Can We Banish Our Way to Public Safety?

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

This month, New York Governor Andrew Cuomo announced a plan to curb public lewdness, groping, and other unwanted touching on New York City’s public transit: a three-year ban on “repeat and high-risk sexual offenders” from the city’s subways, buses, and trains. “MTA riders deserve to feel safe, and we have an obligation to ensure they will not be targeted by sex offenders,” he said. “Enough is enough.”

It’s not the first time Cuomo has endorsed the idea. Last year, he described a sex offender subway ban as “common sense.”

Many see the proposal as more political grandstanding than a serious policy solution. For one, targeting repeat offenders doesn’t match the reality of the problem, wrote Guy Hamilton-Smith in The Appeal. “More than 95 percent of reported and cleared sex offenses in New York State are attributable to first-time offenders. Most people who are held accountable for sexual offenses do not reoffend. In data compiled by the NYPD, most of those arrested in 2016 and 2017 for subway sex offenses had no prior sex offense arrest record, never mind convictions.”

Others, including the Legal Aid Society, have argued that a sweeping ban would be not only ineffective but harmful and discriminatory. “Advocates worry a ban could unfairly impact already-marginalized people—including the homeless and the mentally ill, who sometimes seek refuge in the subways—and be used against defendants who are innocent of their accused crimes, but plead guilty to avoid jail time,” Jeanmarie Evelly wrote in City Limits. “They fear it could disproportionately impact people of color, as has been the case with the NYPD’s fare evasion enforcement.”

Indeed, a ban from public transit, in a city that so heavily depends on it, would further isolate people, eliminating access to employment, education, health services, and other pathways to rehabilitation and stability. “Cutting people off from resources, support, and community has the unsurprising effect of making it more likely that someone will commit another offense,” wrote Hamilton-Smith. “In New York City, where millions rely on mass transit, banishment would effectively cripple the ability of those exiting the criminal legal system to reintegrate.”

And these concerns don’t even include the potential consequences for violating such a ban, which, like the crackdown on fare evasion, could serve as yet another means of criminalizing the act of using public transportation.

Yet, as Hamilton-Smith observed, Cuomo is assured by “precedent for this policy—that New York, and many other states, prohibit people with sex offense convictions from living within proscribed distances of places like schools and parks, which has the de facto effect of banishment from entire neighborhoods.”

But just because a policy isn’t new doesn’t mean it works, or is constitutional.

Last week, U.S. District Judge Robert Cleland issued a permanent injunction barring the state of Michigan from enforcing what the ACLU described as the “exclusion zone” provisions of the state’s sex offender registry law, known as SORA. The ruling requires Michigan to either overhaul SORA into compliance, or else stop enforcing the provisions, which the court found to be unconstitutionally vague, against the nearly 44,000 people on the state’s registry. (The injunction applies to other aspects of the law as well, and would render the entire law “null and void” for anyone required to register for an offense that occured before April 12, 2011.)

SORA prohibits people on Michigan’s sex offender registry from living, working, or “loitering” within 1,000 feet of a school, on pain of heavy criminal penalties. Before the district court issued the injunction, a panel of judges on the Sixth Circuit Court of Appeals said these provisions are like “the ancient punishment of banishment.” The law “brands registrants as moral lepers solely on the basis of a prior conviction,” the court wrote. “It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live.”

“As a result of the school zone restrictions,” the court continued, “many of the Plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work. These restrictions have also kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of ‘loitering.’”

Moreover, the Sixth Circuit found “scant support” for the proposition that banishment achieves its stated policy goals. Instead, the court noted, “one statistical analysis in the record concluded that laws such as SORA actually increase the risk of recidivism, probably because they … mak[e] it hard for registrants to get and keep a job, find housing, and reintegrate into their communities.”

In 2015, the California Supreme Court used similar reasoning to strike down the provisions of “Jessica’s Law” that prohibited registered sex offenders from living within 2,000 feet of schools and parks where children gather. The rules “increased the incidence of homelessness among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees,” the court said.

Much the same would likely follow from a ban on using subways and buses in New York. Which raises the question: if banishment isn’t a humane path to safer public spaces, what policies might be?

JoAnne Page, president and CEO of The Fortune Society, a nonprofit that assists formerly incarcerated people with re-entry, told City Limits that she “would rather see the funding go into creating decent emergency and transitional [housing] options for people who are homeless, and increasing the capacity to serve mentally-ill people.” Investment could also go toward reducing overcrowding on and improving transit itself. Of the proposed transit ban, Page added: “This isn’t a solution. This is a performance.”