The state's Department of Correction and Community Supervision has designated a portion of Fishkill Correctional Facility in Beacon to serve as a 'residential treatment facility' for sex offenders who have served their terms but have not been released.

A combination of prison policies, restrictive laws and a lack of housing support has kept many New York sex offenders in prison conditions for months or years after they’ve served their time.

As previously reported by the Marshall Project in a story that appeared at City Limits, a lawsuit filed by a group of offenders last year contends that the state is illegally detaining sex offenders beyond the end of their sentences. In addition to detaining offenders beyond the terms of their sentences, the complaint alleges that the state is mislabeling parts of its prisons as “Residential Treatment Facilities.” Ideally an RTF is a sort of halfway house between prison and community supervision. But in fact, the lawsuit says, the state is holding offenders in the same conditions and restrictions as prison.

The problem, however, runs deeper than the detention policies themselves. A mix of legal, political and fiscal constraints make it extremely difficult to find a place for sex offenders who have paid their debt to society to live.

“The New York corrections law requires that a Residential Treatment Facility be a community- based residence in or near a community where employment, educational and training opportunities are available for persons on parole or conditional release. These facilities are simply not by any stretch of the means community based residences,” says Matthew Freimuth, a lawyer for the offenders. Lawyers from Prisoners Legal Services, New York Legal Aid; and Willkie, Farr and Gallagher LLP represent the offenders.

The lawsuit alleges that New York State has, without legal authority, declared sections of several correctional facilities, including Fishkill and Woodbourne Correctional Facilities, as Residential Treatment Facilities (RTFs) in order house offenders after they have served their time.

“Fishkill houses 1,900 inmates,” he says. “It has a razor-wire topped fence, cell blocks. These petitioners who are supposed to be in RTFs wear the prison green, share the same exercise hall. They’re treated as if they were the same as the general population.”

New York State law allows for sex offenders to be housed in RTFs for up to six months following the completion of their prison sentences. Following that period of six months, the state does not have the authority to continue to detain offenders. It must release the offenders to community supervision. The lawsuit alleges that the state of New York is unlawfully holding these men beyond the “maximum expiration date” of their sentences. The suit alleges that in two cases, offenders were unlawfully detained for more than a year.

In Alcantara v. Annucci, the petitioners allege that the state has overstepped its legal boundaries by converting correctional facilities into RTFs and that the state and New York City have failed to adequately provide legally mandated assistance to offenders who are looking for housing as they approach and are held beyond their release dates.

“The petitioners are given no programs that really allow any sort of meaningful interaction with anybody from the community. Requests that they’ve made to work outside the facility are routinely denied. They don’t have any opportunity to leave the facility,” says Freimuth. “It’s not really meaningfully community based.”

Both sides of the dispute estimate that 85 to 100 sex offenders are currently held in RTFs at state corrections facilities. While the state would not comment on pending litigation, a spokesperson for the Department of Corrections and Community Supervision (DOCCS) says the men are not being held indefinitely, only until they can find a bed in a compliant shelter.

The stamp of SARA

If the state is violating the law for use of RTFs, another law might be to blame.

An amendment to the Sexual Assault Reform Act (SARA), enacted in 2006, prevents recently released sex offenders from living or spending significant time within 1,000 feet of schools or services that primarily serve children. The 1,000 feet is determined “as the crow flies,” i.e. in a straight line, regardless of whether an individual could actually walk to the location in 1,000 feet or less.

“The prisoner brings an address to the parole officer and the PO will run it through a program they have to determine whether or not the address is SARA compliant. It is entirely incumbent upon an individual to come up with a SARA compliant address,” says Freimuth.

Freimuth added that the state does not disclose the algorithm or maps used to determine whether or not an address is SARA compliant. Offenders and their families and advocates cannot fully vet proposed addresses without the assistance of the state, which can slow the process and delay finding housing. Though this seems like a small detail, how the state measures 1,000 feet is crucial: measuring 1,000 feet from the property line, 1,000 feet from the street or 1,000 feet from a school building change what addresses are available to released offenders.

New York City’s right-to-shelter laws complicate the issue. Typically a person released from prison could appeal to the homeless shelter system and be granted housing. For released sex offenders this is a complicated process: The only intake center for single men (where homeless men can go and, on paper, cannot be turned away) is not in a SARA compliant building.

“In 2014 the state concluded that the 30th Street intake shelter, which is where all homeless persons seeking shelter must report and reside for an initial period of some days and weeks before being reassigned, was too close to a school,” says Newman of the Legal Aid Society. “Because the state could no longer, in their opinion, release people to report to that homeless intake shelter, the state only then started using these prisons–which they administratively designed as RTFs–to house people who were legally entitled to release.”

Now, offenders without homes are sent to RTFs until they can find SARA compliant housing, said the attorneys representing the sex offenders.

SARA is not the final word on a shelter however. The prison system will only send prisoners to shelters that DOCCS and DHS for use by offenders. According to the lawsuit, those designations have a political dimension: The DOCCS/DHS approved shelters are determined not just by SARA, but also by community pressure. Community opposition can certainly make placing sex offenders in shelters difficult. For instance, 39 men were removed from a South Ozone Park shelter in 2014 following pressure from community members and local politicians.

According to the lawsuit (which cites the Department of Homeless Services), only nine of the roughly 200 homeless shelters in New York City are SARA compliant. Despite the limited number of SARA compliant shelters, there are enough beds to provide shelter for the offenders held in RTFs, said the attorneys.

In order to release the offenders to the compliant homeless shelters, other shelter residents would have to be moved. The neighborhoods around the nine shelters would see an uptick in the number of registered offenders, which, historically, has prompted community pushback.

The attorneys and offenders allege that DHS is not fulfilling its legal duty to shelter homeless New Yorkers because the agency refuses to place the offenders in the compliant shelters.

A spokesperson for DHS said that they do not comment on pending litigation.

‘Legislated Homelessness’

The difficulties faced by the formerly incarcerated are well documented. Jobs are harder to come by and finding stability after prison takes hard work and good luck. The support of friends, family and government services is essential to help newly released citizens acclimate to a world beyond prison walls.

But those supports are only useful and effective if the offenders are actually released to a community that is equipped to help them, says Newman. The stigma against sex offenders means that finding willing and effective assistance is especially difficult.

In “Hidden Challenges” a paper on sex offenders and homelessness published in the Journal of Social Work in 2016, Dr. Jill Levenson, an associate professor of Social Work at Barry University, addressed the fear and concern that drives these restrictions.

“Over the past several decades, in response to a series of highly publicized heinous sexual crimes, lawmakers have responded swiftly and decisively to the public’s demand for protective legislation,” Levenson wrote. “SORR [Sex Offender Residency Restriction] laws frequently force sex offenders to relocate, prevent them from returning to their own homes after incarceration, and preclude them from living with family members.”

“It is estimated that 10–30 percent of homeless individuals have recently been released from incarceration or have a criminal record of some sort,” wrote Levenson. “What began with good intentions quickly escalated into a crisis that continues today.”

Levenson refers to ‘legislated homelessness,’ essentially a legal mandate that prevents offenders from finding housing. SARA restrictions do not account for every homeless person with a criminal record but they do potentially drive released offenders away from familial support, Levenson wrote. At worst, this pushes released offenders into a transient existence away from government monitoring.

According to a policy paper prepared by the Association for the Treatment of Sexual Abusers (ATSA) in 2014, there is no connection between offenders proximity to schools and other restricted buildings and their recidivism rate. The paper’s authors outline that the overwhelming majority of offenses occur in situations where the offender knows his or her victim. Citing reports from Minnesota, New Jersey, Colorado and Florida, the paper concludes that residency restrictions do not affect whether or not a sex offender will reoffend.

Once released from prison, sex offenders are required to check in with parole officers and inform the state of any changes of address or new jobs.

Lots of rules, little help

According to documents filed with the lawsuit, the state justifies the detention of offenders under a section of the corrections law that allows the corrections commissioner to use any RTF as a residence for people on community supervision.

For a typical prisoner, the risks of being corralled into an RTF after serving a complete sentence are extremely low, said Robert Newman, of the Legal Aid Society. Sex offenders are singled out in this regard because of New York’s housing restriction law and New York City’s density.

“Although DOCCS claims in their argument that they use these facilities for prisoners other than sex offenders, I have not heard of any instance in my decades as a Legal Aid lawyer where any prisoner has been put in an RTF who was otherwise entitled to release until they started this implementation based on the Sexual Assault Reform Act,” he said.

Adding to the problem, say advocates, is the fact that DOCCS does little to help sex offenders navigate the complex legal geography of post-prison housing.

Despite the legal requirement to provide housing assistance to offenders, the complaint alleges that the state does not do enough to assist offenders. New York State corrections law states that NYS “shall assist inmates eligible for community supervision and inmates who are on community supervision to secure employment, educational or vocational training, and housing.” In the past, courts have acknowledged that the burden of finding housing does not solely fall on the individual. The state is required to offer help.