NY Court of Appeals: Release Condition Excluding Certain Sex Offenders from School Zones is Not Punishment

New York’s highest state court has upheld the retroactive imposition of school exclusion zones as a condition of parole, release, or post release supervision of certain sex offenders.

New York state law has mandated a release condition that certain supervised sex offenders— those with child victims— refrain from knowingly enter school grounds or child care grounds while serving their sentence. In 2005, the legislature expanded this mandatory condition to include areas within 1,000’ and applied it also to certain level three sex offenders— those who, in a hearing, had been adjudicated to present a high risk to re-offended. The legislature’s expansion of this mandatory condition was applied retroactively, so that those sentenced prior to its imposition later found themselves subject to a release condition they might not have expected.

The condition made it more difficult to find housing and, in so doing, sometimes delayed offenders’ release into the community altogether.

The petitioner, a paroled level three sex offender, alleged the legislature’s expanded mandate to be ex post facto punishment.   But the court found that the petitioner failed “to disprove the rational connection between the school grounds condition and the legislature’s non-punitive purpose in enacting it.”

In rejecting the petitioner’s argument, the court unwittingly illustrated the important role of investing in expert witness testimony in this type of litigation. “Petitioner has not provided,” for example, “the proportion of adjudicated sex offenders subject to the school grounds condition at all; or maps outlining the restricted geographic areas throughout the state which fall within the definition of ‘school grounds,’” even though “whether an effect is idiosyncratic or common necessarily rests on the proportion of the subjected class experiencing the effect; in fact, this is the crux of the ex post facto analysis.”  As far as the court could tell from what had or had not been presented, “the condition does not preclude sex offenders from living and traveling within their communities and throughout the state…Some offenders, perhaps even the overwhelming majority, find housing or employment opportunities without feeling the effects of the school grounds condition.”  The petitioner failed to prove otherwise to the court.

The petitioner did cite “scholarship questioning the efficacy of registry restrictions on sex offense recidivism.”  But that scholarship was “hardly conclusive in petitioner’s favor.”  Petitioner had cited one survey, for example, in which “19% of responding offenders agreed or strongly agreed to the statement that ‘residence restrictions help me prevent offending’ and 26% agreed or strongly agreed with the statement that ‘I am more able to manage my risk factors because I cannot live near a school, park or playground.’”  Did petitioner’s use of this survey help prove that school zone restrictions are punitive?

Although the petitioner did cite scholarship, they established, in the court’s view, “no record of this scholarship’s methodology or whether it has been subjected to peer review analysis.”  Perhaps expert witness testimony at lower court levels might have cleared this up, which is one reason FAC invests so much in expert witness testimony in its Ex Post Facto litigation.