The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Justice Sotomayor's Statement in Oritz v. Breslin

Sotomayor's solo not-quite-dissental, with a shout-out to her former law clerks, is a throwback to a bygone era of substantive due process.


Today, the Supreme Court denied certiorari in Ortiz v. Breslin. This case has been floating around for some time. It was first distributed for conference on 9/27/2021. It was rescheduled twelve times! It seems that Justice Sotomayor was likely trying to muster three more votes for cert. She was unsuccessful. Instead, she wrote a six-page statement respecting the denial of certiorari. It is not quite a dissent, but Justice Sotomayor states very clearly that she thinks the New York Court of Appeals got the case wrong.

Here is Justice Sotomayor's summary of the dispute:

In New York, criminal defendants who earn sufficient good time credits before the end of their prison sentences are entitled to conditional release. Defendants classified by the State as "level three sex offenders," however, must first assure the State that they will not reside within 1,000 feet of any school. In New York City, this is no easy task, and the difficulties of finding a compliant residence can result in defendants serving additional time in prison past the expiration of their sentences. Because petitioner Angel Ortiz was unable to identify any release address that satisfied the State's requirement, he spent over two additional years in-carcerated when he should have been at liberty. Although Ortiz's petition does not satisfy this Court's criteria for granting certiorari, I write to emphasize that New York's residential prohibition, as applied to New York City, raises serious constitutional concerns.

Justice Sotomayor explains that in New York City, it is virtually impossible for a person to live more than 1,000 feet from a school. And, she contends, the state's policy is not narrowly tailored to the density of New York City. She is exactly right. In many large cities, sex offenders are forced to live near highway overpasses and in other dangerous areas. These 1,000 feet buffer zones do not work in urban areas.

Turning to the constitutional analysis, Justice Sotomayor favorably cites the dissent of Judge Rivera on the New York Court of Appeals. (The Court of Appeals is New York's court of last resort, and its members are referred to as "Judge" rather than as "Justice".)

Judge Jenny Rivera's dissent below ably explains how New York's policies as applied to people like Ortiz raise constitutional concerns.3

When I first read this sentence, I wondered why Sotomayor would mention the judge's first name. When two judges on the same court share the last name, it is common to use the Judges' first names. For example, on the D.C. Circuit, Douglas and Ruth Ginsburg, or on the Eleventh Circuit, William and Jill Pryor. But there is only one Judge Rivera on the New York Court of Appeals. Then I googled Judge Rivera. She clerked for then-Judge Sotomayor on SDNY in 1993. (Rivera's term was Sotomayor's first or second year on the federal bench.) Here, Justice Sotomayor was giving her former law clerk a first name shout-out. And once Judge Jenny Rivera got a shout-out, Judge Rowan Wilson had to get a shout-out as well. In a Footnote, Justice Sotomayor offers some praise for the other dissenting vote–also identified by his first name:

FN3:Judge Rowan Wilson's dissent also importantly addresses how DOCCS's policy violates New York City's obligation to provide shelter to those in need.

I think "ably explains" is more praiseworthy than "importantly addresses."

Then, Justice Sotomayor engages in the sort of substantive due process analysis that was all-too-common in a bygone era:

Here, New York law provides that a defendant "shall . . . be conditionally released" once he earns sufficient credits, as Ortiz did. N. Y. Penal Law Ann. §70.40 (West 2021). As a New York City resident, Ortiz also enjoyed a right to "shelter and board [for] each homeless man who applies for it." Callahan v. Carey, 307 App. Div. 2d 150, 151, 762 N. Y. S. 2d 349, 350 (2003). In my view, under these New York state and city policies, Ortiz may well have held a liberty interest at the point that he became entitled to conditional release. At the very least, however, Ortiz indisputably held a liberty interest in his release at the expiration of his full sentence.

Sotomayor couldn't even get a second vote on this position.

As a policy matter, I agree with Sotomayor. New York's policy is irrational. These sorts of residency restrictions have not been shown to actually reduce reoffending. Indeed, to the contrary, restricting where a person can live may actually increase the risk of reoffending. But, these laws remain difficult to change. Sotomayor writes:

Despite the empirical evidence, legislatures and agencies are often not receptive to the plight of people convicted of sex offenses and their struggles in returning to their communities.

Still, I part company with Sotomayor's constitutional imperative:

Nevertheless, the Constitution protects all people, and it prohibits the deprivation of liberty based solely on speculation and fear. When the political branches fall short in protecting these guarantees, the courts must step in.

"Must step in." This position does not command a majority, or even a plurality of the current Court. Footnote 4 is once again a dictum.

Justice Sotomayor ends her dissent with a message to the New York Assembly:

New York should not wait for this Court to resolve the question whether a State can jail someone beyond their pa-role eligibility date, or even beyond their mandatory release date, solely because they cannot comply with a restrictive residency requirement. I hope that New York will choose to reevaluate its policy in a manner that gives due regard to the constitutional liberty interests of people like Ortiz.

I agree that the New York government is capable of creating a statutory right. This fact reaffirms why the Court was right not to intervene.