Ortiz v. Breslin ( 2022 )

Cite as: 595 U. S. ____ (2022) 1
Statement of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
ANGEL ORTIZ v. DENNIS BRESLIN, SUPERINTEN-
DENT, QUEENSBORO CORRECTIONAL
FACILITY, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF NEW YORK
No. 20–7846. Decided February 22, 2022
The petition for a writ of certiorari is denied.
Statement of JUSTICE SOTOMAYOR respecting the denial
of certiorari.
In New York, criminal defendants who earn sufficient
good time credits before the end of their prison sentences
are entitled to conditional release. Defendants classified by
the State as “level three sex offenders,” however, must first
assure the State that they will not reside within 1,000 feet
of any school. In New York City, this is no easy task, and
the difficulties of finding a compliant residence can result
in defendants serving additional time in prison past the ex-
piration of their sentences. Because petitioner Angel Ortiz
was unable to identify any release address that satisfied the
State’s requirement, he spent over two additional years in-
carcerated when he should have been at liberty. Although
Ortiz’s petition does not satisfy this Court’s criteria for
granting certiorari, I write to emphasize that New York’s
residential prohibition, as applied to New York City, raises
serious constitutional concerns.
I
Ortiz was sentenced in New York state court to 10 years
in prison and 5 years of postrelease supervision. Near the
end of his prison term, Ortiz had earned good time credits
that entitled him to release to a term of community super-
vision. As required by New York’s Department of Correc-
2 ORTIZ v. BRESLIN
Statement of SOTOMAYOR, J.
tions and Community Supervision (DOCCS), Ortiz pro-
posed that he would reside with his mother and his daugh-
ter in their New York City apartment. The DOCCS denied
Ortiz’s request, citing New York law that it interprets to
prohibit a person designated as a “level three sex offender,”
like Ortiz, from residing within 1,000 feet of a school. See
N. Y. Exec. Law Ann. §259–c(14); N. Y. Penal Law Ann.
§220.00 (West Cum. Supp. 2022). 1 Ortiz then proposed doz-
ens of other release addresses, including various homeless
shelters, but DOCCS rejected each one. As a result, Ortiz
spent the entirety of his 17 months of conditional release in
prison.
Even after Ortiz served the full 10 years of his sentence,
Ortiz’s confinement did not end. Instead of releasing Ortiz,
New York transferred him to a state prison that it desig-
nated a “Residential Treatment Facility” to begin serving
his period of postrelease supervision. 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. 2
All told, because of New York’s residency prohibition, Ortiz
was imprisoned for over two years longer than he otherwise
would have been.
While at a Residential Treatment Facility, Ortiz filed a
petition for a writ of habeas corpus in state court, seeking
release to any one of the New York City Department of
——————
1 The text of the relevant law provides that a covered “offender shall
refrain from knowingly entering into or upon any school grounds.” N. Y.
Exec. Law Ann. §259–c(14). New York defines “[s]chool grounds” as “any
area accessible to the public located within one thousand feet” of a school.
N. Y. Penal Law Ann. §220.00. DOCCS interpreted this requirement to
reject Ortiz’s proposed release address because a childcare center was
located in his family’s apartment building.
2 The principal difference between the treatment of Ortiz and the other
residents serving sentences was that Ortiz was occasionally allowed to
leave, guarded by armed correctional officers, to join a work crew that
unloaded trucks at a nearby police facility.
Cite as: 595 U. S. ____ (2022) 3
Statement of SOTOMAYOR, J.
Homeless Services shelters, or, failing that, to live un-
housed on the street. The court denied the writ, reasoning
that Ortiz had not located “compliant community housing,”
and thus, his continued detention was warranted. App. to
Pet. for Cert. 91a. The intermediate appellate court af-
firmed, and, in a divided opinion, the New York Court of
Appeals affirmed as well.
II
In effect, New York’s policy requires indefinite incarcera-
tion for some indigent people judged to be sex offenders.
The within-1,000-feet-of-a-school ban makes residency for
Ortiz and others practically impossible in New York City,
where the city’s density guarantees close proximity of
schools. See Gonzalez v. Annucci, 32 N. Y. 3d 461, 470, 117
N. E. 3d 795, 800 (2018) (acknowledging the “dearth” of
compliant housing in New York City). Rather than tailor
its policy to the geography of New York City or provide shel-
ter 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 maxi-
mum sentences.
Judge Jenny Rivera’s dissent below ably explains how
New York’s policies as applied to people like Ortiz raise con-
stitutional concerns. 3 People ex rel. Johnson v. Superinten-
dent, 36 N. Y. 3d 187, 207, 163 N. E. 3d 1041, 1056 (2020).
Although individuals generally do not have a protected lib-
erty interest in conditional release before expiration of their
sentences, such an interest “may arise from an expectation
or interest created by state laws or policies.” Wilkinson v.
Austin, 545 U. S. 209, 221 (2005); see also Sandin v. Con-
ner, 515 U. S. 472, 483–484 (1995) (“States may under cer-
tain circumstances create liberty interests. . . protected by
——————
3 Judge Rowan Wilson’s dissent also importantly addresses how
DOCCS’s policy violates New York City’s obligation to provide shelter to
those in need. Johnson, 36 N. Y. 3d, at 231, 163 N. E. 3d, at 1072.
4 ORTIZ v. BRESLIN
Statement of SOTOMAYOR, J.
the Due Process Clause”). Here, New York law provides
that a defendant “shall . . . be conditionally released” once
he earns sufficient credits, as Ortiz did. N. Y. Penal Law
Ann. §70.40 (West 2021). As a New York City resident,
Ortiz also enjoyed a right to “shelter and board [for] each
homeless man who applies for it.” Callahan v. Carey, 307
App. Div. 2d 150, 151, 762 N. Y. S. 2d 349, 350 (2003). In
my view, under these New York state and city policies,
Ortiz may well have held a liberty interest at the point that
he became entitled to conditional release. At the very least,
however, Ortiz indisputably held a liberty interest in his
release at the expiration of his full sentence.
The State’s denial of Ortiz’s liberty interest in his release
demands heightened scrutiny. Even absent such scrutiny,
however, as Judge Rivera explains, New York’s policy of in-
definite detention may not withstand even rational-basis
review. Johnson, 36 N. Y. 3d, at 218–221, 163 N. E. 3d, at
1063–1065. No one doubts that New York’s goal of prevent-
ing sexual violence toward children is legitimate and com-
pelling, but New York nonetheless must advance that ob-
jective through rational means. Courts, law enforcement
agencies, and scholars all have acknowledged that resi-
dency restrictions do not reduce recidivism and may actu-
ally increase the risk of reoffending. For example, in strik-
ing down retroactive application of Michigan’s residency
restriction, the Sixth Circuit found no evidence that “resi-
dential restrictions have any beneficial effect on recidivism
rates.” Does #1–5 v. Snyder, 834 F. 3d 696, 705 (2016). The
Superior Court of New Jersey, Appellate Division, struck
down local ordinances establishing residential restrictions,
concluding that they were pre-empted by state law. See G.
H. v. Galloway, 401 N. J. Super. 392, 951 A. 2d 221 (2008),
aff’d, 199 N. J. 135, 971 A. 2d 401 (2009). The court ex-
plained that the local ordinances “make it difficult for a
[convicted sex offender] to find stable housing, which can
cause loss of employment and financial distress, factors
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Statement of SOTOMAYOR, J.
which inadvertently increase the chance of reoffense.” 401
N. J. Super., at 417, 951 A. 2d, at 236.
Law enforcement agencies also recognize that residency
restrictions are often counterproductive. The Department
of Justice acknowledges that there is “no empirical support
for the effectiveness of residence restrictions” such as New
York’s. Office of Justice Programs, Sex Offender Manage-
ment Assessment and Planning Initiative 205 (2017). In
fact, the Department notes, residency restrictions may
cause “a number of negative unintended consequences” that
“aggravate rather than mitigate offender risk.” Ibid. An
empirical study of recidivism conducted by the Minnesota
Department of Corrections confirmed that “none of the 224
sex offenses would likely ha[ve] been deterred by a resi-
dency restriction law.” G. Duwe, Residency Restrictions
and Sex Offender Recidivism: Implications for Public
Safety, 2 Geography & Pub. Safety 6, 7 (May 2009). Like
the Department of Justice, the Minnesota Department of
Corrections concluded that “[b]y making it more difficult for
sex offenders to find suitable housing and successfully rein-
tegrate into the community, residency restrictions may ac-
tually compromise public safety by fostering conditions that
increase offenders’ risk of reoffending.” Id., at 8.
A large body of scholarship also cautions against resi-
dency restrictions as a means of reducing recidivism. Crim-
inologists considering data from Missouri and Michigan
concluded that residency restrictions have little or no effect
on recidivism. B. Huebner et al., The Effect and Implica-
tions of Sex Offender Residence Restrictions: Evidence
From a Two-State Evaluation, 13 C. & Pub. Pol’y 139, 156
(2016). A similar study of recidivism rates in Florida
reached the same conclusion. P. Zandbergen, J. Levenson,
& T. Hart, Residential Proximity to Schools and Daycares:
An Empirical Analysis of Sex Offense Recidivism, 37 Crim.
Justice & Behavior 482, 498 (2010) (“The results of this
study indicate no empirical association between where a
6 ORTIZ v. BRESLIN
Statement of SOTOMAYOR, J.
sex offender lives and whether he reoffends sexually
against a minor”). Other scholars have explained that by
banishing returning individuals to the margins of society,
residency restrictions may lead to homelessness, unemploy-
ment, isolation, and other conditions associated with an in-
creased risk of recidivism. See generally A. Frankel,
Pushed Out and Locked In: The Catch-22 for New York’s
Disabled, Homeless Sex-Offender Registrants, 129 Yale
L. J. Forum 279 (2019).
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 com-
munities. Nevertheless, the Constitution protects all peo-
ple, and it prohibits the deprivation of liberty based solely
on speculation and fear.
When the political branches fall short in protecting these
guarantees, the courts must step in. Indeed, although a
clear split has yet to develop among Federal Courts of Ap-
peals or state courts of last resort, a growing number of
courts have confronted issues cause by the extended impris-
onment of people convicted of sex offenses. In Illinois, for
instance, a Federal District Court enjoined the State from
jailing people convicted of sex offenses “indefinitely because
they are unable to find a residence due to indigence and
lack of support.” Murphy v. Raoul, 380 F. Supp. 3d 731,
738, 766 (ND Ill. 2019). The Court of Appeals of North Car-
olina held under state law that North Carolina could not
revoke a person’s probation simply because he could not
find a residence that complied with the State’s residency
restriction. State v. Talbert, 221 N. C. App. 650, 727 S. E.
2d 908 (2012). In Wisconsin, after litigation challenged the
State’s policy of jailing people convicted of sex offenses past
their mandatory release dates, Wisconsin voluntarily re-
scinded its policy requiring detention beyond the expiration
of a sentence. See Werner v. Wall, 836 F. 3d 751, 757 (CA7
2016). Because of the grave importance of these issues and
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Statement of SOTOMAYOR, J.
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.
* * *
New York should not wait for this Court to resolve the
question whether a State can jail someone beyond their pa-
role eligibility date, or even beyond their mandatory release
date, solely because they cannot comply with a restrictive
residency requirement. I hope that New York will choose
to reevaluate its policy in a manner that gives due regard
to the constitutional liberty interests of people like Ortiz.