NY Court of Appeals says prison post-sentence detention is constitutional

By Larry . . . These two appeals were consolidated as a result of unfavorable outcomes at the trial court. New York’s highest court considered constitutional challenges to the practice of temporarily confining level three sex offenders[1] in correctional facilities, after the time they would otherwise be released to parole or post-release supervision (PRS), while the person remains on a waiting list for accommodation at a shelter compliant with Executive Law § 259-c (14). In each instance, the court concluded that New York law is narrowly tailored to target high-risk offenders; therefore, continued detention is not a constitutional violation.

This case is exceedingly complicated, which means that this analysis is only intended to summarize the outcome. A variety of novel challenges were raised which the court did not find compelling. For instance, Angel Ortiz, who had served his entire sentence, argued that the correctional facility[2] he was transferred to upon completion of his term of incarceration should have operated more like a residence for him. He reasoned that since he had served his entire prison sentence, he wasn’t being punished any longer. He argued that he should have been permitted to come and go during the day with few restrictions. It is noteworthy that neither challenger invoked the New York Constitution even though it has been interpreted to provide greater protections than the U.S. Constitution. In footnote 7, the court stated in pertinent part, “Johnson and Ortiz mention in passing that we may consider New York’s increased constitutional due process protections under the State Constitution . . . ” The footnote further stated, “. . . Johnson and Ortiz do not contend that it is necessary to develop a state constitutional jurisprudence in this area in the absence of a fitting federal jurisprudence. In other words, they do not argue that we should use a different analytical framework from the Supreme Court in considering the constitutional claims they allege or articulate why state constitutional guarantees were violated if federal constitutional guarantees were not. Accordingly, we apply federal law.” This means that the court’s decision was based entirely on protections provided in the United States Constitution.

CHALLENGERS’ BACKGROUND

Petitioner Fred Johnson pleaded guilty in 2009 to persistent sexual abuse. Johnson had multiple prior sexual abuse convictions for rubbing his penis against women’s buttocks on subway trains in New York City. He was sentenced to an indeterminate prison term of two years to life. Johnson had a history of incarcerations followed by recidivism. Following a 2004 conviction of the same crime, he had been designated a level three sex offender under the Sex Offender Registration Act (SORA), and had been placed on lifetime parole supervision. Johnson appeared before the New York State Board of Parole in June 2017, seeking discretionary parole release. The Parole Board granted Johnson an “open parole date” of August 10, 2017. Based on his SORA risk level designation and the crime for which he was serving a sentence, Johnson was subject to the requirements of the Sexual Assault Reform Act (SARA) which prohibit a person from residing within 1,000 feet of a school. In his conditions of parole release, Johnson agreed that he would not be released until a residential address located outside the Penal Law definition of school grounds had been identified and approved. In November 2017, Johnson filed a petition for a writ of habeas corpus, pursuant to CPLR article 70[3], seeking immediate release from incarceration. In his as-applied constitutional challenge, Johnson contended,“. . . applying SARA’s housing restrictions to keep him in prison, after an open parole date for his release has been set, violates substantive due process by infringing on his fundamental right to be free from confinement.” It is noteworthy that Johnson did not challenge nor did he contend that SARA’s restrictions on where he can live after release are unconstitutional.

Petitioner Angel Ortiz pleaded guilty to robbery in the first degree and attempted sexual abuse in the first degree in 2008. It was his second criminal conviction for trying to coerce a person into having sex with him by means of physical force; his prior victim, a 13-year-old boy, and his 2008 victim were both able to flee before any sexual contact occurred. Ortiz was sentenced to a determinate sentence of 10 years’ imprisonment, to be followed by five years’ Post Release Supervision (PRS). Ortiz was designated a sexually violent level three sex offender under SORA and, like Johnson, was considered to be subject to SARA’s residency requirement while on PRS. The Board of Parole provided Ortiz with notice of the residency restrictions.

The maximum expiration date of Ortiz’s term of imprisonment was March 4, 2018. At that time, Ortiz was transferred to Fishkill Correctional Facility to begin the PRS portion of his sentence in a residential treatment facility (RTF). The following month, Ortiz was transferred to another RTF at Queensboro Correctional Facility. Ortiz sought permission to reside after his release in New York City. Unfortunately, the addresses he suggested were not SARA-compliant. When Ortiz was transferred to RTF housing, it placed him on its waiting list of inmates seeking SARA-compliant housing within the New York City shelter system. Ortiz was released to a SARA-compliant shelter on Wards Island in November 2018. In June 2018, Ortiz, filed a petition for a writ of habeas corpus, challenging his confinement.

PRIMARY CONSTITUTIONAL ARGUMENT

Under the Fourteenth Amendment to the United States Constitution, a state government may not deprive an individual “. . . of life, liberty, or property, without due process of law.” Opinion at 9. The Court held, “Johnson’s interest in being released to parole, after his open parole date had been announced, did not constitute a fundamental liberty interest,” and emphasized, “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence . . . ” Opinion at 11. The court noted, “Ortiz’s appeal introduces a closer question because his case does not involve a claimed right to parole release.” Opinion at 12. Ortiz asserted that his confinement to an RTF in prison-like conditions, after the maximum expiration date of his determinate sentence had passed, violated his fundamental liberty interest. However, like Johnson, Ortiz was subject to the SARA residency requirement and therefore his assignment to an RTF was based on a mandatory condition of his PRS. 

DECISION

The court held, “Requiring an individual who has not satisfied SARA’s housing restrictions to remain in an RTF until SARA-compliant housing is identified does not violate a fundamental liberty interest.” Opinion at 13.

What Next?

NARSOL is disappointed with the decision because similar practices are occurring in other states. Undoubtedly, this will embolden those states to continue holding people in prison who have served their entire sentence. Since we have not spoken to the attorneys, we have no idea if they are planning to pursue this case any further. It would be our expectation that they will not since neither of the two are in custody.

Opinion

[1] New York utilizes an individual risk assessment process to determine what threat a registrant poses to the community.

[2] Angel Ortiz was transferred to a residential treatment facility (RTF) at the conclusion of his prison sentence.

[3] Civil Practice & Local Rules.

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Larry Neely

Larry serves as NARSOL'S treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the "NARSOL in Action" and "Can They Do That?" webinars and is a regular on the "Registry Matters" podcasts.

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    • #78484 Reply
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      Perry

      Well, it’s obvious-again-that Legislators at the Federal and State Levels, only want to continue this Mass Draconian Practice of destroying the lives of family members of Registered Citizens. So again, unless and until The Registry is outlawed and BANNED for good, there can not, and will never be ANY Good for Anyone Anywhere!!

      • #78627 Reply
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        CherokeeJack

        Unfortunately, even before the registry was invented, I saw cases where sexual offenders were held past their release dates. So not sure that would even matter. I followed a few cases back in the 1980s where this exact thing happened. However, it was so long ago I do not remember what happened on appeal.

    • #78485 Reply
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      Joanne C DeStefano

      PSL is unconstitutional

    • #78488 Reply
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      Ed C

      “…the court concluded that New York law is narrowly tailored to target high-risk offenders; therefore, continued detention is not a constitutional violation.”

      My question is how a person is designated as “high risk”, and who makes that decision. The legal doorway may be narrow, but many could be pushed through it unless the criteria are clearly defined. A slippery slope indeed.

      Veritas.

    • #78495 Reply
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      Eldon

      Please site the case information, case #, etc. Would like to review it. Thank you.

      • #78500 Reply
        Sandy Rozek
        Sandy Rozek
        Admin

        Eldon, the Opinion is linked in Larry’s piece, but I have edited to also add a link to the Opinion at the end of the piece.

    • #78497 Reply
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      Tyrus C Young

      While this decision rankles my sense of justice and fairness, are there other violent crimes that this treatment is applied to? I doubt it. Therefore the argument should center around the discrimination of application where identical reasoning could be applied to other crimes of violence – particularly in light of the higher recidivism rates.

    • #78501 Reply
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      Lady Justice Myth

      The state of washington, a state with indeterminiaye sentencing, has found the loophole. ALL class A felonies, even those WITHOUT a victim for government entrapment rackets, who go to trial, are given the maximum sentence of LIFE. They can do whatever they want to you, you never finish the maximum sentence! A 20 year old, no criminal record, caught in a police created sting, convicted with a rubber stamp to fetch the state hefty funding….he belongs to them for LIFE. No other crime necessary to keep him under the states thumb. They can hold him indefinitely, harass him, his family, his community, any way they want. Why? because if he does come out, he’s on parole FOR L.IFE also. It’s called racketeering in my book.

    • #78508 Reply
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      WearethePeople

      So unfair that our Justice System is blind to what is really going on with the People who are labeled Sex Offenders. I think all the Lawyers and the Judges need to spend time in the Prison’s as part of their training. Same with all others who are a part of this so called Justice System. Maybe that would make them see a little clearer that when your time is up, you need to get out! Thanks Larry

    • #78510 Reply
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      Timothy Davich

      So in MN we have to be released from the correctional facility at the end of your sentence, that being completed all of your 2/3 incarceration sentence, and your 1/3 supervised release. At that time you must be released to start your “Conditional Release” this is a separate sentence that per statute all, persons convicted of a sexual offense must serve. If your offense happened prior to 1996, this term was 5 years per conviction, after August 1st. 2006, that time was increased to 10- life. The conditions that you are under are for a level 3 the same as those that they served on SRD Supervised release. They use a phase type system, phases 1-3 are the same as all offenders on SRD, while the remaining phases, 4-5 are specifically for offenders of sexual offenses. And at any point you can be put back to phase 1 for a perceived violation or a violation of the conditions. The evidence used to find you guilty is preponderance of evidence, which anything can be found under this easy means of evidence.

    • #78511 Reply
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      Jim

      OH YEA! You all thought the constitution mattered, Now it REALLY DOSENT MATTER. All the stuff that is going to happen to the united states people now could to be similar to the nazi extreme. This country has successfully wiped out everyone’s rights. This country stripped the rights of its” normal” citizens!!! Ordering how many people can be in your own personal home for thanksgiving!!!! If this country can so swiftly take all rights from normal people with in 6 months, just wait to see what it is going to do to sex offenders! If you don’t take immediate and swift actions to protect your self you Will be ran over. Resistance to the sex offender laws through the constitution and bill of rights and legal court battels is TOTALLY FUTILE. MARK MY WORDS.

    • #78539 Reply
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      Jeremy from Indiana

      So, my opinion may not be popular here, but I’ve commented on parole and probation issues before and in this case, I think the court made the right decision. Parole and probation are lesser punishments in lieu of court sanctioned incarceration. People on parole and probation have zero liberty interest. Now the practice of keeping people locked up after their ENTIRE sentence is a problem, but not this. Please stop wasting resources on fights that don’t matter please.

      • #78541 Reply
        Sandy Rozek
        Sandy Rozek
        Admin

        Jeremy, NARSOL has “wasted” no resources other than some time taken by Larry to explain the case. We get emails asking about almost every decision that comes down affecting registrants, and this is actually a more effective use of our resource of time than answering every email in length. Now we can just send a link to this piece.

    • #78549 Reply
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      Jim

      The truth here is that the sex offender registry will Never go away. First of all, The constitution and bill of rights don’t exist anymore. Second of all there would be MILLIONS of government employees out of work if the registry was abolished. Third the us government would have to admit that they were wrong doing this registry. They will never admit to being wrong about anytthing. There are ways to stop the registry. Just use your imagination. It can happen. Stop being weak. Its better to die on you feet than live on your knees.

    • #78636 Reply
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      Sasha

      Well to start, I am several others were many who were held in these RTF well beyond the prison sentence and it is no different than serving a sentence of imprisonment. You have most of the case referral there (Yes, I even knew Ortiz) It is horrible. you wear prison greens, eat in the messhall and are subjected to the rules of the prison as well as parole and one can be violated by parole.
      PRF or will soon be can and some have served their entire supervision there. No one wants to deal with you and the inmate population knows who you are as well as the so-called officers.
      This is a sickening opinion and it questions as to why PRS even exist or calls into question plea bargains.
      To give you a little of what goes on in Fishkill as an RTF, NOTHING. You sit around all day, maybe going to sweep a hallway. You will NEVER go outside the grounds to seek employment, housing or to see your family.
      One parole officer is assigned there and he/she is not even from the county one may be released to.
      One meet with a counselor once every two week to propose a residence in which one cannot because there is no housing list or anyone in housing being allowed to interview you for a suitable residence. Parole drags their feet and the counselor does not care and will even tell you that. I have caught counselors lying on their notes and there is nothing no one can do about it. If you thought one was powerless while serving a sentence, this is one of the most demoralizing and traumatizing things that can set a person to fail, or lose trust in the system for rehabilitation.
      Prison is now becoming the NEW homeless shelters and society seems fine with it.
      Yes, RTF goes for not only LEVEL 3s. There have been some level 1 and 2 there. Parole violators who are PFR are sent there too. The place is so overfilled that people are placed in other dorms with regular prisoners and in FISHKILL their status is placed on a board(I forgot the code) under program so everyone knows who is there is an offender.
      One day an officer lined all the inmates up in his dorm and made a speech regarding sex offenders and how they should not have any rights and you guys need to do something about it. He pointed to the board to show where each offender was and dismissed everyone back to their rooms.
      Some people were forced to pack up or fights broke out that night or the following days. –
      I filed complaints regarding my over stay citing everything from not being informed in the plea agreement to every other violation I could thing of — nothing(CPLR Article 78) I have met dozens who have joined class action lawsuits or filed their own actions — one or two may win or by the time it reaches court they are moved out. One is in exile and that is what this is !!

    • #78644 Reply
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      Sasha

      To Jeremy from Indiana:
      I disagee with your opinion. The idea of parole/PRRS and probation is to have one return back to society and to abide by the rules of society as well as whatever status a person is under. PRS was set to assist the offender to “successfully re-integrate’ back to society where he/se came from.
      This is not happening in an RTF. One is ‘away’ from society and placed in an area that is counterproductive. One cannot learn to gain independence in an RTF. This is not some kind of shelter situation. One is still ‘in jail’ just by another name. They converted a dorm and just renamed it, period.
      There is no programs, so you learn no skills. You get paid for doing nothing, because the regular jobs are suppose to be for inmates and now that one is considered no longer an inmate you can demand a better wage. You are subjected to all the rules, search, abuses, etc that threatens your life, liberty and/or freedom.
      One does not get assistance to leave the place. If you do not know any programs on the outside or have family or friends that can assist, you are stuck there until parole can find one that they feel is suitable. post release is suppose to be supervision outside of prison. What is going on here is supervision while on the inside of prison.
      Question: Why does these things occur when a person meets the criteria for release when parole and other entities have plenty of time to prepare months beforehand? Are you aware that people “max out” or fully complete their sentence of imprisonment there only to be sent to an RTF?
      A parolee has is suppose to have more freedom than an inmate, but here, as I have informed you, there is no difference? So, if a person pleads guilty to 5 years of a sentence of imprisonment and 3 years of PRS, should they expect to do 8 years? Why not just sentence them to the FULL 8 years and be done with it. No they cannot because PRS(post release supervision) is suppose to assist the offender outside of prison.
      To be fair, some of what I stated may sound like hyperbole, but, its not. I have met PRF who have been there over 2 to 3 years and few who have maxed out.(all time done) Now what? They get out and have nothing or no one to “guide them” and now face other hardships for being an offender (many shelters do not accept RSO, even many programs).
      The NYSDOC has tried other ways to deal with RTF by placing PRF in some kind of work release program. The problem with that is the correction officers drives them down with other PFR to a site and stay with them on jobs that they approve – it is like a chain-gang work. Pay is extremely limited and one cannot go or do anything. This is not like a drug program and do not let Residential Treatment Program title fool you.
      I am neutral to see that you have faith in the system and can rationalize valid reasons for things, however, its one thing to see it on paper. Its another thing to live it. Many residents have come up with proposals that would make RTF livable or improve and DOCCS refuses to listen. Now RTF are a blight to the correctional facility.
      Yes, maybe many residents may have proven that there actions, choices or whatever, may place them in the situation, however, many served their time and want to get back to the community and some, be with their family, others work, others enjoy life, etc. I met a father who has been stuck in RTF for over two years. He was violated because his moving truck drove past his sons school on a busy Manhattan street.(His son was not a victim of his offense, he had met a young lady in a hookup who lied about her age) His GPS showed it, he was scared but offered an explanation and given 12 months. 3 years later he is still there, doing absolutely nothing. It is purgatory, it benefits no one except those people in society who rather have all PRF held in detention until they die.
      In truth, although the court may not agree, (IMHO) you are being punished, again because now you cannot fulfill a statute in order to be released and because one is an RSO. Its not like there are a few hundred. Its a few thousand in backlog.

      • #78820 Reply
        Avatar
        Jeremy from Indiana

        Let me clarify what I said: The practice of keeping someone in punishment status while still serving their time is 100% constitutional. That was the argument before the court and the court made the right decision. What I didn’t comment on is whether it’s a productive practice to do so or not. Prison in and of itself is counterproductive, but that’s not the argument that was made. I also didn’t comment on whether what they are doing is right or wrong. That doesn’t matter that much in the court system. They only respond to the arguments they are presented (or at least they’re supposed to) and the argument was whether it was constitutional… it is.

    • #78824 Reply
      Avatar
      Sasha

      That is so true.
      Thanks for not taking it personal, it was not ment to be.

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