by Kevin Bliss

Allison Frankel of the Center for Appellate Litigation wrote an article in the Yale Law Journal discussing New York’s archaic sex-offender housing requirement laws and their inherent problems. She touched on the flawed metrics used to substantiate fear-based reactions to sexual assault, the varied potential violations of both state and federal law these regulations carry, and possible solutions to solve New York’s sex-offender placement problem.

Disabled registered sex-offenders in New York are being held in prison an average of three years past their release date awaiting Sexual Assault Reform Act (“SARA”)-compliant housing, which means the residence cannot be within 1,000 feet of a school. Only four shelters in New York City currently meet that standard. To complicate matters, New York City’s shelters refuse to house anyone not able to independently manage their daily activities or require such things as peritoneal dialysis, an oxygen tank, or catheters they cannot insert themselves despite a 2017 federal ruling that disabled applicants receive “meaningful access to shelter or shelter-related services.”

In addition, more than half the city’s subways are not handicap-accessible with many of the older buildings not fitted for elevators or entry ways wide enough to accommodate a wheelchair. This limits options when it comes to finding acceptable housing and effectively bars some of the disabled from the less expensive neighborhoods.

New York Department of Corrections and Community Supervision (“DOCCS”) has two types of community supervision, viz., conditional release and Post-Release Supervision (“PRS”). If a prisoner is given conditional release, they can be held by the DOCCS until either they find SARA-compliant housing or the end of their sentence.

For those with PRS, when their prison sentence is over and they still have not found acceptable housing, the DOCCS can place them in “Residential Treatment Facilities” (“RTF”). Although these facilities are designated as community-based residences offering job training, education, and housing assistance, in reality the DOCCS has reclassified 13 wings of medium- and maximum-security prisons as RTF.

Residents still wear prison clothes, cannot leave the grounds, and may receive disciplinary actions triggering PRS violations carrying up to five more years in prison. Once their PRS term is over, these individuals are no longer required to find SARA-compliant housing, effectively incarcerating these people simply because they are poor and homeless.

Frankel said the regulations created for sex-offenders were grounded in the false premise that the vast majority of sex crimes are committed by repeat offenders. It was a knee-jerk reaction to heinous crimes, such as the abduction, rape, and murder of Jacob Wetterling — when in fact, most are committed by first-time offenders.

The U.S. Supreme Court cited recidivism for sex offenders as a “frightening and high” 80 percent, but Frankel explained that those numbers were based on an unsupported claim in a mass-production publication, not from an academic study or peer-reviewed article. 

New studies have shown that the recidivism rate has only been about 6.6 percent for sex crimes compared to robbery, which has a rate of 67 percent. Another study conducted in New York showed that 95.5 percent of sex-offenders between 1986 and 2006 were first time offenders. Furthermore, research consistently shows that 90 percent of all minors who are victims of sexual assault know their assailant; sex-offenders commonly victimize family members and well-known acquaintances.

She said no studies have been conducted that prove limiting where a registered sex-offender lives actually reduces the propensity for recidivism. In fact, residency restrictions lead to homelessness, a strain on family relationships, and difficulty graining employment – all factors that contribute to the increase of recidivism. Frankel stated that incorrect perceptions perpetuate inappropriate responses and prevent addressing the underlying causes of sexual assault.

She suggested several viable legal challenges to the continued incarceration of sex-offenders after their scheduled release using such avenues as “reasonable accommodation” under the American with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act (§ 504) as well as Substantive Due Process, Equal Protection, and Cruel and Unusual Punishment Clauses of the U.S. Constitution. She explained thus far, the courts have ruled that DOCCS is not responsible for assisting prisoners to find SARA-compliant housing prior to release and that an RTF facility is an appropriate place for housing sex-offenders on parole. But, constitutional issues have not been addressed in the New York Court of Appeals. And, of the lower tribunals, the one court to have considered SARA requirements for disabled sex-offenders found it unconstitutional.

To file a claim under ADA, § 504, or the Fourteenth Amendment Due Process Clause, sex-offenders with disabilities must prove that they are being discriminated against either explicitly or substantively due to their disability. They also must propose reasonable alternatives where consideration is taken for the overall size and composition of the controlling entity and nature and cost of accommodation. She suggested that disabled sex-offenders argue that lifting SARA restrictions would be a reasonable alternative with negligible safety risks. Next, she suggested arguing fundamental rights to freedom from bodily restraint, family autonomy, and freedom of movement, all cognizable claims under the Fourteenth, Fifth, and Eighth Amendments.

Frankel said detaining prisoners due primarily to their homelessness is unlawful, unnecessary, and untenable. No other country in the world segregates sex-offenders from the rest of the populace.

She noted several states have modified their residency restrictions using more evidence-based approaches. Kansas and Colorado have stated that empirical evidence show that residency restrictions do not improve public safety and have rejected all such restrictions. Michigan Attorney General filed a brief arguing the registration requirements are counterproductive punishment. U.S. Representative Alexandria Ocasio-Cortez introduced a bill to repeal the statute barring public housing based on a person’s prior criminal history.

Another possibility could be narrowing current SARA regulations. The restricted zone could be reduced to 500 feet or could apply only to those people under a certain age. In addition, risk-assessment tools should be scientifically verified, and the DOCCS should work with other government agencies to help locate and access medically appropriate housing for disabled sex-offenders ready for release. DOCCS’ Directive 9222 already allows for emergency funding to find housing for qualified individuals, and they already pay for a prisoner’s housing and health care. So finding affordable community housing would be more cost effective, especially since Medicaid and SSI benefits would then be available.

Frankel warned that the current system for New York’s sex-offenders is flawed and causes irreparable harm. Focus needs to be diverted to the root cause of the problem and affirmative rehabilitation. Patty Wetterling (Jacob’s mother) said that today’s restrictions are a trap. “We want people to be angry about sexual assault. And then when they’re angry about it, they want to toughen it up for these people, you know, these bad boys who do this. And if we can set aside the emotions, what we really want is no more victims. Don’t do it again. So, how can we get there? Labeling them and not allowing them community support doesn’t work,” she said. 

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Source: yalelawjournal.org

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