Illinois ban on sex offender phone calls with their children ruled unconstitutional

CHICAGO (CN) — The Seventh Circuit on Thursday ruled an Illinois policy barring sex offenders on supervised release from contacting their children is, in part, unconstitutional.

The three-judge panel found the Illinois Department of Corrections’ presumptive ban on parolees contacting their children is unconstitutional and violates former inmates’ right to due process. The judges ruled the department must allow monitored phone contact for parolees and their kids.

A group of parolees filed a class action against the Illinois Department of Corrections in 2018 over the policy, which forbade sex offenders from contacting their children in any capacity for at least six months after their release from prison.

In June 2018, a federal judge said the policy violates parolees’ right to due process, which necessitated a new policy that stipulates that people on supervised release can request to see their children, but they must first see a sex offender therapist within two weeks of their release from prison.

The class claimed the new policy was a presumptive ban on sex offenders seeing their children, but the federal judge disagreed and upheld the new policy.  The parolees appealed.

The parolees’ attorney Adele Thomas told the Seventh Circuit panel that the new policy still prevents parents from seeing their kids for months at a time. She said this is partly because the Department of Corrections cannot guarantee that therapists can see people on supervised release within two weeks, as it can’t control the therapists’ schedules.

“Even for the four therapists employed directly by IDOC, demand for therapy outstrips the therapists’ capacity to see patients, and as a result it 'typically' takes around two months to even have an initial intake appointment,” the class said in its brief.

While parolees are waiting for a decision from their therapist, they still cannot contact their kids through the phone or by mail — despite being permitted to do so while they were incarcerated.

The Department of Corrections has maintained that this is a matter of protecting children, as predatory behaviors are still possible through phone contact.

U.S. Circuit Judge Diane Wood, a Bill Clinton appointee, asked during the December arguments why the department hasn’t considered monitoring telephone calls from people under supervised release, like they do when they’re incarcerated.

The department said monitoring these calls would create an undue administrative burden, which the panel of judges ultimately disagreed with.

“There is no evidence in the record to suggest that call monitoring by a custodial parent or an IDOC agent while a parent awaits a final contact determination would create such a burden,” U.S. Circuit Judge Thomas Kirsch, a Donald Trump appointee, wrote for the panel.

The class also argued the policy lacks any timeline or deadline, which means that a therapist could interfere with a parolee seeing their child indefinitely. But the panel found the imposition of a deadline would get in the way of the department's interest in protecting children.

“Imposing a formal deadline for final contact determinations would pose more than a de minimis cost to IDOC’s interest in protecting children, as a therapist may have to make a final contact recommendation without the information needed to make an accurate assessment of the parent’s dangerousness,” Kirsch wrote.

The parolees had also argued the Department of Corrections' deference to therapists is unconstitutional. One class member who maintained consistent contact with his teenage son while he was incarcerated was strictly prohibited from seeing his son after he was released — despite being in therapy for over a year — with no explanation as to why.

The panel found, however, that the department's reliance on the parent's treating therapist was proper and that the therapists were sufficiently neutral and impartial decisionmakers.

Wood and U.S. Circuit Judge Candace Jackson-Akiwumi, a Joe Biden appointee, joined the opinion.

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