, the Court noted that its ruling had rested on the reality that at that time almost everything connected with gambling was illegal under comprehensive state and federal statutory schemes and that, accordingly, “in almost every conceivable situation compliance with the statutory gambling requirements would have been incriminating.” Byers, 402 U.S. at 430, 29 L. Ed. 2d at 19, 91 S. Ct. at 1539.

Largely because of these pervasive criminal prohibitions, gamblers were considered by the Court to be a “ ‘highly selective group inherently suspect of criminal activities.’ ” Byers, 402 U.S. at 430, 29 L. Ed. 2d at 18, 91 S. Ct. at 1539, quoting Albertson, 382 U.S. at 79, 15 L. Ed. 2d at 172, 86 S. Ct. at 199. Although at first blush convicted child sex offenders might appear also to be a highly selective group inherently suspect of criminal activities, that is not the case in terms of either the application or the effect of subsection (b — 5).

The residency prohibitions and the concomitant exemption of subsection (b — 5) apply to all convicted child sex offenders, not just those in violation of the subsection. For the majority of these individuals, compliance with

section 3 of the Sex Offender Registration Act vis-avis subsection (b — 5) is a matter of routine and does not implicate illegal activity. Accordingly, this is not a case where compliance with the statutory disclosure requirements will in most cases confront the individual so complying with “substantial hazards of self-incrimination.” Although the disclosure of inherently illegal activity is inherently risky and thus is protected by the privilege against self-incrimination, the disclosures required by

section 3 do not implicate inherently illegal activity and so do not generate the same risks. Furthermore,

section 3 is a part of a nonpunitive statutory scheme, the purpose of which is not to garner information for future criminal prosecutions but to provide “an additional measure of protection for children from the increasing incidence of sexual assault and child abuse.” People v. Malchow, 193 Ill. 2d 413, 420 (2000). Accordingly, for purposes of a fifth amendment analysis under Byers and its progeny, the registration requirement of

section 3 exists within an essentially noncriminal and regulatory area of inquiry rather than “an area permeated with criminal statutes.” To determine whether a statute violates the privilege against self-incrimination, the issue must be resolved by balancing the public need for protection against the individual claim to constitutional protection. California v. Byers, 402 U.S. 424, 427, 29 L. Ed. 2d 9, 17, 91 S. Ct. 1535, 1537 (1971). We are mindful as well that “[i]t is well[-] settled that the government need not make the exercise of the Fifth Amendment cost[-]free.” McKune v. Lile, 536 U.S. 24, 41, 153 L.

Ed. 2d 47, 62, 122 S. Ct. 2017, 2029 (2002). For the reasons discussed above, we conclude that a careful balancing of the purpose of

section 3 of the Sex Offender Registration Act against the claim that the privilege against self-incrimination should exempt an offender who is violating subsection (b — 5) from having to provide the offender’s address favors the public interest involved and weighs against extending the privilege against self-incrimination. For that reason, the defendant’s fifth argument fails. The defendant’s sixth argument on appeal is that subsection (b — 5) constitutes cruel and unusual punishment.

Specifically, the defendant, reiterating an earlier argument, argues that subsection (b — 5) “amounts to banishment from the family home.” Having earlier in this opinion rejected the argument that the defendant in this case has been banished, and having noted that the record in this case is completely devoid of evidence that the defendant cannot return to his original community of East St. Louis or that he cannot be admitted easily into a new community, we find no merit to the defendant’s argument that his alleged “banishment” by subsection (b — 5) constitutes cruel and unusual punishment.

The defendant’s seventh and final argument on appeal is that subsection (b — 5) is overly broad “because it applies to individuals without regard to individual circumstances or exceptions.” The defendant acknowledges that overbreadth analysis is confined to alleged denials of first amendment rights, but he argues that subsection (b — 5) impinges upon his right to freely assemble because the subsection prohibits him from living with his family. We do not agree. First, as discussed above, the subsection does not prohibit the defendant from living with his family.

The plain language of subsection (b — 5), quoted above, demonstrates that the statute does not dictate with whom a child sex offender may live; to the contrary, it merely restricts where, geographically, a child sex offender may live in relation to a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age. 720 ILCS 5/11— 9.4(b — 5) (West 2002). Second, although the subsection does restrict residency to some extent, the defendant is in no way precluded from visiting his mother at her home on a daily basis and thereby enjoying her support and company.

Third, even assuming, arguendo, that subsection (b — 5) does somehow infringe upon the defendant’s freedom to lawfully assemble, where a first amendment right is an “integral” part of the conduct prohibited by a statute, the right is not constitutionally protected for purposes of the overbreadth doctrine. People v. Jamesson, 329 Ill. App. 3d 446, 453 (2002). Accordingly, we reject the defendant’s contention that subsection (b — 5) is overly broad. For the foregoing reasons, we affirm the order of the circuit court. Affirmed. HOPKINS, J., concurs.