abstract. Across New York, people are incarcerated for weeks, months, and even years after their prison release dates. These individuals are not confined for violating prison disciplinary rules or committing new crimes. New York’s Department of Corrections and Community Supervision (DOCCS) detains them, instead, because they are homeless.

DOCCS refuses to release prisoners to community supervision without an approved address. But for prisoners required to register as “sex offenders,” finding housing means navigating a web of restrictions that are levied exclusively on people convicted of sex crimes and that dramatically constrain housing options, particularly in densely populated New York City. These restrictions amount to effective banishment for registrants with disabilities, who face added obstacles to finding medically appropriate housing and are barred even from New York City’s homeless-shelter system.

As this Essay explores, the State of New York, and particularly New York City, pushes its poor, disabled sex-offender registrants into homelessness, and then prolongs registrants’ detention because of their homeless status. This detention regime continues unabated, despite studies showing that sex-offender recidivism rates are actually relatively low and that residency restrictions do not demonstrably prevent sex offenses. Rather, such laws consign registrants to homelessness, joblessness, and social isolation.

It does not have to be this way. This Essay suggests litigation strategies to challenge the prolonged detention of homeless registrants on statutory and constitutional grounds. The Essay also offers policy solutions to improve New York City registrants’ access to housing and to untether an individual’s housing status from their access to liberty. New York simply cannot and should not continue both to restrict registrants’ housing options and to detain individuals because they are homeless.

Introduction

Larry* called me from his prison cell. He was set to be released in a month. He was eager to get back home to his mom, who was helping him secure a job and working an extra job herself to support him upon his release. As the attorney representing Larry in his sex-offender registration proceedings, I had to be the first to explain, through the crackled phone line, that he could not go back to his mom’s house. Located down the block from a school, and funded by Section 8 vouchers, the house was off-limits to Larry. Living there would violate his sex-offender residency restrictions. If he did not find another place to live, the prison would keep detaining him. No, I did not know when he would go home.

I sat in the prison medical unit across from Richard,* bound to his wheelchair, supplemental oxygen supply at the ready, almost three years to the day after he was granted compassionate release. We went over the list again. Relatives: public housing. Nursing home: too close to a school. Apartment: too much money; not wheelchair accessible. We would continue to do this for years.

Manuel’s* paralysis left him hardly able to speak. He was terminally ill and in urgent need of open-heart surgery. Set to be released within weeks, he planned to undergo the surgery back home. But more than a year after his maximum release date, he remained behind bars because no place—not even the homeless shelter—would agree to house him given his medical needs. We wondered if he would make it out alive.

Larry, Richard, and Manuel’s backgrounds differed, but each of these men was ensnared in the same cruel catch-22: the New York Department of Corrections and Community Supervision (DOCCS) would not release them from prison until they obtained approved housing, but their poverty, disabilities, and sex-offender registration status made finding housing impossible.

There are currently more than 41,500 sex-offender registrants in New York State, with almost 8,000 in New York City alone.1 The Center for Appellate Litigation (CAL), a post-conviction public defender office in New York City where I served as a Yale Law Journal Fellow from October 2018 to August 2019, represents many of them. Nearly all of CAL’s sex-offender-registrant clients are incarcerated beyond their release dates because of their inability to find housing that complies with residency restrictions.

The barriers CAL’s clients face—lack of affordable and handicap-accessible housing; 2 draconian residency restrictions;3 prolonged detention4—are increasingly facing scrutiny in the press.5 But the cataclysmic intersection of these issues in New York City remains largely in the shadows. This Essay fills this gap by exploring the laws, policies, and practices that push New York City’s poor, disabled, sex-offender registrants into homelessness and then prolong registrants’ detention because of their homeless status.

Part I of this Essay describes the barriers to finding housing for New York City’s disabled sex-offender registrants. They must find housing that is affordable, not federally subsidized, medically appropriate, and more than one thousand feet from any school.6 Such housing is often unavailable. While other homeless prisoners may, upon their release, enter New York City’s homeless shelter system, New York City refuses to shelter individuals whose disabilities prevent them from tending to their own daily needs.7

In Part II, I explain DOCCS’s policy and practice of detaining people who have nowhere to go upon release until—from their prison cells, without the ability to visit residences, use the internet, or freely make phone calls—detained individuals somehow find a medically appropriate, parole-compliant residence.

Part III unpacks the fear and flawed data that undergird this regime. It explains research showing that sex-offender recidivism rates are comparatively low; that offenses against strangers, which originally motivated residence restrictions on sex-offender registrants, are relatively rare; and that isolating people from their communities hampers, rather than helps, public safety.

In Part IV, I propose legal challenges to New York’s detention scheme. I discuss the state of litigation in New York and across the country, and I propose litigation strategies based on New York’s failure to accommodate individuals’ disabilities and on violations of substantive due process, equal protection, and the Eighth Amendment.

Finally, in Part V, I build upon scholarship and advocacy materials to suggest policy proposals that, on the one hand, ease registrants’ ability to find housing options and, on the other hand, untether registrants’ housing status from their access to liberty. Implementation of such solutions would ensure that, at the very least, registrants are no longer both forced into homelessness and also incarcerated due to that homeless status.

I. legislated homelessness: a housing crisis for new york city’s disabled sex-offender registrants

Finding housing in New York City can be exasperating for almost anyone, but the additional challenges facing those leaving prison has resulted in a housing crisis among this population. New York is already “one of the world’s most expensive cities in which to rent or buy a home,”8 and the unaffordability problem is only worsening.9 Unable to earn meaningful income while incarcerated, and subject to heightened education and employment barriers upon release,10 “[p]eople leaving prison and jail are typically among Americans with the most dire housing needs.”11

Moreover, the few affordable units are difficult for prisoners to find. Behind bars, this population cannot visit residences, use the internet to search for housing, or access directories of affordable housing options. On top of this, despite recent federal policy guidance warning that blanket rejection of applicants with criminal records may violate the Fair Housing Act, many landlords refuse to rent to people with criminal convictions.12 For individuals subject to sex-offender housing restrictions generally, and for registrants with disabilities in particular,13 additional legal and practical burdens make finding housing nearly impossible.

A. Sweeping Restrictions on Sex-Offender Registrants

In addition to the barriers that face everyone leaving prison, individuals convicted of sex offenses must navigate a second set of restrictions that, as some scholars and judges have recognized, “threaten to result in effective banishment.”14 These sweeping regulations, imposed throughout the United States, exclusively target people convicted of sex crimes.15 In New York, as in many states, the consequences of these laws are severe and life-long: publicly labeling individuals “sex offenders”; triggering a maze of registration requirements for which failure to comply can result in felony charges; and restricting where individuals may live.16 Consequently, as scholar Jill Levenson describes, sex-offender registrants are “legislated into homelessness.”17

This regulatory regime was supposed to make society safer. Following a series of horrendous, highly-publicized stranger assaults on children in the early 1990s,18 Congress and each state scrambled to pass laws to monitor and control people who had committed sex crimes.19 As Eric Janus, a leading academic on sex-offender regulations, describes, “[t]he legislative solution seemed self-evident: give parents the tools to protect their children by notifying them when sex offenders move into their neighborhoods.”20 Soon, states expanded this regime to limit where sex-offender registrants could live and move in order to “limit offenders’ access to children and their temptation or ability to commit new crimes.”21

Today, more than 900,000 people are on sex-offender registries,22 and at least thirty states restrict where those registrants can live.23 But, as described in Part III, new studies show that these laws are wholly untethered from empirical data about sex-offense recidivism and do not demonstrably protect society.

In New York, the Sexual Assault Reform Act (SARA) prohibits certain sex-offender registrants24 from living within one thousand feet of a school during their parole or conditional release.25 This distance is calculated as the crow flies, regardless of whether natural or artificial barriers block direct access to the school.26

Given the abundance of schools and population density in New York City, the one-thousand-foot restriction puts most of the City, and practicably all of Manhattan, off-limits to registrants.27 Even New York’s highest court acknowledges the “dearth of SARA-compliant housing in New York City.”28 Making matters worse, DOCCS will not release its proprietary algorithm for calculating the one-thousand-foot buffer zone.29 Registrants, their loved ones, and even CAL are all left to rely on tape measures or online maps to guess whether a potential apartment is SARA-compliant.

FIGURE 1. Map of SARA-Compliant Housing in New York City30

But that is not all. Federal law permanently bars lifetime sex-offender registrants31 from admission to federally-subsidized housing.32 Similar to their reasoning in passing SARA, legislators justified this de jure public-housing ban as protecting public-housing residents from the “crime” and “gang warfare” seen as pervasive in the 1990s.33 While ensuring the safety of public-housing residents—whose housing options are necessarily limited—is certainly important, as discussed infra in Part III, there is no evidence that barring lifetime registrants from public housing prevents sex crimes.

Meanwhile, the public-housing ban’s impact in New York City is stark. Sixty-one percent of New York City sex-offender registrants must register for life.34 At the same time, “[m]any of the city’s low-income families live in public housing” or rely on “Section 8 housing voucher[s],”35 and one in fifteen New York City residents lives in New York City Housing Authority (NYCHA) housing.36 Many CAL clients report that they do not have a single relative or friend who lives in non-subsidized housing. As a result, this law makes it extremely difficult for poor registrants to find an apartment and often prevents them from living with loved ones in existing, otherwise-compliant, and medically appropriate housing.37

Finally, on top of the federal government’s de jure discrimination, private landlords discriminate against sex-offender registrants de facto. Indeed, “tenant-screening agencies frequently utilize a person’s status as a sex-offender registrant as a screening criterion, and a private landlord receiving information that a prospective tenant is on a sex-offense registry has unbridled discretion in how to use this information.”38

These factors dramatically constrain housing options for New York City’s sex-offender registrants.

B. Increased Burdens for the Disabled

For registrants with disabilities, affordable housing options are even sparser.39 Not only must these individuals find housing that is far enough from a school and affordable, but that housing must also be handicap-accessible and otherwise medically appropriate.

New York City has few wheelchair-accessible buildings, and accessible apartments—fitted with elevators and wide entryways—tend to be more expensive than the old, narrow walk-up buildings that pepper the city.40 Likewise, more than half of the city’s subway stations are not handicap-accessible, making many cheaper neighborhoods untenable options for the disabled.41

Further, many disabled individuals require someone to administer medicine, care for open wounds, or handle cooking and cleaning. Nursing homes and assisted living centers—the former for those with acute needs and the latter for people with greater levels of independence—are sound housing options for individuals with disabilities. But three main barriers prohibit poor, disabled, sex-offender registrants from accessing these facilities.

First, nursing home care is expensive. New York City nursing homes cost, on average, more than four hundred dollars per day.42 Some facilities accept public benefits. However, a prisoner’s Medicaid and supplemental security income (SSI) applications typically are not processed until the individual is released, resulting in a coverage gap, before the reinstatement of benefits but after release, during which nursing homes must absorb the cost of care.43 Facilities are therefore reluctant to accept prisoners immediately upon their release.

Second, many nursing homes and assisted-living centers in New York City are within one-thousand feet of a school. While there is no public directory of SARA-compliant nursing homes, Lynn Cortella, a registered nurse who formerly worked with DOCCS to facilitate placements for sex-offender registrants, stated that, in New York City, “hardly any nursing or assisted living facilities comply with SARA.”44 My colleagues and I routinely witnessed the truth of Cortella’s statement as our clients struggled to find any facility far enough from a school.

Finally, many facilities, either in policy or in practice, simply refuse to accept sex-offender registrants.45 As the Vera Institute explained, “[p]eople released from prison with significant medical needs are seen to inhabit two salient roles—’patient’ and ‘ex-offender’—which, together, can elicit a conflict in values for service providers.”46 This bind has proved true in Cortella’s and my office’s experiences. Facilities routinely reject even debilitated, wheelchair-bound registrants who have been granted release to parole, expressing fears that those registrants could wheel themselves into another patient’s room and commit an assault.47

Given the inherent vulnerability of nursing-home and assisted-living-center patients, these safety concerns are understandable. But there is no evidence that housing sex-offender registrants is linked to heightened abuse in such facilities.48 Moreover, many individuals requiring medical care are elderly, and studies show that sex-offense recidivism markedly declines with age.49 And, in many cases, the facilities’ arguments seem specious. For instance, following litigation, DOCCS contacted dozens of nursing homes for Manuel. All of the facilities rejected him because he was a sex-offender registrant—even though he was adjudicated the lowest risk of reoffending and is physically incapable of moving on his own. His and other clients’ experiences suggest that nursing homes may be less concerned about safety and more concerned about the reputational consequences of housing and caring for a “sex offender.”

C. No Shelter for the Disabled

New York City’s disabled sex-offender registrants are, consequently, frequently rendered homeless.50 Thankfully, New York City has a right-to-shelter mandate, meaning the City must temporarily house any person who needs shelter.51 Many of CAL’s sex-offender-registrant clients enter the shelter system upon their release from prison. But despite its mandate, the City refuses to shelter individuals with serious medical needs.52 New York City’s disabled registrants are left stranded.

Prisoners subject to SARA face myriad barriers to entering the shelter system. As of 2018, there are only four SARA-compliant shelters in all of New York City.53 Further, New York City’s Department of Homeless Services (DHS) requires men54 seeking shelter to first report to the 30th Street intake office, often referred to as “Bellevue,” for placement.55 Bellevue, however, is within one thousand feet of a school.56 For years, homeless registrants subject to SARA were nevertheless released from prison to Bellevue to await a SARA-compliant placement.57 Ever since a politician in 2014 caused an outcry over this practice, however, DOCCS has applied SARA to even the intake shelter.58 Despite their right to shelter, then, registrants cannot visit the location necessary to exercise that right.

DOCCS’s “solution” to this predicament is to keep homeless registrants in prison and put them on a “waiting list” for one of the precious few SARA-compliant beds.59 The “size of the list or how it is administered” remains unknown, but the average waiting time is “approximately two to three years.”60 This, alone, is profoundly troubling.

For New York’s disabled residents, however, the homeless-shelter system is not even an option. DHS refuses to shelter people who meet their medical “Absolute Exclusion Criteria.”61 The criteria cover individuals who cannot “independently manage activities of daily living” or who have other medical issues requiring, for instance, an oxygen tank, peritoneal dialysis, or a catheter that they cannot manage themselves.62

The City rejects any obligation to shelter disabled individuals even in the face of the right-to-shelter mandate and DHS’s own regulations, which require “modification[s]” to “policies or practices” to reasonably accommodate the disabled.63 And it maintains this position despite a 2017 federal settlement, known as the “Butler settlement,” which requires DHS to “provide Reasonable Accommodations on an individualized basis” for shelter applicants with disabilities “in a manner that provides for meaningful access to shelter or shelter-related services.”64

As a result, New York City’s disabled sex-offender registrants typically reach their release date with no place to go.

II. prolonged detention of homeless prisoners

Completing a sentence without finding housing means remaining in a prison cell. As a condition of community supervision—be it parole, 65 conditional release,66 or post-release supervision67—registrants must secure an approved, parole-compliant address.68 DOCCS will not release prisoners until this condition is met. 69 Meanwhile, DOCCS disclaims any obligation to help these individuals find a place to live. And, while DOCCS ostensibly transfers people who have completed their maximum prison terms to residential “treatment” facilities, such facilities are, in reality, simply prison cells by another name.

DOCCS claims that conditioning a prisoner’s release on obtaining approved housing helps law enforcement track individuals that are considered a “high risk” of reoffending in order to prevent crimes.70 Yet, as discussed in Part V, ample alternatives could address legitimate safety concerns without confining people beyond their release dates.

A. No Help Finding Housing

Despite the demonstrated barriers to finding housing discussed in Part I, DOCCS maintains that it has no obligation to affirmatively help registrants find a place to live.71 DOCCS disclaims such a duty even though, as former DOCCS nurse Lynn Cortella described in a 2019 federal court declaration, DOCCS is “well-equipped” for this task.72 DOCCS maintains records of where disabled prisoners have previously been placed, keeps lists of SARA-compliant nursing home and assisted living facilities, and has the capacity to “confirm whether a previously unknown proposed address complie[s] with SARA.”73 These resources are “not generally available to the public nor to prisoners directly.”74 Further, DOCCS employs nurses and social workers who have “specialized knowledge” and are well-suited “to finding medically appropriate placements.”75

Prisoners, meanwhile, are confined to their cells with no ability to use the internet or leave to visit residences, limited access to phone calls or resources to find housing, and no authoritative map of SARA-compliant residences. While their loved ones sometimes can help find housing, often our clients’ families have limited English-language abilities, computer literacy, financial resources, knowledge of the housing market, and time away from work to search for housing. Further, individuals with disabilities may be physically incapable of even picking up a phone or writing a letter. For example, Manuel suffered a’ stroke that left him unable to write or speak, let alone find a place to live.

Even when an individual proposes an address, DOCCS typically fails to act quickly to determine its compliance with SARA. In my office’s experience, DOCCS generally does not attempt to verify that a proposed address is parole-compliant until at or near an individual’s release date. Nor does DOCCS typically put individuals on the infamous shelter “waitlist” until that individual has reached their maximum release date.76 These policies and practices inherently prolong individuals’ housing search and, thus, their detention.

B. Continued Confinement

Registrants subject to SARA thus routinely face prolonged detention. The duration and type of detention depends on the individual’s form of community supervision: discretionary parole or conditional release, on the one hand, and mandatory post-release supervision (PRS), on the other hand. Both wreak inordinate damage in their own ways.

1. Functional Denial of Early Release

If an individual who has been granted parole or conditional release cannot find approved housing, DOCCS continues to incarcerate that individual. Such individuals will serve their entire sentences behind bars.

The disparity between an individual’s early release date and maximum release date can be stark. Larry was sentenced to four to twelve years’ imprisonment, but he was granted merit parole release after just two years based on his excellent behavior in prison. If Larry cannot find SARA-compliant housing, he will be forced to serve every day of his twelve-year sentence—an additional ten years beyond his parole-release date. Since felony sex offenses can trigger sentences of twenty-five years or even life imprisonment, other registrants risk indefinite confinement.77 These individuals are thus wholly denied the benefit of their early release solely because they are homeless.

Yet, the moment these same individuals reach their maximum prison release dates, if they are not subject to a term of PRS, DOCCS lets them go. No longer subject to community supervision—which triggers SARA78—these individuals can walk straight into the 30th Street intake shelter and obtain a shelter placement, or into an apartment or nursing facility located next to a school. People are thus confined for years for failing to find housing that, ultimately, they can typically access after they fully serve their sentences.79

2. Prison by Another Name

People serving a term of PRS following their incarceration face an additional form of detention even after their maximum release dates. PRS is a form of community supervision akin to supervised release in the federal system.80 Under New York’s sentencing regime, the majority of sex-offender registrants serve sentences that carry PRS. These terms range from five to twenty-five years.81

If an individual with a sentence that carries PRS has not found housing by their maximum release date, DOCCS places them in facilities called “Residential Treatment Facilities,” or RTFs, during their PRS.RTFs are ostensibly “community based residence[s]” that provide job training, education, and assistance finding housing, akin to a halfway house.82 But in reality, life in an RTF is indistinguishable from prison.83

DOCCS has administratively designated wings of thirteen state prisons as RTFs.84 There, prisoners remain “behind razor-wire fences” in medium- and maximum-security facilities far from their communities.85 They are “treated much the same as inmates in the general population,”86 wearing the same “prison uniform,” using “the same commissary, mess hall, and sick hall as the rest of the population,” and, like other prisoners, they are forbidden from leaving the prison grounds.87 Further, for any rule violations or crimes committed while in the RTF, they face a PRS violation, potentially triggering up to five years in prison,88 along with prison disciplinary sanctions.

The New York legislature limited DOCCS’ authority to place people serving PRS in RTFs to “a period not exceeding six months” following the completion of their prison term.89 A separate statute, however, authorizes the use of RTFs generally “as a residence for persons who are on community supervision,” with no temporal limitation.90 DOCCS contends, accordingly, that it can hold prisoners in RTFs for the entire period of their PRS91—potentially more than two decades. As a result, New York’s disabled sex-offender registrants can easily spend months, years, or even decades in confinement after their release dates because they are poor and homeless.

III. frightening and wrong: new york’s flawed response to sex offenses

New York’s legislated homelessness and detention regime is not necessary to protect communities from harm. Instead, as this Part shows, the regime is a counterproductive response to fear and flawed data that diverts attention away from addressing root causes of sexual harm.

The sex-offender regulations described throughout this Essay are grounded in the notion that people who commit sex offenses will continue to commit sex offenses, prowling public spaces for their next victims.92 The U.S. Supreme Court itself has upheld sex-offender regulations to protect public safety, citing sex-offender recidivism rates as a “frightening and high” eighty percent.93

This data lacks any scientific basis. The “frightening” figure promoted by the Supreme Court has been traced to one unsupported sentence in a mass-consumption magazine.94 In fact, legislators conducted “little if any research” before adopting this sex-offender regulatory regime.95 One former Department of Justice official described the legislative process as merely “the familiar Washington race to see who can be tougher on crime,” absent any consultation with “professionals working with and treating sexual abusers.”96

In reality, new studies show that sex-offense recidivism rates after conviction97 are between 1.7% and 6.6%.98 In contrast, people convicted of robbery recidivate at a rate of nearly 67%.99 And according to a 2019 U.S. Department of Justice study, “[s]ex offenders were less likely than other released prisoners to be arrested during the 9 years following release.”100

Meanwhile, a study of sex crimes in New York revealed that 95.9% of people arrested for registrable sex offenses between 1986 and 2006 were “first-time offenders”—individuals who therefore, at the time of the offense, were not subject to sex-offender registration or residency restrictions.101 As the study’s authors described, since such laws “were specifically designed to limit the ability of convicted sex offenders to reoffend,” this finding “casts doubt on the [laws’] ability . . . to actually reduce sexual offending.”102

Further, the stranger attacks on children that catalyzed residency restrictions are exceedingly rare: nearly 90% of child victims know their sexual assaulter.103 Research repeatedly and “unequivocally finds that sex offenders are more likely to victimize family members, intimate partners, or acquaintances.”104 The Fortune Society, a New York-based re-entry organization, thus concluded that residency restrictions like SARA are “useless in preventing non-stranger and intra-family offenses.”105 As Levenson, who writes extensively on sex-offender regulations, described, “[t]he myth of stranger danger may lead to a false security for parents, whose children are at greatest risk of being abused by someone they know and trust.”106

Even for those people who likely will reoffend against strangers, however, no evidence shows that restricting where they live will prevent their crimes.107 As numerous scholars and some judges108 have acknowledged, “residential proximity to places where children congregate simply does not affect whether a person convicted of a sex offense will reoffend.”109As one article’s title put it: “There’s Literally No Evidence that Restricting Where Sex Offenders Can Live Accomplishes Anything.”110 Likewise, no evidence shows that permanently barring lifetime registrants from public housing will prevent sexual assaults.111

Instead, the evidence reveals that residency restrictions lead to homelessness, unemployment, and isolation—all factors associated with increased recidivism.112 People are significantly less likely to commit crimes when they have stable housing, a job, and a supportive social network.113 By banishing people from their homes and their communities, then, residency restrictions actually increase recidivism risk factors.114

Further, the United States’ focus on a rare, mythologized, “stranger danger” threat comes at the expense of the “more disruptive and unsettling yet important and neglected work of understanding the pervasiveness of sexual harm” in our communities.115 As scholar Allegra McLeod emphasizes, despite effectively banishing “sex offenders” from society, sexual harm remains widespread—”in U.S. military programs, in the nation’s elite colleges and universities, in the locker room showers at Pennsylvania State University, at the hands of the prestigious Horace Mann School’s ‘Prep School Predators,’ and in prisons, parishes, and families around the country.”116 And this sexual violence often goes unreported, the culture that perpetuates it unchallenged, and those survivors who do come forward, unbelieved.117

Patty Wetterling, whose son Jacob’s brutal abduction and murder spurred today’s sex-offender registration regime, now advocates against the restrictions passed in his name.118 “[I]t’s a trap,” she explained:

We want people to be angry about sexual assault. And then, when they’re angry about it, they want to toughen it up for these people, you know, these bad boys who do this. And if we can set aside the emotions, what we really want is no more victims. Don’t do it again. So, how can we get there? Labeling them and not allowing them community support doesn’t work.119

New York’s disabled sex-offender registrants are thus languishing in prison because they cannot comply with residency restrictions that, at best, miss the mark of improving public safety, and, at worst, actively hinder it.

IV. legal challenges

Given the serious infringements of individual liberty and the limited or even counter-productive impact on public safety, New York’s prolonged detention regime is legally unsound. This Part explores potential legal challenges to New York’s system of detaining people solely because they have nowhere to live. It first summarizes the state of litigation in New York and across the country. Then, building on prior scholarship and lawsuits, it suggests new legal arguments with a focus on “reasonable accommodation” theories under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504); the Substantive Due Process Clause; the Equal Protection Clause; and the Eighth Amendment.

A. The State of the Law

New York’s overarching system of detaining homeless sex-offender registrants has thus far largely withstood judicial scrutiny.120 Lawyers have challenged this system on myriad grounds, including 1) DOCCS’s failure to help registrants find housing; 2) the legitimacy of a prisoner’s RTF confinement; and 3) the constitutionality of prolonged detention under the Due Process Clause, Equal Protection Clause, and Eighth Amendment.121

Litigation in the first category has largely halted in the wake of a 2018 New York Court of Appeals holding that DOCCS has no statutory obligation to substantially help prisoners find SARA-compliant housing.122 Decisions in the second category have been mixed, with some lower courts holding that confinement far from an individual’s community, and without educational and job opportunities, means that the facility is not a legitimate RTF,123 and others upholding such confinement based, essentially, on the facility’s designation as an RTF.124

This Part focuses on the third category of litigation: constitutional challenges. New York’s Court of Appeals has not addressed the constitutionality of detaining sex-offender registrants beyond their release dates solely due to a lack of parole-compliant housing. Lower courts have largely upheld this regime with little explanation. Essentially, these courts have held that prisoners lack a “fundamental right” to be free from community supervision conditions.125 Under an explicitly or implicitly deferential review, they have determined that New York’s “legitimate government interest of protecting ‘children from the risk of recidivism by certain convicted sex offenders’” bears a rational relationship to “keeping certain sex offenders at a distance from schoolchildren.”126 As discussed in Section C below, the one court to consider SARA’s constitutionality under strict scrutiny held the law unconstitutional as applied to a disabled sex-offender registrant.127

Registrants have had more success outside New York, however. While by no means a mass movement,128 courts around the country are increasingly invalidating laws that restrict where sex-offender registrants may live129 and that prolong detention solely because registrants cannot find compliant housing.130 And scholars have highlighted the unconstitutionality of residency restrictions on these and other constitutional grounds, including procedural and substantive due process, equal protection, the Eighth Amendment, and the Ex Post Facto Clause.131

New York’s detention scheme is vulnerable to the same constitutional infirmities. Further, given DHS’s refusal to include the disabled in the City’s right to shelter, New York City is fertile ground for litigation under disabilities laws—a fact largely left out of the literature to date.

B. Failure to Accommodate

Local, state, and federal disabilities laws can serve as robust and flexible tools to challenge New York’s prolonged detention regime. These statutes require government entities to make individualized exceptions to existing regulations, policies, and statutes in order to reasonably accommodate disabled individuals’ access to programs and services.132 Accordingly, the prisoners described in this Essay can argue that DOCCS, the City of New York, and other agencies must make reasonable accommodations for the disability-related barriers they face to securing housing—and, thus, their freedom.

To state a reasonable accommodation claim, a plaintiff must show that (1) they are “a qualified individual with a disability;”133 (2) the defendant “is an entity subject to the acts;” and (3) they were denied the ability to benefit from defendant’s services, programs, or activities “by reason of [their] disability.”134 Then, (4) the plaintiff must allege the “existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.’”135 This Part focuses on the third and fourth elements.

To satisfy the third element, a plaintiff must demonstrate that the discrimination they experience is due to their disability. This may appear challenging for the individuals discussed in this Essay, who suffer intersectional discrimination on the basis of not only their disability, but also poverty, homeless status, sex-offender status and—in certain cases—race, sex, nationality, and other factors.

But disability laws account for the myriad barriers faced by these marginalized populations. A plaintiff can show discrimination “‘by reason of such disability’ even if there are other contributory causes for the exclusion or denial” so long as the disability was a “substantial cause of the exclusion or denial.”136 Further, reasonable accommodations may require making changes to neutral rules that do not directly relate to a plaintiff’s disability, but that account for the “practical impact” of their disability.137

For example, the Second Circuit held that disabled New York City residents who struggled to access public-assistance benefits were facing discrimination “due to” their disabilities, even though non-disabled people also had difficulties accessing these benefits, because their disabilities created significant and “unique physical hurdles.”138 Likewise, registrants can allege that their disabilities substantially contribute to their inability to secure the housing necessary to access their release from prison.

The next challenge, under the fourth element, is proposing a “reasonable” accommodation. Courts have made clear that reasonable accommodations often require making “affirmative accommodations to ensure that facially neutral rules do not in practice discriminate against individuals with disabilities.”139 This may entail making changes to “traditional rule[s] or practice[s],”140 and even preempting inconsistent laws and regulations.141

Importantly, even in the prison context, a defendant cannot deny a reasonable accommodation based “upon general safety and security concerns.”142 Instead, whether a proposed accommodation is reasonable “involves a fact-specific, case-by-case-inquiry”143 that considers, among other things, the “overall size” of the entity’s program, the “composition and structure” of the workforce, and “[t]he nature and cost of the accommodation needed.”144

Registrants can propose ample, cost-effective accommodations that will allow them to find housing, and thus secure their freedom, without harming the public. These solutions, detailed in Part V, would help individuals find housing and reduce the legal barriers constricting their housing choices. For instance, registrants with debilitating disabilities—or who otherwise pose no demonstrable threat to the public—can argue that lifting SARA and/or the public-housing ban is a reasonable accommodation. While no court appears to have ordered this precise relief, courts have lifted other restrictions on subsidized housing as reasonable accommodations,145 and ordered individuals exempt from SORA and SARA based on their lack of safety risk.146

Further, registrants can ask DOCCS to help them find housing or to pay for temporary housing, for instance through its “emergency temporary housing” funding pursuant to Directive 9222.147 Likewise, disabled registrants can assert that the City of New York must reasonably accommodate their medical needs in the shelter system or otherwise provide them with medically-appropriate housing. Both DOCCS and the City of New York have asserted that these accommodations would fundamentally alter their programs.148 But as described in Part V, such accommodations are reasonable.

As this discussion demonstrates, a reasonable accommodation theory creates space for ample creative and individually tailored remedies.149

C. Substantive Due Process

New York’s scheme is also susceptible to substantive due-process challenges. The Fourteenth Amendment’s “guarantee of ‘due process of law’” includes “a substantive component, which forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”150 Accordingly, if a registrant can show that residency restrictions are infringing their “fundamental rights” without protecting public safety, they have a strong argument that residency restrictions are violating substantive due process.151

1. Identifying a Fundamental Right

“[M]uch of the struggle” in litigating a substantive due-process challenge “lies in defining the right.”152 Scholars and litigants have highlighted a number of fundamental rights at stake when an individual is subject to a residency restriction and/or detained beyond their release date. Primarily, challenges center on freedom from bodily restraint, the right to family autonomy, and freedom of movement.153

The most straightforward claim for individuals detained beyond their release dates is a violation of their right to freedom from bodily restraint, which “has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”154 As one New York state court stated with respect to a prisoner detained past his maximum release date, “[e]xtended discussion of whether petitioner’s liberty is a fundamental right at stake in this litigation is hardly necessary.”155

In addition, restricting where an individual may live implicates their fundamental right to family autonomy. Courts recognize that the right of a family to remain together is “perhaps the oldest of the fundamental liberty interests recognized” in the United States.156 Accordingly, New York federal courts have struck down parole restrictions that bar familial contact.157

The major hurdle to litigating a family-integrity claim is that most residency restrictions, including SARA, do not explicitly forbid people from living with their relatives.158 But in practice, SARA’ breaks up families. Many of CAL’s clients are functionally prohibited from living with their loved ones simply because their loved one’s house is too close to a school or is federally subsidized. Between the dearth of SARA-compliant housing in New York City and financial constraints, the families of CAL clients are often unable to relocate. Thus, “[a]rguably, any restrictions placed on a sex offender that limits where he can live” violate the right to family integrity.159

Likewise, residency restrictions implicate an individual’s fundamental right to freedom of movement. While the Supreme Court has not directly ruled on this issue, the Second Circuit has found that the fundamental right to travel includes not only travel between states but also within a state.160 On their face, restrictions like SARA and the public-housing ban prohibit people from sleeping in certain places—not from moving freely.161 But as with the right to family integrity, in practice “[residency restrictions make] the right to freely travel and move nonexistent.”162 Barring people from sleeping anywhere within one thousand feet of a school or in public housing—even if they are allowed to visit that location during the day—surely impinges their freedom of movement.

2. Less Restrictive Ways to Protect

If a court agrees that a fundamental right is at stake, the law will be struck down unless the government can show that the law is narrowly tailored to serve a compelling government purpose.163 Under this strict scrutiny standard, due-process challenges to residency restrictions and resultant prolonged detention are promising.

As courts have concluded, “[t]hat the protection of children from sexual assault is a compelling state interest is beyond argument.”164 To withstand judicial scrutiny, however, the government must show that “mere proximity of a residence to schools,” or that living in a public-housing facility, actually “increases the risk of harm or recidivism.”165

The evidence shows no such impact. As described inPart III, sex-offender recidivism rates are comparatively low, and only a small fraction of those crimes are committed against strangers. Most importantly, no studies show that restricting where people live prevents them from committing these crimes.166 Accordingly, there is no rational relationship between barring people from living in public housing or near schools and protecting the public.

This divergence between residency restrictions’ aims and effects results, in large part, from their gargantuan breadth.167 SARA applies to anyone whose victim was under eighteen, even if a court determines the perpetrator poses a low risk of ever sexually reoffending, and to anyone who is considered at a “high risk” of reoffending, even if the individual poses no particular threat to children.168 Further, SARA does not differentiate between those who found their victims in schoolyards and playgrounds—the perpetrators targeted under the statute—on the one hand, and those who assaulted victims in the victims’ own homes, on the other hand.

Similarly, the federal public-housing ban covers anyone subject to lifetime registration under a state sex-offender registration law. But numerous states, from Arkansas to Oregon, require all people convicted of sex crimes to register for life—whether convicted of rape, indecent exposure, stalking, or creating child pornography—and regardless of an individual’s likelihood of reoffending generally, and against others in their building specifically.169 Moreover, the ban applies forever, even though studies show that people are far less likely to recidivate as they age.170

On top of this, neither ban accounts for individuals, like many of CAL’s clients, who become so disabled that it would be physically difficult, or even impossible, for them to reoffend.

Meanwhile, less restrictive measures can protect the public without resulting in the prolonged detention of poor, homeless individuals.171 For instance, as discussed further in Part V, courts could conduct individualized assessments to ascertain whether someone poses a specific risk of reoffending based on where they live.172 Alternatively, DOCCS and local public-housing authorities could make exemptions to SARA and/or the public-housing ban for one select address, which DOCCS could fully vet. Or, DOCCS could craft narrowly tailored bans based on an individual’s particularized risk. Finally, DOCCS could release registrants into non-parole-compliant housing and monitor them.173

While many courts have rejected due-process challenges to residency restrictions, such challenges generally either were evaluated under a rational-basis standard or involved nonincarcerated plaintiffs.174 Some courts considering situations analogous to those discussed here, however, have exempted individuals from residency restrictions on due-process grounds.

For instance, in Arroyo v. Annucci, a New York court held that SARA violated substantive due process as applied to an elderly, ill, disabled, Level 1 (“low risk”) sex-offender registrant who was being incarcerated beyond his release date because he lacked approved housing.175 The plaintiff confronted all of the hurdles described throughout this Essay: none of his relatives had parole-compliant housing; nursing homes were either too close to schools or refused to accept him due to his sex-offender registration status; and DHS rejected him because of his medical needs. Under these circumstances, the court concluded, SARA’s “unconstitutionality as applied to” the petitioner was “an inescapable conclusion.”176 Similarly, in Yunus v. Robinson, a New York federal court issued a preliminary injunction that exempted from all SORA requirements, including SARA, a man who posed “virtually no risk” of sexual reoffense.177 In this context, the court determined, New York’s sex-offender regulatory scheme infringed on his liberty without furthering the government’s purported public safety interest.178

Arroyo and Yunus provide a solid foundation to argue that there is no legitimate—let alone compelling—reason to infringe on poor, disabled individuals’ rights to freedom from bodily restraint, family integrity, and freedom of movement by barring them from living near schools or in public housing and then detaining them for their inability to find housing that meets those restrictions.

D. Discrimination Against the Poor

Registrants additionally can argue that detention due solely to an inability to afford parole-compliant housing constitutes wealth-based discrimination, in violation of the Fourteenth Amendment’s Equal Protection Clause.

The Supreme Court has made clear that the Equal Protection Clause prohibits states from locking up a person because the individual in question is poor.179 But that is precisely what DOCCS is doing to the registrants described in this Essay. If any of CAL’s clients had money, they would not be detained beyond their release dates. Financially well-off disabled registrants can secure rooms in private nursing homes, handicap-accessible buildings, or with family members who do not need government funding.180 None of these options are available to the poor people I have represented this past year. Thus, “indigent sex-offense releasees in [New York] remain incarcerated when similarly situated wealthy sex-offense releasees are not solely because the indigent releasees cannot afford to pay for housing outside of prison.”181

Courts review equal-protection claims under strict scrutiny if the challenged scheme implicates a “suspect class” or “fundamental right.”182 While courts have largely held that sex-offender registrants and prisoners are not “suspect classes,”183 as discussed above in Section IV.C, there are strong arguments that New York’s detention regime implicates fundamental rights.184 Accordingly, such claims may be reviewed under strict scrutiny.

Courts have invalidated schemes that, as here, result in the prolonged detention of sex-offender registrants who cannot afford housing. For instance, in 2010, Alabama’s highest court struck down its state’s sex-offender residency scheme because, among other things, “indigent homeless sex offenders who have served their prison sentences remain incarcerated solely because they have no funds with which to secure lodging and to obtain an address upon release from prison.”185 Likewise, in 2019 an Illinois federal court held that detaining poor sex-offender registrants “while non-indigent sex offenders roam free” bears “no reasonable relation to public protection.”186 “Quite the contrary,” the court determined, “the condition at issue here—indigency—is itself no threat to the safety or welfare of society.”187

The same reasoning applies to DOCCS’ prolonged detention policy. As-applied challenges brought by the registrants discussed throughout this Essay may be even stronger: where an individual—due to their disability or otherwise—poses no demonstrable safety threat, there is no valid reason to continue incarcerating them purely because they are poor.

E. Discrimination Based on Homeless Status

Finally, New York’s detention regime is vulnerable to Eighth Amendment challenges. The Eighth Amendment’s prohibition on cruel and unusual punishment “proscribes more than physically barbarous punishments”; it embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency.”188 Accordingly, the Eighth Amendment forbids penalizing a person’s “‘status’ or ‘chronic condition,’” as opposed to their voluntary conduct.189Thus, it is cruel and unusual to penalize someone for conduct that is “inseparable from their involuntary condition of being homeless.”190

DOCCS detains sex-offender registrants because they are homeless.191 Each of my clients discussed in this Essay, for instance, will be released the instant they obtain parole-compliant housing. Until that moment, they will remain incarcerated.

The same courts that struck down their states’ detention regimes under the Equal Protection Clause also invalidated those schemes under the Eighth Amendment. These courts concluded that “for someone who is homeless, it is virtually impossible to comply” with the requirement that they obtain housing in order to secure their release.192 Under these circumstances, the failure to secure housing is “not voluntary conduct merely related to, or derivative of, the status of homelessness, but [is] entirely involuntary conduct that [is] inseparable from [their] status of homelessness.”193 Accordingly, the regimes violated the Eighth Amendment.194

For the same reasons, litigators can argue that detaining sex-offender registrants across New York solely because no housing can accommodate their poverty, disabilities, and parole restrictions contravenes the Eighth Amendment.

V. a way forward: policy prescriptions

New York’s system of legislating individuals into homelessness and detaining them due to their homeless status is unlawful, unnecessary, and untenable. But it is not inevitable. While sexual violence tragically occurs throughout the world, the United States is “the only country . . . with blanket laws prohibiting people with prior convictions for sex crimes from living within designated areas.”195 New York and other states can protect their communities from sexual harm without permanently marking and banishing the perpetrators of that harm.196

To be sure, amid a burgeoning criminal-justice reform movement in New York and nationally, sex-offender registrants have largely been left behind,197 consigned as “pariahs” deserving of banishment.198 But rational, evidence-based approaches to sexual violence are, albeit slowly, gaining traction. Kansas and Colorado have rejected statewide residency restrictions based on empirical findings that such laws do not demonstrably improve public safety.199 The Iowa County Attorneys Association in 2006 issued a statement urging the state to repeal its residency restriction on these grounds.200 In 2019, Michigan’s Attorney General filed amicus briefs arguing that Michigan’s sex-offender registration scheme constitutes counterproductive punishment.201The New York City Bar Association has spoken out against New York’s residency restrictions and resultant prolonged detention.202 And a bill introduced by Representative Alexandria Ocasio-Cortez in September 2019 would repeal the federal law that bars admission to public housing based solely on prior criminal convictions.203

This Part builds on these reforms and scholars’ suggestions to propose a way out of New York’s prolonged detention regime. These proposals can be divided into two main categories. First, New York can make it easier for registrants to find housing. Such reforms include repealing laws that restrict where registrants may live and affirmatively helping prisoners find housing. Second, New York can untether a registrant’s housing status from decisions regarding the registrant’s confinement. For instance, DOCCS could release registrants into unapproved housing and monitor them to address any legitimate safety concerns. Simply put, there are ample alternatives to restricting where registrants can live and then detaining them due to their resultant homeless status.

A. Lowering Barriers to Finding Housing

1. Residency Restriction Repeals

First and foremost, New York should repeal SARA’s residency restriction, and Congress should repeal the prohibition on admission to public housing for lifetime registrants.204 Kansas, Colorado, and Nebraska’s rejections of residency restrictions can serve as an impetus for this reform.205

At the very least, existing residency restrictions should be narrowed. The Fortune Society found that halving SARA’s one-thousand-foot buffer zone would open up substantial housing options and, chiefly, make DHS’s 30th Street intake shelter SARA-compliant. This would allow homeless prisoners to be immediately released into the shelter system, instead of lingering for years on a “waiting list” for placement.206 Concomitantly, considering that individuals are less likely to reoffend the older they are and the longer they have been out of prison,207 Congress should limit the public-housing ban to a specified number of years. Further, given evidence that people are less likely to recidivate when they have family support,208 SARA and the public-housing ban should be amended to allow people to live in otherwise noncompliant housing with family members.209

Alternatively, residency restrictions could be imposed on a case-by-case basis. In Minnesota and Texas, for instance, the parole board makes individualized assessments of which registrants must abide by residency restrictions.210 And Oregon’s Department of Corrections has created exceptions to residency restrictions based on, for instance, whether the restrictions will force the registrant into homelessness.211 New York could incorporate such assessments into SORA hearings, when courts already make individualized risk assessments and the registrant is represented by counsel.212 Any risk assessment tools used in such analyses should—unlike New York’s current tool for SORA hearings213—be scientifically verified, as well as account for the inherent racial and socioeconomic biases generally built into algorithms.214

2. Affirmative Assistance Finding Housing

In the interim, New York should help its registrants—particularly those with disabilities and in need of medical care—find a place to live. As former DOCCS nurse Lynn Cortella describes, DOCCS is well positioned to undertake this task.215

DOCCS should also work with other government agencies, like the Department of Health (DOH), that have access to medically appropriate housing options. Responsible for administering New York State nursing homes and assisted-living centers, DOH can discern admissions criteria for these facilities and help place prisoners. As the Vera Institute recommends, DOCCS and DOH officials should “help[] providers understand that the individual in need of placement is a person with a need of and right to care” and “avoid stigmatizing labels such as ‘ex-offender’ or ‘prisoner’” that may discourage facilities from accepting the individual.216 DOH should also provide incentives, such as increased funding and resources, to encourage nursing homes and assisted living facilities to accept people with sex-offense convictions unless they pose an individualized, demonstrable safety threat beyond the mere fact of their conviction.

Further, DOCCS should begin its current (limited) efforts to find housing for registrants earlier. As the Vera Institute describes, “it is vital that discharge planners have as much time as possible before a person’s release to identify and coordinate services”217 to ensure, for instance, that a facility is parole-compliant, medically appropriate, and has a bed available. Thus, instead of waiting until people pass their release dates to put them on a shelter waitlist, DOCCS should do so when an individual is first approved for early release. Likewise, DOCCS should investigate housing options expeditiously to leave time for alternative plans to be made before an individual’s release date.218

At the very least, DOCCS should provide prisoners with the tools necessary to search for housing, such as internet access (with individualized limits as necessary), free phone calls, access to lists of, and application information for, SARA-compliant facilities, and DOCCS’ proprietary SARA-compliance map. Following Wisconsin’s lead, DOCCS should also allow prisoners who have reached their release dates to leave prison during the day to search for residences, under monitoring as necessary via the Global Positioning System (GPS) or under the supervision of a parole officer.219

3. Providing Temporary Housing

State and local governments could, alternatively, provide temporary housing and health care for homeless registrants.220 DOCCS Directive 9222 already authorizes temporary “emergency housing assistance” funding to “assist in [a] parolee’s reintegration and transition to the community.”221 DOCCS should utilize this funding—or any other funding—to temporarily pay for prisoners’ housing and health care.222 Such funding would not pose a significant burden as DOCCS already pays for detainees’ housing and health care in prison, at a higher cost and without Medicaid assistance.223 Yet upon release, Medicaid and SSI benefits would help cover costs.224

Finally, for its part, the City of New York could reasonably accommodate people with disabilities in the homeless-shelter system. The 2017 federal Butler settlement already requires New York City to reform its shelter system to accommodate the disabled.225 But the City still rejects any obligation to accommodate people who are formally considered medically inappropriate.226 DHS, along with other relevant agencies, must develop methods to accommodate the disabled. This could include developing medically appropriate shelters; more handicap-shelter beds; or paying for handicap-accessible rooms outside the shelter system and for necessary health care.

B. Alternatives to the Approved Housing Requirement

So long as housing remains out of reach for New York’s incarcerated registrants, DOCCS should eliminate its requirement that individuals obtain approved housing as a condition of release.

Importantly, DOCCS should not simply release into homelessness individuals who are medically incapable of caring for themselves. While release onto the streets might be an appropriate, and preferable, alternative to perpetual confinement for nondisabled individuals, for people with serious medical needs, it could be life-threatening. As a solution, DOCCS should allow homeless disabled individuals to be released into non-parole-compliant housing.227

DOCCS can still account for any legitimate safety concerns under such a regime. For instance, apart from the legislative changes discussed above in Section V.A.1, parole officers could issue individualized, narrower restrictions tailored to a registrant’s needs and safety concerns.228 This could include creating narrower buffer zones, prohibiting registrants from entering certain spaces absent supervision, or exempting an individual from SARA or the public-housing ban for one specific, verified address.

Further, DOCCS could monitor individuals in non-parole-compliant housing via GPS or a similar device. To be sure, GPS devices pose serious privacy and cost concerns and can amount to simply “another kind of jail.”229 Still, many of my clients would prefer to have the option of surveilled freedom to indefinite imprisonment.

Conclusion

As this Essay explains, New York’s regime of rendering sex-offender registrants homeless, and then detaining them due to their homeless status, is fundamentally flawed. This scheme causes irreparable harm to prisoners and their families, is legally infirm, and fails to protect against actual causes of sexual abuse. New York should immediately stop detaining people solely because they are homeless, and divert its attention from sex-offender regulations that have no demonstrable impact on public safety toward improving access to housing, employment, and social integration—factors actually proven to reduce recidivism and strengthen communities.

Allison Frankel wrote this Essay as a Yale Law Journal Public Interest Fellow with the Center for Appellate Litigation (CAL). I would like to thank my colleagues at CAL, particularly Abigail Everett, Nicole Geoglis, Susannah Karlin, Erika Parry, and Molly Schindler for their thoughtful comments and feedback. I so appreciate Lynn Cortella of Centers Health Care for her time and insights. Thank you to the Yale Law Journaleditors, in particular Abigail Pershing, Sasha Dudding, Peter Kallis, and Ela Leshem for their excellent edits. Thank you, finally, to my former clients, for sharing your hardships with me and for your unyielding resilience. All views expressed are my own.

* Pseudonym used to protect attorney-client confidentiality.