As we explained in our case summaries, the question in these consolidated cases is whether the U.S. Constitution forbids the Department of Corrections and Community Supervision (DOCCS) from maintaining custody over level-three sex offenders during a term of parole or supervised release. In a 5-2 decision, the Court (Fahey, J.) held that DOCCS’s continued custody of such sex offenders is constitutional.
The petitioners in these cases are Fred Johnson and Angel Ortiz. Both men were convicted of crimes that were sexual in nature and were designated level-three sex offenders under the Sex Offender Registration Act, meaning that they were considered to have a high risk of reoffending. Under the Sexual Assault Reform Act (SARA), level-three offenders cannot live within 1,000 feet of a school.
That 1,000-foot restriction made it difficult for Johnson and Ortiz finding post-release housing. In 2017, Johnson was granted parole. He asked to be released to New York City. Because New York City is densely populated, however, Johnson had trouble finding housing that was not within 1,000 feet of a school, especially given that he was indigent. DOCCS thus refused to release him, instead keeping him imprisoned past his parole date. Ortiz faced similar difficulties. In 2018, he was supposed to be released from prison and placed on post-release supervision (PRS), a DOCCS-supervised portion of his sentence. But because he couldn’t find SARA-compliant housing in New York City, DOCCS kept him in custody, transferring him to a residential treatment facility while placing him on the list for a homeless shelter in New York City.
Johnson and Ortiz petitioned for habeas corpus to secure their release from DOCCS custody. They contended that DOCCS violated the U.S. Constitution by continuing to hold them. Both men had been released from DOCCS custody by the time their cases reached the Court of Appeals.
The majority first considered whether the case was moot. It held that although Johnson’s and Ortiz’s release rendered the case moot, the mootness exception applied because their cases present “substantial and novel issues that are likely to be repeated and will typically evade review.”
The majority then evaluated the merits, rejecting the petitioners’ due-process challenges. The majority explained that the petitioners claimed only that DOCCS’s continued custody violated the right to substantive, rather than procedural, due process. Substantive due process forbids the government to arbitrarily and wrongfully deprive of life, liberty, or property. Whether a government’s action is arbitrary and wrongful depends on the standard of review. When the government deprives a person of a fundamental right, courts apply strict scrutiny—the most stringent standard of review. Otherwise, courts apply rational-basis review, asking only whether the deprivation is rationally related to legitimate government interests. Finally, in “unique” and “complex” circumstances, courts apply intermediate scrutiny.
Here, the majority held that rational-basis review applied because neither petitioner had a fundamental liberty right. Johnson, as a parolee, had no fundamental right to liberty; his liberty was conditioned on the terms of his parole. And Ortiz’s PRS extinguished his fundamental liberty right: SARA compliance was a mandatory condition of his PRS, so his inability to find SARA-compliant housing meant that he had no right to PRS.
Applying the rational-basis standard, the Court held that the petitioners’ continued confinement was constitutional. The State’s insistence that the petitioners remain confined until they find SARA-compliant housing, the majority explained, is rationally related interest in protecting children from sexual abuse.
The majority also rejected two other challenges that Ortiz brought. First, it held that his confinement in a residential treatment facility did not violate the Eighth Amendment’s bar on cruel and unusual punishment. Ortiz claimed that his continued confinement effectively punished him for being homeless—leaving him unable to find SARA-compliant housing—rather than for conduct. In rejecting that argument, the majority held that Ortiz’s confinement was not “status punishment” but instead “reflects a broader set of social circumstances” favoring an offender’s release to “his city of long-time prior residence”—here, New York, which lacked a rich supply of SARA-compliant housing. Second, it rejected his argument that the Corrections Law requires residential treatment facilities to allow residents to “depart daily, without supervision.” The statute, read as a whole, did not support that reading.
Judge Rivera dissented. In her view, the Court should have applied intermediate scrutiny because the complex statutory and regulatory regime “endow[s] petitioners’ asserted liberty interests . . .with a measure of constitutional significance.” And regardless of the standard of review, she believed that the petitioners’ confinement violated their constitutional right to substantive due process. As she explained, their continued confinement was not rationally related to safeguarding children, since statistical studies showed that very few children are sexually abused by strangers and that school-grounds restrictions were ineffective in combatting sexual abuse. The restriction also “thwarts” the state’s “goals of fostering the successful reintegration of formerly incarcerated individuals into the community.” And, Judge Rivera explained, DOCCS’s decision “does not further correctional interests” but instead protects New York City from “administrative and budgetary” challenges in finding SARA-compliant housing for level-three offenders. Under a consent decree from 1981, the City must find housing for all homeless people. So DOCCS could theoretically insist that the City finding SARA-compliant housing, even if doing so would be expensive.
Judge Wilson agreed with this last point in a separate dissent. He explained that the purported justification for confining the petitioners could not pass rational-basis review. Under its 1981 consent decree, New York City must provide housing to homeless people on request. So DOCCS could have requested housing for the petitioners, and the City would have had to find SARA-compliant housing. Given “the City’s obligation to provide SARA-compliant shelter,” Judge Wilson wrote, “DOCCS’s stated rationale for depriving Messrs. Johnson [and] Ortiz of liberty—DOCCS’s own obligation to foster compliance with SARA—collapses.”