They Were Supposed to Be Free. Why Are They Locked Up?

“I have not been convicted and sentenced for a new crime,” Smith told New York Focus and The Nation. “I am left to languish.”

Smith is one of hundreds of New Yorkers over the past decade whom the state has imprisoned past their maximum sentences, often for months or years. It’s not because the judicial system is afraid that he’ll commit another crime — a judge had determined that Smith’s “risk of re-offense is low.” He is caged there, essentially, because he is homeless.

In 2015, Smith was imprisoned for sexually abusing an eight-year-old girl, and state legislation severely restricts where people with such sex offense convictions are allowed to live. With few politicians willing to publicly defend people who have been found guilty of sex crimes, authorities have been free to push the boundaries of how to enforce the law.

The state redesignates people convicted of sex offenses who have served their maximum prison sentences as parolees. But unlike others on parole, some of them don’t get released. They’re kept incarcerated until they can find a legal place to stay or until their parole is up — for Smith, that’s August 2025. They wear normal prison uniforms. They abide by prison visitation, meal, and recreation rules. Most sleep in general population units.

Many of them also work a prison job. And the state holds most of their wages in an account that they can access only upon their undetermined and mostly unknowable release date. For his work assignments, Smith receives between $5 and $10 a week. He called it “slave wages from slave labor.”

This system of prolonged incarceration started nearly a decade ago — and the number of people subjected to it has increased. In 2015, it was 37, according to data obtained by Appellate Advocates and shared with New York Focus and The Nation. By 2017, the number had risen to more than 100, and in the first half of 2019, it was 60 — almost eight percent of the “parolees.”

New York’s Department of Corrections and Community Supervision, or DOCCS, which runs the state prison and parole systems, wouldn’t offer updated annual numbers but said that, as of late July, it was holding 49 people past their release dates. In a statement, the department said that it “follows the letter of the law” when it comes to confining people convicted of sex offenses.

Lawmakers have exacerbated the situation. And courts have so far greenlighted the practice — though that could soon change. A judicial shakeup in New York this year saw one of the few people in power who was willing to criticize it become head of the New York Court of Appeals, the state’s highest court. And a years-in-the-making lawsuit challenging the practice is set to hit the court’s docket.

That case might be the last hope for change until the politics around sex crimes shift.

“It’s very sensitive — people have very emotional reactions to sex offenders,” said James Bogin, a senior supervising attorney at Prisoners’ Legal Services of New York and part of the team working on the Court of Appeals case. “The idea that the end of the sentence doesn’t mean anything, that it doesn’t even lead to any change in your circumstance, is pretty unbelievable.”

“You’re talking years after the end of a sentence,” Bogin continued. “I think that would be shocking to a lot of people, even people who are repelled by sex offenders.”

Smith is less optimistic. “I’m under the impression that your readers won’t care,” he wrote in a message to New York Focus and The Nation. “The general public and the courts want sex offenders off the streets at all costs, including violating the law and Constitution.”

He said his situation was a warning. It’s common for people to end up homeless after prison, and the legal authority that officials cite to keep him incarcerated is broad — “opening the doors” for the state to indefinitely detain more and more people.

In 2000, New York State doubled down by passing the Sexual Assault Reform Act, or SARA. Among other restrictions, the law prohibits anyone convicted of a sex offense against a minor, as well as anyone a judge deems at risk of reoffending, from coming within 1,000 feet of a school while on parole. For the roughly three to 25 years they spend on parole, the law effectively banishes sex offense parolees from large swaths of urban areas — including most of New York City.

Parole officials already had broad authority to restrict where people can live, work, and visit, and according to DOCCS, they cater those restrictions to “risk levels, laws, vulnerable populations, locations of other sex offenders, proximity to victim(s), and accessibility to an individual’s support system.” They would almost certainly, for example, prohibit someone who had sexually abused a child from living near an elementary school. But SARA established much tighter constraints.

“What SARA does is force DOCCS to impose a blanket restriction on everyone subject to the statute, without regard to whether that restriction makes sense,” said Lisa Napoli, an attorney who has argued SARA cases as the director of policy and strategic litigation for Appellate Advocates.

There is no evidence that such restrictions work. Academic studies focusing on Missouri, Michigan, and Florida have found that these policies have had little to no effect on sex offense recidivism. The US Justice Department has acknowledged that there is “no empirical support for the effectiveness” of the restrictions, even suggesting that they carry “unintended consequences,” such as the loss of housing and support systems, that “aggravate rather than mitigate offender risk.”

What SARA does succeed at doing is making it difficult for targeted parolees to find housing. People on probation or parole are generally sent back to the county in which they lived before they went to prison, but because of the law’s geographic restrictions, along with a lack of affordable housing, hundreds of downstate New Yorkers have gone straight from prison to homeless shelters.

Then politicians began to focus on the shelters. In 2007, Jeffrey Klein, a conservative Democratic state senator representing the Bronx and suburban Westchester County, found out that there were people who had been convicted of sex offenses sleeping in shelters that housed families. Over the next decade, he led a campaign to kick them out, publishing reports detailing those registrants’ criminal histories and introducing legislation to bar most people on the registry from shelters. The bills never became law — but Klein found another way.

DOCCS had been treating homeless shelters as a de facto exception to SARA, sending parolees to them even if they were within 1,000 feet of a school. But in 2014, prompted by Klein’s reports, the department decided to crack down. (Klein, defeated in the 2018 Democratic primary after a staffer accused him of forcibly kissing her, did not respond to interview requests.) Almost overnight, 256 of New York City’s 270 shelters became inaccessible to SARA parolees.

Furthermore, the city’s Department of Homeless Services determined that it would receive only around 10 of the parolees each month, leaving most newly released SARA-restricted New Yorkers with nowhere to sleep. And DOCCS had nowhere to send them.

So it decided to keep them in prison.

State law requires DOCCS to offer “employment, education and training opportunities” for RTF residents, but the department assigns them to normal prison work. Among other jobs, Smith has worked as a prison janitor and a clerk in the law library. To “address economic barriers” to finding SARA-compliant housing, DOCCS takes 80 percent of the parolees’ wages and holds them in an account that they’re supposed to use for housing after they’re released.

DOCCS also boasts that it pays RTF parolees more than other incarcerated laborers. Those wages: $5 a day. “That’s pretty good for inmates,” a prison counselor said in a 2017 deposition. “Other inmates are making 25 cents an hour or whatever.” (DOCCS staff are supposed to call the residents “RTF parolees,” but some struggle with the distinction.)

A handful of RTF residents get to work on a “community-based project,” earning an extra $5 a day for work outside prison walls — that is, groundskeeping on DOCCS property. The increased pay comes with tradeoffs: When Smith worked for the community-based project, his five weekly shifts ended with strip searches, he said.

The RTF residents are also subject to the same discipline regime as the rest of the prison population — but with higher stakes. When one is accused of the highest level of prison infractions — including possession of alcohol, being in the wrong part of the prison at the wrong time, or participation in a demonstration — supervisors determine whether it “may constitute a violation of parole” conditions, which can start the cycle of incarceration all over again.

In a deposition, one counselor estimated that throughout 2016 and 2017, a dozen Fishkill RTF residents were subject to parole violation hearings for breaking prison rules. Of those, all but one were charged with violating parole, she recalled.

For “treatment,” RTF parolees are required to attend classes put on by DOCCS, which the department designed after it started to apply the 1,000-foot rule to homeless shelters. The curriculum involves group discussions and worksheets related to life skills, such as social etiquette, how to write a résumé, and how to process “uncomfortable feelings.”

Conspicuously absent is the life skill most pressing to RTF residents: how to find SARA-compliant housing. According to DOCCS, department staff sometimes “act as liaisons and make referrals” to housing providers. But in lawsuits, the department has maintained that its only responsibility when it comes to outside housing is vetting the accommodations that parolees find — which the parolees rarely do, given their limited access to the internet.

The RTF programming is brief, finished in roughly seven weeks. After that, there’s nothing besides normal prison classes for the weeks, months, or years that parolees are forced to spend as RTF residents. Unlike other “treatment” for people with sex offense convictions, it includes no consultations with mental health professionals.

“He used to write me letters. He was so articulate,” Place said. “Now, if you ask him a question, he’d have trouble even just saying yes or no.”

Living in prison doesn’t help. Place said that DOCCS doesn’t give him occupational therapy. He needs the constant care of an assisted living facility — but that’s exactly what’s keeping him incarcerated. There’s no law in New York against people on sex offense registries living in nursing homes, but many homes refuse to take them, citing their responsibility to protect their residents. DOCCS officials haven’t been able to locate a facility that will take him, and as a condition of his parole, Gordon can’t live with his mother.

Place has offered to help DOCCS find a home for her son. “I’ll make phone calls, just give me a list,” she said. “They act like it’s none of my business.”

Citing health privacy laws, DOCCS said it could not comment on Gordon’s situation.

Gordon’s parole is up in April 2024. Place wonders whether he’ll last that long. “With work, he might be okay. He might be able to do some basic self-care. But right now, they’re not doing anything,” she said. “He’s just sitting there. His body and brain are diminishing.”

“He’s a sex offender, I get it — that’s why I reported him,” Place said. “But he’s still my son. He’s still a human being.”