Restrictions on Sex Offender Residence Found Constitutional

, New York Law Journal

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A paroled sex offender required to remain in New York City but struggling to find a place to live because he cannot reside within 1,000 feet of a school or other places where children congregate has failed to convince a Manhattan judge that the restrictions are unconstitutional.

Supreme Court Justice Michael Stallman (See Profile) said that while it may not be easy for a sex offender to find an affordable place to live in New York City that doesn't violate the 1,000-foot rule, it is not impossible.

Stallman said that although most of Manhattan, where parolee Foster Williams lived for 20 years prior to his conviction, and much of the Bronx, is off limits, large portions of Queens and Brooklyn are legally hospitable to sex offenders. He rejected Williams' claim that he was illegally exiled and that the imposition of the residency restriction violates the ex post facto clause of the U.S. Constitution, which bars states from increasing punishment after a crime has been committed.

Williams was convicted in 1996 of multiple felonies, including first-degree rape, in connection with the forcible rape and sodomy of a nine-year-old girl. He was sentenced to a 7-to-21-year state prison term and paroled in late 2012.

While under parole supervision, which could last until November 2016, Williams is subject to the provisions of the Sexual Assault Reform Act (SARA), which bars him from school grounds. He is also subject to a special parole condition that says he cannot go within 1,000 feet of "places where children congregate," including schools, parks, day care centers and playgrounds.

Williams is living in a shelter on East 30th Street but is seeking permanent housing in Manhattan that meets his financial and physical restrictions as well as SARA and the conditions of his release. Records show he is 64 years old, has health issues that make it difficult for him to climb stairs and can afford to pay about $600 a month in rent.

Stallman's decision stems from an Article 78 initiated on Williams' behalf by the Office of the Appellate Defender. The suit, Williams v. Department of Corrections and Community Supervision, 400638, alleges that the residency and travel restrictions violate the ex post facto provision and the petitioner's due process rights.

The court said the limits do not implicate Williams' ex post facto rights because they are not punitive in nature.

"The Legislature sought to protect children from harm and not to increase punishment against sex offenders," Stallman wrote. "Although the Legislature uses the language of prohibiting sex offenders from entering school grounds, the underlying intention is to protect the health and safety of children."

Stallman's conclusion is at odds with a decision his colleague, Manhattan Supreme Court Justice Anil Singh (See Profile), issued in 2011. In Matter of Berlin v. Evans, 31 Misc 3d 919 (2011) Singh found SARA punitive as applied to the petitioner in that case—a 77-year-old, low risk, first time offender—and therefore violative of the ex post facto clauses.

What's being said

  • not available

    As the prior commentor has pointed out, residency restrictions bear no rational positive relationship to preventing repeat offenses. In fact, removing residency options from those who have been convicted of any crime makes us all less safe. Rational laws should further the goal of rehabilitation and reintegration into the community, since this decreases the likelihood of re-offense, shown in many studies of those who have been convicted of crimes and are now back in the community.

  • not available

    First of all, anyone applying elementary logic and reasoning on a Junior High School level knows that residency restrictions are in violation of the Constitution, just like most of the extreme sex offender laws are.What the Judge here is really saying is that sex offenders are less than Human Beings and thus are not protected by the Constitution of the United States of America.This is the same argument used to secretly kidnap, hold with no legal rights even as basic as telling someone the person has been taken and is being held by the government, and torturing that person, because they have been defined as an “Enemy Combatant” who is less than Human and therefore not protected by the Constitution, the Geneva Convention or any other law of any country.

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