Extended Stay for Sex Offenders Angers Court

MANHATTAN (CN) — Railing against New York prison authorities Thursday, an appeals court said their betrayal of legal obligations to find suitable housing for an indigent sex offender improperly prolonged his sentence.

The offender in question, Miguel Gonzalez, pleaded guilty in 2012 to second-degree rape and was set to be released on Sept. 30, 2014.

“Good time” credits Gonzalez had earned in prison should have let him out in May, but Gonzalez instead had to wait out those four months behind bars because he had failed to find suitable housing.

Under the Sexual Assault Reform Act, Gonzalez is not allowed to live within 1,000 feet of a school or any place where children congregate during his probation. The Department of Corrections and Community Supervision interpreted this statute a little more than three years ago to include homeless shelters falling within that distance.

As The New York Times reported at the time, this rule has had a “profound effect in New York City, where only 14 of the 270 shelters” are eligible to intake sex offenders. There are dozens of sex offenders like Gonzalez who have been forced to stay in prison beyond their release dates because the law’s residency restrictions.

When Gonzalez’s sentence expired on Sept. 30, and he still had no place to go, the state transferred him to an approved residential treatment facility that happened to be another prison, Woodbourne Correctional Facility. A grievance that Gonzalez filed in October was still pending when he was released in February 2015 to a Manhattan homeless shelter that met the state’s requirements.

Though an Albany court later said Gonzalez’s release had mooted his petition, an appellate panel criticized the corrections department this morning for a problem the judges say is “all too common.”

Even by its explanation of why Gonzalez remained behind bars, the department “expressly acknowledge[s] that many others are in the same position, particularly in the New York City metropolitan area,” Judge Elizabeth Garry wrote for the 3-2 court.

“The ultimate placement obtained was one of only four authorized homeless shelters in New York City that accept individuals subject to SARA restrictions,” the 8-page opinion continues. “We agree with petitioner that, due to the ‘recognized difficulty in securing acceptable housing’ for persons subject to sex offender residency restrictions, there is a likelihood of repetition regarding individuals being placed in RTFs due to the failure to secure suitable housing.”

Corrections officials turned down each of 58 potential houses that Gonzalez proposed, and the department provided only one alternative in return. The monthly fee at that Staten Island-based facility was too high, however, so Gonzalez had to turn it down.

Judge Garry emphasized that the court cannot dictate what the department should have done to help Gonzalez find housing.

“Nevertheless, its passive approach of leaving the primary obligation to locate housing to an individual confined in a medium security prison facility 100 miles from his family and community, without access to information or communication resources beyond that afforded to other prison inmates, falls far short of the spirit and purpose of the legislative obligation imposed upon DOCCS to assist in this process,” the opinion states.

Judges Michael Lynch and Sharon Aarons joined the majority, but Judge Robert Rose joined a dissent by Judge William McCarthy.

“It was not irrational to assist petitioner by proposing such a residence merely because he was ultimately unable to avail himself of the opportunity due to programing restrictions and cost,” McCarthy wrote in reference to the expensive Staten Island program.

Legal Aid Society attorney Robert Newman, who filed a class action addressing this issue last year in Albany, estimated in a phone interview that between 70 and 100 inmates have been held in residential treatment facilities for lack of housing.

“Throughout a period of more than 18 months, the number of persons in DOCCS-designated RTFs has hovered around 80,” Newman’s class action states. “At the end of July 2015, it increased to 95.  The median length of stay in the RTF prior to release was 61 days, but nine inmates had been in the RTFs for more than six months.”

With that case still pending, Newman hoped today’s decision would give his clients a boost.

“We’re very glad that the Third Department has recognized the very difficult situation that our clients are facing,” he said in an interview. “We’re hoping that DOCCS will now change and improve its practices in compliance with this decision.”

Gonzalez’s lawyer and the New York Attorney General’s Office did not immediately respond to email requests for comment.

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