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Supreme Court Passes on Case of New York Sex Offender Imprisoned Past Release Date for Lack of Compliant Housing

by Jory Smith and Chuck Sharman

On February 22, 2022, the U.S. Supreme Court declined to issue a writ of certiorari to hear an appeal by an impoverished New York sex offender who was forced to remain in prison two years after his release because state restrictions made finding housing “practically impossible in New York City,” as Justice Sonya Sotomayor noted in her reluctant concurrence.

With a ban on residency within 1,000 feet of a school, the indigent man, Angel Ortiz, also spent “the entirety of his 17 months of conditional release in prison,” the Justice lamented.

So Ortiz served all ten years of his prison sentence for robbing a pizza deliverer whom he also sexually threatened. Then, when he failed to find compliant housing, he remained in prison to begin serving his five-year term of post-release supervision (PRS). In his petition to the high court, filed with the assistance of Legal Aid Society attorney Will A. Page, Ortiz said he “would rather be homeless.”

Summing up the poor man’s dilemma, Sotomayor concluded that “New York’s policy requires indefinite incarceration for some indigent people judged to be sex offenders.” See: Ortiz v. Breslin, 142 S. Ct. 914 (2022).

Here’s what happens to people like Ortiz. First, they are often stranded in poverty by an inability to find a job because of the stigma associated with a sex-offense conviction. Then their housing options, already constrained by a tight market and their indigence, are further restricted by the 1,000-foot-from-school requirement.

Unable to find compliant housing, there is no conditional release no matter how much good-time credit has been earned. There is no release for PRS, either; instead, the former offender remains indefinitely incarcerated under Penal Law § 70.45[3] and Correction Law § 73 in a residential treatment facility (RTF).

But the indignities don’t end there.

First, Correction Law § 2(6) defines an RTF as “a correctional facility consisting of a community-based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release and for persons who are or who will soon be eligible for release on parole who intend to reside in or near that community when released.” But in reality, the RTF for indigent sex offenders exists in the general population of prisoners held by the state Department of Corrections and Community Services (DOCCS).

Moreover, like all state prisoners, they must work either a three- or six-hour day, for a total of 15 to 30 hours per week, at a flat pay-rate of $5 for every three hours. If a sixth or seventh day of work is mandated, they are compensated $25 per day. They are not provided minimum wage protection per Labor Law § 652(1) nor 29 U.S.C. § 206(a)(1)(c). And 80% of their prison wages are withheld in a housing fund.

Essentially, they are slave labor.

While agreeing with her fellow justices that Ortiz’s case did not meet the requirements for a hearing before the Court, Sotomayor nevertheless warned that his predicament “raises serious constitutional concerns.”

Filings in his case claim that 250 sex offenders per year who are eligible for release remain imprisoned in New York under “a cruel Catch-22,” as it was described in the Yale Law Journal Forum in 2019 by Allison Frankel, who noted that DOCCS won’t release them “until they [obtain] approved housing, but their poverty, disabilities and sex-offender registration status [make] finding housing impossible.” 


Additional source: New York Times


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Related legal case

Ortiz v. Breslin