The Kickham Comment - Boston Criminal Attorney Blog
In my previous post on this topic, I noted that the Massachusetts Appeals Court has recently handed down a decision that changes the way the state Sex Offender Registration Board (SORB,) determines whether or not someone previously convicted of a sex offense, must continue to register as a sex offender indefinitely in Massachusetts.
Now, to the legal reasons why: The Appeals Court ruled the way it did here, based largely upon two legal concepts: “Retroactivity,” and “Due Process.” Of these two concepts, most people are more familiar with due process. This legal maxim, embedded in the United States Constitution and the Massachusetts Constitution, requires (very basically and broadly) that anyone subjected to a criminal proceeding be given notice and an opportunity to be heard as to the charges or proceedings against them. “Retroactivity” refers to the process of punishing someone in the present, based upon an unsupported inference or assumption that the person still poses a threat that the legal proceeding seeks to protect against. Retroactivity played a key role in the Appeals Court’s decision here, as the appellant’s offense, which SORB argued made him subject to its continuing registration requirement, was a single offense that took place almost 25 years ago. More important than that, there was compelling evidence that the incident was fueled by a drinking problem that has not existed for many years since the time of the offense, and there was strong evidence that appellant had reformed his life in many respects since that time.
In this case, the hearing officer at SORB found that Doe presented a “low” risk to reoffend and a “low” degree of danger to the public. Resultantly, she classified him as a level one sex offender (the least serious level) but notwithstanding, the finding subjected him to the continuing registration requirement as a sex offender. The court noted that in so finding, it could be argued that the hearing examiner based her reasoning on the fact that Doe had not shown that he presented “no” risk of re-offense or threat to the community. But the court found that this “inferential leap,” was not sustainable here where: a) such a finding was legally foreclosed by the sex offender registration statute; b) the record did not show that the hearing examiner considered the issue of his present risk level; and c) the hearing examiner, at the time she made her ruling, did not have the benefit of a prior Massachusetts Supreme Judicial Court (SJC) ruling preventing such inferential conclusions.
In view of these facts, the Court remanded the hearing back to SORB, ordering that the SORB hearing examiner must explicitly consider, and make written findings pertaining to, whether Doe currently poses a present risk of re-offense or present danger to the public. In its ruling, the Court noted that the Supreme Judicial Court has emphasized that retroactivity and due process concerns are implicated where registration is required solely based on the characteristics of an offense committed more than two decades earlier. In order to avoid retroactivity concerns, the court ruled that sex offender registration can be required only based on an assessment “of the person’s current level of dangerousness and risk of reoffense” (emphasis added). Thus in this case, if upon reconsideration the hearing examiner again concludes that SORB has met its burden of showing that Doe presents a “low” risk of re-offense or a “low” risk of danger to the public such that he must register, the facts upon which that assessment is based must be specifically found, particularly identifying any facts that postdate the appellant’s offense, as well as the evaluative process used to balance the characteristics of Doe’s offense against Doe’s life for the past 25 years.
In addition, the court ruled that the explanation of that evaluative process “Should also include the basis upon which the hearing examiner concludes (if she does so) that any predictive value can be placed on Doe’s 25-year-old offense, and to the extent that the offense has any predictive value, how that value is to be balanced and weighed against the totality of the other circumstances. These include, for example, the role alcohol may have played in the offense (and Doe’s subsequent abstinence); the fact that Doe has no previous or subsequent history of sex offenses; his medical, vocational, and living situation; and any other factors that would bear on the predictive value of Doe’s 25-year-old crime.”
The court emphasized that SORB’s burden is to show that Doe presents a “cognizable risk of reoffense,” not merely a hypothetical or speculative potential risk. The court’s ruling made clear that the term “low” must be given a reasonable interpretation; it should not be taken to mean “anything more than no.”
Hence, while someone who is convicted or otherwise pleads guilty to a Massachusetts sex offense will be required to register as a sex offender with SORB, hearing officers at SORB will in the future be required to consider the petitioner’s “whole life” story, and specifically consider the recent and current state of that person’s broader life history, before requiring that he or she continue to register as a sex offender in Massachusetts.