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SJC-11604
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 3839 vs. SEX
OFFENDER REGISTRY BOARD.
Plymouth. September 3, 2014. - August 21, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk,
JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Delinquent Child. Constitutional Law,
Sex offender. Due Process of Law, Sex offender,
Retroactive application of statute. Statute, Retroactive
application. Practice, Civil, Sex offender.
Administrative Law, Findings.
Civil action commenced in the Superior Court Department on
February 18, 2011.
The case was heard by Christopher J. Muse, J., on a motion
for judgment on the pleadings, and a motion for relief from
judgment and for reconsideration was also heard by him.
The Supreme Judicial Court granted an application for
direct appellate review.
Matthew J. Koes for the plaintiff.
William H. Burke for the defendant.
DUFFLY, J. In 1990 and 1991, the plaintiff, John Doe, Sex
2
Offender Registry Board No. 3839 (Doe), was adjudicated a
delinquent juvenile by reason of sex offenses he committed in
1989 and 1990, when he was fourteen and fifteen years old.
Following his adjudications, Doe was committed to the Department
of Youth Services (DYS), where he remained for over nine years,
pursuant to orders extending his commitment beyond his
eighteenth birthday. In April, 2000, Doe was committed
temporarily to the Massachusetts Treatment Center (treatment
center) for evaluation on the Commonwealth's petition that Doe
be civilly committed as a sexually dangerous person (SDP);
thereafter, he was found to be sexually dangerous and was
civilly committed to the treatment center for a period of from
one day to life. In January, 2011, twenty years after Doe
committed the offenses, the defendant Sex Offender Registry
Board (SORB) classified him as a level three sex offender. In
September, 2013, Doe was determined to be no longer sexually
dangerous, and was discharged from the treatment center.
Doe contends that the sex offender registration statute,
G. L. c. 6, §§ 178C-178Q (registration statute), as applied to
him, constitutes an ex post facto punishment, and violates his
rights to due process and protection against double jeopardy,
because the requirement that he register as a sex offender was
triggered by juvenile adjudications that preceded the statute's
enactment. See St. 1996, c. 239, § 1. He maintains also that,
3
even if the registration statute does not operate impermissibly
as applied to him, the hearing examiner's determination that he
is a level three sex offender was unsupported by substantial
evidence. Doe argues that the hearing examiner did not properly
consider his youth at the time of his offenses, and that the
decision was based on factual errors and unreliable evidence.
Doe argues further that the evidence underlying the
classification was stale, because the hearing resulting in the
final classification took place more than three years before his
discharge from the treatment center.
We conclude that the registration statute was not applied
retroactively as to Doe; the hearing examiner considered Doe's
youth in accordance with the regulatory factors in effect; and
the factual errors complained of either were de minimis or were
determinations adequately supported by evidence in the record,
and were not erroneous. Doe's contention regarding staleness,
however, is valid. A final classification by SORB must be based
on current evidence of a sex offender's risk of reoffense and
dangerousness to the community, see G. L. c. 6, §§ 178C-178Q,
and a final classification made over three years prior to an
offender's release from confinement is presumptively stale. See
Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry
Bd., 472 Mass. (2015) (Doe No. 7083). Because Doe's
classification determination was not based on current evidence
4
of the relevant risk factors, he is entitled to new evidentiary
hearing at which SORB will bear the burden of establishing his
risk of reoffense and his level of danger to the community. See
id. at .
Background and prior proceedings. In 1990, Doe admitted to
sufficient facts to support a finding of delinquency on a charge
that in 1989, when he was fourteen years old, he raped a six
year old girl. He was placed on probation for that offense.
While on probation, Doe sexually assaulted two nine year old
girls, and in 1991, he was adjudicated delinquent on two counts
of indecent assault and battery of a child under the age of
fourteen. He was committed to DYS, where he was confined until
he reached the age of twenty-five.
In April, 2000, in anticipation of Doe's discharge from
confinement, the Commonwealth filed a petition in the Superior
Court pursuant to G. L. c. 123A, § 12 (e), seeking to have Doe
temporarily committed to the treatment center pending a probable
cause hearing on its petition that Doe be civilly committed as
an SDP. In September, 2002, a Superior Court judge determined
that there was probable cause to believe that Doe was an SDP,
and ordered that Doe undergo examination and diagnosis at the
treatment center. See G. L. c. 123A, § 13. In January, 2003, a
Superior Court jury found that Doe was an SDP, see G. L.
c. 123A, § 14, and Doe was committed to the treatment center for
5
an indeterminate period of one day to life.
In May, 2007, Doe filed a petition under G. L. c. 123A,
§ 9, seeking discharge from the treatment center. After a trial
in July, 2010, a jury found that Doe remained an SDP. Doe filed
a second petition for discharge in August, 2010, and in
September, 2013, after two qualified examiners 1 submitted reports
opining that Doe was no longer sexually dangerous, a Superior
Court judge issued an order discharging Doe from the treatment
center. See Johnstone, petitioner, 453 Mass. 544, 553 (2009)
(if two qualified examiners opine that petitioner is not
currently sexually dangerous, Commonwealth cannot meet its
burden in proceeding under G. L. c. 123A, § 9, to establish that
petitioner remains sexually dangerous).
While these proceedings were taking place, SORB separately
considered whether Doe should be required to register as a sex
offender pursuant to G. L. c. 6, §§ 178C-178Q, and, if so, at
what level. In May, 2010, two months before the trial on Doe's
first petition for discharge, SORB notified Doe of its
recommendation that he be classified as a level three sex
offender. See G. L. c. 6, § 178L. Doe sought administrative
review of SORB's recommended classification and, in July, 2010,
1
A qualified examiner is a licensed psychiatrist or
psychologist who "has had two years of experience with diagnosis
or treatment of sexually aggressive offenders and is designated
by the commissioner of correction." G. L. c. 123A, § 1.
6
two weeks before trial on his petition for discharge, but more
than three years prior to his eventual discharge, an evidentiary
hearing was conducted by a SORB hearing examiner. See G. L.
c. 6, § 178L (2). In January, 2011, the hearing examiner issued
a decision finally classifying Doe and ordering that he register
as a level three sex offender. Doe sought review of the final
classification order in the Superior Court, pursuant to G. L.
c. 30A, § 14 (7), and G. L. c. 6, § 178M. A Superior Court
judge affirmed, and Doe appealed. We granted Doe's application
for direct appellate review.
Discussion. 1. Retroactive application. Unless relieved
of the obligation to do so, 2 every sex offender in the
Commonwealth must register with SORB. See G. L. c. 6, § 178E
(a)-(c), (g)-(h), (l); Roe v. Attorney Gen., 434 Mass. 418, 424
(2001). Doe falls within the statutory definition of "sex
offender," which includes a person "who has been adjudicated as
a youthful offender or as a delinquent juvenile by reason of a
sex offense . . . on or after August 1, 1981." See G. L. c. 6,
§ 178C. General Laws c. 6, § 178K (2) (d), prohibits SORB from
exercising its power to relieve an offender from registration in
specified circumstances, including "if a sex offender has been
2
As discussed infra, in limited circumstances, certain sex
offenders may be relieved of the obligation to register, either
by the sentencing judge or by the Sex Offender Registry Board
(SORB). See G. L. c. 6, §§ 178E (e), (f), 178K (2) (d).
7
determined to be a sexually violent predator," or "has been
convicted of a sex offense involving a child or a sexually
violent offense, and such offender has not already registered
pursuant to this chapter for at least ten years."
Doe contends that the order to register as a level three
sex offender, pursuant to G. L. c. 6, §§ 178C-178Q, was based
solely on his juvenile adjudications in 1990 and 1991, which
predated the enactment of the registration statute in 1996. 3 As
such, Doe maintains, the sex offender registration statute
operates retroactively in effect, and is unconstitutional as
applied to him. 4 In considering Doe's retroactivity claim, we
apply the "new legal consequences" test. See Moe v. Sex
Offender Registry Bd., 467 Mass. 598, 607 (2014). A "statute is
3
The sex offender registration statute, G. L. c. 6,
§§ 178C-178Q, inserted by St. 1996, c. 239, § 1, was rewritten
in 1999, see St. 1999, c. 74, § 2, and amended several times
thereafter. The version of the statute applicable here appears
in St. 1999, c. 74, § 2, as amended through St. 2010, c. 267.
4
Doe also argues, relying in part on Doe, Sex Offender
Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass.
780, 786 (2008), that the requirement that he register as a
level three offender for offenses committed while he was a
juvenile, despite its stated regulatory purpose, is punitive as
to him, and therefore in violation of constitutional
prohibitions against ex post facto punishments and double
jeopardy. This argument is unavailing. Even if the
registration statute did have a retroactive effect as to Doe,
that statute "is generally regulatory rather than punitive."
See id. at 787-788, citing Commonwealth v. Bruno, 432 Mass. 489,
499-502 (2000); Opinion of the Justices, 423 Mass. 1201, 1224-
1227 (1996). Accordingly, the prohibitions against ex post
facto punishments and double jeopardy do not apply.
8
retroactive in effect where 'the new provision attaches new
legal consequences to events completed before its enactment.'"
Id., quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269
(1994). Under this test, we examine "the degree of connection
between the operation of the new rule" (Doe's obligation to
register) "and a relevant past event" (Doe's juvenile
adjudications). See Landgraf v. USI Film Prods., supra at 268-
270.
We have concluded previously that new legal consequences
had attached, and therefore that the registration statute
applied retroactively in effect, in a case where SORB
"determin[ed] that [a sex offender] had a mandatory obligation
to register annually, solely by virtue of his prior conviction."
See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender
Registry Bd., 450 Mass. 780, 784-785 (2008) (Doe No. 8725). In
that case, the version of the statute then in effect, see
St. 1999, c. 74, § 2, mandated that the offender register
because he had been convicted of a sexually violent offense, and
provided that, due to the nature of his conviction, the offender
could "never be excused from registration." Id. at 785, citing
G. L. c. 6, § 178K (2) (d). Because the sole basis for
requiring that the offender register was his conviction of rape
in 1979, we concluded that "the registration law attached new
legal consequences to events that occurred before its
9
enactment," and "must be considered retroactive." Id. at 787.
We noted, however, that the registration statute would operate
prospectively if "a conviction for sexual offenses . . .
subject[s] a person only to potential registration and
classification, or even a presumption of registration, with the
ultimate registration requirement tied to an assessment (by
[SORB]) of the person's current level of dangerousness and risk
of reoffense." Id.
Here, SORB asserts that Doe's obligation to register is not
automatic, because he is eligible for relief from registration
under G. L. c. 6, § 178K (2) (d). 5 Doe's juvenile adjudications,
therefore, only made him eligible for potential classification
and registration. Moreover, the obligation to register requires
evaluation of an offender's current risk of reoffense and danger
to the community. See Doe No. 7083, 472 Mass. at . The
5
SORB states in its brief that "the [h]earing [e]xaminer
could have relieved [Doe] of his duty to register," under G. L.
c. 6, § 178K (2) (d), and Doe does not suggest that such is not
the case. We note that no provision in the registration statute
explicitly states that an offender who has been "adjudicated" of
the offenses listed in G. L. c. 6, § 178K (2) (d), is ineligible
for relief from registration. See Commonwealth v. Connor C.,
432 Mass. 635, 646 (2000) (under our long-standing jurisprudence
"an 'adjudication' that a child has violated a law generally is
not a 'conviction' of a crime"). Doe's juvenile
"adjudications," therefore, would not appear to qualify as
"convictions" precluding relief under G. L. c. 6, § 178K (2)
(d). Doe also has not been determined to be a sexually violent
predator pursuant to G. L. c. 6, § 178K (2) (c), and 803 Code
Mass. Regs. § 1.31 (2013).
10
basis for the requirement that Doe register was not only his
1990 and 1991 juvenile adjudications; Doe's obligation to
register was based also on an evaluation of his risk to reoffend
and his danger to the community as of the date of the
evidentiary hearing in 2010. See Doe No. 8725, supra at 793
(offender entitled to hearing to determine whether he "is a
current danger to vulnerable members of our communities"). Cf.
Commonwealth v. Bruno, 432 Mass. 489, 491-492, 497-499 (2000)
(concluding that SDP act, G. L. c. 123A, did not apply
retroactively to offenders convicted of sex offenses predating
1999 amendments to act, where convictions determined only
eligibility for potential civil commitment and basis for
commitment was "current mental condition"). Accordingly, no new
legal consequences attached to Doe's juvenile adjudications, and
the registration statute applied prospectively as to him.
2. Whether the classification determination was
unsupported by substantial evidence. Review of a hearing
examiner's decision, pursuant to G. L. c. 30A, § 14, is
"confined to the record." G. L. c. 30A, § 14 (5). A reviewing
court may set aside or modify a hearing examiner's decision for
any one of the reasons listed in G. L. c. 30A, § 14 (7),
including that the decision was unsupported by substantial
evidence. "Substantial evidence" is "such evidence as a
reasonable mind might accept as adequate to support a
11
conclusion." G. L. c. 30A, § 1 (6).
a. Effect of youth. Doe claims that his classification as
a level three sex offender is unsupported by substantial
evidence because the hearing examiner did not consider properly
the recidivism rates of juvenile offenders. 6 He asserts that
SORB's regulations reflect outdated science. In particular, Doe
points to 803 Code Mass. Regs. § 1.40(4) (2013), known as factor
4, which, when applied to a juvenile sex offender who is an
adult at the time of classification, treats a sex offense
committed by a juvenile as an aggravating factor. 7 Doe contends
6
Doe contends that, as to sex offenders who committed their
offenses while they were juveniles, the registration requirement
takes on a retributive nature where, according to Doe,
scientific studies indicate that juvenile sex offenders have
lower rates of recidivism. Doe argues that, in light of the
lower recidivism rates of juvenile sex offenders, a level three
classification undermines the rehabilitative purpose of the
juvenile justice system. Doe claims also that there is no need
to protect the public from what he asserts is his minimal risk
of reoffense. To the extent that Doe is arguing that SORB
failed to make an individualized assessment of his risk of
reoffense based on the fact that he was a juvenile when he
committed the offenses, we conclude that he did have an
individualized assessment.
7
Factor 4, "Offender's Age at First Sex Offense," a factor
indicative of an increased risk of reoffense and degree of
dangerousness, applies to Doe because he was under twenty-one
years old at the time he committed his offenses. See 803 Code
Mass. Regs. § 1.40(4) (2013). A related risk factor, however,
Factor 14, "Sex Offender was a Juvenile when He Committed the
Offense, His Response to Treatment and Subsequent Criminal
History," is not applicable as indicative of a decreased risk of
reoffense and degree of dangerousness, because Doe was more than
seventeen years old at the time of the classification hearing.
See 803 Code Mass. Regs. § 1.40(14) (2013).
12
that viewing a juvenile offense solely as an aggravating factor
conflicts with more recent research regarding juvenile
recidivism rates that indicates that juvenile sex offenders pose
a decreased risk of reoffending.
In specific circumstances, we have concluded that a hearing
examiner erred in not considering proffered recent scientific
evidence. Where a sixty-one year old offender "presented
evidence of numerous scientific and statistical studies,
published during the last decade, that conclude that age is an
important factor in determining the risk of recidivism and that
such risk diminishes significantly as an offender ages," Doe,
Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry
Bd., 456 Mass. 612, 621 (2010), we determined that the hearing
examiner erred by not considering the proffered scientific
evidence. Id. at 622-623. Similarly, in Doe, Sex Offender
Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass.
594, 595 (2013), we held that "it was arbitrary and capricious
for the hearing examiner to classify Doe's risk of reoffense and
degree of dangerousness without considering the substantial
evidence presented at the hearing [in the form of scientific
studies] concerning the effect of gender on recidivism." Here,
however, because Doe did not raise any claim regarding recent
research on juvenile recidivism rates before the hearing
13
examiner, and proffered no scientific studies or expert
testimony at the classification hearing, the administrative
record provides no basis on which we can conclude that the
hearing examiner's decision was unsupported by substantial
evidence. 8
Doe's argument that SORB's regulations do not reflect
current scientific knowledge concerning the recidivism rates of
juvenile offenders may be construed also as a challenge to the
general validity of SORB's regulations. 9 On this record, Doe
8
Doe will have the opportunity to present new evidence,
including scientific studies, at a new evidentiary hearing.
9
We have emphasized repeatedly that, "[w]here, as here,
scientific knowledge in a field is rapidly evolving, . . . the
applicable standards may require more frequent modification in
order to reflect accurately the current state of
knowledge" (citation omitted). Doe, Sex Offender Registry Bd.
No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 623 n.6
(2010). See Doe, Sex Offender Registry Bd. No. 68549 v. Sex
Offender Registry Bd., 470 Mass. 102, 115-116 (2014); Doe, Sex
Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd.,
466 Mass. 594, 608 (2013).
The studies on which SORB relied when promulgating factors
4 and 14, the two factors most directly addressing juvenile
offenders, are dated 1987, 1989, 1990, 1992, 1995, and 2001.
See 803 Code Mass. Regs. §§ 1.40(4), (14) (2013). SORB's
regulations, therefore, do not exhibit consideration of an
emerging consensus regarding the "mitigating qualities of
youth," which is reflected in decisions of both the United
States Supreme Court and this court. See, e.g., Diatchenko v.
District Attorney for the Suffolk Dist., 466 Mass. 655, 661
(2013), S.C., 471 Mass. 12 (2015), quoting Miller v. Alabama,
132 S. Ct. 2455, 2467 (2012). See generally J.D.B. v. North
Carolina, 131 S. Ct. 2394 (2011); Graham v. Florida, 560 U.S. 48
(2010); Roper v. Simmons, 543 U.S. 551 (2005). For a sex
offender such as Doe, SORB's regulations direct a hearing
14
fares no better under such an analysis. "A challenge to the
validity of a general regulation 'cannot be resolved by
requesting declaratory relief in an appeal from an
administrative agency decision because judicial review is
confined to the administrative record.'" Doe, Sex Offender
Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass.
102, 114 (2014) (Doe No. 68549), quoting Doe, Sex Offender
Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass.
603, 630 (2011).
b. Hearing examiner's findings. Doe argues that two of
the hearing examiner's findings are unsupported by substantial
evidence and therefore erroneous.
Doe points first to the hearing examiner's statement that
Doe "admitted to sufficient facts to warrant a finding of
delinquency . . . to two counts of forcible rape of a child."
As Doe indicates, his admission to sufficient facts was only to
one count of forcible rape of a child, and the statement thus is
inaccurate. But the hearing examiner made only a single,
examiner to treat as an aggravating factor the fact that he
committed his offenses as a juvenile, and do not prompt the
hearing examiner to evaluate whether the "distinctive attributes
of youth" such as "immaturity, impetuosity, and failure to
appreciate risks and consequences" that contributed to his
decision to offend might no longer be present because he has
matured. See Diatchenko v. District Attorney for the Suffolk
Dist., supra at 675 (Lenk, J., concurring), quoting Miller v.
Alabama, supra at 2465.
15
passing reference to a second count, and, when assessing Doe's
level of risk, properly considered that Doe had admitted to
sufficient facts as to only one count of forcible rape. The
hearing examiner accurately detailed the facts of Doe's prior
offenses and appropriately applied the regulatory risk factors
to the facts; the erroneous reference to a second count of rape
did not affect the hearing examiner's analysis.
Doe claims also that the hearing examiner based his finding
that Doe had a history of substance or alcohol abuse on
unreliable evidence. SORB's regulations direct a hearing
examiner to evaluate whether an offender "has a history of
substance or alcohol abuse," 803 Code Mass. Regs. § 1.40(16)
(2013). The hearing examiner considered evidence that from 1988
until 1990, as an adolescent, Doe drank six to twelve beers per
week; that from 1997 until 1999, he received substance abuse
treatment; and that, near the time of the offenses, he had used
alcohol and marijuana. Our review of a hearing examiner's
decision "does not turn on whether, faced with the same set of
facts, we would have drawn the same conclusion, . . . but only
'whether a contrary conclusion is not merely a possible but a
necessary inference.'" Doe No. 68549, 470 Mass. at 110, quoting
Goldberg v. Board of Health of Granby, 444 Mass. 627, 638
(2005). On this record, we cannot say that the hearing
examiner's determination that Doe had a history of alcohol or
16
substance abuse was unsupported by substantial evidence.
c. Premature classification. Doe argues that his
classification was based on the hearing examiner's evaluation of
circumstances or conditions at the July, 2010, hearing that were
subject to change, and that, by the time of his release from the
treatment center in September, 2013, the classification had
become stale and materially inaccurate. We agree.
As noted, the registration statute requires that SORB base
its classification decision on an offender's risk to reoffend
and danger to the public based on information that is current
when an incarcerated or civilly committed offender reenters the
community. See Doe No. 7083, 472 Mass. at . The
circumstances supporting Doe's level three classification that
were before the hearing examiner in July, 2010, however, had
changed substantially by the time Doe was discharged in
September, 2013. For instance, in July, 2010, the hearing
examiner considered evidence that Doe had been responding well
to treatment, but determined that "it is too soon to tell
whether or not [Doe] has genuinely internalized treatment
concepts such [as] to sufficiently avoid reoffense." By 2013,
after three additional years of treatment, two qualified
examiners opined that Doe was no longer sexually dangerous, and
he was released into the community. See Doe No. 7083, supra at
("final classification must be based on an evaluation of the
17
offender's risk of reoffense at a time reasonably close to the
actual date of discharge"); Doe, Sex Offender Registry Bd. No.
6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 78
(2012) (classification stale when based on evidence
approximately four years old at time of offender's release from
incarceration). As discussed in Doe No. 7083, supra at ,
Doe's ability to seek reclassification every three years, see
803 Code Mass. Regs. § 1.37C(1), (2) (2013), does not afford an
adequate remedy for a final classification that was stale at the
time he was released and was required to register as a level
three offender.
Conclusion. Because Doe's final classification was based
on an evaluation of his risk several years before his release
into the community, Doe is entitled to a new evidentiary hearing
at which SORB will bear the burden of establishing Doe's current
risk of reoffense and degree of dangerousness, consistent with
the procedures set forth in 803 Code Mass. Regs. §§ 1.07-1.26
(2013). See Doe No. 7083, 472 Mass. at . That hearing, at
which SORB may introduce all the evidence introduced at Doe's
first hearing, must be conducted within a reasonable time. The
matter is remanded to the Superior Court for entry of an order
of remand to SORB for further proceedings consistent with this
opinion.
So ordered.