Updates

As of January 31, 2006, the total number of individuals classified by the Sex Offender Registry Board were as follows:

As of  November 23, 2004, the Sex Offender Registry Board reports the following statistics:
 

Note that many of these risk levels have been assigned in cases in which offenders did not request an evidentiary hearing.

Of all Hearing Examiner decisions issued from January until October of 2004, the results were as follows:
 

Classification levels were decreased after hearing in 43.06 % of the cases.
Classification levels were increased after hearing in .40 % of the cases.

Out of 70 cases decided in 30A reviews in the Superior Court in the period from April of 2001 until October of 2004, the results were as follows:
 

Of those Superior Court decisions, 18 have been appealed and 52 have not been appealed.

It has recently come to our attention that the Sex Offender Registry Board is now failing to call any witnesses whatsoever at the evidentiary hearing before the hearing examiner.  Instead of putting documents in the record through a witness (the board’s criminal information analyst), the board attorney is simply submitting them for consideration by the hearing examiner.  Many attorneys have called to inquire whether this is permissible.

There is no provision in G.L. c. 6, § 178C-P or in 803 CMR 1.00-1.41 that requires the board to call witnesses.  It is important to note, however, the following points.

1. The board bears the burden of proving by a preponderance of the evidence that the offender poses a risk of recidivism and a threat to public safety. Doe v. Sex Offender Registry Board, 428 Mass. 90 (1998).  803 CMR 1.10.  Counsel for the offender should make the argument that the board cannot meet this burden of proof by simply dumping documents, many of which may contain critical inaccuracies, into the record.   This is an important matter for the offender, who has constitutionally-protected interests at stake.  Doe v. Attorney General,  426 Mass. 136 (1997). Doe v. Attorney General,  426 Mass. 136 (1997).  By not even bothering to call a witness, the board trivializes these liberty and privacy interests.

2. The hearing examiner is to accept  evidence “only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.”  803 CMR 1.19.  It is generally known that records from state agencies, penal institutions, the police and other such sources may contain important inaccuracies.  Acceptance of these records as evidence without the benefit of witness testimony as to their contents, how and from whom they have been obtained, and as to any inaccuracies the witness has discovered is inconsistent with this evidentiary standard. (Be careful with this argument, however, since the standard for which you advocate will be the standard applied to the offender’s evidence as well.)

3. Counsel for the offender can subpoena the board’s criminal information analyst  in order to cross-examine him/her as to the documents submitted by the board attorney, or as to any other relevant matter.  803 CMR 1.17.

4. If a hearing examiner refuses to accept the board’s documents without a witness and the board refuses to call a witness, there will be no evidence in the record, and the board will not have met its burden of proof.  In that instance, the offender need not present any evidence.

On March 5, 2003, the United States Supreme Court issued its decisions in Smith et al v. Doe and Connecticut Dept. Pub. Safety v. Doe et al.  The first of these decisions held that the Alaska registration and notification statute does not violate the ex post facto clause of the United States Constitution.  The second held that the Connecticut statute does not violate the federal constitutional guarantee of procedural due process.  Both of these statutes permit internet dissemination of the names, addresses, photographs, crimes and other information about offenders.  Neither statute grants sex offenders a hearing to determine current dangerousness.

The good news is that neither of these opinions has any impact on Massachusetts law or practice.  The right of Massachusetts offenders to a due process hearing to determine current dangerousness and, in cases of higher risk offenders, to dissemination closely tailored to protecting the populations likely to encounter the offender, are rights guaranteed by article 12 of the Massachusetts Declaration of Rights.  See e.g., Doe v. Attorney General, 426 Mass. 136, 143-146 (1997).  The state constitutional rights defined by the SJC are (for the most part) incorporated into the Massachusetts statute.  G.L. c. 6, § 178C-P.

It is also noteworthy that the US Supreme Court does not close the door to all future constitutional challenges to registration statutes.  In the Connecticut case, in particular, the Court was careful to note that the case was a loser because it was presented as solely a procedural due process case, and did not sufficiently address the question of substantive due process rights that may have been at stake.

As of  February 4, 2003, the Sex Offender Registry Board reports the following statistics:
 

Note that many of these risk levels have been assigned in cases in which offenders did not request an evidentiary hearing.

As of July 1, 2003, the Sex Offender Registration and Notification statute was amended to require payment of a registration fee of $75.00. The fee must be paid upon classification and annually at the time of registration verification. The procedures for collection of the fee are set forth in G.L. c. 6, § 178Q and 803 CMR 1.28(2), 1.29(2) and 1.30(2).

WHO IS REQUIRED TO PAY THE FEE?

All persons required to register as  sex offenders. However, the fee need not be paid until all legal challenges provided for in G.L. c. 6, §§ 178L & M are exhausted. These challenges include the evidentiary classification hearing before the Board and review of the hearing examiner decision in the superior court.

WHEN MUST THE FEE BE PAID?

For individuals finally classified as level one offenders, the fee must be paid upon registration, following all litigation before the Board Hearing Examiner and in the Superior Court.

For individuals finally classified as level 2 or level 3 offenders, the fee must be paid no later than 30 days after registration at the police station, following all litigation before the Board Hearing Examiner and in the Superior Court.

For all registered and finally classified offenders, the fee must be paid annually in the month of the registrant’s date of birth.

WHEN DOES THE FEE REQUIREMENT END?

The duty to pay the registration fee ends upon termination of the duty to register.

HOW DOES THE FEE GET PAID?

At the time of post-litigation registration or annual verification, registrants receive a Sex Offender Registration Fee Invoice to complete and mail with the $75.00 to a designated address in an envelope provided.

HOW MAY ONE OBTAIN A WAIVER?

Registrants may request waiver of the registration fee no later than 30 days after post-litigation registration. The registrant may request waiver by checking off the box indicating that he is indigent and unable to pay the fee on the Sex Offender Registration Fee Invoice. This invoice is mailed to the address designated on the form. The Sex Offender Registry Board then sends indigency forms to the registrant. When the indigency forms are received by the Sex Offender Registry Board, a determination is made as to whether undue hardship exists. A waiver request must be made at the time of each annual registration.

SECONDARY ADDRESSES:  All former offenders registering with the Sex Offender Registry Board (“board”) are required to provide secondary addresses.  A secondary address is defined as:

the address at which a former offender “lives, abides, lodges, or resides” for 14 or more days “in the aggregate during any calendar year” or

the address at which a former offender “lives, abides, lodges, or resides” for 4 or more “consecutive or nonconsecutive days in any month.”

Secondary addresses which are out of state must also be provided.  Every provision of the Sex Offender Registration and Notification Act which requires a listing of an address now requires the listing of a secondary address as well. 

LIFETIME COMMUNITY PAROLE IMPOSED FOR FAILING TO REGISTER

First Time Offenders:  Lifetime Community parole shall be imposed on a person who is convicted of a first offense failure to register, G.L. c.6, s.178H(a)(1), if the person has been adjudicated or convicted of any of the following offenses in G.L. c.265: 

indecent a&b on a child under 14 (s.13B);

indecent a&b on mentally retarded person (s.13F);

rape of child under 16 with force (s.22A);

rape and abuse of child (s.23);

assault of child w/intent to rape (s.24B); and

kidnapping child (s.26). 

Second Time Offenders: Lifetime community parole shall be imposed on any level 2 or level 3 former offender who is convicted of a second offense failure to register, pursuant to G.L. c.6, s.178H(a)(2), for any sex offense listed in G.L. c.6, s.178C. 

For both first and second time offenders, lifetime community parole would begin after the person’s release from prison, release from probation supervision, upon expiration of a continuance without a finding, or upon discharge from a section 9 treatment center commitment, whichever comes first.

• Arguably, lifetime community parole is an enhanced penalty which must be charged in the indictment or complaint.  Commonwealth v. Pagan, 445 Mass. 161 (2005).
  

• A person subject to lifetime community parole may petition the parole board for termination of parole supervision after 15 years.  The burden is on the petitioner to show by clear and convincing evidence that he has not committed a sex offense or kidnapping since his conviction, that he is not likely to pose a threat to the safety of others and that the public interest is not served by continuing his parole supervision.  If the petition is denied, the parolee may file again in three years.  G.L. c. 127, s.133D(b)(1)-(5).
  

• The legislation does not impose lifetime community parole on homeless former offenders convicted of failing to register.  The sentencing scheme for homeless former offenders remains the same:  1st offense: not more than 30 days HOC; 2nd offense: not more than 2 ½ yrs HOC or not more than 5 yrs state prison; 3rd offense: not less than 5 yrs state prison.  Prosecutions for a homeless former offender may not be placed on file or continued without a finding.  G.L. c.6, s.178H(2)(c).
  

• The statute does not define “level 2 or level 3” former offenders.  If a former offender is appealing his final classification it can be argued that his level is not final.  Be aware, however, of G.L. c.6, s.178M which states that “the filing of an action under this section [judicial review] shall not stay the effect of the board’s final classification.”

If anyone encounters a client facing the imposition of lifetime parole under these provisions, please contact me or Carol Donovan.

 *** Enticing child under 16 to commit crime; enticing away person for prostitution or sexual intercourse; drugging person for sexual intercourse; inducing minor into prostitution; living off or sharing earnings of minor prostitute; incestuous marriage or intercourse; disseminating to minor matter harmful to minor; posing or exhibiting child in state of nudity; dissemination of visual material of child in state of nudity or sexual conduct; unnatural and lascivious acts w/child under 16; any attempt to commit a violation or a like violation in another state.

I.  AMENDMENTS TO SEX OFFENDER REGISTRY AND NOTIFICATION STATUTE

Former offenders will now receive preliminary classifications from the board while in custody and at least 10 days before his/her earliest possible release date. 

Agency with custody of former offender must send registration data to the board within 5 days of receiving any sex offender required to register (instead of 90 days prior to release). 

Agency transmits the following information:  former offender’s registration data including identifying factors, anticipated future residence, anticipated secondary addresses, offense history, treatment for mental abnormality, official version of sex offenses, mittimus, prior incarceration history, projected maximum release date, earliest possible release date.

Agency must inform board immediately of any transfer of offenders so that the board may retain contact with the offender throughout the classification process.

B. Registration for homeless (§178F and F1/2)

Former offenders who list a homeless shelter as residence shall verify registration every 45 days (instead of every 90 days). 

Homeless level 1 offenders, and those who do not yet have final classifications (known by the board as level 0), verify their address by mail to the board every 45 days.  Homeless offenders who are finally classified as level 2 or 3 verify their address in person at the police station every 45 days. 

Lifetime community parole shall be imposed on any level 2 (moderate risk) or level 3 (high risk) offender convicted of failing to register.

LCP begins after the person has served committed time OR after the person has been released from post-release supervision OR upon expiration of a continued without a finding OR upon discharge from the treatment center. 

TRIAL TIPS:

Because LCP is an enhanced penalty, it may not be imposed for conduct which occurred before December 20, 2006, the date this statutory amendment goes into effect.  Imposition of LCP for conduct prior to December 20, 2006 would violate state and federal constitutional prohibitions against ex post facto laws.  See Commonwealth v. Talbot, 444 Mass. 586, 597 (2005). 

The only dispositions that clearly do not require the LCP penalty are: filed without a change of plea or pretrial probation. 

It is not clear whether a disposition of guilty filed requires the imposition of LCP.  It can be argued that the statute does not require the imposition of LCP for a G filed where it does not expressly say so.  The statute mandates that LCP shall commence after release from custody, release from post-release supervision, upon expiration of continuance without a finding or upon discharge from a treatment center commitment. Although G filed is a conviction, the statute does not specify that LCP shall commence after a G filed is imposed.  See Youngworth v. Commonwealth, 436 Mass. 608, 611 (2002); Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992) (rule of lenity requires that defendant be given benefit of statutory ambiguity).   

Counsel should object on the record to the imposition of LCP after a disposition of a continued without a finding (CWOF).  It can be argued that the statutory language allowing for the imposition of LCP “upon expiration of a continued without a finding” is unconstitutional pursuant to Apprendi v. New Jersey, 530 US 466 (2000).  Apprendi holds that the due process clause of the federal constitution requires proof beyond a reasonable doubt of the facts supporting an enhanced penalty.  A CWOF is a finding of sufficient facts, not a finding of guilt beyond a reasonable doubt.     

That the defendant is a level 2 or level 3 offender must be charged in the complaint or indictment and proved beyond a reasonable doubt. Commonwealth v. Pagan, 445 Mass. 161 (2005).  See also Apprendi v. New Jersey, 530 U.S. 466 (2000) (sentencing for enhanced penalties must meet constitutional requirements).

Presumably, this provision does not apply to juveniles since the statute refers only to persons “convicted” of failing to register. 

D. Criminal penalties for elderly or infirm former offenders who move to nursing homes (§178K)</>

It is now a criminal offense for any level 3 sex offender to “knowingly and willingly establish living conditions within, move to, or transfer to any convalescent or nursing home, infirmary maintained in a town, rest home, charitable home for the aged or intermediate care facility for the mentally retarded which meets the requirements of the department of public health under section 71 of chapter 111.”

Violation of this statute is punishable by not more than 30 days HOC (1st offense); not more than 2 ½ yrs HOC or 5 yrs state prison or fine (2nd offense); and not less than 5 yrs state prison (3rd and subsequent).

Charges may not be placed on file or continued without a finding.

II.  GPS MONITORING SYSTEM FOR ALL INDIVIDUALS PLACED ON PROBATION OR PAROLE FOR A SEX OFFENSE

Any person on parole for a sex offense, sex offense involving a child or sexually violent offense, as defined in c.6, §178C, shall wear a global positioning system (“GPS”) device.  c. 127, §133D.

Any person on probation for a sex offense, sex offense involving a child, or sexually violent offense, as defined in c.6, §178C, shall wear a GPS device.  c. 265, §47.

“Geographic exclusion zones” include, but are not limited to, areas around victim’s home, job and school and other areas defined to minimize contact with children, if applicable.

If a probationer/parolee enters an exclusion zone, the location data is transmitted to the local police and to the parole board/commissioner of probation by “telephone, electronic beeper, paging device, or other appropriate means.”

A parolee shall be taken into temporary custody.  A probationer shall be arrested or summonsed with a notice of surrender.

Probationers/parolees are required to pay the costs of this system unless the fees are waived due to an inability to pay.

NOTE:

The statute does not require GPS monitoring for individuals who have a sex offense conviction on their records but are not on probation or parole for a sex offense.

It can be argued that the mandatory imposition of a GPS device as a condition of probation is punative.  As such, requiring a probationer, whose offense occurred before the passage of the statute, to wear a GPS device would violate the constitutional prohibition against ex post facto laws.  See The People v. Delgado, 140 Cal.App. 1157 (4th Cir. 2006)(mandatory conditions of probation for domestic violence cases, including a mandatory probationary term, community service conditions and a fine, are punative and cannot be imposed for conduct which predates the passage of the statute).