The NYCLU Sues to Overturn a Landmark Sex Offender Law

SARA’s application is mercurial. MG said parole officers have given him conflicting guidance on where he’s allowed to go—a common complaint, according to civil rights attorneys.

That nebulousness prompted the NYCLU to argue that SARA is “vague, expansive, and unnecessary,” violating the Constitution’s 14th Amendment. If the suit prevails, it would leave New York’s sex offense registry intact, but eliminate the 1,000-foot rule for schools.

While advocates have found little success fighting SARA in New York courts, there’s precedent for change at the federal level. In 2016, a federal appeals court ruled that Michigan’s sex offense registration law was unconstitutional, specifically citing a provision that prevented registrants from living, working, or “loitering” within 1,000 feet of a school. The state appealed to the Supreme Court, which declined to take on the case. Last year, a federal judge ruled that Rhode Island’s 1,000-foot residency restriction was unconstitutionally vague.

“Individuals subject to SARA have no idea where they can walk, commute, or live,” the NYCLU charges in its federal lawsuit, “without fear of reincarceration.”

On the heels of the 1990s sex offender panic and the Clinton Crime Bill, every state and the federal government created registries, most of them public, of those convicted of sex offenses. As an addendum to New York’s sex offense registration law, SARA applies the 1,000-foot rule to parolees on the registry whose victims were minors, as well anyone a judge deems at the highest risk of re-offending, no matter their victim’s age.

Researchers have argued that such restrictions do little to deter sex crimes. Studies focused on Missouri, Michigan, and Florida have found that they have little to no effect on sex offense recidivism, and the US Department of Justice has acknowledged that there is “no empirical support” for the notion that the restrictions serve as a deterrent. In 2017, under the Trump administration, the Justice Department wrote that severe restrictions can instead carry “unintended consequences,” such as the loss of housing and social stability, that “aggravate rather than mitigate offender risk.”

According to SARA’s opponents, the law is counterproductive from a public safety perspective. New York’s parole officers are already allowed to tailor parole conditions to a number of factors, including proximity to “vulnerable populations.”

“What SARA does is force [the parole system] to impose a blanket restriction on everyone subject to the statute, without regard to whether that restriction makes sense,” Lisa Napoli, director of policy and strategic litigation for Appellate Advocates, told New York Focus last year.

Those indiscriminate limitations make it nearly impossible for SARA-restricted parolees to accomplish basic survival tasks, like finding a job and housing. And it cuts many, like MG, off from their support systems.

JL, another plaintiff, lives in a shelter in the Bronx. He was able to find work as a paralegal, and has been saving up for an apartment, but he can’t find a place that his parole officer will approve. He said he’s submitted dozens of addresses, including at least five that, by the NYCLU’s “most conservative possible measurement,” are over 1,000 feet from a school. His parole officer rejected all of them, without explaining why.

In the shelter, JL gets assigned roommates, and he has to be through the building’s metal detectors by 11 pm or he loses his bed. The staff do a count, then turn out the lights. If he has to work late on a case, he does it on his laptop, in the dark.

“Everytime I walk into the shelter, it’s like walking back into the prison,” he said.

JL and MG are at least lucky to be out. As New York Focus and The Nation reported last year, New York has kept hundreds of those who can’t find SARA-compliant accommodations imprisoned, even past their maximum release dates. The prison agency says it transfers them to a “residential treatment facility.” In reality, officials move them to a different prison. They wear prison uniforms, are subject to prison rules, and most live in general population units—until they can find housing, which is made all the more difficult by prisons’ limited access to the Internet and newspapers. And the prison department has argued that it isn’t required to help them.

The Department of Corrections and Community Supervision, which oversees the state’s prison and parole systems, did not respond to a request for comment before press time.

The NYCLU’s federal lawsuit follows repeated appeals to state courts to overturn various facets of SARA, including the “residential treatment facility” regime. They’ve largely failed.

A majority of judges on New York’s top court have expressed skepticism of reducing punishments for sex offenses. Some advocates were hopeful last year when, after years of relatively conservative majority control on the court, the state Senate confirmed a new chief judge known for defendant-friendly rulings. But while the court has staked out a more progressive direction on defendants’ rights generally, it has largely stayed the course on the politically charged and unpopular subject of sex offenses.

“People convicted of sex offenses are nuclear. Nobody wants to touch it,” said Napoli of Appellate Advocates.

In one 4–3 decision last year, the court rejected one man’s claim that subjecting him to SARA’s restrictions was unconstitutional since the law didn’t exist when he committed his crime in 1986. He couldn’t find housing far enough from a school, leading the prison department to keep him incarcerated for nearly two years after his scheduled release date.

In another case last year, the court unanimously rejected a defendant’s request for an exemption from the 1,000-foot rule based on his being 18 at the time of his crime, and therefore a candidate for a more lenient “youthful offender” sentence.

The court has made some decisions in favor of sex offense defendants, but they’ve been too limited to alter the state’s applications of SARA. Last year, the court heard the case of a man who robbed his aunt at gunpoint in the presence of his 10-year-old cousin and pled guilty to “unlawful imprisonment of a child.” Citing a 2009 case, lower courts forced him to register as a sex offender, even though there was no sexual contact involved in the crime.

The high court overturned his sex-offender registration by a vote of 4–3, but didn’t overturn the 2009 case, leaving cases of other sex offense registrants with nonsexual convictions, like MG’s, untouched.

In another recent 4–3 case, the court found that the state prison agency must attempt to secure educational or professional opportunities for people it holds after their release dates. But, as with previous cases, it rejected arguments that keeping people incarcerated after they’ve completed their sentence is unconstitutional.

“We thought we had something that could take down the [residential treatment facility] confinement system for sex offenders,” said James Bogin, senior supervising attorney at Prisoners’ Legal Services, one of the organizations that filed the case in 2016. “It seems like we’ve largely exhausted the possibilities of what the state courts can do.”

So the NYCLU has upped the ante: By asking a federal court to find SARA unconstitutional, it seeks to strike the law down altogether. Beyond eliminating the 1,000-foot rule, the move would force the state to reconsider its approach to reintegrating sex offense registrants.

“The restrictions—they do nothing,” said JL. The state is “ostracizing people,” he said, “making it so hard to live that you’re making some people want to give up.”