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SJC-11806
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 7083 vs. SEX OFFENDER
REGISTRY BOARD.
Plymouth. March 5, 2015. - August 21, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Constitutional Law, Sex offender. Due
Process of Law, Sex offender. Practice, Civil, Sex
offender.
Civil action commenced in the Superior Court Department on
April 2, 2012.
The case was heard by Paul E. Troy, J., on a motion for
judgment on the pleadings.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Ethan C. Stiles for the plaintiff.
David L. Chenail for the defendant.
Matthew J. Koes for John Doe, Sex Offender Registry Board
No. 3839, amicus curiae, submitted a brief.
DUFFLY, J. The plaintiff, John Doe, Sex Offender Registry
Board No. 7083 (Doe), was serving a criminal sentence at the
2
Massachusetts Treatment Center (treatment center), and also had
been civilly committed to the treatment center as a sexually
dangerous person (SDP), when the defendant Sex Offender Registry
Board (SORB) notified him in September, 2009, of its
recommendation that he be classified as a level three sex
offender, pursuant to the sex offender registration statute,
G. L. c. 6, §§ 178C-178Q. 1 Doe requested a hearing to challenge
SORB's recommendation. When that classification hearing took
place, in February, 2012, Doe's earliest parole eligibility date
was ten months away, and a trial on Doe's petition for discharge,
pursuant to G. L. c. 123A, § 9, had been scheduled for a date
eighteen months away. 2
Because each date was not only distant in time, but also
only a potential date on which he might have become eligible for
release, rather than a known release date, Doe requested that the
classification hearing be continued to a date after, or shortly
before, trial on his petition for discharge. In the alternative,
Doe sought to have the classification proceeding left open after
1
The sex offender registration statute, G. L. c. 6,
§§ 178C-178Q, as enacted by St. 1996, c. 239, § 1, was rewritten
in 1999. See St. 1999, c. 74, § 2. The 1999 version is at issue
here.
2
Thereafter, the trial on Doe's petition for discharge was
rescheduled for a date one year later than originally scheduled.
Doe's subsequent motion to dismiss the petition was allowed, and
he remained confined at the Massachusetts Treatment Center
(treatment center) when he filed this appeal.
3
the hearing, so that his classification would not become final,
and current evidence of his risk of reoffense would be available
for the hearing officer to consider when his discharge was
imminent. The hearing examiner denied the requests and
classified Doe as a level three sex offender. Doe sought review
in the Superior Court pursuant to G. L. c. 30A, §§ 7, and 14 (7),
and G. L. c. 6, § 178M, arguing that his risk of reoffense was
zero while he was confined at the treatment center, and that the
denial of his request to continue or to leave open the
classification hearing violated his right to due process. A
Superior Court judge affirmed the hearing examiner's decision,
and Doe appealed. A panel of the Appeals Court also affirmed, in
an unpublished memorandum and order issued pursuant to its rule
1:28. Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender
Registry Bd., 86 Mass. App. Ct. 1113 (2014). We granted Doe's
application for further appellate review. 3
Doe argues that, by scheduling the classification hearing
based on his earliest possible parole eligibility date, the
information relied on by the hearing examiner in reaching a
classification decision inevitably will have become stale, and
therefore potentially unreliable, by the time he is released from
confinement, even if the determination of his level of risk was
3
We acknowledge the amicus brief submitted by John Doe, Sex
Offender Registry Board No. 3839.
4
based on appropriate factors when it was made. Doe contends that
803 Code Mass. Regs. § 1.37C(2) (2013), which permits a sex
offender to seek reclassification three years after a final
classification, does not address adequately his due process
concerns. 4
SORB contends that the early classification was required
here because there was a possibility that Doe could have been
released prior to a trial on his petition for discharge. SORB
maintains that an individual who has been committed as an SDP may
be released prior to the date of a trial on his or her petition
for discharge pursuant to G. L. c. 123A, § 9, through one of two
mechanisms. First, the community access board (CAB) may file a
petition for discharge under G. L. c. 123A, § 9, if it
determines, in its annual review, that an individual committed as
an SDP no longer is sexually dangerous. Had the CAB determined
at Doe's next annual review (which likely would have taken place
a few months after the February, 2012, classification hearing)
that Doe was no longer sexually dangerous, it could have filed
its own petition for discharge, accompanied by a motion for an
4
Doe cites a number of reasons in support of this
contention. He argues particularly that, under the regulations
of the Sex Offender Registry Board (SORB), while a petition for
reclassification may be filed every three years, a decision to
reclassify a registered sex offender requires that the offender
has remained offense-free for more than five continuous years
"since his or her release from incarceration." See 803 Code
Mass. Regs. § 1.37C(2)(d) (2013).
5
expedited trial. 5 Second, Doe could have filed a motion for an
expedited trial on his petition for discharge if two qualified
examiners opined, following their examination of Doe in
conjunction with his petition, that he was no longer sexually
dangerous. See Matter of Johnstone, 453 Mass 544, 545, 553
(2009). SORB maintains that any error in a premature
classification may be remedied by its reclassification
procedures. See 803 Code Mass. Regs. § 1.37C(2).
We conclude that the hearing examiner's 2009 recommendation
that Doe be classified as a level three sex offender, based on
evidence presented at a time when a trial on his petition for
discharge under G. L. c. 123A, § 9, was at least eighteen months
away, risked classifying Doe based on factors that would be stale
at the time of his discharge, in violation of due process
protections. The hearing examiner's 2012 final classification of
5
SORB argues that, based on the possibility of a finding by
the community access board (CAB) that Doe was no longer sexually
dangerous,
"It was therefore conceivable that . . . within months
after [SORB's] classification hearing, the CAB could find
[Doe] no longer [a sexually dangerous person (SDP)] and on
that basis, [Doe] could then have filed a motion seeking an
expedited review by the qualified examiners and discharge
trial. . . . In the event that the [c]ourt granted a motion
for expedited review and trial, the offender could
potentially have been released prior to the originally
scheduled section 9 discharge trial. Therefore, the
initial trial date of August 2013 on [Doe's] section 9
discharge petition was not necessarily dispositive as to
[Doe's] earliest possible release from his SDP commitment."
6
Doe as a level three sex offender embodies this result, and
reflects an evaluation of Doe's risk that will be stale when Doe
ultimately is discharged. Nor are these procedural due process
concerns adequately addressed by Doe's ability to request
reclassification pursuant to 803 Code Mass. Regs. § 1.37C(1)-(9).
We note first that a final classification as a level three
sex offender would permit SORB to require Doe to register as such
while he is committed to the treatment center, albeit that the
final classification occurs long before even his potential
release date. See G. L. c. 6, § 178I (information about level
three sex offenders "shall be made available"); 803 Code Mass.
Regs. § 1.32(2) (2013) (SORB "may actively disseminate"
information pertaining to level three sex offender, "in such
time, place, manner or means, as it, in its sole discretion,
deems reasonable and proper"). Thus, Doe's information and
photograph would be actively and publicly disseminated on SORB's
Web site, while he remains confined; the bell cannot thereafter
be unrung by reclassification, and dissemination, which can
result in a wide variety of harms, see Moe v. Sex Offender
Registry Bd., 467 Mass. 598, 604 (2014), cannot be revoked. See
Note, The Right to Be Forgotten, 64 Hastings L.J. 257, 259 (2012)
("information posted on the Internet is never truly forgotten").
Moreover, at a reclassification hearing, the regulations
shift to Doe the burden of establishing that his risk of
7
reoffense and degree of dangerousness have been reduced, do not
entitle him to appointed counsel if he is indigent, and provide
that reclassification may not be requested for three years after
the date of the final classification order. See 803 Code Mass.
Regs. § 1.37C(2). In addition, most of the factors which SORB is
to consider in determining whether a sex offender has
demonstrated a reduced risk of reoffense contemplate that an
offender already is living in the community. See id.
Accordingly, Doe's final classification as a level three sex
offender must be vacated; the 2012 classification is only
preliminary, and the evidentiary hearing held in February, 2012,
must be left open. At a reasonable time prior to his actual
release date, Doe may request a continuation of the evidentiary
hearing, at which he may submit new evidence relevant to a final
classification determination, 6 and SORB will bear the burden of
establishing Doe's then-current risk of reoffense and degree of
dangerousness. See G. L. c. 6, § 178L; 803 Code Mass. Regs.
§§ 1.01, 1.10 (2013). If Doe does not seek a continuation of the
hearing at a reasonable time prior to his actual release date, 7
the findings from the initial hearing will become final, and SORB
6
At that hearing, the Commonwealth also may introduce
relevant new evidence.
7
A next possible scheduled release date is to be
distinguished from Doe's actual release date.
8
may issue a final classification determination based on the
preliminary classification.
1. Background. a. Governing offenses. The hearing
examiner found the following. At the time of the February, 2012,
classification hearing, Doe was forty-six years old. He had been
convicted of two separate sex offenses in 1987, and one sex
offense in 2009. In 1987, when he was twenty-one, Doe was
convicted of indecent assault and battery on a nineteen year old
female acquaintance of his girl friend and sentenced to a one-
year term of probation. Later that year, while on probation for
the first sexual assault, Doe broke into his former girl friend's
house, raped her three times, and then stabbed her, and himself,
with a knife. He pleaded guilty to three counts of aggravated
rape, assault with intent to commit murder, assault and battery
by means of a dangerous weapon, and breaking and entering in the
nighttime; he was sentenced to concurrent terms of incarceration
of from ten to twelve years for all but one of these convictions,
and a term of probation on the other conviction. 8
In 2003, Doe met a twenty-two year old woman at a bus
8
In 1990, Doe's motion to revise and revoke his sentences
was allowed, and his sentences were modified to a single ten- to
twelve-year term of incarceration, with commitment set to time
served and the balance suspended for five years. In April,
1991, the suspension was revoked after Doe violated a term of
his probation by having contact with his former girl friend (his
second victim), and Doe was incarcerated until February, 1999.
9
station in Fall River; after he missed his bus to Boston, she
invited him to spend the night at her apartment, where her
brother was also visiting. The woman went to sleep alone in her
bedroom and awoke to find that her pajamas had been removed and
Doe was raping her. Doe fled the apartment after the woman's
screams alerted her brother. The woman provided police a
detailed description of her attacker, who was not identified at
that time.
In May, 2006, Doe was sentenced to a term of two and one-
half years of incarceration, with nineteen months to serve and
the balance suspended, for failing to register as a sex offender.
Shortly after he began serving this sentence, the State police
crime laboratory conducted a search of a convicted offender
database and matched a deoxyribonucleic acid (DNA) sample from
Doe to a sample taken during the investigation of the 2003
assault. The victim then identified Doe from a photographic
array.
In July, 2006, after receiving notice of the DNA match in
the 2003 rape, the Commonwealth filed a petition pursuant to
G. L. c. 123A, § 12, seeking Doe's civil commitment as an SDP. A
jury found Doe to be sexually dangerous, and in January, 2007, he
was committed to the treatment center. In October, 2009, Doe
pleaded guilty to rape and was sentenced to a term of from five
to eight years for the 2003 offense. The earliest date on which
10
he would become eligible for parole from that sentence was in
December, 2012. In June, 2010, Doe filed in the Superior Court a
petition for discharge, pursuant to G. L. c. 123A, § 9. In June,
2011, while that petition was pending, the CAB found during its
annual review that Doe continued to be sexually dangerous.
b. Classification proceedings. Meanwhile, SORB had
proceeded with a determination of Doe's sex offender
classification level. In September, 2009, SORB concluded that
Doe presented a high level of risk of reoffense, and recommended
that he be classified as a level three sex offender. Doe
challenged this recommendation and requested a de novo hearing to
determine his final classification. See G. L. c. 6,
§ 178L (1) (a). The hearing ultimately was scheduled to be
conducted in February, 2012. At that time, trial in the Superior
Court on Doe's petition for discharge had been scheduled for
August, 2013, some eighteen months thereafter. Doe requested
that the hearing examiner either allow a continuance of the
classification hearing until a date closer to the trial on Doe's
petition, or that the classification proceeding be left open
until immediately prior to his release, to allow for submission
of then-current evidence of his risk of reoffense and his degree
of dangerousness. The hearing examiner denied this request. The
hearing took place as scheduled in February, 2012. On March 16,
2012, the hearing examiner issued a decision concluding that Doe
11
should be finally classified as a level three sex offender, and
ordering Doe to register as such.
2. Statutory and regulatory framework. The purpose of the
sex offender registration statute is to protect "the vulnerable
members of our communities from sexual offenders," St. 1999,
c. 74, preamble, and from "the danger of recidivism posed by sex
offenders." St. 1999, c. 74, § 1. Every person defined as a sex
offender under G. L. c. 6, § 178C, is subject to a two-stage
process of registration and classification. See 803 Code Mass.
Regs. § 1.38(3) (2013). First, SORB prepares "a recommended
registration determination and, if applicable, a classification
of the sex offender as a Level 1, Level 2, or Level 3 Offender."
803 Code Mass. Regs. § 1.06(1) (2013). Second, if the offender
objects to SORB's recommendation, the offender may request a de
novo evidentiary hearing before a SORB hearing examiner to
determine whether he or she must register, and, if so, at what
level of risk. 803 Code Mass. Regs. § 1.38(4) (2013).
In proceedings that result in a final classification of a
sex offender's level of risk, the offender is entitled to an
evidentiary hearing and an individualized assessment of the
proper classification level, to be represented by legal counsel,
and to judicial review of an adverse result. See G. L. c. 6,
§ 178L; 803 Code Mass. Regs. §§ 1.01, 1.08, 1.10, 1.14, 1.26
(2013). SORB bears the burden of establishing the sex offender's
12
current level of dangerousness to the community, and the risk of
reoffense. See G. L. c. 6, § 178L; 803 Code Mass. Regs. §§ 1.01,
1.10.
The sex offender registration statute requires that SORB
develop guidelines to determine a sex offender's level of
dangerousness and risk of reoffense, and that an offender's
recent behavior and current treatment be considered as factors
relevant to this determination. See, e.g., G. L. c. 6,
§ 178K (1) (c), (h), (i), (j) (mandatory factors include "whether
such sex offender is receiving counseling, therapy or treatment";
"the sex offender's participation in sex offender treatment and
counseling while incarcerated or while on probation or parole and
his response to such treatment or counseling"; "recent behavior,
including behavior while incarcerated or while supervised on
probation or parole"; and "recent threats against persons").
Consistent with this statutory imperative, SORB's
regulations provide that a sex offender's current risk of
reoffense and dangerousness to the community must be considered
in arriving at a preliminary determination whether registration
is required and in deciding a recommended classification level.
See 803 Code Mass. Regs. § 1.06(2)(d) (2013) (requiring
registration only if offender "currently poses a danger"); 803
Code Mass. Regs. § 1.06(3) (2013) (in determining whether
offender "currently poses a danger," SORB shall review enumerated
13
criteria, as well as "other matters that demonstrate whether or
not the offender poses a risk to reoffend"). Similarly, for a
final classification determination, a sex offender's current
circumstances must be considered. See, e.g., 803 Code Mass.
Regs. § 1.40(10), (11), (12), (19), (20) (2013) (hearing examiner
must consider, among other factors, whether offender is
"currently" supervised; "currently in sex-offender-specific
treatment"; offender's "current home situation"; and "recent
behavior" while incarcerated or on probation or parole). SORB
must demonstrate at the classification proceeding a "sound
application of [the risk] factors to derive a true and accurate
assessment of an offender's potential for reoffending." Doe, Sex
Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd.,
466 Mass. 594, 605 (2013) (Doe No. 205614), quoting Doe, Sex
Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81
Mass. App. Ct. 639, 656 (2012).
A sex offender "has sufficient liberty and privacy interests
constitutionally protected by art. 12 [of the Massachusetts
Declaration of Rights] that he is entitled to procedural due
process before he may be required to register and before
information may properly be publicly disclosed about him." Doe
v. Attorney Gen., 426 Mass. 136, 143-144 (1997). As we said in
Roe v. Attorney Gen., 434 Mass. 418, 427 (2001), quoting Mathews
v. Eldridge, 424 U.S. 319, 335 (1976):
14
"Where there is an interference with a protected
liberty interest, the court must consider 'the risk of an
erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally,
the Government's interest, including the function involved
and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.'"
In the context of sex offender classification, we examine the fit
"between a classification and the policy that the classification
serves." See Doe v. Police Comm'r of Boston, 460 Mass. 342, 349
(2011).
To further the statutory purpose of protecting the public,
while at the same time protecting a sex offender's due process
rights, the sex offender registration statute establishes time
frames within which certain actions must occur in connection with
classification proceedings when a sex offender is incarcerated or
civilly committed, and imposes deadlines for final classification
of such offenders. See G. L. c. 6, § 178E (a) (SORB "shall
classify such a sex offender at least [ten] days before the
offender's earliest possible release date"); G. L. c. 6,
§ 178L (1) (a) ("Not less than [sixty] days prior to the release
or parole of a sex offender from custody or incarceration, [SORB]
shall notify the sex offender of his right to submit to [SORB]
documentary evidence relative to his risk of reoffense and the
degree of dangerousness posed to the public"). The registration
statute contains no explicit requirement that SORB schedule a
15
classification hearing at a time near the anticipated date of a
sex offender's release from custody.
Our jurisprudence has acknowledged that the purpose of the
registration statute is "promoted by allowing final
classifications of sex offenders while they are incarcerated,"
and "before their release back into the community." Doe, Sex
Offender Registry Bd. No. 1 v. Sex Offender Registry Bd., 79
Mass. App. Ct. 683, 688 (2011), citing Doe, Sex Offender Registry
Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 759-760
(2006).
At the same time, our decisions recognize that the
registration statute requires SORB to base its classification
determinations on a sex offender's "current" risk to the
community, in order to protect the offender's right to due
process. See, e.g., Doe, Sex Offender Registry Bd. No. 8725 v.
Sex Offender Registry Bd., 450 Mass. 780, 793 (2008) (sex
offender entitled to hearing at which offender must have
opportunity to demonstrate he or she is not "a current danger to
vulnerable members of our communities"); Doe v. Attorney Gen.,
430 Mass. 155, 168 (1999) (individualized hearing must be
conducted to determine whether sex offender "is a present threat"
because of likelihood of reoffense); Doe, Sex Offender Registry
Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67,
73-74 (2012) (Doe No. 6904), and cases cited ("Under the statute,
16
a sex offender is entitled to an individualized determination
whether he is currently dangerous before registration and
notification requirements may be imposed"). SORB's regulations
themselves recognize that "the risk to reoffend and the degree of
dangerousness posed by a sex offender may decrease over time."
803 Code Mass. Regs. § 1.37C(1).
3. Application. SORB contends that it is necessary to
finally classify civilly committed sex offenders long before
their actual release, to protect against the eventuality that the
time prior to a trial on a petition for discharge by a sex
offender might be shortened by a motion seeking an expedited
trial, either by the CAB or by the petitioner, in two specific
circumstances: following the CAB's annual review, if it
determines that a sex offender is no longer sexually dangerous,
see G. L. c. 123A, §§ 6A, 9, or upon a finding by two qualified
examiners who examined the offender in conjunction with a
petition for discharge that the offender is no longer sexually
dangerous. See Johnstone, petitioner, 453 Mass. 544, 553 (2009).
SORB maintains that any possible due process violation arising
from a premature classification is ameliorated by the fact that
its regulations permit a sex offender to seek reclassification
after a three-year interval. We are not persuaded.
a. Final classification date. To promote both the
statutory goals that a sex offender's final classification be
17
made before discharge, and that it be accurate and current, a
final classification must be based on an evaluation of the
offender's risk of reoffense at a time reasonably close to the
actual date of discharge. Reaching a final classification
determination close to the actual date of discharge promotes
accuracy of classification determinations, which advances both
the interests of the community and of the sex offender. For
instance, a sex offender who has spent insufficient time in the
treatment center, which was established to provide "treatment and
rehabilitation of persons adjudicated as being sexually
dangerous," G. L. c. 123A, § 2, may not have had the opportunity
to fully avail himself or herself of specialized treatment
programs, or to make progress in treatment, so as to reduce the
risk of reoffense according to SORB's guidelines. Similarly, a
sex offender who has been committed to the treatment center for a
lengthy period of time may have reached an age at which his or
her risk of reoffense has been reduced. See Doe, Sex Offender
Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass.
612, 622-623 (2010). Moreover, advances in scientific research
on sex offender recidivism over the course of an offender's
commitment could indicate that additional factors should be
considered, or that factors thought to be relevant to a
determination of risk are not as predictive as initially
believed. "Where, as here, scientific knowledge in a field is
18
rapidly evolving, . . . the applicable standards may require more
frequent modification in order to reflect accurately the current
state of knowledge" (citation omitted). Id. at 623 n.6, citing
Commonwealth v. Lanigan, 419 Mass. 15, 27 (1994). See Doe No.
205614, 466 Mass. at 608-609 (potential for "frustration of
individualized risk assessment is particularly conspicuous where
the growing scientific consensus suggests specific factors that
have quantifiable effects on recidivism rates, such as age and
gender").
A premature, and potentially unreliable or inaccurate,
classification as a level three sex offender has severe
consequences where classification has become final and, as a
result, an offender is required to register at that risk level.
Information about level three sex offenders is entered into a
publicly accessible Internet database, see G. L. c. 6, § 178D,
and "SORB and local police departments 'actively disseminate'
information about level three offenders to individuals and
organizations who are likely to encounter those offenders. G. L.
c. 6, § 178K (2) (c)." Doe, Sex Offender Registry Bd. No. 68549
v. Sex Offender Registry Bd., 470 Mass. 102, 104-105 (2014).
Internet dissemination of sex offender information "exposes
[offenders], through aggressive public notification of their
crimes, to profound humiliation and community-wide ostracism."
Smith v. Doe, 538 U.S. 84, 115 (2003) (Ginsburg, J., dissenting).
19
Sex offenders whose personal information is available on SORB's
Web site "will suffer discrimination in employment and housing,
and will otherwise suffer from the stigma of being identified as
a sex offender, which sometimes means the additional risk of
being harassed or assaulted." Moe v. Sex Offender Registry Bd.,
467 Mass. 598, 604 (2014). "Classification and registration
entail possible harm to a sex offender's earning capacity, damage
to his reputation, and . . . 'the statutory branding of him as a
public danger.'" Poe v. Sex Offender Registry Bd., 456 Mass.
801, 813 (2010), quoting Doe v. Attorney Gen., 426 Mass. 136, 144
(1997). An inaccurate classification at a higher risk level not
only does not serve to protect the public, it places a more
onerous burden on law enforcement officials. See G. L. c. 6,
§ 178K (2) (c).
Acknowledging similar concerns, the Appeals Court set aside
a final classification order based on a classification hearing
held four years before a sex offender's release, and remanded the
matter for a "new final classification evidentiary hearing." See
Doe No. 6904, 82 Mass. App. Ct. at 78. The sex offender in that
case argued that a classification hearing held four years before
his release from incarceration was unreasonable under the
registration statute, and was prejudicial to him. Asserting that
"a hearing closer in time to his release was required so that the
board could appropriately determine whether he had availed
20
himself of sex offender treatment while incarcerated and whether
he posed a current risk to the public," the sex offender had
moved to reschedule the hearing. Id. at 76. His motion was
denied, and SORB proceeded to make a classification determination
eight months prior to the sex offender's next scheduled parole
hearing, at which parole was denied. Id. at 77. The Appeals
Court concluded that, "where no administrative justification was
provided, a procedure imposing a final classification
approximately four years old at the time of the offender's
release from incarceration and affording a reclassification no
earlier than five years after his release, is inconsistent with
the statutory purpose." 9 Id. at 78.
SORB argues that in the present case, unlike the
incarcerated offender in Doe No. 6904, supra, Doe's commitment to
the treatment center is open ended, and that this difference
justifies conducting a classification hearing "as soon as
practicable." SORB contends that the due process protections
extended to sex offenders during the classification process
9
Under the reclassification procedure in effect at the
time, see 803 Code Mass. Regs. § 1.37C(1) (2002), a sex offender
was not entitled to an evidentiary hearing in conjunction with a
motion for reclassification. See Doe, Sex Offender Registry Bd.
No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 78
n.3 (2012). In 2013, SORB amended its reclassification
procedure, such that a sex offender now is entitled to an
evidentiary hearing on a motion for reclassification. See 803
Code Mass. Regs. § 1.37C(5) (2013).
21
require that certain events take place within time limits that
make it "impracticable" to classify a civilly committed offender
at a time closer to a trial on a petition for discharge. 10
SORB notes also that, as discussed supra, the time prior to
a trial on a petition for discharge might be shortened by a
motion seeking an expedited trial, either by the CAB or by the
petitioner, where a determination has been made, by the CAB or by
two qualified examiners, that the sex offender is no longer
sexually dangerous. SORB does not argue that either a favorable
review by the CAB or a favorable determination by two qualified
examiners entitles a sex offender adjudicated to have been an SDP
to immediate release without an order by a Superior Court judge.
Nor does SORB offer any explanation why, if classification
hearings were left open, there would be insufficient time in
which to evaluate additional, current evidence concerning the
level of risk of a sex offender who sought and was granted an
expedited trial on a petition for discharge.
SORB maintains that it was reasonable to seek final
10
SORB cites, for example, regulations permitting a sex
offender to submit, within thirty days after receipt of notice
of a registration requirement, documentary evidence regarding
the offender's risk to reoffend, 803 Code Mass. Regs.
§§ 1.04(1), (4), 1.05(1) (2013); that the offender has twenty
days after notification of SORB's recommended classification
within which to request a hearing, 803 Code Mass. Regs.
§ 1.07(2) (2013); and that the offender must receive notice of
the scheduled date, time, and place of the hearing thirty days
in advance. 803 Code Mass. Regs. § 1.09(1) (2013).
22
classification of Doe ten months prior to his earliest parole
eligibility date, because that was the earliest date on which Doe
potentially could have been released. SORB contends that holding
a hearing at that time "adequately balanced [SORB's] statutory
requirement to finally classify a sex offender prior to his
release from incarceration with the offender's right to have an
individualized hearing to determine his current risk." SORB does
not suggest that it was reasonably likely that Doe, who had been
committed to the treatment center as an SDP, could in fact have
been released into the community on the date on which he first
became eligible for parole. 11 Rather, SORB maintains that Doe's
11
We note that, as with any other sex offender committed to
the treatment center as an SDP, even if Doe had been released on
parole or his sentence had expired, he could not have been
discharged from the treatment center until a petition for
discharge, pursuant to G. L. c. 123A, § 9, had been allowed.
Notwithstanding its emphasis on Doe's parole eligibility date,
SORB recognizes in its brief that Doe's parole eligibility date
was his earliest possible release date only if he previously had
been discharged from civil commitment as an SDP.
A prior version of G. L. c. 123A, § 9, stated that "[a]ny
person committed to the center for treatment and rehabilitation
under [G. L. c. 123A, §§ 5, 6,] shall be eligible for parole,"
and required that such individuals be presented to the parole
board at least once in the first year of commitment and at least
every three years thereafter. Commonwealth v. Travis, 372 Mass.
238, 244 & n.3 (1977), quoting G. L. c. 123A, § 9. See
Thompson, petitioner, 394 Mass. 502, 503 n.1, 506-507 & n.5
(1985); St. 1985, c. 752, § 1. General Laws c. 123A, § 9, also
allowed release on parole without a finding that an individual
was no longer sexually dangerous. See Thompson, petitioner,
supra at 504 n.3, quoting Commonwealth v. Travis, supra at 247
n.4. Those provisions were eliminated when the statute was
rewritten in 1993, see St. 1993, c. 489, § 7, and release
23
procedural due process rights are protected adequately through
the reclassification procedure, pursuant to which Doe may file a
petition every three years seeking to obtain a lower
classification level.
We conclude that SORB's final classification of Doe was
premature. When SORB made its initial recommendation in
September, 2009, that Doe be classified as a level three sex
offender, he had been committed to the treatment center for
approximately thirty-two months. Approximately one month later,
Doe pleaded guilty to the 2003 rape. In his final classification
determination, the hearing examiner noted that, although Doe had,
during the preceding year, made progress in sex offender
treatment, there were shortcomings in his response to treatment
that remained to be addressed. When Doe eventually is discharged
from the treatment center, this classification, based on his
circumstances in early 2012, will not reflect an evaluation of
his then-current risk of reoffense and degree of dangerousness to
the public. See G. L. c. 6, § 178K (1) (h) and 803 Code Mass.
Regs. § 1.40(17) (2013) (defining current sex offender specific
treatment as risk-reducing).
Ensuring that a sex offender's final classification reflects
a level of risk and dangerousness that is current at a time when
without an adjudication that a person is no longer an SDP is no
longer possible under the statute. See G. L. c. 123A, § 6A.
24
the offender's release is imminent furthers both SORB's interest,
and that of the public, in protecting vulnerable members of the
community through reliable notification of an offender's risk of
reoffense and degree of dangerousness, and better protects Doe's
liberty interest in receiving a classification that reflects
consideration of current, rather than stale, risk factors. We
turn to a consideration whether any harm from Doe's premature
classification may be remedied through SORB's reclassification
procedures.
b. Availability of reclassification. We do not agree that
the reclassification procedure available under 803 Code Mass.
Regs. § 1.37C(1), (2), ameliorates the potential harm to a sex
offender's protected liberty interests. As stated, the
regulations provide that a sex offender must wait three years
after the date of a final classification before requesting
reclassification. See 803 Code Mass. Regs. § 1.37C (2). In
addition, the factors SORB is to consider in determining whether
reclassification is warranted, and the evidence that a sex
offender must present to establish a reduced risk of reoffense,
clearly contemplate that the offender must be living in the
community. See, e.g., 803 Code Mass. Regs. § 1.37C(2)(c)
(stability of home and work situation, successful completion of
probation, and substance free lifestyle in the community).
Therefore, a sex offender such as Doe, who is committed to the
25
treatment center, likely would be unable to make such a showing.
Moreover, the reclassification procedure as defined in the
regulations imposes on the offender the burden of establishing
that his or her level of risk has been reduced, see 803 Code
Mass. Regs. § 1.10(1), and neither an indigent nor a juvenile
offender has the right to appointed counsel in connection with a
reclassification hearing. Compare 803 Code Mass. Regs.
§ 1.37C(5)(d) with 803 Code Mass. Regs. §§ 1.08, 1.14.
The registration statute, by contrast, requires SORB to bear
the burden of proving that a classification reflects a sex
offender's current risk to the community. See Doe, Sex Offender
Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90,
98 (1998). If, in order to update the results of a final
classification hearing that was prematurely conducted, Doe's only
recourse were to seek reclassification, SORB effectively would be
relieved of its burden. Procedural due process is not satisfied
where the burden to establish his or her level of risk is, in
effect, shifted to the offender. Nor is the statutory purpose
advanced where a sex offender confined to the treatment center
must meet this burden by producing evidence of a reduction in
risk based largely on factors which, practically, require SORB to
evaluate his or her lifestyle in the community. See Roe v.
Attorney Gen., 434 Mass. 418, 427 (2001), quoting Mathews v.
Eldridge, 424 U.S. 319, 335 (1976).
26
c. Remedy. Because final classification of Doe will have
been based on stale and not on current information on his risk of
reoffense at the time he is actually released, and the
reclassification proceeding does not adequately address
procedural due process concerns, the final classification of Doe
made in 2012 must be vacated, and Doe's classification as a level
three sex offender must be deemed preliminary. Doe is entitled
to a continuation of the evidentiary hearing, conducted in
accordance with 803 Code Mass. Regs. §§ 1.07-1.26 (2013), at a
time reasonably close to his actual release date; at that
hearing, both Doe and SORB may introduce new evidence relevant to
a final classification determination.
At any such hearing, in addition to the newly introduced
evidence, the hearing examiner may consider all the evidence
introduced in 2012, as well as the first hearing examiner's
findings. If Doe does not introduce additional evidence, SORB
may issue a final classification decision when Doe's release is
imminent. If additional evidence is introduced at a continued
evidentiary hearing that takes place at a time anticipated to be
reasonably close to Doe's actual release date, 12 but parole or a
12
The Appeals Court panel's decision in this case reasoned
that a classification hearing held within ten months of a sex
offender's potential discharge date adequately ensures that the
offender's classification reflects an evaluation of his or her
current risk at the time of discharge. See Doe, Sex Offender
Registry Bd. No. 7083 v. Sex Offender Registry Bd., 86 Mass.
27
petition for discharge is denied, Doe may seek a further
evidentiary hearing, at a reasonable time prior to a subsequent
proceeding, 13 and both parties may introduce in evidence at that
hearing further information relative to Doe's then-current risk
of reoffense. Cf. Doe No. 6904, 82 Mass. App. Ct. at 78 n.4
(suggesting offender may petition to reopen evidentiary hearing
if significant period of time has elapsed between final
classification and offender's scheduled release).
We note that other cases have raised similar concerns about
the potential for classification determinations based on stale
factors, see, e.g., Doe, Sex Offender Registry Bd. No. 3839 v.
Sex Offender Registry Bd., 472 Mass. (2015); Doe, Sex
Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457
Mass. 53, 60-61 (2010); Doe No. 6904, supra at 75-76, and it
appears likely that the issue will continue to arise in future
cases. SORB may wish to address these concerns through
comprehensive amendment of its regulations in a manner that
ensures its internal procedures meet constitutional due process
requirements, with cognizance of the administrative burdens such
App. Ct. 1113 (2014) (unpublished). While that reasoning may be
correct, so long as the offender actually is discharged within
ten months of the classification hearing, we need not decide the
issue.
13
The minimum one-year period between such proceedings, see
G. L. c. 123A, § 9, would render invalid a determination based
only on prior, stale evidence.
28
amendments may engender. See Doe, Sex Offender Registry Bd. No.
972 v. Sex Offender Registry Bd., 428 Mass. 90, 100 (1998).
4. Conclusion. Because the 2012 classification of Doe as a
level three sex offender will not reflect an evaluation of his
current level of risk at the time of his discharge from the
treatment center, the decision finally classifying Doe as a level
three offender is invalid, and the Superior Court judge's order
affirming that determination is erroneous. Both must be vacated.
The 2012 classification will remain preliminary until a
reasonable time prior to Doe's actual release date. At that
time, Doe is entitled to reopen the evidentiary hearing, and to
introduce new evidence relevant to his then-current level of
risk. SORB will then bear the burden of establishing Doe's then-
current level of risk and dangerousness to the community. See
G. L. c. 6, § 178L; 803 Code Mass. Regs. § 1.01. If Doe does not
seek to reopen the hearing, the preliminary classification will
become final. The matter is remanded to the Superior Court for
entry of a judgment consistent with this opinion.
So ordered.
Doe, Sex Offender Registry Board No. 7083 v. Sex Offender Registry Board
Court: Massachusetts Supreme Judicial Court
Date filed: 2015-08-21
Citations: 472 Mass. 475
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