Feature / October 17, 2023

They Were Supposed to Be Free. Why Are They Locked Up?

No one wants a person convicted of a sex offense in their neighborhood. So New York keeps them in prison long past their release dates.

Chris Gelardi

Jory Smith was supposed to be free. His sentence had been up for five days on August 28, 2020, when officers at Marcy Correctional Facility, a medium-security prison in upstate New York where Smith had spent almost five years, summoned him to a conference room.

But instead of releasing him, they said they were taking him to another prison.

Confused, Smith asked where and why. Prison staff wouldn’t say, and they “threatened to ‘lose his property’ if he asked again,” Smith alleged in a legal complaint. A three-hour drive later, Smith found himself at Fishkill Correctional Facility in the Hudson Valley, where officers booked him, processed him, and sent him to a general population unit. He’s still there, three years after his latest possible release date.

“I have not been convicted and sentenced for a new crime,” Smith told New York Focus and The Nation. “I am left to languish.”

Smith is one of hundreds of New Yorkers over the past decade whom the state has imprisoned past their maximum sentences, often for months or years. It’s not because the judicial system is afraid that he’ll commit another crime—a judge had determined that Smith’s “risk of re-offense is low.” He is caged there, essentially, because he is homeless.

In 2015, Smith was imprisoned for sexually abusing an 8-year-old girl, and state legislation severely restricts where people with such sex-offense convictions are allowed to live. With few politicians willing to publicly defend people who have been found guilty of sex crimes, authorities have been free to push the boundaries of how to enforce the law.

The state redesignates people convicted of sex offenses who have served their maximum prison sentences as parolees. But unlike others on parole, some of them don’t get released. They’re kept incarcerated until they can find a legal place to stay or until their parole is up—for Smith, that’s August 2025. They wear normal prison uniforms. They abide by prison visitation, meal, and recreation rules. Most sleep in general population units.

Many of them also work a prison job. And the state holds most of their wages in an account that they can access only upon their undetermined and mostly unknowable release date. For his work assignments, Smith receives between $5 and $10 a week. He called it “slave wages from slave labor.”

This system of prolonged incarceration started nearly a decade ago—and the number of people subjected to it has increased. In 2015, it was 37, according to data obtained by Appellate Advocates and shared with New York Focus and The Nation. By 2017, the number had risen to more than 100, and in the first half of 2019, it was 60—almost 8 percent of the “parolees.”

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New York’s Department of Corrections and Community Supervision, or DOCCS, which runs the state prison and parole systems, wouldn’t offer updated annual numbers but said that, as of late July, it was holding 49 people past their release dates. In a statement, the department said that it “follows the letter of the law” when it comes to confining people convicted of sex offenses.

Lawmakers have exacerbated the situation. And courts have so far greenlighted the practice—though that could soon change. A judicial shake-up in New York this year saw one of the few people in power who was willing to criticize it become head of the New York Court of Appeals, the state’s highest court. And a years-in-the-making lawsuit challenging the practice is set to hit the court’s docket.

That case might be the last hope for change until the politics around sex crimes shift.

“It’s very sensitive—people have very emotional reactions to sex offenders,” said James Bogin, a senior supervising attorney at Prisoners’ Legal Services of New York and part of the team working on the Court of Appeals case. “The idea that the end of the sentence doesn’t mean anything, that it doesn’t even lead to any change in your circumstance, is pretty unbelievable.”

“You’re talking years after the end of a sentence,” Bogin continued. “I think that would be shocking to a lot of people, even people who are repelled by sex offenders.”

Smith is less optimistic. “I’m under the impression that your readers won’t care,” he wrote in a message to New York Focus and The Nation. “The general public and the courts want sex offenders off the streets at all costs, including violating the law and Constitution.”

He said his situation was a warning. It’s common for people to end up homeless after prison, and the legal authority that officials cite to keep him incarcerated is broad—“opening the doors” for the state to indefinitely detain more and more people.

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For the most part, the people being held while on parole don’t know when they will be released. DOCCS keeps a list of those waiting for a spot in a homeless shelter, but it doesn’t tell people their place on it. They get a one-page letter every few months “invoking” the department’s “authority” to keep them in custody. They’re stuck—because no one wants a “sex offender” in their neighborhood.

The concept of the sex offender captured the public imagination during the 1990s’ tough-on-crime wave; it shared a political moment with the superpredator myth and President Bill Clinton’s crime bill. In 1994, the horrific rape and murder of 7-year-old Megan Kanka in suburban New Jersey set off a national panic over the small proportion of sex crimes that are committed by strangers. Later that year, the New Jersey Legislature passed “Megan’s Law,” setting up one of the first sex-offense registries. Every other state, the District of Columbia, and the federal government have since followed suit.

In 2000, New York State doubled down by passing the Sexual Assault Reform Act, or SARA. Among other restrictions, the law prohibits anyone convicted of a sex offense against a minor, as well as anyone a judge deems at risk of re-offending, from coming within 1,000 feet of a school while on parole. For the roughly three to 25 years they spend on parole, the law effectively banishes sex-offense parolees from large swaths of urban areas—including most of New York City.

Parole officials already had broad authority to restrict where people can live, work, and visit, and according to DOCCS, they cater those restrictions to “risk levels, laws, vulnerable populations, locations of other sex offenders, proximity to victim(s), and accessibility to an individual’s support system.” They would almost certainly, for example, prohibit someone who had sexually abused a child from living near an elementary school. But SARA established much tighter constraints.

“What SARA does is force DOCCS to impose a blanket restriction on everyone subject to the statute, without regard to whether that restriction makes sense,” said Lisa Napoli, an attorney who has argued SARA cases as the director of policy and strategic litigation for Appellate Advocates.

There is no evidence that such restrictions work. Academic studies focusing on Missouri, Michigan, and Florida have found that these policies have had little to no effect on sex-offense recidivism. The US Justice Department has acknowledged that there is “no empirical support for the effectiveness” of the restrictions, even suggesting that they carry “unintended consequences,” such as the loss of housing and support systems, that “aggravate rather than mitigate offender risk.”

What SARA does succeed at doing is making it difficult for targeted parolees to find housing. People on probation or parole are generally sent back to the county in which they lived before they went to prison, but because of the law’s geographic restrictions, along with a lack of affordable housing, hundreds of downstate New Yorkers have gone straight from prison to homeless shelters.

Then politicians began to focus on the shelters. In 2007, Jeffrey Klein, a conservative Democratic state senator representing the Bronx and suburban Westchester County, found out that there were people who had been convicted of sex offenses sleeping in shelters that housed families. Over the next decade, he led a campaign to kick them out, publishing reports detailing those registrants’ criminal histories and introducing legislation to bar most people on the registry from shelters. The bills never became law—but Klein found another way.

DOCCS had been treating homeless shelters as a de facto exception to SARA, sending parolees to them even if they were within 1,000 feet of a school. But in 2014, prompted by Klein’s reports, the department decided to crack down. (Klein, defeated in the 2018 Democratic primary after a staffer accused him of forcibly kissing her, did not respond to interview requests.) Almost overnight, 256 of New York City’s 270 shelters became inaccessible to SARA parolees.

Furthermore, the city’s Department of Homeless Services determined that it would receive only around 10 of the parolees each month, leaving most newly released SARA-restricted New Yorkers with nowhere to sleep. And DOCCS had nowhere to send them.

So it decided to keep them in prison.

Jory Smith remains incarcerated at New York’s Fishkill prison, pictured here, three years past his parole date.
Stuck behind bars: Jory Smith remains incarcerated at New York’s Fishkill prison, pictured here, three years past his parole date. (Mike Groll / AP Photo)

“I understand that people are afraid—these are bad things,” said Barbara Place. Seventeen years ago, she turned in her son, Chris Gordon, to the police for sexually abusing his daughter. “But they go through their due process. They do their time,” Place said.

Like Smith, Gordon’s sentence is over—and has been for more than a year and a half. But he’s still in prison. Part of what’s keeping him there is a 39-word subsection in New York’s corrections law, the final item in a series of numbered paragraphs describing a “residential treatment facility,” or RTF.

Residential treatment facilities aren’t separate facilities—they’re designations within certain prisons. According to the subsection, DOCCS can use them “as a residence” for people on parole. Before 2014, that was rare: DOCCS occasionally sent people with “specific medical or assisted living needs” who couldn’t find housing to RTFs, the department said. Yet in this obscure part of the law, DOCCS found its solution to the limited number of homeless-shelter spots available to SARA parolees.

State law requires DOCCS to offer “employment, education and training opportunities” for RTF residents, but the department assigns them to normal prison work. Among other jobs, Smith has worked as a prison janitor and a clerk in the law library. To “address economic barriers” to finding SARA-compliant housing, DOCCS takes 80 percent of the parolees’ wages and holds them in an account that they’re supposed to use for housing after they’re released.

DOCCS also boasts that it pays RTF parolees more than other incarcerated laborers. Those wages: $5 a day. “That’s pretty good for inmates,” a prison counselor said in a 2017 deposition. “Other inmates are making 25 cents an hour or whatever.” (DOCCS staff are supposed to call the residents “RTF parolees,” but some struggle with the distinction.)

A handful of RTF residents get to work on a “community-based project,” earning an extra $5 a day for work outside prison walls—that is, groundskeeping on DOCCS property. The increased pay comes with trade-offs: When Smith worked for the community-based project, his five weekly shifts ended with strip searches, he said.

The RTF residents are also subject to the same discipline regime as the rest of the prison population—but with higher stakes. When one is accused of the highest level of prison infractions—including possession of alcohol, being in the wrong part of the prison at the wrong time, or participation in a demonstration—supervisors determine whether it “may constitute a violation of parole” conditions, which can start the cycle of incarceration all over again.

In a deposition, one counselor estimated that throughout 2016 and 2017, a dozen Fishkill RTF residents were subject to parole-violation hearings for breaking prison rules. Of those, all but one were charged with violating parole, she recalled.

For “treatment,” RTF parolees are required to attend classes put on by DOCCS, which the department designed after it started to apply the 1,000-foot rule to homeless shelters. The curriculum involves group discussions and worksheets related to life skills, such as social etiquette, how to write a résumé, and how to process “uncomfortable feelings.”

Conspicuously absent is the life skill most pressing to RTF residents: how to find SARA-compliant housing. According to DOCCS, department staff sometimes “act as liaisons and make referrals” to housing providers. But in lawsuits, the department has maintained that its only responsibility when it comes to outside housing is vetting the accommodations that parolees find—which the parolees rarely do, given their limited access to the Internet.

The RTF programming is brief, finished in roughly seven weeks. After that, there’s nothing besides normal prison classes for the weeks, months, or years that parolees are forced to spend as RTF residents. Unlike other “treatment” for people with sex-offense convictions, it includes no consultations with mental health professionals.

Place said that reporting her son for sexual abuse was “one of the hardest things anyone could do.” Gordon was sentenced to a maximum of 15 years—a term that was supposed to be up in December 2021.

At the time, “it was the right thing,” she said, but her son shouldn’t still be in prison.

Gordon started having seizures not long after he got to prison in 2007. Doctors attributed them to diabetes and treated him, but they never got him an insulin pump. Place said the doctors knew he needed one; with the help of pro bono attorneys, she has compiled a medical malpractice lawsuit, but she hasn’t been able to find a firm to file the case. Gordon’s seizures have gotten worse.

In 2020, Gordon was involved in an “altercation.” Place said that prison officials “found him in a pool of blood” with broken bones in his face. After that, his mental and physical condition declined rapidly. Now, at 52 years old, he can barely form sentences.

“He used to write me letters. He was so articulate,” Place said. “Now, if you ask him a question, he’d have trouble even just saying yes or no.”

Living in prison doesn’t help. Place said that DOCCS doesn’t give him occupational therapy. He needs the constant care of an assisted living facility—but that’s exactly what’s keeping him incarcerated. There’s no law in New York against people on sex-offense registries living in nursing homes, but many homes refuse to take them, citing their responsibility to protect their residents. DOCCS officials haven’t been able to locate a facility that will take him, and as a condition of his parole, Gordon can’t live with his mother.

Place has offered to help DOCCS find a home for her son. “I’ll make phone calls, just give me a list,” she said. “They act like it’s none of my business.”

Citing health privacy laws, DOCCS said it could not comment on Gordon’s situation.

Gordon’s parole is up in April 2024. Place wonders whether he’ll last that long. “With work, he might be OK. He might be able to do some basic self-care. But right now, they’re not doing anything,” she said. “He’s just sitting there. His body and brain are diminishing.”

“He’s a sex offender, I get it—that’s why I reported him,” Place said. “But he’s still my son. He’s still a human being.”

The elevation of Rowan Wilson has altered the ideological bent of the New York Court of Appeals, the state’s highest court.
New top judge: The elevation of Rowan Wilson has altered the ideological bent of the New York Court of Appeals, the state’s highest court.(Lev Radin / Pacific Press / Lightrocket via Getty Ima

Lawyers and defense advocates share many of Place’s concerns. For years, they’ve been asking courts to step in. But in case after case, top judges have allowed DOCCS to continue its RTF practices.

In 2018, the New York Court of Appeals ruled that the department has no obligation to help people find SARA-compliant housing. Last year, without offering any explanation for its decision, the same court ruled against someone asserting that RTF confinement violated his due-process rights. And this year, it ruled against someone who argued that he should be released from an RTF because his crime predated SARA.

According to New York’s penal law, officials can impose RTF confinement as a “condition” of parole for “a period not exceeding six months immediately following release.” But in another ruling, the high court found that the department can use RTFs after six months to forcibly “provide” parolees with “temporary housing” so they can, in the court’s words, “avoid violating” the terms of their supervision.

And in 2020, the Court of Appeals struck down a lower-court ruling in favor of an RTF resident who had sued DOCCS for unlawful detention—drawing a sharp dissent from liberal Judge Rowan Wilson, who called the decision a “mockery” of bedrock legal tenets. Lawyers appealed that case to the US Supreme Court, which decided not to take it on. But Justice Sonia Sotomayor issued her own opinion agreeing with Wilson. She lambasted the “indefinite incarceration,” characterizing it as “deprivation of liberty based solely on speculation and fear.”

It’s “only a matter of time” before the issue comes before the Supreme Court again, Sotomayor predicted.

Despite this string of DOCCS-friendly decisions, there’s an opening for change. Almost all of the Court of Appeals’ recent SARA rulings were decided under a conservative chief judge. And starting in 2021, that judge led a nearly impenetrable center-right majority, issuing decision after decision in favor of law enforcement and antagonistic to criminal defendants.

But in 2022, the chief judge resigned unexpectedly. Political turmoil ensued, and Governor Kathy Hochul attempted to appoint another conservative. Progressive legislators launched a campaign to block her nominee, and Hochul made a new selection: Wilson, the Sotomayor-aligned dissenter. (To take Wilson’s spot, Hochul tapped another judge who claims to be defendant-friendly. Both were sworn in in April.)

The ideological direction of New York’s highest court has shifted—and just in time for another potentially decisive SARA case. The court is considering an appeal of a class-action suit accusing DOCCS of violating state law by making life in RTFs virtually indistinguishable from normal prison life.

Bogin, of Prisoners’ Legal Services, who is working on the case, expects the Court of Appeals to schedule oral arguments in the next few months. He framed it as a fight over one of the criminal legal system’s most basic assurances.

“It’s often said, ‘You do the crime, you serve your time,’” Bogin said. “And when the time is up, you go home.”

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

Chris Gelardi

Chris Gelardi is a reporter for New York Focus investigating the state’s criminal legal system.

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