NYCLU Sues to Overturn Landmark Sex Offender Law

The law bans thousands of people on the state sex offense registry from entering school zones. Its language is sweeping, applying to some, like MG, whose offenses weren’t sexual. According to the lawsuit, he confronted a group of kids during an intoxicated mental breakdown and grabbed one of them, landing him kidnapping and unlawful imprisonment convictions — two broadly defined, non-sexual offenses that can put someone on the registry.

MG has a wife, five children, and a church community on Staten Island, but he has to live over an hour away. He spends his nights in a homeless shelter on Wards Island, in the middle of the East River, where there are no schools — and few jobs, scant access to transit, and little opportunity.

“I don’t know where I can actually go sometimes,” he said. “I’m so extra cautious, paranoid of going back to prison for this nonsense.”

SARA’s application is mercurial. MG said parole officers have given him conflicting guidance on where he’s allowed to go. It’s 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 Fourteenth Amendment, which guarantees the right to due process and equal protection under the law. 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.”

“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.

“Every time 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, they’re 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.

“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 due to 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 pleaded 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.