Setting up sex offenders to re-offend
and end up back in prison after release

Written for “The American Carceral State”
PhD research seminar with Prof. Heather Ann Thompson

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The area where sex offenders on parole are restricted from living, a 1,000-foot radius from any school

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Contents
1. Did the crime, did the time… but still doing time?
2. How much do residency requirements restrict housing options in New York City?
3. How much are sex offenders on the registry an actual risk to public safety?
4. Where do we go from here? At least four public policy solutions:

.    Reduce the residency requirement from 1,000 feet to 100 feet from a school.
.    Eliminate site-specific parole requirements.
.    Distinguish between virtual space and physical space. They are not the same.
.    In an internet age, fight crimes where they actually happen, not where we think they happen.

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Introduction

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Defendants classified by the State as “level three sex offenders,” however, must first assure the State that they will not reside within 1,000 feet of any school. In New York City, this is no easy task, and the difficulties of finding a compliant residence can result in defendants serving additional time in prison past the expiration of their sentences.

Courts, law enforcement agencies, and scholars all have acknowledged that residency restrictions do not reduce recidivism and may actually increase the risk of reoffending.

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Associate Justice Sonia Sotomayor objects to sex offender registration requirements
In the U.S. Supreme Court case of Angel Ortiz v. Queensboro Correctional Facility, February 22, 2022, (source for ruling)

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In August 2020, as the pandemic ripped across prisons and homeless shelters, New York State struggled to find temporary accommodation for inmates being released from prison. Keeping them in prison beyond the length of their sentences is illegal. Putting them in homeless shelters would expose them to disease in dormitories, locked-down spaces at night, and fast food cafeterias. Many times, these shelters resembled on the outside the very prisons they had just left on the inside.

In response, the state started renting temporary accommodation in the range of hotels across the city, many left vacant by the pandemic-related temporary decline in tourism. A few inmates – some of them sex offenders – were placed at a hotel in the Upper West Side near Central Park, one of the city’s wealthiest neighborhoods. In response, The New York Post blasted their photos across the internet, along with images of one offender urinating. One neighborhood mom warned reporters at the P.S. 87 playground:

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“Look, we’re a progressive-minded community, and we tend to be sympathetic to the homeless. [….] But with sex offenders, draw the line.” (source)

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Our nation’s laws for sex offenders, although designed to protect the public, often have the opposite effect: increasing the chance sex offenders will be re-arrested and re-convicted for new crimes. The core of the problem is not that public safety rules, like Megan’s Law, are too weak. The problem is that these laws are written too strongly and too powerfully that they have the reverse effect: increasing the chances that sex offenders will commit new crimes.

There are many problems with sex offender laws: too weak in areas they should be stronger; too strong in areas where they should be more flexible. But today I will examine just one aspect of the sex offender registry (the home address requirement) and how it affects one place (New York City).

This analysis of New York City points to concrete and better ways to protect public safety than the current system: ways that reforming Megan’s Law will increase public safety.

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1. Did the crime, did the time… but still doing time?

Jory Smith was supposed to be free. It was August 2020. He had finished his five-year sentence as a sex offender at the Marcy Correctional Facility, a medium-security prison in Upstate New York. But there was one condition for release: He had to find a place to live.

Three years later – three years beyond the date his prison sentence ended – he is still in prison. In New York State, approximately eight percent of sex offenders are still kept locked in prison after the end of their prison sentences. However, the U.S. Constitution explicitly states that there cannot be “cruel or unusual punishments” and the length of the prison sentence must match the severity of the crime. (source) If judge, jury, and prosecution ruled that a crime merits, say, a five-year punishment, then the punishment cannot extend a day over five years. He is not alone. Angel Ortiz was similarly kept locked up for two years longer than the planned data of his release, prompting a lawsuit before the U.S. Supreme Court and Justice Sotomayor. The case claimed that imprisonment without conviction, or beyond the date of planned release, violates the constitutional right to habeas corpus. (source)

Why are hundreds of people in New York State and thousands of people nationally kept in prison for longer than their prison sentences, in effect locked up for longer than judge, jury, and prosecution ruled was necessary?

Residency requirements.

The “Violent Crime Control and Law Enforcement Act” of 1994 (more commonly known as Megan’s Law) required each state to create a public database of sex offenders. Their names, birth dates, age, photos, convictions, home address, and all matter of other personal information were made public information. The goal was to inform the public – particularly teachers and concerned parents – of any sex offenders in their neighborhood, to help them identify these people and keep their children away from them. You can search the database for New York State here or view all sex offenders within New York City on this interactive map.

The Sex Offender Registration Act (SORA) of 1995 built on Megan’s Law and added further restrictions. It requires that sex offenders – for the length of time they are on parole – cannot live within 1,000 feet of a school or place children frequent. For most released inmates, the period of parole lasts one to four years, rarely more than five years. During this time, they must register their address with law enforcement and must check in regularly with a parole officer. However, for sex offenders, the length of time they spend under supervision longer. For level 1 and 2 sex offenders, the registration period – during which they must share name and home address – is 10 years. For level 3 of the most serious offenders, this parole period is 30 years to life with permanent residency restrictions. (source)

Since then, some New York legislators further strengthened Megan’s Law and reporting requirements with over one hundred separate amendments. One amendment proposed doubling parole from ten to twenty years; another proposed registration for life. A law introduced March 2023 from Republican State Senator Mario Mattera representing the wealthy south shore of Long Island proposed restricting all sex offenders from entering a public bus or coming within one thousand feet of a school bus stop. (source) Most public bus stops also double as school bus stops, and most sex offenders recently released are low-income individuals without cars who must rely on public transit to commute to work. In effect, this law also bars sex offenders from living anywhere near public transit. For instance, in New York City – the most transit dependent and transit rich city in the nation – about 99% of the city’s surface area is within one thousand feet of a school bus stop. In effect, this proposed law would bar sex offenders from living anywhere in New York City for the length of time on parole: ten years for some and a lifetime for others.

However, New York’s laws are less strict than other states. In Florida, sex offenders cannot go to playgrounds, public parks, shopping malls, and – in effect – any place where there might be any number of children. Florida’s registry laws are the strictest in the nation. These problems are not unique to New York. They are pervasive, and they are nationwide. The largest of these facilities is the so-called Coalinga State Hospital where, as of 2017, 941 sex offenders were imprisoned after serving their sentences. (source)

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2. How much do residency requirements restrict housing options in New York City?

Drawing from NYC Open Data, I downloaded the point locations of all 1,700 public schools in the city, and the footprints of all 1,049,000 buildings in the city. The data on building footprints also lists the land use and number of residential units for each building. This gives an accurate picture of the available housing supply.

Drawing a 1,000-foot radius around each school – the area from which sex offenders are excluded – I identified the housing stock sex offenders on parole are barred from living. The map below shows the radius around each school. This leaves the areas between red circles as the only places sex offenders on parole are allowed to live.

Out of the approximately 3,644,000 housing units in 2021, the 1,000-foot limit excludes offenders from all but 100,000 units. That is, 97 percent of the entire city’s housing stock is off limits to sex offenders on parole. Further drill down the data, and the available housing supply is even less:

1) Of these 100,000 units, only 3,000 are available to rent at any one time, given the three percent vacancy rate.
2) Of these remaining 3,000 units, less than half charge monthly rents affordable to former inmates.
3) Add to this the fact that about 90 percent of landlords conduct criminal record background checks on tenants. According to New York State law, a landlord can refuse to rent to an apartment applicant because the tenant is on the sex offender registry.

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About 97 percent of the entire city’s housing stock is off limits to sex offenders on parole.

The interactive map below draws a 1,000-foot radius around every public school building. Zoom in on individual locations to view the extent of areas where offenders cannot move. Click on dots to display school names and school districts. Not included are the city’s dozens of private schools and hundreds more private nurseries and daycares.

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Median income in New York City is $35,000 in 2023. Median income of former sex offenders is well below that since an estimated 60 percent of sex offenders remain unemployed even three to five years after leaving prison. Compare the 60 percent unemployment rate among sex offenders vs. the five percent for general population. (source) By almost every definition of financial need, most are eligible for housing assistance. But further laws make offenders ineligible for public housing. As the New York City Housing Authority describes on its rental application: “A life-time registration results in a lifetime ban from public housing.” (source)

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3. How much are sex offenders on the registry an actual risk to public safety?

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Recidivism rates among non sex offenders:

Based on 1990s data and a sample size of 300,000 people from 15 states convicted for all crimes, about 67.5 percent are re-arrested within three years of release. Of this sample size, 51.8 percent return to prison within three years. However, there are many reasons they return to prison. About half (25.4%) return to prison for committing a new crime. The other half (26.4%) return to prison for an entirely nonviolent and purely technical violation of their parole. This includes failing a drug test, missing an appointment with a parole officer, failing to register a change of address, or driving without a license. (source)

Keep in mind that driving is advertised “as not a right, but a privilege” of living in America. That right can be revoked for reasons other than unsafe driving. Of those with suspended licenses, only 20 percent lost their license for drunk driving, reckless road behavior, serial car crashes, parking violations, or running a red light multiple times. The remaining 80 percent lost their license for reasons entirely unrelated, such as sex offender status, overdue court fines, or failure to make child support payments. Compound three factors here: 1) Sex offenders cannot live near schools, which are also incidentally the areas with best access to public transit. 2) Sex offenders need a job and have difficulty finding jobs. 3) If they, in effect, cannot live near public transit and must have a job, then they will have to drive to work. This traps sex offenders in a legal jeopardy: Remain unemployed but within the law. Or find a job that requires driving to work, but risk if caught a technical violation of parole and end up right back in prison as a repeat offender. Law abiding but unemployed vs. employed but breaking the law, simply for choosing to live near work and commute to work by car in a nation without public transit. Thousands of sex offenders are caught every day in this legal limbo of biased laws governing space and place. This situation could become worse if sex offenders are banned from living within 1,000 feet of any school bus stop, in effect banned from using public mass transit.

The data also reveals that released prisoners with the lowest re-arrest rates were those in prison for homicide (40.7%), rape (46.0%), “other sexual assaults” like pedophilia (41.4%), and driving under the influence (51.5%). As a category, even with recidivism rates as high as they are, sex offenders still have the lowest re-arrest rates. (source)

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Recidivism rates among sex offenders:

A 1994 study of some 10,000 sex offenders reveals that 3.5 percent were re-convicted for a sex crime within three years, or about 1 in 25 people. Of this sample size, 24 percent were re-convicted for an offense of any kind during the follow-up period, or about one in four people. This supports the conclusion that sex offenders are not statistically more dangerous than other criminal classes. (source)

So, by nature, sex offenders as a category are less likely to commit violent offenses in the future than other groups convicted for different crimes. Keeping offenders on the registry because they might commit different crimes of a non-sexual nature is not legally or logically justified. By the same logic of possible recidivism, all other criminal groups with higher rates of recidivism than sex offenders should also be required to have their names, identity, and addresses posted to a public registry like Megan’s Law. Released prisoners with the highest re-arrest rates are those originally convicted of robbery (70.2% re-arrest rate), burglary (74.0%), larceny (74.6%), motor vehicle theft, (78.8%), having or selling stolen property (77.4%), and having, selling, or using illegal weapons (70.2%). If these higher risk groups are not made to live out the rest of their lives on a public registry, then neither should sex offenders with their re-arrest rate for sex crimes at four percent.

Also keep in mind that New York’s registry includes people punished for statutory rape (for instance, an 18 year old having consensual sex with a 15 year old) and peripherally related crimes (for instance, public urination at a playground or having sex outdoors at a public beach near children). These crimes represent between five and ten percent of people on the sex offender registry. Surely, any law – no matter how precisely written to get the “bad apples” – will wrongfully convict a few people for youthful indiscretions and “stupid mistakes.”

How many innocent people is it worth convicting to get the truly evil people on the sex offender registry? This is a truly and uniquely difficult legal balance and legal test because child abuse is a uniquely dirty issue in our society, as it should be.

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4. Where do we go from here?

At least four public policy solutions:

1) Reduce the residency requirement from 1,000 feet to 100 feet from a school. This has at least four benefits:

• Increases the range of available apartments for sex offenders on parole by several hundred percent, from 100,000 apartments to over one million apartments in New York City.

• Reduces the number of inmates who remain incarcerated for months, sometimes years, after the end of their sentence because they cannot find housing in the city. Restores to thousands of Americans the Constitutional right of habeas corpus.

• Reduces the economic costs of paying for homeless shelters and prisons, two of the only places sex offenders are allowed to live if they cannot meet residency requirements. The $10,000 per person per year cost of a shelter and the $40,000 per inmate per year of a prison are public funds that should alternatively be spent on victim compensation. Therefore revising residency requirements reduces public funds spent on offenders and increases the funds available to help victims and fund recovery programs.

• Allows inmates on parole to live with their parents, relatives, friends, and legal guardians. Under the current arrangement, if the parents and relatives live less than 1,000 feet from a school, then the offender cannot live with them, even if these relatives have a spare bedroom and will legally vouch that the offender will not be a public safety threat. Inmates released to their families have lower rates of re-arrest, higher rates of employment, and lower rates of homelessness.

2) Eliminate site-specific parole requirements.

In the current arrangement, inmates are released back to the community where they were arrested. And they are expected to keep in touch with a specific parole officer at a specific place in that neighborhood. The problem is that half of New York State’s population lives in New York City, which is also the part of the state that is 1) the most densely populated, 2) home to the greatest concentration of schools, and 3) most expensive to live. These parole requirements, although they attempt to help and counsel former inmates, also spatially lock them in place, in what is effectively a prison without bars.

Eliminating site-specific parole requirements would allow a former inmate to search for job and housing anywhere in the state, or ideally the nation, in the thousands of places that are less densely populated and have cheaper housing. Reinstating their driver’s license – provided their original conviction was not for reckless driving while committing a sex crime – would also allow them to own a car, move more freely, live in a more remote location, and commute longer distances to work at the highest paid job available to them within driving distance.

3) Distinguish between virtual space and physical space. They are not the same.

Forty years ago, there was only physical space and only the physical world to communicate. A law on living away from schools might have made some sense. Today, there is a virtual world that is not bounded by space, and irrelevant to any 1,000-foot distance from schools. The opportunity for offenders to contact victims extends beyond 1,000 feet to the virtual world. This points to the need for continued restrictions on how sex offenders use the internet, but looser requirements on the physical space they inhabit. Megan’s Law was written for a world without the internet. We need new laws and reformed laws updated for the pace of technological change.

4) In an internet age, fight crimes where they actually happen, not where we think they happen.

We live in a society rich in urban legends and common misconceptions: stranger danger, clowns in paneled vans, razor blades in Halloween apples, the hooded rapist in a dark alley at night, the urban black youth with a hoodie and backpack (Kalief Browder). These images and dozens of others – many of them racialized images black men – pervade the general public’s image of who is dangerous and who commits the most crimes.

The reality is often different.

About 93 percent of sex crimes and rapes are committed by people the victim knows personally, usually a close friend or family member. The risk that a sex offender will assault a family member and someone in their household is greater than the risk they will assault someone they do not know at the school 1,000-feet away.

By comparison, there are fewer than two to three recorded cases of razor blades being hidden in Halloween apples, usually planted by family members for children in their family group. The social consequence of this stranger danger “bad apple” fear is low-level social distrust and the erosion of trust in neighbors. This is a small analogy, but multiply the effects of criminal profiling across society. Stigma – that is, our perceptions of what we think is dangerous – effect our views of anyone who is different from us: in social class, politics, and race as more likely to be violent than people we actually know. The result is societal-level distrust.

About 93 percent of sex crimes and rapes are committed by people the victim knows personally. The 1,000-foot residency requirement is not racial profiling, but it is spatial profiling.

The law assumes that someone is risky because of where they live, instead of who they are, and therefore pushes those judged risky to the spatial margins of society.

In a system where inmates are released to the society but made to live in certain neighborhoods, the result is the spatial concentration of risk in certain neighborhoods, specifically low-income and more likely to be majority-black neighborhoods. In the current system, majority-black neighborhoods already farther from public transit and public schools are more likely to become areas where sex offenders concentrate. We need to understand spatial racism as the effect of intersecting inequalities, where the same risks are concentrated and re-concentrated in the same neighborhoods least able to offer resistance. The fact that The New York Post complains about sex offenders living on the wealthy Upper West Side and quotes upper-class mothers to support their complaint says a lot. Low-income residents or residents in majority immigrant neighborhoods might have their own complaints about living near sex offenders, but rarely are their opinions given the time and visual real estate on the pages of The New York Post.

These urban legends and Megan’s Law in itself come from a noble place of good intentions. Seven-year-old Megan Kanka was murdered by an offender living next door, whose criminal history neighbors did not know. Moral outrages and moral panics at avoidable crimes often motivate overdue legal reforms.

But if we construct our legal system on whom we profile as sex offenders (stranger danger) instead of who is statistically more dangerous (friends and family) we risk writing laws with adverse unintended consequences for thousands of people. In the case of Megan’s Law and residency requirements, we have created a prison state that extends beyond the prison walls, extending the length of spatial incarceration in urban space well beyond the length of court mandated prison incarceration. This results in clear as day constitutional violations.

I would further argue that stranger danger fears – and laws that justify their existence on stranger danger fears – make victims less safe, not more. They make us more likely to suspect the black neighbor down the street than the creepy uncle who gets a blind trust pass at Thanksgiving.

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