“No state shall convert a liberty into a license, and charge a fee thereof.”
-- Murdock v. Pennsylvania, 319 U.S. 105 (1943)

The Gist

In clear violation of state and federal law, New Paltz has passed a local law(1) that is unconstitutional. The law requires hotels and motels to obtain a license if they house persons required to register as sex offenders. Note that these are people who have completed their terms of imprisonment. While such laws are usually enacted in reaction to a crime, no incident involving registered persons gave rise to the passing of the new licensing law. Simply put, the Town of New Paltz is taking liberty with license.

Illegal v. Unconstitutional

An activity that runs afoul of the law is referred to as illegal, whereas a law that has gone astray of its authority is referred to as unconstitutional. Just as lawbreakers are accountable, so are lawmakers. For instance, the New York Court of Appeals -- the highest court in the state -- held that the state law requiring Level 3 registered persons to live over 1000 feet from a school could not be applied to a Level 1 registrant by a local municipality. Laws are not political wish lists. So the local law that imposed such a residency restriction was struck down.

A House Built on Shifting Sands

Even the US Supreme Court relied on faulty data regarding the recidivism rates of people who have committed a sex offense.(2) In justifying the need of the registry, the Supreme Court cited that the recidivism rate of sex offenders was "frightening and high." But that is simply untrue. In fact, as a group they have one of the lowest rates of recidivism. No one vetted the "Psychology Today" magazine article upon which the Supreme Court ruling relied upon. And hundreds of other lower court rulings have relied upon this as well. Here, the phenomenon of the unreliable narrator has rarely had a wider audience or a more costly effect.

The Housing Conundrum 

One of the most difficult things for registered persons is finding housing. It is a chronic dilemma. The state has outlined the scope of such laws with the enactments of SORA,(3) SARA,(4) and SOMTA,(5) which all go into painful detail regarding the legal residencies imposed on registered persons.

In NYC, a Level 3 designation, according to a dissenting opinion in the state’s highest court amounts to banishment.(8) This is supported by real demographic data, according to a recent study by the Fortune Society.(9) Practically nowhere in NYC is there a place to live that is more than 1000 feet of a school. Moreover, many Level 3 registered persons have family, friends, or loved ones with whom they could live. But often those residences are within 1000 feet of a school. This results in homelessness and family separation. 

Likewise, the assumption that such laws are not punitive neglects the suffering inflicted by these laws. It punishes not only on the registered persons but also on their families, friends, and loved ones. There are other, more productive ways of making ourselves not just safer but stronger. Integrating back into society those who have run afoul of the law isn't achieved by isolating them as an extension of imprisonment. 

The Restorative Action Alliance

The Restorative Action Alliance is in support of a recent Article 78 proceeding filed against the Town of New Paltz by one motel owner who has been housing registered persons without incident for the last 12 years.(10) The law needs to be struck down as unconstitutional and preempted by the existing state laws which deal with the housing of registered persons.

A serious realistic solution to prevent the incidents of sex offenses -- and not just to react to them -- rewards more as it punishes less.  Laws that make things worse don't make things better. Legally requiring signs to be posted in hotel and motels that read "sex offenders are housed here" trivializes as it sensationalizes a problem that won't be solved by turning it into a circus sideshow. 

The Alliance holds its position in alignment with The New York State Commission on Sex Offender Supervision and Management in concluding that "[g]iven the near unanimity of expert opinion ... the existing residence restrictions are ineffective."(11)

References:

1. Code of the Town of New Paltz, Chapter 91.
2. McKune v. Life, 536 U.S. 24, 33 (2002).
3. Sex Offender Registration Act (“SORA”), Correction Law §§ 168 et seq.
4. Sexual Assault Reform Act (“SARA”) of 2000.
5. Sex Offender Management and Treatment Act (“SOMTA”) of 2007.
6. Executive Law § 259(c)(14).
7. People v. Diack, 24 N.Y.3d 674 (N.Y. 2015).
8. People ex rel. Johnson v. Superintendent, 2020 N.Y. Slip Op. 6934, 19 (N.Y. 2020).
9. The Fortune Society, Nowhere To Go: New York’s Housing Policy for Individuals on the Sex Offender Registry and Recommendations For Change, 3 (2019); available at https://fortunesociety.org/wp-content/uploads/2019/05/NowhereToGo.pdf (last accessed June 16, 2021).
10. Shree Granesh, LLC v. The Town of New Paltz, index no. EF2021-0857 (Ulster County).

New York City Bar, “Committee Report: The New York State Commission on Sex Offender Supervision and Management,” (Feb. 11, 2021); available at: https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/ny-state-commission-on-sex-offender-supervision-and-management (last accessed June 16, 2021).