Recently confirmed justice-designate of the Supreme Court Ketanji Brown Jackson faced a barrage of unfair questions and gross mischaracterizations concerning the sentences she handed down to people convicted of sex offenses while on the federal district court. During her confirmation hearings in March, Judge Jackson was asked about sentencing decisions she made in cases involving pornography depicting minors which, according to several conservative senators, were not harsh enough.
Judge Jackson tried to explain to the senators that, as a judge, she had to rationally balance the individual factors of the case, including society’s interest in rehabilitating the convicted person, before handing down a sentence. Bent on making political shows, the senators would not listen.
The punitive bravado displayed by these senators is not new. This “tough-on-crime” rhetoric has led to many ineffective, illogical, and draconian laws to deal with people convicted of sex offenses in New York and nationwide. Too often, the way we punish and regulate this population does nothing to keep us safe and can make it impossible for these individuals to rebuild their lives and rejoin the community as productive members of society.
Residency Restrictions and Perpetual Surveillance
Take the disastrous practice used by New York’s Department of Corrections and Community Supervision (DOCCS) which keeps certain homeless people convicted of sex offenses locked up past their release dates. They are confined merely because they cannot obtain housing, not because of any danger they may pose. Recently, Justice Sonia Sotomoyor questioned the constitutionality of this practice and implored DOCCS to make the needed changes to ensure that people are not held past their release date.
This problem arises because in New York, if a person commits a sexual offense against a child or is a Level Three on New York’s scoring system – known as the Risk Assessment Instrument (RAI) – they cannot knowingly enter within 1,000 feet of “school grounds.”
Importantly, while the law is intended to protect children, a person can be subject to the restriction even if they have no history of offending against children. It’s also worth noting that, while Level Three is the highest risk category on the RAI, the RAI has no scientific validity. It is based on outdated science and has been the frequent target of well-grounded criticism.
These restrictions are especially onerous for people who live in densely populated urban areas. In places like Manhattan and Brooklyn, a vast majority of units are within 1,000 feet of a school and thus unavailable for many people convicted of such offenses. They are effectively made homeless by our laws.
Homeless people who are eligible for release from prison must wait for a spot to open in one of the few homeless shelters within the New York City Department of Homeless Services system that is not within 1,000 feet of school grounds. In effect, this means that people who have been convicted of sex offenses must sit in confinement for months or even years after they have served their time until a spot in a shelter is available.
Even people lucky enough to make it out of confinement are still kept under the surveillance of the state. In New York, if a person is designated a risk level one then their identifying information is put on a registry maintained by law enforcement for a mandatory period of twenty years. These officers can notify all of their neighbors of their presence in the community, leaving them open to harassment.
Those designated risk level two or three are also placed on a public internet registry for the duration of their lives. This means that their names, ages, addresses, license plate numbers, employment addresses, photographs, and convicted offenses are publicly searchable online for the world to see. As of March 2022, there are almost 43,000 people required to register as sex offenders in the state of New York and must be subject to this surveillance regime.
One might argue that these restrictions on rights are justified to the extent that they are necessary to keep vulnerable populations safe. But there is a vast amount of evidence to suggest that they do not make communities safer.
Studies on residency restrictions have repeatedly shown that they have no effect on sexual recidivism. This is primarily because residency restrictions are premised on the notion of “stranger danger” bolstered by shows like “Law and Order SVU." However, in 86 percent of sex offense cases, the offender and survivor are family members or otherwise known to the victim. In other words, a residency restriction would not have prevented the contact between the individuals.
Sex offender registries are also ineffective public safety tools. Contrary to conventional wisdom, people who commit sex offenses are no more likely to re-offend than other people convicted of other crimes. These restrictions, however, have been shown to stigmatize people convicted of sexual offenses, causing shame and withdrawal from society in ways that could actually make them more likely to commit future crimes. These measures have also led to harassment and violence against these individuals.
Other Roadblocks to Rehabilitation
There are still more legal hurdles that make it harder for people convicted of sex offenses to be rehabilitated. In 2020, the NYCLU sued to curtail one such restriction.
From 2008 until 2020, DOCCS implemented what was known as “e-STOP.” e-STOP was implemented to prevent certain people convicted of sexual offenses from using all social media platforms for any purpose. DOCCS also imposed an even broader internet restriction on all people convicted of sexual offenses unless they received prior approval.
Given how important the internet and social media are to functioning in 21st century society, people subject to these restrictions were unable to look for jobs, connect with their families, and engage in political and religious activities that take place online.
There is no evidence e-STOP prevented crime or made anyone safer. And the isolating impact of restricting people’s internet use only made rehabilitation and reintegration into society more difficult for people living under those draconian restrictions.
In September 2020, the Eastern District of New York issued a preliminary injunction blocking DOCCS from enforcing blanket social media restrictions on people convicted of sex offenses who did not utilize the internet to offend. In 2021, DOCCS settled the litigation and agreed to end the practice of indiscriminately banning people convicted of sexual offenses from utilizing the internet and social media.
What We Need Instead
The criminal legal system is full of people who have been convicted of committing egregious offenses but are trying to rebuild their lives after serving their punishment. Society’s treatment of people who commit sexual offenses should be guided by rehabilitation and actions proven to make communities safer.
To this end, we need more resources for affordable housing, quality mental health care, substance use programs, education, and job training. These resources will allow people to reintegrate into society, avoid re-offenses, and rebuild their lives.