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October 19, 2023

Detailing how sex offenders in New York can imprisoned long past their maximum sentences

The Nation has this notable lengthy new article detailing just how some New York offenders end up incarcerated well past the end of their actual sentences.  The article's full title previews the key points: "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."  Here are some excerpts:

[Jory] 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.”

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.”

October 19, 2023 at 08:59 PM | Permalink

Comments

This policy could cause such inmates to have less incentive than otherwise to be obedient to their overseers. Some may feel nothing to lose by organizing themselves and becoming militant like the Attica inmates who instigated their insurrection back in 1971.

Posted by: william delzell | Oct 20, 2023 11:53:09 AM

Several states have laws providing for the "civil commitment" of sexually dangerous persons, including following the conclusion of their criminal prison sentences. I have never been comfortable with the "civil commitment" label, since many of the people committed are not held in hospitals, but are effectively incarcerated in state prisons, with little to no distinction between serving a criminal sentence and the so-called "civil commitment". For my Appellate Advocacy Seminar at U.Va. Law School, I briefed and argued one of these cases that was being heard in the Sprong of 1986 by the U.S. Supreme Court. For our oral arguments, our Adjunct Professor (a former Assistant Solicitor Genral of the U.S.) got some of the D.C. attorneys who would actually be arguing our case at the Supreme Court to come to Charlottesville to be our 3-Judge panel for moot court. Afterwards, we travelled to D.C. and actually sat in the gallery of the Supreme Court to listen to the actual oral arguments of the same case we had already briefed and argued. The case was: Allen v. Illinois, 478 U.S. 364 (1986). The Court held that because the proceeding is civil in nature, a defendant/respondent cannot invoke his 5th Amendment privilege against self-incrimination when talking with the evaluating psychiatrists, whose opinions then lead to his civil commitment. Allen had never been convicted of the crime because the prosecutors didn't have enough evidence to prove a crime beyond a reasonable doubt. So, instead of prosecuting Allen, they got him civilly committed. And in Illinois, those who are so civilly committed are incarcerated at the Illinois Correctional Facility at Menard, Illinois, which is an old-school, dungeon-style prison. Calling what they did to Allen "civil commitment" and "not criminal" was absurd and is deeply disturbing, but the Supreme Court said that it was okay. Notably, Virginia now houses about 300 sex offenders civilly, and the state has been sued for not actually providing them with any treatment. Also, the only way a civilly committed sex offender can gain his release is to prove by clear and convincing evidence that he is no longer sexually dangerous. How do you do that? It's just a Start Chamber.

Posted by: Jim Gormley | Oct 20, 2023 7:42:38 PM

william delzell --

"This policy could cause such inmates to have less incentive than otherwise to be obedient to their overseers. Some may feel nothing to lose by organizing themselves and becoming militant like the Attica inmates who instigated their insurrection back in 1971."

The prospective rioters might want to recall what happened to their role models.

Posted by: Bill Otis | Oct 20, 2023 11:59:17 PM

Jim,

I totally agree. That ruling in the Allen case is an absolute absurdity. And if I understand correctly, Allen was not convicted of any crime before a jury of his peers, nor allowed to confront his accuser(s). Absolutely a Star Chamber.

Posted by: SG | Oct 21, 2023 5:07:07 AM

I agree with Jim Gormley and SG. It is one thing to convict one of a sex crime in a criminal court by a jury of one's peers with a distinct charge for the crime with a determinate sentence. Once that sentence ends, one should acquit the person. However, if he or she commits another crime while in prison or makes threats of committing a crime that could get a jury of his or her peers to convict for that second offence, then fine--lock that person up for that second offense, but not beyond. It is quite another thing to keep one locked up beyond their existing sentence without a DUE PROCESS conviction for another offense. The individual in question was convicted for only one offense. While one can legally deny parole (while the sentence is still going on), once that sentence has ended, that convict has paid and must be released.

In response to Bill Otis's, "The prospective rioters might want to recall what happened to their role models," most would probably be aware of that but would still want to risk the possibility of death if they felt that they no longer had anything to lose by staging an insurrection if the conditions under which they lived in while under civil commitment were so bad so as to make the risk of death inviting to them. Otis, I am sure you are familiar with the statement, "Do or die." The Attica insurrectionists decided that they were prepared to die, given their desperation. Civilly committed prisoners might come to the same conclusion.

Posted by: william delzell | Oct 21, 2023 2:43:01 PM

One of the troubling things about the Allen decision, referenced above, is that the Supreme Court's opinions fail to describe the actual conduct that led to the filing of criminal charges and a petition as a sex offender. As I recall, the underlying state court opinions describe the alleged actual conduct. The man met the woman at a McDonald's restaurant. She said that he was then later waiting for her in the back seat of her car, after she left McDonalds. He says that she asked him to meet her at her car, and told her which car was hers; otherwise, how did he know which car to get into the back seat of? There were no witnesses or security camera videos of the outside events, or after she drove away. There was little evidence to corroborate her story that she had been raped. In fact, initially, the defendant was charged by a criminal complaint and then a petition for sexual dangerousness. But the evidence was so flimsy that at defendant's arraignment on the criminal information, a Judge dismissed the charges for a lack of probably cause. Thereafter, the prosecutors dismissed the Petition for Sexual Dangerousness and got an indictment thru a Grand Jury; then a second Petition for Sexual Dangerousness was filed. It is pretty clear that no jury would ever have convicted the defendant at a criminal trial. And unlike such Acts as they exist in other states, in Indiana, the defendant does get the right to cross-examine the plaintiff and his known witnesses. Also, Mr. Allen did not have any extensive criminal history, or a written history of sexual assault.

Posted by: Jim Gormley | Oct 21, 2023 4:09:23 PM

william delzell --

"Otis, I am sure you are familiar with the statement, "Do or die." The Attica insurrectionists decided that they were prepared to die, given their desperation. Civilly committed prisoners might come to the same conclusion."

Yes, they might. Not what I'd recommend, but adults make their own choices.

Of course they might have averted all the unpleasantness to start with by not having sex with five year-old's, Like 99.99% of the rest of the human race.

Posted by: Bill Otis | Oct 21, 2023 11:52:18 PM

Of course they would avoided this trouble by not having sex with kids, unless they are falsely accused or convicted of the same sick act by unscrupulous and dishonest prosectors. Some politicians like to demonize others for such acts in order to cover up their own despicable crimes. Case in point, Alderwoman Gabrielle Hanson who is running for Mayor in Franklin, TN, has made a career of falsely labeling drag queens as "groomers" of children when she herself got busted a few years ago in Dallas for grooming young girls for prostitution. She is the poster child for the female pimp, and she decides to falsely implicate drag queens as groomers in a cowardly effort to save her own hide. Not only that, she surrounds herself with neo-Nazis and Klan types. It has been my experience that many, though not all, politicians who jump on the so-called victims' rights or "law 'n' order" (or is it order without law?) bandwagon are trying to hide their own hideous misdeeds. Gabrielle Hanson herself is a sex predator who has committed offenses just as disgusting as many civilly committed sex predators, except she is still scott free. I hope you would not knowingly support somebody who deliberately pimps minors like Gabrielle Hanson does, who is also a holocaust denier.

Posted by: william delzell | Oct 22, 2023 3:24:29 PM

william delzell -

I confess complete ignorance about the alderman's race in Franklin, Tennessee. Sounds nuts from what you say. I have a degree of skepticism about whether it has any general significance for the topic of this post.

Posted by: Bill Otis | Oct 22, 2023 4:28:45 PM

My point is that many, though not all, people who author extra-constitutional Stalin-like laws such as civil commitment to make themselves look "tough" on crime often use this issue to cover up their own wrongdoings from the voters. Indeed, many of these politicians turn out to be bigger sex predators than the people they target. You also have politicians and prosecutors who knowingly target innocent people of these crimes by coercing or "leading" children to erroneously convict an innocent person just so the prosecutor and politician can put a feather in their cap or divert the public from their own serious crimes. In the 1980's, we had prosecutors who would put words into children's mouths to say that a particular defendant was guilty of molesting. The prosecutor might even get the child to BELIEVE that an innocent person committed a horrible crime. Other instances involve prosecutors giving "rewards" to cooperative children and to harrassing children who refuse to believe that an innocent person is guilty. The most blatant case was in the mid-1970's in Wilmington, NC where prosecutors induced youth to lie for the prosecution (this particular case was not a sex crime case, but an attempt to discredit black civil rights activists from challenging racist practices in Wilmington). The prosecutors promised mini-bikes to kids who would say what the prosecutors wanted to hear and to intimidate those children who refused to cooperate. This is coerced testimony and strictly illegal.

I don't think you would want any body to falsely convict you of abusing kids any more than the rest of us would want to be railroaded like that.

But getting back to the original case, keeping a person locked up WITHOUT charge like civil commitment is un-American like Stalinist Russia, Singapore, North Korea, Nazi Germany, and South Korea. Does the U.S. want to stoop to their level?

Posted by: william delzell | Oct 22, 2023 5:53:27 PM

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