Justice Sotomayor’s Statement in Oritz v. Breslin

The Supreme Court has denied certiorari today Ortiz v. Breslin. The case is known to have been around since a while. The first time it was distributed to conference participants was 9/27/2021. It was scheduled twelve more times. Justice Sotomayor tried to gather three additional votes in order to be certified. However, she failed. Instead she wrote six pages about denial of certiorari. While it’s not a dissenting opinion in every sense, Justice Sotomayor stated clearly that the New York Court of Appeals had erred.

Below is Justice Sotomayor’s summation of the dispute

New York law allows criminal defendants to be released conditionally if they have earned enough good time credits prior to the expiration of their sentences. The State will consider a defendant “level three sexual offenders.” However, they must ensure that the defendant has no intention of living within 1,000 feet from any school. This is a difficult task in New York City. In addition to the possibility of defendants being sentenced for additional time, the difficulty of finding compliant addresses can lead to them spending more time in jail. Angel Ortiz, petitioner, was not able to locate a release address which met the state’s requirements. He spent more than two years in prison when he should be free. While Ortiz’s petition doesn’t meet the Court’s requirements for certiorari I want to stress that New York City’s residential ban raises grave constitutional concerns.

Justice Sotomayor says that living more than 1000 feet away from school is almost impossible in New York City. She also claims that the policy of the state isn’t narrowly tailored for New York City’s density. It is true. Many sex offenders in large cities are often forced to live close to highway crossings or other danger areas. Urban areas do not have these 1,000-foot buffer zones.

Concerning the Constitution analysis, Justice Sotomayor supports Judge Rivera’s dissent on the New York Court of Appeals. The Court of Appeals in New York is the court of last resort. Its members are referred as “Judge” instead of “Justice.

Below is Judge Jenny Rivera’s dissident. It demonstrates how New York’s policy towards people such as Ortiz can raise constitutional questions.3

I was puzzled when I read the sentence for the first time. Common practice is to refer to the first names of judges who share the same name. On the D.C. Circuit Douglas Ginsburg and Ruth Ginsburg or William Pryor and Jill Pryor on the Eleventh Circuit. However, there’s only one Judge Rivera at the New York Court of Appeals. Finally, I searched for Judge Rivera. In 1993, she clerked as a clerk for Judge Sotomayor at SDNY. Rivera’s term was Sotomayor first- or second year at the federal bench. Justice Sotomayor is giving a shout-out to her former law clerk. Once Judge Jenny Rivera was given a shoutout, Judge Rowan Wilson needed to also be heard. Justice Sotomayor praises the other dissident vote in a footnote. He is also identified as his first name.

FN3 – Judge Rowan Wilson’s dissent focuses on how DOCCS violates New York City’s obligation of providing shelter for those in dire need.

My opinion is that “ably explains”, rather than “importantly addresses,” merits more praise.

Justice Sotomayor begins to engage in substantive due process analysis, something that is all too common today.

New York law states that the defendant must “shall” . . “Be conditionally Released” after he has earned sufficient credits like Ortiz. N. Y. Penal Law Ann. §70.40 (West 2021). Ortiz was a New York City resident and had the right to “shelter” or board. [for]Every homeless person who submits for it.” Callahan v. Carey, 307 App. Div. 2d 150, 151, 762 N. Y. S. 2d 349, 350 (2003). I believe Ortiz could have had a liberty interest when he was granted conditional release under the New York State and City policies. Ortiz was able to release himself at the end of his sentence, which is indisputably a liberty right.

Sotomayor was unable to get another vote.

Sotomayor is correct in policy matters. New York’s policy seems irrational. Reoffending has not been proven to be reduced by these restrictions on residency. Restricting where someone can live could actually make it more likely that they will reoffend. These laws are difficult to alter. Sotomayor writes:

Even though there is ample empirical evidence to support this, many legislatures or agencies fail to understand the needs of those who have been convicted for sex crimes and how they struggle to return to their communities.

Yet, I agree with Sotomayor’s constitutional imperative.

The Constitution still protects everyone and prohibits depriving liberty on the basis of speculation or fear. These guarantees are not protected by the political branches. The courts step in. MustStep in.

“Must take action.” The Court does not support this position. Footnote 4 again is a dictum.

Justice Sotomayor sends a message of support to the New York Assembly.

New York shouldn’t wait for the Court to decide whether or not a State has the right to imprison someone past their pa-role eligibility dates, or beyond their mandatory release, simply because they are unable comply with restrictive residency requirements. New York should reconsider its policies in order to respect the constitutional liberty rights of Ortiz.

It is possible for the New York government to create a statutory rights. I am in agreement. This is why I think the Court was correct not to interfere.