Sotomayor: ‘Courts must step in’ to protect rights, urges NY to end indefinite incarcerationfor SO’s

COLIN KALMBACHER —  Justice Sonia Sotomayor penned a statement related to an order in a case about the alleged deprivation of constitutional rights for sex offenders. The case surrounded a sex offender who finished serving his sentence but who remained behind bars because he couldn’t find compliant housing when he was allowed to leave prison.

According to Sotomayor, Angel Ortiz served out most of his prison sentence and was eligible for good time credits — entitling him to conditional release under state law. Because he was categorized as a “level three sex offender,” he had to assure authorities he would not reside within 1,000 feet of any school. That requirement was based on an interpretation of a law that says an “offender shall refrain from knowingly entering into or upon any school grounds.” Since Ortiz and his family (with whom he would have lived post-prison) were from New York City, the most densely populated large city in the country, this requirement proved to be an impossible task, the case revealed.

The broader court apparently concluded that Ortiz’s petition didn’t raise sufficient constitutional questions to warrant a review. Sotomayor wrote separately. In her statement, Sotomayor respected the full court’s decision not to grant certiorari in the case, but she did use the occasion to urge the State of New York to change its policy on post-release restrictions for sex offenders.

“I write to emphasize that New York’s residential prohibition, as applied to New York City, raises serious constitutional concerns,” Sotomayor’s six-page statement argues.

“Ortiz . . . proposed dozens of other release addresses, including various homeless shelters, but [New York’s Department of Corrections and Community Supervision] rejected each one,” Sotomayor’s statement explains. “As a result, Ortiz spent the entirety of his 17 months of conditional release in prison.”

Even though Ortiz was supposed to have been released from prison after effectively being denied his good time credits because of his housing situation, the state then put him into a so-called “Residential Treatment Facility” (which was actually just another state prison) to begin serving his five-year post-release supervision sentence, Ortiz claimed.

“Ortiz spent eight months in two of these facilities, where he lived behind barbed wire, in a general prison population, in conditions nearly identical to those in which he served his sentence,” the statement notes. “All told, because of New York’s residency prohibition, Ortiz was imprisoned for over two years longer than he otherwise would have been.”

In turn, Ortiz filed a petition for a writ of habeas corpus but was summarily frustrated by each of several New York State courts on the grounds that he had not found “compliant community housing.”

“In effect, New York’s policy requires indefinite incarceration for some indigent people judged to be sex offenders,” Sotomayor argues. “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 both their conditional release date and the expiration of their maximum sentences.”

The upshot of the state’s interpretation of the law, Sotomayor concluded, is the deprivation of protected liberty interests by way of a ban on housing opportunities for many offenders who have otherwise paid their debts to society.

“Ortiz may well have held a liberty interest at the point that he became entitled to conditional release,” the statement argued — citing to state law and two lower court dissents. “At the very least, however, Ortiz indisputably held a liberty interest in his release at the expiration of his full sentence.”

And that, the justice says, “demands heightened scrutiny” of the ban because that practical impact of the state law may fail various forms of constitutional review used to determine such issues by the high court.

“New York’s policy of indefinite detention may not withstand even rational-basis review,” Sotomayor argued — referring to the lowest level of constitutional scrutiny. “No one doubts that New York’s goal of preventing sexual violence toward children is legitimate and compelling, but New York nonetheless must advance that objective through rational means. Courts, law enforcement agencies, and scholars all have acknowledged that residency restrictions do not reduce recidivism and may actually increase the risk of reoffending.”

The justice then goes on, for several pages, to catalogue numerous citations, studies and statements from courts, cops and colleges that suggest restrictive residency requirements actually make sex offender much more likely to re-commit sex crimes.

“[S]cholars have explained that by 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,” Sotomayor’s survey of the literature concluded.

But, the justice acknowledged, rights for sex offenders isn’t a particularly popular cause — or an issue that public officials are even really willing to countenance a change in perspective towards.

“Despite the empirical evidence, legislatures and agencies are often not receptive to the plight of people convicted of sex offenses and their struggles in returning to their communities,” she noted. “Nevertheless, the Constitution protects all people, and it prohibits the deprivation of liberty based solely on speculation and fear.”

“When the political branches fall short in protecting these guarantees, the courts must step in,” Sotomayor continued — but she also noted there isn’t a circuit split on the issue that requires the full court’s attention.

Then, in closing, Sotomayor implored politicians in New York to make a change without waiting on the nine justices:  “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. I hope that New York will choose to reevaluate its policy in a manner that gives due regard to the constitutional liberty interests of people like Ortiz.”