Sotomayor sounds constitutional alarm on NY residency law for sex offenders

WASHINGTON (CN) — The Supreme Court turned down a challenge Tuesday from a convicted sex offender whom the state refused to let out of prison when he was otherwise eligible because he couldn't find residential accommodations far enough away from a school to meet probationary requirements.

In a statement with respect to the case, Justice Sonia Sotomayor said the situation raises constitutional concerns, even if Angel Ortiz's petition did not satisfy the high bar that the court sets for granting a writ of certiorari.

"All told, because of New York’s residency prohibition, Ortiz was imprisoned for over two years longer than he otherwise
would have been," the Obama appointee wrote.

Ortiz faced residency requirements — namely that he not live within 1,000 feet of any school — because his conviction is what the state classifies as a level-three sex offense. With good time credits, he was eligible for community supervision for the last year and a half of the 10-year sentence he had spent behind bars.

The state first rejected Ortiz's proposal that he live with his mother and his daughter in their New York City apartment. Dozens of subsequent address proposals — "including various homeless shelters," Sotomayor noted — were also rejected because they were too close to a school.

Still unable to find suitable accommodations, Ortiz served out his full 10-year sentence only to spend the next eight months of postrelease supervision in what that the state designated as a “residential treatment facility.”

"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," Sotomayor wrote.

Calling it “practically impossible” for inmates to find residency within the densely populated city, Sotomayor said New York's law effectively “requires indefinite incarceration for some indigent people judged to be sex offenders.”

“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,” she wrote.

Against this backdrop, Sotomayor notes, multiple scholars, courts and law enforcement agencies have all acknowledged that residency restrictions do not reduce recidivism and could actually increase the likelihood of reoffending.

There is “no empirical support for the effectiveness of residence restrictions” such as New York’s, the Department of Justice wrote in its 2017 Sex Offender Management Assessment and Planning Initiative. Sotomayor quoted this finding and a 2014 study from the Journal of Criminology and Public Policy, which concluded that residency restrictions have “little or no effect on recidivism.”

Other scholars, she added, have explained that “banishing” returning individuals to the margins of society can lead to homelessness, unemployment, isolation and other conditions linked to increased risk of recidivism.

“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 wrote. “Nevertheless, the Constitution protects all people, and it prohibits the deprivation of liberty based solely on speculation and fear.”

Illinois, North Carolina and Wisconsin already revised policies similar to that of New York's that they had on the books, and the Empire State should do the same, Sotomayor advised.

“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,” she wrote.

Follow @EmilyZantowNews

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