On April 25, 2024, New York’s highest court took up a challenge brought by sex offenders confined in residential treatment facilities beyond expiration of their prison sentences. The result: A puny demand that the state Department of Corrections and Community Supervision (DOCCS) make “reasonable efforts” to secure work and education opportunities for them outside prison.

The Court of Appeals has previously upheld DOCCS when it confined convicted sex offenders in its Residential Treatment Facility (RTF), located inside Fishkill Correctional Facility, beyond the maximum expiration date of their sentences. Many are then held until expiration of their post-release supervision period because they are unable to locate housing compliant with the Sexual Assault Reform Act (SARA), which bars convicted sex offenders from living within 1,000 feet of a school.

In 2016, a group of offenders confined at RTF sued DOCCS, alleging it failed to provide them with adequate employment and programming opportunities. The suit, which sought declaratory and injunctive relief, as well as class certification, was largely dismissed by a trial court, which also denied class certification. But it permitted Plaintiffs’ claims to proceed for declaratory relief from what, in practice, leaves them waiting in RTF for months or years until SARA-compliant housing becomes available.

Meanwhile, evidence presented to the trial court showed that the only employment opportunities available were jobs in the prison storehouse or janitorial pool—because RTF detainees may not participate in work release programs outside prison. The only programming opportunities available to them were nine class “modules” covering topics such as sex offender registration requirements, relapse prevention and strategies for obtaining employment post-release.

DOCCS argued that these work and programming opportunities satisfied its statutory obligations. The trial court agreed regarding programming but found that permitting detainees to work only inside the prison was insufficient; it therefore ordered DOCCS to provide them community-based employment opportunities. The Appellate Division reversed this ruling, however, and the Court of Appeals ultimately affirmed that judgment, with slight modification.

The sole question before the Court was whether the programming and employment opportunities provided to RTF detainees was consistent with Correction Law (C.L.) § 73. That statute says a detainee “may be allowed to go outside the facility during reasonable and necessary hours to engage in any activity reasonably related to his or her rehabilitation and in accordance with the program established for him or her.” See: C.L. § 73[1]. The statute also provides that DOCCS “shall be responsible for securing appropriate education, on-the-job training and employment for incarcerated individuals transferred to residential treatment facilities.” See: C.L. §73[2].

While acknowledging that § 73 makes community-based opportunities “an essential characteristic of an RTF,” the Court nonetheless concluded that it “does not create an individual right to community-based opportunities,” since the “legislature’s use of the permissive phrase, ‘may be allowed to go outside’… must be read to afford DOCCS discretion in determining whether an individual RTF resident should be allowed outside the facility to engage in community-based activities.” Moreover, the statute requires DOCCS only to secure community-based opportunities it deems “appropriate.”

Relying on this permissive language, DOCCS determined that no RTF detainee should be allowed outside the prison for work or education because it is never appropriate. The agency defended this categorical approach by arguing that it was next to impossible to find work or education opportunities for RTF detainees, especially since it has no authority to force anyone to hire or educate them. The Court, however, rejected this categorical approach, saying it was based on nothing more than speculation. The record demonstrated rather that DOCCS had never tried to secure community-based opportunities for any detainee.

While that might be challenging, “DOCCS’s wholesale refusal to undertake efforts to secure community-based opportunities for RTF residents constitutes a violation of the statute,” the Court declared, because § 73 requires DOCCS “to undertake reasonable efforts.”

The Appellate Division’s judgment was therefore reversed in part to require DOCCS to make reasonable efforts to secure community-based work and education opportunities for at least some RTF detainees. Otherwise, the judgment was affirmed that employment and programming opportunities provided inside the prison by DOCCS are sufficient. Before the Court, Plaintiffs were represented by attorneys Matthew Freimuth and Ravi Chanderraj of Willkie Farr & Gallagher LLP, along with Robert Newman of The Legal Aid Society, both in New York City; and by James Bogin of Prisoners’ Legal Services of New York in Albany. See: Alcantara v. Annucci, 42 N.Y.3d 142 (2024). It remains to be seen what, if any, effort DOCCS will put forward now that the Court has set the bar so low.