U.S. Supreme Court Justice Sonia Sotomayor filed a statement Feb. 22, 2022, in a case where a New York prisoner had to stay in prison two years past his release date because he couldn`t find a place to live that met the state`s residency restrictions for sex offenders.
Angel Ortiz, a level-three sex offender, had to find a place to live before his release from prison that was more than 1,000 feet from any school or daycare center. That`s “no easy task,” Sotomayor said, given New York City`s density and abundance of schools and daycares. Ortize provided the Dept. of Corrections and Community Supervision (DOCCS) with “dozens” of addresses, even homeless shelters, and they were all denied because of the 1,000-foot rule.
Ortiz then filed a habeas corpus petition in state court challenging his continued incarceration beyond his release date as illegal and unconstitutional. The state courts, however, denied any relief, and the U.S. Supreme Court refused to hear his case. That was the end of the road for his challenge.
New York law says that a “[sex] offender shall refrain from knowingly entering into or upon any school grounds.” N.Y. Exec. Law sec 259c(14). Sounds reasonable enough. But the problem is that N.Y. defines “school grounds” as “any area accessible to the public located within one thousand feet” of a school or daycare. N.Y. Penal Law sec 220.00
Ortiz can`t find a place to live that doesn`t violate this law, so he had to stay in prison until he could find a suitable address.
N.Y.`s 1,000-Foot Rule “Raises Serious Constitutional Concerns”
Despite the Supreme Court`s refusal to hear Ortiz`s case, Justice Sotomayor said that N.Y.`s 1,000 rule for sex offenders “raises serious constitutional concerns” for those living in NYC.
In effect, New York`s policy requires indefinite incarceration for some indigent people judged to be sex offenders. The within-1,000-feet-of-a-school ban makes residency for Ortiz and others practically impossible in New York City, where the city`s density guarantees close proximity of schools. Rather than tailor its policy to the geography of New York City or provide shelter options for this group, New York has chosen to imprison people who cannot afford compliant housing past their conditional release date and the expiration of their maximum sentences.
Sotomayor cited the dissenting judges who would have granted Ortiz relief, saying that he at least had a constitutionally-protected “liberty interest” in being released from prison at the end of his sentence. She also acknowledged that he had a liberty interest in his earned good conduct time under state law, which would`ve release him 17 months earlier than his 10-year max prison term.
Sex Offender Residency Restriction Don`t Work to Prevent Sex Crimes
Sotomayor took the time to explain why sex offender residency restrictions don`t work to prevent sex crimes, and in fact increase the risk of a sex offender committing a new sex offense. She cited on numerous sources that relied on evidence-based studies which have shown that restricting where sex offenders may live does nothing to prevent future sex crimes and actually leads to a greater chance of reoffending.
[B]y banishing returning individuals to the margins of society, residency restrictions may lead to homelessness, unemployment, isolation, and other conditions associated with an increased risk of recidivism. Despite the empirical evidence, legislatures and agencies are often not receptive to the plight people convicted of sex offenses and their struggles in returning to their communities. Nevertheless, the Constitution protects all people, and it prohibits the deprivation of liberty based solely on speculation and fear.
Sotomayor summed up her statement with a warning:
Because of the grave importance of these issues and the frequency with which they arise, it seems only a matter of time until this Court will come to address the question presented in this case. New York should not wait for this Court to resolve the question whether a State can jail someone beyond their parole eligibility date, or even beyond their mandatory release date, solely because they cannot comply with a restrictive residency requirement.
Read Sotomayor`s full statement at Ortiz v. Breslin, 505 U.S. ___ (2022).
Dale Chappell is the author of hundreds of published articles on federal criminal topics and several books, including Worse Than a Murderer: Doing Time as a Sex Offender.