On Tuesday, February 22, 2022, the US Supreme Court issued a decision to deny a petition for a writ of certiorari in Ortiz v. Breslin. The petition was filed by attorneys at New York's Legal Aid Society and supported by an amicus curiae brief submitted by Restorative Action Alliance. While the country’s highest court will not review this case, and the New York Court of Appeals decision still stands, there is more to the story.

Sotomayor Supreme Court Statement

Since 2014, the New York State Department of Corrections and Community Supervision (DOCCS) has been imposing extra-judicial terms of incarceration on persons who have completed their prison sentences for sexual offenses. These individuals have been singled out by DOCCS’ policy because they have asked for services from the New York City’s Department of Homeless Services (DHS). They are indigent, homeless, and subject to a housing restriction due to their status on the state’s Sex Offender Registry. Despite years of litigation, DOCCS and DHS have continued the harmful policy, resulting in years lost to those affected. As argued by the defendants attorneys, such a policy results in the deprivation of constitutional rights of those affected.

Yet the denial of Mr. Ortiz’s petition to the Supreme Court should not be considered a loss. In a highly irregular occurrence, Justice Sonia Sotomayor issued a six-page opinion, indicating that the situation created by DOCCS and DHS raises serious constitutional concerns. Justice Sotomayor said such a policy “requires indefinite incarceration for some indigent people judged to be sex offenders.” Moreover, Justice Sotomayor questions whether residency restrictions would pass rational basis scrutiny, citing to research, case law, and even law enforcement in acknowledging that such restrictions do not reduce recidivism and could actually increase the likelihood of reoffending.

Justice Sotomayor continued, “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 communities. Nevertheless, the Constitution protects all people, and it prohibits the deprivation of liberty based solely on speculation and fear. … Because of the grave importance of these issues and 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.”

Justice Sotomayor stated that New York should not wait for the courts to step in, and instead called on the state to “reevaluate its policy in a manner that gives due regard to the constitutional liberty interests of people like Ortiz.” Restorative Action Alliance joins in that call to end this harmful policy. No one who has served their time should be held in prison indefinitely simply because they are indigent and in need of housing.

“We are encouraged that Justice Sotomayor recognizes that New York is violating the constitutional rights of its citizens,” said Jill K. Sanders, Litigation Team Leader at Restorative Action Alliance. “While we’re disappointed that the Supreme Court won’t take the case, Restorative Action Alliance will continue to advocate for those who are affected by this unconstitutional and illegal state action.”

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Restorative Action Alliance