Legal Background:

Under Executive Law § 259-c (14) aka SARA (the Sexual Assault Reform Act), SORA registrants who are on parole or PRS cannot live within 1000 feet of a school.  SARA is a mandatory parole/PRS condition for any registrant who a) is Level 3, or b) had a minor-age complainant in their case.

Because housing that complies with this restriction is very rare in NYC, and DOCCS will not release someone without a release address, the result of being subject to SARA is that DOCCS will hold you in prison long past your release date until you somehow find your own housing or your name comes up on a long waitlist for the few homeless shelter beds that are made available to this group.  Individuals with a determinate sentence who are held past their maximum expiration (ME) date are held in a “residential treatment facility” (RTF) that is identical to prison.

The Court of Appeals considered four related cases related to this scheme during its fall 2020 term.

1) Who is subject to SARA?  Not quite everyone:

People ex rel. Negron v. Superintendent, Woodbourne Correctional Facility, 

 

Issue Presented:

Does SARA apply to people previously adjudicated Level 3 Sex Offenders who are being released after serving sentences for non-sex offenses?

 

Held:

No, it does not.

In this case, since Mr. Negron was being released from serving a sentence for a robbery conviction, the statute did not require that he be subject to SARA.

Discussion:

In an opinion authored by Justice Garcia, the Court affirmed the Third Department’s decision, which found that the statutory language clearly did not cover people in Mr. Negron’s situation.  The Court analyzed Executive Law § 259-c (14), which provides that:

"notwithstanding any other provision of law to the contrary, where a person serving a sentence for an [enumerated offense] and the victim of such offense was under the age of eighteen at the time of such offense or such person has been designated a level three sex offender . . . is released on parole or conditionally released pursuant to subdivision one or two of this section, the board shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds."

The Court held that the plain language of the statute and the manner in which it was amended support the conclusion that registrants must be re-entering from a sentence for an enumerated offense for SARA's mandatory condition to apply.

For two reasons, the majority held, a plain reading of the text supports the holding:

1) Under normal usage, “such person” should take its meaning from the entire antecedent phrase (“a person serving a sentence for an [enumerated offense]”); and

2) The use of “such sentenced offender” later in the sentence reinforces the conclusion that the whole antecedent phrase informs the meaning of “such person.” 

Moreover, the Court pointed out that the purpose of the statute, which is to identify those registrants who pose the highest risk to children, as well as the text of surrounding provisions further corroborated this reading.

The Court reasoned that the history of the amendments to SARA supported Mr. Negron’s reading of the statute, explaining that prior to 2005, the provision applied only to those serving sentences for enumerated offenses against minors, and that the logical expansion from that point was to include the subset of Level 3 registrants who posed a higher risk because they were being released for the first time since the offense.  The Court rejected the argument that because a Level 3 adjudication reflects a judgment that a registrant poses a heightened risk for life, the legislature must have intended to subject all Level 3 releasees to SARA.  The residency restriction would not be consistent with that assessment, the Court explained, since it applies only to those on community supervision and not to every last Level 3 registrant. Finally, the Court noted that in 2005 the legislature was aware that registrants confront housing shortages that are only exacerbated by SARA and would have weighed that consequence in deciding the scope of the restriction.

The Court noted that the legislative history did not compel a different a reading of the statute. Although the 2005 Legislative history discussed the necessity for revision with reference to “Level 3,” the discussion was consistent with assumption that only enumerated offenses were contemplated.  Moreover, there was no indication in the legislative history of an intent to radically expand the scope of SARA.  

In dissent, Justice Fahey, joined by Justice DiFiore, argued that a plausible reading of “such person” was “a person serving any sentence,” and that the legislative history supported that reading.  He pointed out that the legislative history discussed the 2005 revision simply in terms of “Level 3,” and various letters from stakeholders reflected their understanding that all Level 3 registrants were to be covered.  Finally, he argued that imposing SARA on all Level 3 registrants would be rational, because the Level 3 adjudication entails a finding of a high risk of re-offense as well as a threat to public safety and, absent a successful modification petition, is a lifetime label.

CAL Observes:

The rationale underlying this opinion could extend to other questions regarding the scope of SARA’s applicability.  Most prominently, the idea that SARA applies to those “released on parole or conditionally released” but not to those released to post-release supervision after serving through to their maximum expiration dates may find support in the Court’s observation that the legislature sought to apply SARA only to a subset of the high risk, Level 3 group and was concerned about the housing shortage that the SORA/SARA regime creates.  

2) Are there statutory or constitutional limits to DOCCS’ ability to incarcerate SARA registrants past their release date?  No, there are not:

People ex rel. Chance McCurdy v. Warden, Westchester County Correctional Facility, 

 

Issue Presented:

Whether DOCCS has the authority to place a Level 3 SORA registrant who has already completed six months of PRS into a prison RTF when the registrant is unable to locate SARA-compliant housing.

Held:

Yes, it does.

In a split decision, a majority of the Court held that, properly read, Penal Law § 70.45(3) and Correction Law § 73(10) do not conflict and that the latter statute allows DOCCS to use an RTF as a residence for registrants serving PRS and subject to SARA's residency restrictions until such time as the registrant identifies SARA-compliant housing.  

Discussion:

Petitioner McCurdy was convicted of attempted first-degree sexual abuse and sentenced to three years’ incarceration and five years’ PRS.  Because he was adjudicated a Level 3 registrant, he was subject to SARA’s mandatory residency restrictions while on post-release supervision.  Like many registrants subject to SARA, he was unable to locate compliant housing and so was detained in an RTF (more than once) by DOCCS due to his lack of housing.  He filed a habeas petition challenging DOCCS’ authority to hold him in an RTF more than six months after he completed his prison sentence.  The trial court converted his habeas petition into an Article 78 proceeding and granted relief to a limited extent.  The Second Department reversed that decision.

In a majority opinion written by Justice Stein, the Court affirmed the Second Department’s decision, finding no conflict between the provisions of Penal Law § 70.45(3) and Correction Law § 73(10), which, according to the Court, serve distinct purposes.  Penal Law § 70.45(3) permits the Parole Board to “impose, as a condition of PRS, a mandatory transfer of a person on PRS to an RTF for a period of up to six months; that period must commence immediately following initial release to PRS.”  Correction Law § 73(10), on the other hand, allows DOCCS “to use any [RTF] as a residence for persons who are on community supervision.”  According to the Court, the former provision gives the Parole Board the authority to mandate detention in an RTF for a limited period of time to complete programming, whereas the latter allows DOCCS to use an RTF as “temporary housing” for a supervisee lacking an appropriate residence.  

The majority rejected Mr. McCurdy’s argument (endorsed by the dissent) that the subsequently enacted Penal Law provision imposes a temporal limit on DOCCS’ authority under the Correction Law to detain a supervisee in an RTF.  Instead, the majority distinguished the provisions based on the different statutory language used and their purported purposes.  The Court found particularly notable the fact that an individual detained pursuant to Penal Law § 70.45(3) would be enrolled in programming, whereas someone held in an RTF pursuant to Correction Law § 73(10) was not necessarily required to complete programming and instead had the RTF simply as his “residence” until alternative housing was secured. 

The majority also concluded that Mr. McCurdy’s proposed interpretation of the statutes would “lead to absurd results” and conflict with legislative intent, as well as undercut the statutory scheme in place for allocating shelter housing to indigent SORA registrants.  

In an opinion authored by Justice Fahey, and joined by Justices Rivera and Wilson, the dissent concluded that DOCCS’ authority to confine a registrant supervisee to an RTF was temporally limited by Penal Law § 70.45(3) to a period of six months.  The dissent reasoned that the more recently enacted Penal Law provision, which expressly states that it applies “notwithstanding any other provision of law,” is controlling as opposed to the more general, earlier enacted Correction Law provision (regardless of 2011 revisions to Correction law § 73(10) as those revisions were intended to address the merger that formed DOCCS).  

CAL Observes:

Though framed by the majority (and to a large extent, the dissent) as a somewhat dry statutory construction and interpretation issue, the outcome in this case is far-reaching and a real blow to our SORA registrant clients who are subject to SARA.  It effectively gives DOCCS carte-blanche to hold our clients long past their release dates unless and until they can find SARA-compliant housing, a rare commodity in NYC, particularly for those who are indigent.  Moreover, it is disappointing to see the majority rely on the legal fiction that a supervisee detained at an RTF is simply using the RTF as his “residence” as a basis for allowing our client’s continued incarceration beyond the court-mandated sentence.

Left undecided by the decision, however, is whether SARA’s mandatory condition properly applies, by its terms, to those on PRS after serving their maximum sentence.  That issue was initially among those presented in the case, and CAL and Prisoner Legal Services filed amicus briefs on the topic, but the petitioner ultimately conceded the issue was not preserved.  One can hope that a future decision will render this one inconsequential because DOCCS will be foreclosed from imposing SARA’s residency restrictions on those serving PRS following the completion of their sentence.

This decision also leaves open a few RTF conditions questions.  In most circumstances, clients held at RTFs at any point during their PRS terms, whether before or after the 6-month PRS mark, are offered little to no programming and few to no opportunities to leave the facility.  By drawing a sharp distinction between the purposes of the two statutes at issue, the opinion seems to intensify both the statutory programming requirements under Penal Law § 70.45(3) and the requirement for the facility to function as a “residence,” as opposed to a prison or treatment environment, under Correction Law § 73(10).

People ex rel. Johnson v. Superintendent, Adirondack Correctional Facility and People ex rel. Angel Ortiz v. Breslin et al.

Issues Presented:

In Johnson, is the fundamental right to be free from confinement, under substantive due process, infringed by DOCCS’ continued confinement of him past his open parole date?

In Ortiz, is there a substantive due process right to serve a term of PRS in the community rather than a correctional facility?

The court framed the issue for both as follows: does the federal constitutional allow DOCCS to place SARA-restricted sex offenders in an RTF or other correctional facility while awaiting SARA-compliant housing?

Held:

Of course it does—confine away.

Mr. Johnson has no fundamental liberty interest in being released to parole after his open parole date was announced or at any time before the expiration of his entire sentence.  There is some liberty interest in the expectation of release that NY’s parole regulatory scheme creates, but the claim is subject to the rational basis test, not strict scrutiny.

Mr. Ortiz, though a “closer question” than in Johnson, also involves rational basis because Mr. Ortiz has no fundamental liberty interest in being required to comply with a condition of his supervision (even to the extent of being deprived of his freedom until he can comply with that condition).  

Under rational basis, both claims fail because “the temporary confinement of SOs in correctional facilities” while on a waiting list for SARA-compliant shelter beds is rationally related to the legitimate government purpose of keeping certain SOs more than 1000 feet away from schools.

The court also held that although the issues were moot because both petitioners were released long before, the mootness exception applied because the matters raised by the appeals “are important issues that are likely to arise in other cases but also likely to evade review.”

Mr. Ortiz raised two additional issues that the court eagerly rejected:

1) Under the 8th Amendment…

a) continued confinement after an ME date is not cruel and unusual because it does not amount to punishment based on one’s indigent/homeless status rather than one’s conduct.  The majority explained, ostensibly with a straight face, that “sex offender and society alike prefer that the offender remain in his city of long-time prior residence,” where SARA shelter beds are unavailable.

b) DOCCS’ failure to release him to the NYC shelter system to trigger his legal right to shelter did not constitute deliberate indifference as a matter of law, under the limited record in this case.

2) Mr. Ortiz also asked to be given the privileges one would expect from a place called a “residential treatment facility,” such as the ability to come and go.  The majority said the statutory title “residence” doesn’t entitle its “residents” to those privileges, and DOCCS has leeway to set its own rules.

Rivera and Wilson each dissented at length.  Rivera explained that she would find DOCCS’ continued incarceration of both petitioners because of SARA irrational, especially Mr. Johnson who had never victimized a child and was instead a repeat subway groper.  But she believed the correct level of scrutiny was intermediate scrutiny, under which DOCCS’ actions were certainly invalid.  Wilson (joined by Rivera) emphasized that New York City’s right to shelter requires the city to house residents regardless of their SARA status, and asserted that DOCCS cannot refuse to recognize the petitioners’ legal right to stay in a NYC homeless shelter.

CAL Observes:

The holding that constitutional claims related to SARA confinement are subject to mere rational basis review will certainly be used to foreclose all future constitutional challenges to this practice in the lower and intermediate courts, including the ex post facto challenge CAL and LAS have each raised recently on behalf of parole grantees.  The mootness exception holding is the only bright spot in this bleak decision.

The court did not differentiate between prisons and RTFs in its holding that DOCCS may confine these petitioners and those similarly situated in a “correctional facility.”  The court is expected to address the question of whether RTFs actually comply with their statutory definition in future cases, including Alcantara, an LAS case now pending in AD3 that developed a full factual record at the trial level about the conditions of the Fishkill RTF.  (See CAL Observes note in McCurdy, supra).

Judge Wilson’s dissent contains a thorough summary of the SARA problem our clients face that will be even more helpful to cite in future SORA motions than his dissent in Gonzalez.

Wilson also noted that even the AG conceded DOCCS could not confine these petitioners “indefinitely,” and the majority too characterized the confinement as “temporary.”  But, reading this decision together with McCurdy, it is hard to see any temporal limit to their confinement that the court would consider irrational.

Finally, under Ortiz’s 8th Amendment claim in (1a), the assertion that Ortiz is not being punished for his homeless status seems to invite the question of whether petitioners are instead being punished for their status as former NYC residents vs. residents of jurisdictions with more SARA-compliant shelter housing.  The majority’s and AG’s claim that our clients prefer to stay in prison instead of being released to a different jurisdiction (one that may even be closer to their family than the purported RTFs) is preposterous.