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SJC-11823
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 380316 vs.
SEX OFFENDER REGISTRY BOARD.
Middlesex. September 9, 2015. - December 11, 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, Burden
of proof. Due Process of Law, Sex offender, Hearing,
Standard of proof. Practice, Civil, Sex offender, Standard
of proof. Internet.
Civil action commenced in the Superior Court Department on
November 21, 2013.
The case was heard by Dennis J. Curran, J., on a motion for
judgment on the pleadings.
The Supreme Judicial Court granted an application for
direct appellate review.
Brandon L. Campbell for the plaintiff.
David L. Chenail (Elisha W. Willis with him) for the
defendant.
Beth L. Eisenberg & Larni S. Levy, Committee for Public
Counsel Services, & Eric B. Tennen, for Committee for Public
Counsel Services & another, amici curiae, submitted a brief.
Andrew S. Crouch, for Youth Advocacy Division of the
Committee for Public Counsel Services & another, amici curiae,
2
submitted a brief.
LENK, J. We are asked in this case to consider anew the
standard of proof that the Sex Offender Registry Board (SORB)
must satisfy in order to classify a convicted sex offender under
the provisions of the sex offender registry law, G. L. c. 6,
§§ 178C-178Q. The plaintiff, John Doe No. 380316 (Doe), is a
convicted sex offender who was classified by a preponderance of
the evidence as having a moderate risk of reoffense. In Doe,
Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd.,
428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need
only prove the appropriateness of a sex offender's risk
classification by a preponderance of the evidence. In light of
amendments to the sex offender registry law and other
developments since our decision in that case, however, Doe
contends that the preponderance standard no longer adequately
protects his due process rights. We agree. For the reasons
stated below, we hold that SORB is constitutionally required to
prove the appropriateness of an offender's risk classification
by clear and convincing evidence.1
1. Background. When Doe was thirty-five years old, he
1
We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services and the Massachusetts
Association for the Treatment of Sexual Abusers, and by the
Youth Advocacy Division of the Committee for Public Counsel
Services and the Children's Law Center of Massachusetts.
3
reportedly "twisted" the penis of his six year old nephew
through the child's underwear while both were in the bathroom.
Doe apologized to the boy immediately after the incident, and
they hugged each other. After several incidents of incontinence
over the following weeks, however, the boy told his mother what
had happened, and she thereafter reported the incident to the
police. Following a jury trial, Doe was found guilty of
indecent assault and battery on a child under fourteen, G. L.
c. 6, § 13B, a sex offense requiring SORB registration under
G. L. c. 6, §§ 178C-178CD.2 Doe had not previously been
convicted of a sex offense. On or about June 14, 2013, while
Doe was still incarcerated, SORB preliminarily recommended that
Doe be classified as a level three sex offender, the level
assigned to convicted sex offenders posing the highest risk of
reoffense. After Doe challenged that recommendation, however, a
SORB hearing examiner determined by a preponderance of the
evidence that he was more appropriately classified as a
level two sex offender, the level assigned to convicted sex
offenders posing only a moderate risk of reoffense. That
determination was made on October 23, 2013.
The hearing examiner relied on the regulatory factors
promulgated by SORB, 803 Code Mass. Regs. § 1.40(1)-(24) (2013),
2
Doe was also convicted of other offenses arising out of
the same incident that are not relevant to our decision in this
case.
4
to determine Doe's degree of dangerousness and risk of
reoffense. The examiner particularly noted that Doe had
sexually abused his "extravulnerable" nephew,3 that he appeared
to be unwilling to admit to the offense despite his conviction,
and that the victim suffered continuing emotional trauma as a
result of the incident. The examiner recognized that some
"favorable facts" diminished Doe's risk of reoffense, including
that Doe had not been reported for disciplinary violations and
had attended Alcoholics Anonymous meetings during his
incarceration, and that he would likely have a stable home
environment living with his sister upon his release.4
Nevertheless, the examiner found that these mitigating factors
only somewhat offset the aggravating factors present in Doe's
case, and determined that Doe was appropriately classified as a
level two offender.
Doe sought judicial review in the Superior Court, pursuant
to G. L. c. 30A, § 14, and G. L. c. 6, § 178M. His level two
classification was affirmed and we granted Doe's application for
direct appellate review. On appeal, Doe argues that due process
3
As defined by 803 Code Mass. Regs. § 1.40(9)(c)(4) (2013),
"'extra-vulnerable' means any condition or circumstance,
including, but not limited to a physical or mental condition
that tends to render a victim more susceptible to sexual
assault. An extra-vulnerable victim shall also include a victim
under the age of ten and over the age of [sixty]."
4
The sister is not the same person as the mother of Doe's
nephew.
5
under both the Fourteenth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights requires SORB to prove its classification determinations
by clear and convincing evidence. Additionally, he argues that
this court should reverse his classification because SORB failed
to prove that he poses a level two degree of risk and
dangerousness to the public even under a preponderance of the
evidence standard. Finally, Doe asks this court to order SORB
to stop disseminating his registry data on the Internet, on the
grounds that the 2013 amendment to the sex offender registry law
that required the Internet publication of level two offenders'
registry information, St. 2013, c. 38, §§ 7, 9, was not
retroactive as applied to him.
We conclude that due process requires that a sex offender's
risk level be proved by clear and convincing evidence. The risk
classifications that SORB must make now have consequences for
those who are classified that are far greater than was the case
when we decided Doe No. 972. The preponderance standard no
longer adequately protects against the possibility that those
consequences might be visited upon individuals who do not pose
the requisite degree of risk and dangerousness. Accordingly, we
vacate the decision of the Superior Court affirming SORB's
classification of Doe as a level two sex offender. We remand
the matter to the Superior Court for entry of an order to SORB
6
to conduct an evidentiary hearing de novo under the heightened
standard, and to cease disseminating Doe's registry information
on the Internet while that hearing is pending. At the hearing,
both Doe and SORB may introduce new evidence relevant to a final
classification determination. The hearing examiner may also
consider evidence, but not findings of fact, from Doe's original
hearing. Contrast Doe, Sex Offender Registry Bd. No. 7083 v.
Sex Offender Registry Bd., 472 Mass. 475, 489-490 (2015) (Doe
No. 7083).
2. Standard of review and stare decisis. A reviewing
court may set aside or modify a hearing examiner's decision if
it was:
"(a) In violation of constitutional provisions; or
"(b) In excess of statutory authority or jurisdiction
of the agency; or
"(c) Based upon an error of law; or
"(d) Made upon unlawful procedure; or
"(e) Unsupported by substantial evidence; or
"(f) Unwarranted by facts found by the court on the
record . . . ; or
"(g) arbitrary or capricious, an abuse of discretion,
or otherwise not in accordance with law."
G. L. c. 30A, § 14 (7). The appellant bears the burden of
showing that one of these conditions has been met. See Coe v.
Sex Offender Registry Bd., 442 Mass. 250, 258 (2004).
7
Doe argues that SORB committed a constitutional error by
proving his risk of reoffense by only a preponderance of the
evidence.5 Because we held explicitly in Doe No. 972, 428 Mass.
at 91, that "the appropriateness of an offender's risk
classification must be proved by a preponderance of the
evidence," to rule in Doe's favor we must overrule our decision
in that case.6 The principle of stare decisis would normally
5
Doe also argues that it was error for SORB to classify him
as a level two sex offender even under the preponderance
standard, because the evidence considered by the hearing
examiner did not support the conclusion that he posed the
requisite degree of risk and dangerousness. If this claim were
correct, we would not need to reach the question whether due
process requires a higher standard of proof than a preponderance
of the evidence. In reviewing the hearing examiner's decision,
however, we "give due weight to the experience, technical
competence, and specialized knowledge of the agency, as well as
to the discretionary authority conferred upon it." G. L.
c. 30A, § 14 (7) (g). "A court may not displace an [agency's]
choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the
matter been before it de novo." Ten Local Citizen Group v. New
England Wind, LLC, 457 Mass. 222, 231 (2010), quoting Southern
Worcester County Reg'l Vocational Sch. Dist. v. Labor Relations
Comm'n, 386 Mass. 414, 420 (1982). Doe's level two
classification was supported by substantial evidence and was not
otherwise arbitrary or capricious: the hearing examiner
determined that mitigating factors present in Doe's case did not
sufficiently counterbalance other factors indicating that Doe
posed a risk of reoffense. Given this, we conclude that Doe was
appropriately classified as a level two risk and danger based
upon a preponderance of the evidence.
6
The Legislature codified the preponderance standard in
1999, following our decision in Doe, Sex Offender Registry Bd.
No. 972 v. Sex Offender Registry Bd., 428 Mass. 90 (1998) (Doe
No. 972). See G. L. c. 6, § 178L (2), inserted by St. 1999,
c. 74, § 2. This is not dispositive of the question before us,
however, since due process "is not a technical conception with a
8
prevent us from reconsidering settled law. See Stonehill
College v. Massachusetts Comm'n Against Discrimination, 441
Mass. 549, 562, cert. denied sub nom. Wilfert Bros. Realty Co.
v. Massachusetts Comm'n Against Discrimination, 543 U.S. 979
(2004). However, "[t]he force of stare decisis is at its nadir
in cases concerning procedural rules that implicate fundamental
constitutional provisions." Alleyne v. United States, 133 S.
Ct. 2151, 2163 n.5 (2013). Furthermore, "[t]he requirements of
procedural due process are pragmatic and flexible, not rigid or
hypertechnical." Roe v. Attorney Gen., 434 Mass. 418, 427
(2001). Given the flexible nature of the procedural due process
right at issue in this case, and given the substantial changes
to the sex offender registry law and other developments since
our decision in Doe No. 972, we think it appropriate to revisit
that decision.
In order to determine whether reliance on the preponderance
standard violated Doe's due process rights, we first consider
our reasoning in Doe No. 972 in light of the 1996 sex offender
law in effect at the time it was decided. See St. 1996, c. 239,
§ 1. We then examine subsequent amendments to the sex offender
registry law and other developments that draw into question
fixed content unrelated to time, place and circumstances."
Mathews v. Eldridge, 424 U.S. 319, 334 (1976), quoting Cafeteria
& Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367
U.S. 886, 895 (1961).
9
whether the preponderance standard continues adequately to
protect Doe's due process rights. Finally, we consider the
standard of proof that due process requires in light of these
changes.
3. The 1996 sex offender registry law. In 1996, the
Legislature passed the State's first sex offender registry law,
St. 1996, c. 239, § 1. An early version of the bill that was
eventually enacted described its purpose as "to protect the
public from the 'danger of recidivism posed by sex offenders'
and to aid law enforcement officials in the apprehension of sex
offenders by providing them with 'additional information
critical to preventing sexual victimization and to resolving
incidents involving sexual abuse and exploitation.'" Doe No.
972, 428 Mass. at 91-92, quoting Opinion of the Justices, 423
Mass. 1201, 1204 (1996). To achieve these aims, the enacted
statute required individuals convicted of any offenses from a
list of enumerated "sex offenses" to register with the State
their names, addresses, and identifying information. G. L.
c. 6, §§ 178C-178F, inserted by St. 1996, c. 239, § 1. The
State disseminated that information publicly to a lesser or
greater extent depending on the level of risk of reoffense that
a registered offender was deemed to pose. G. L. c. 6,
§ 178K (2), inserted by St. 1996, c. 239, § 1.
The 1996 law enumerated a set of factors that the
10
Legislature considered relevant to convicted sex offenders' risk
of reoffense. G. L. c. 6, § 178K (1), inserted by St. 1996,
c. 239, § 1. In addition, the law created SORB to "promulgate
guidelines for determining the level of risk of reoffense" of
convicted sex offenders, and to apply those guidelines "to
assess the risk level of particular offenders." Id. An
offender assessed by SORB as posing a low risk of reoffense was
classified as a level one offender, and his or her registry
information was only disclosed to police departments where he or
she lived or worked, to the Federal Bureau of Investigation, and
upon request to adults for their own protection or for the
protection of individuals in their care. G. L. c. 6, §§ 178I-
178K, inserted by St. 1996, c. 239, § 1. An offender assessed
by SORB as posing a moderate risk of reoffense was classified as
a level two offender, and his or her registry information was
additionally disclosed to organizations such as schools, day
care centers, religious and youth organizations, and sports
leagues in the offender's communities. G. L. c. 6,
§ 178K (2) (b), inserted by St. 1996, c. 239, § 1. A sex
offender assessed by SORB as posing a high risk of reoffense was
classified as a level three offender, and, in addition to the
dissemination provided for level two offenders, his or her
information was actively disseminated by the police to
individual members of the public likely to encounter the
11
offender. G. L. c. 6, § 178K (2) (c), inserted by St. 1996,
c. 239, § 1. Sex offenders were not entitled to an evidentiary
hearing to contest SORB's risk assessment. See G. L. c. 6,
§§ 178K-178M, inserted by St. 1996, c. 239, § 1.
4. Doe No. 972. In Doe No. 972, 428 Mass. at 98, we held
that convicted sex offenders had a constitutional right under
the Fourteenth Amendment and art. 12 to an evidentiary hearing
before SORB regarding the appropriateness of their risk level
classifications. We further held that SORB was required to
prove the appropriateness of those classifications by a
preponderance of the evidence. Id. at 103.
To determine whether the preponderance standard satisfied
due process, we applied the test set forth by the United States
Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976)
(Mathews). That test balances the private interests affected by
an agency decision; the risk of an erroneous deprivation of
those interests; the probable value, if any, of additional or
substitute procedural safeguards; and the governmental interests
involved. See Doe No. 972, 428 Mass. at 100, citing Mathews,
supra at 335.
With respect to the private interests affected, we
explained that a convicted sex offender did not face a potential
loss of liberty as a result of his or her classification level,
and that "the stigma of being required to register as a sex
12
offender and of having information regarding sex offenses
disseminated to the public" was not substantial enough to
require a heightened standard of proof. Doe No. 972, 428 Mass.
at 102. The risk of an erroneous classification was thought to
be minimal because both the offender and SORB had the
opportunity to present evidence and examine and cross-examine
witnesses at a classification hearing, because SORB was required
to make "particularized, specific, and detailed findings" based
on a set of statutory factors, and because the offender could
appeal SORB's decision in court. Id. We noted also that
applying a higher standard might lead to erroneous
underclassifications. Id. at 102-103.
Weighing the State's interest in "protect[ing] children and
other vulnerable people from recidivistic sex offenders" against
these factors, we decided that due process under the State and
Federal Constitutions required proof of the appropriateness of
an offender's risk classification only by a preponderance of the
evidence. Id. at 103-104. In our view at the time, the
"possible injury to sex offenders from being erroneously
overclassified" was "nearly equal" to "any harm to the State
from an erroneous underclassification." Id. at 104 n.14.
5. Subsequent developments. The sex offender registry law
has undergone significant revisions since our decision in Doe
No. 972. Amendments to the statute in 1999 provided for risk
13
classification hearings and codified the preponderance standard
as constitutional safeguards. See G. L. c. 6, § 178L (2),
inserted by St. 1999, c. 74, § 2. On balance, however,
legislative changes have more often imposed extra burdens on
registered offenders than provided them with additional
protections. More offenses are now subject to a registration
requirement. Sex offenders face increasingly stringent
affirmative reporting requirements, and the penalties for
failing to meet those requirements are harsher. They are also
confronted with other limitations based on their registered sex
offender status. Information about registered offenders is
being disseminated more broadly, including on the Internet.
Furthermore, there is reason to question whether SORB's risk
classification guidelines continue to reflect accurately current
scholarship regarding statutory factors that concern risk
assessment. These developments are described in turn below.
Additional offenses requiring registration have been added
to the sex offender registry law at least four times since we
decided Doe No. 972. See St. 2011, c. 178, §§ 1-3; St. 2010,
c. 267, §§ 1-3; St. 2003, c. 77, § 3; St. 1999, c. 74, § 2.
While the sex offenses enumerated in 1996 were mostly crimes of
physical violence against children and the developmentally
disabled, see G. L. c. 6, § 178C, inserted by St. 1996, c. 239,
§ 1, many of the offenses added later have not been similarly
14
targeted. See, e.g., St. 2011, c. 178, §§ 1-3 (enticing child
under eighteen via electronic communication); St. 1999, c. 74,
§ 2 (enticing person for prostitution; incestuous marriage or
intercourse; and disseminating child pornography). The addition
of these offenses may make more challenging the task of
accurately classifying the risk of reoffense that specific
offenders pose. Cf. Doe No. 972, 428 Mass. at 105 (Marshall,
J., concurring in part and dissenting in part) ("careful and
individualized due process is necessary to sort sexual predators
likely to repeat their crimes from large numbers of offenders
who pose no danger to the public").
Registration requirements have also steadily become more
burdensome. Already at the time we decided Doe No. 972, members
of this court had recognized that registration represented a
"continuing, intrusive, and humiliating regulation of the person
himself," Doe v. Attorney Gen., 426 Mass. 136, 149 (1997)
(Fried, J., concurring), and that it cast "a continuing shadow
of further criminal sanctions and possible reincarceration" on
offenders, Doe No. 972, 428 Mass. at 106 (Marshall, J.,
concurring in part and dissenting in part). These concerns
resonate today: in addition to the requirements imposed in
1996, all offenders must now register any secondary addresses
15
they have,7 register the names and addresses of the institutions
of higher learning they attend,8 and re-register ten days prior
to establishing a new address.9 Homeless offenders are
additionally required to re-register every thirty days, and to
wear a global positioning system device at all times.10
Furthermore, on release from prison, offenders are subject to
intensive parole conditions.11 Taken together, compliance with
7
Secondary addresses include "all places where a sex
offender lives, abides, lodges, or resides for a period of
[fourteen] or more days in the aggregate during any calendar
year and which is not a sex offender's primary address; or a
place where a sex offender routinely lives, abides, lodges, or
resides for a period of [four] or more consecutive or
nonconsecutive days in any month and which is not a sex
offender's permanent address, including any out-of-state
address." G. L. c. 6, § 178C.
8
See G. L. c. 6, §§ 178C-178E, as appearing in St. 2003,
c. 77, §§ 1-4.
9
See G. L. c. 6, § 178E (h), as appearing in St. 1999,
c. 74, § 2. At the time Doe No. 972 was decided, registration
was only required within five days of moving. G. L. c. 6,
§ 178E (e), inserted by St. 1996, c. 239, § 1.
10
See G. L. c. 6, § 178F, as amended by St. 2010, c. 256,
§ 41 ("[a] homeless sex offender shall verify registration data
every [thirty] days with the board"); G. L. c. 6, § 178F1/2
("[a] homeless sex offender shall appear in person at [the
offender's] local police department every [thirty] days"); G. L.
c. 6, § 178F3/4, inserted by St. 2010, c. 256, § 42 ("[a]
homeless sex offender shall wear a global positioning system
[GPS] device, or any comparable device, administered by the
commissioner of probation").
11
For example, a level one offender is required to take a
polygraph examination at least every six months, cannot use the
Internet without permission of his or her supervising parole
officer, cannot own or use computer programs without permission
16
all of these requirements can be exceptionally burdensome for
registered offenders.12
In addition to more extensive registration requirements,
failure to register now may result in more significant
penalties.13 If a judge determines that incarceration is a more
appropriate penalty for a noncompliant offender than a fine, the
judge now must impose a mandatory minimum sentence of at least
six months.14 A second failure to register results in a
mandatory minimum sentence of five years in State prison.15 When
Doe No. 972 was decided, these penalties were uniformly less
of the parole officer, cannot use personal advertisements or the
Internet to contact or meet people, cannot possess a camera
without permission of the parole officer, and may be fitted with
a GPS monitoring device and required to remain outside of
"Exclusion Zones" designated by the Parole Board. See
Massachusetts Parole Board, Sex Offender Conditions, Executive
Office of Public Safety (Nov. 2006). The parole conditions for
level two and three offenders are more burdensome. See id.
12
See Levenson & Cotter, The Effect of Megan's Law on Sex
Offender Reintegration, 21 J. Contemp. Crim. Just. 49, 62 (2005)
(Levenson & Cotter) ("Feeling alone, isolated, ashamed,
embarrassed, hopeless, or fearful may threaten a sex offender’s
reintegration and recovery and may even trigger some sex
offenders to relapse").
13
An offender may be arrested without a warrant "[w]henever
a police officer has probable cause to believe that [he or she]
has failed to comply with the registration requirements." G. L.
c. 6, § 178P, as appearing in St. 1999, c. 74, § 2.
14
G. L. c. 6, § 178H (a), as amended through St. 2010,
c. 267, §§ 4-6.
15
Id.
17
severe.16
Furthermore, offenders face difficulty finding work and
housing. Stigma accounts for some of this difficulty --
employers and landlords often prefer to avoid the perceived
risks of having a convicted sex offender on site. See, e.g.,
Commonwealth v. Canadyan, 458 Mass. 574, 577 n.8 (2010) (noting
" extraordinary obstacles facing sex offenders attempting to
secure employment"); Platt, Gangsters to Greyhounds: The Past,
Present, and Future of Offender Registration, 37 N.Y.U. Rev. L.
& Soc. Change 727, 762 (2013) (describing how housing
discrimination against sex offenders "forc[es] many to live in
shelters or be rendered homeless"). Many restrictions also have
been codified. For example, sex offenders are subject to
criminal penalties for engaging in ice cream truck vending,
regardless of whether their offense involved harm to a child.
See G. L. c. 265, § 48, inserted by St. 2010, c. 256, § 119.
Moreover, households that include a person subject "to a
lifetime registration requirement under a State sex offender
registration program" are no longer eligible for certain Federal
housing programs. 42 U.S.C. § 13663 (2012). Level three sex
offenders also face criminal penalties for living in a nursing
16
Under the 1996 sex offender registry law, there was no
mandatory minimum sentence for a first conviction of failure to
register. G. L. c. 6, § 178H, inserted by St. 1996, c. 239,
§ 1. A second conviction resulted in a mandatory minimum
sentence of ninety days in a house of correction. Id.
18
home.17 G. L. c. 6, § 178K (2) (e), inserted by St. 2006,
c. 303, § 6. Such restrictions likely intensify the stigma
associated with being a registered offender.
The sex offender registry law in its current form also
calls for extensive dissemination of offenders' registry
information. Both level two and level three sex offenders'
information is now posted on the Internet. See St. 2013, c. 38,
§§ 7, 9 (requiring Internet posting of level two offenders'
information); St. 2003, c. 140, §§ 5, 11-14 (requiring Internet
posting of level three offenders' information). No limits are
placed on the secondary dissemination of this information. See
Moe v. Sex Offender Registry Bd., 467 Mass. 598, 605 (2014)
(Moe). Furthermore, records of level two and level three
classifications are no longer permitted to be sealed. See
St. 2010, c. 256, § 129. The permanence of level two and level
three classification attaches special importance to the accuracy
of the classification in the first instance.
The recent Internet dissemination requirements in
particular have increased the extent of the private interests
affected by classification. Although in Coe v. Sex Offender
17
But see Doe v. Police Comm'r of Boston, 460 Mass. 342,
342-343 (2011). Until this year, a warren of city and town
ordinances also prohibited offenders from living near parks,
schools, playgrounds, and other areas commonly used by children.
See Doe v. Lynn, 472 Mass. 521, 533-534 (2015) (determining that
municipal restrictions on offender residency are preempted by
sex offender registry law).
19
Registry Bd., 442 Mass. 250, 257 n.6 (2004), we determined that
Internet publication did not amplify the consequences of
classification as a level three sex offender, we have since
acknowledged that that conclusion "may no longer be
accurate . . . in light of all that we have learned about the
operation of the Internet." Moe, supra at 605 n.10. Where
previously the time and resource constraints of local police
departments set functional limits on the dissemination of
registry information, the Internet allows for around-the-clock,
instantaneous, and worldwide access to that information -- a
virtual sword of Damocles. See id. at 605. Internet
dissemination "exposes [offenders], through aggressive public
notification of their crimes, to profound humiliation and
community-wide ostracism." Doe No. 7083, 472 Mass. at 485,
quoting Smith v. Doe, 538 U.S. 84, 115 (2003) (Ginsburg, J.,
dissenting). Consequences of such public dissemination may
include housing and employment discrimination, harassment, and
assault.18 See Moe, supra at 604. Further, should a sex
offender later be reclassified to level one such that Internet
dissemination is no longer required, "information posted on the
Internet is never truly forgotten." Note, The Right to Be
18
These consequences persist despite the sex offender
registry law's prohibition on the use of information published
about sex offenders to discriminate against or harass them. See
G. L. c. 6, §§ 178D, 178N.
20
Forgotten, 64 Hastings L.J. 257, 259-260 (2012) (describing
secondary dissemination of information posted on Internet).
Even level one offenders' registry information is being
disclosed more broadly. Although level one sex offenders'
information is not disseminated publicly, it still may be
released to the local police departments where they attend
institutions of higher learning, see St. 2003, c. 77, §§ 19-20,
as well as to a variety of State agencies and the Federal Bureau
of Investigation. See G. L. c. 6, § 178K (2) (a); 803 Code
Mass. Regs. § 1.28(3) (2013). In addition, a level one sex
offender's classification level and the city or town in which
the offender lives, works, or attends an institution of higher
learning may be released to a victim who submitted a written
victim impact statement as part of the offender's classification
hearing. See 803 Code Mass. Regs. § 1.28(3).
Although the consequences of classification are now
extensive, concerns have been raised as to the accuracy of the
risk classifications that SORB must make. Under the guidelines
currently in place, SORB applies twenty-four separate risk
factors in order to determine an offender's risk level.
803 Code Mass. Regs. § 1.40(1)-(24). However, "there is reason
for some concern as to whether [SORB's] guidelines continue to
reflect accurately the current state of scientific knowledge."
Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
21
Registry Bd., 470 Mass. 102, 116 (2014) (Doe No. 68549) (noting
that most recent studies cited in guidelines were published in
2001). In addition, the Legislature has recently required SORB
to update its regulations to "reflect recent [S]upreme
[J]udicial [C]ourt or [A]ppeals [C]ourt decisions that have
resulted in remands or reversals of [SORB's] final
classification decisions." St. 2015, c. 10, § 63.
6. Standard of proof. In light of the new implications of
classification at a given risk level, we consider what standard
of proof is currently necessary to provide Doe with due process.
As we have noted in the past, deprivation of more extensive
private interests requires greater procedural protections. See
Doe v. Attorney Gen., 426 Mass. at 140, citing Mathews, 424 U.S.
at 334-335.
Adopting a "standard of proof is more than an empty
semantic exercise" (quotation omitted). Addington v. Texas, 441
U.S. 418, 425 (1979) (Addington). Recognizing that a fact
finder will sometimes err despite his or her best efforts, "a
standard of proof represents an attempt to instruct the fact
finder concerning the degree of confidence our society thinks he
[or she] should have in the correctness of [his or her] factual
conclusions." In re Winship, 397 U.S. 358, 370 (1970) (Harlan,
J., concurring). Although a preponderance standard is generally
applied in civil cases, see, e.g., Frizado v. Frizado, 420 Mass.
22
592, 597 (1995), the clear and convincing standard is applied
when "particularly important individual interests or rights are
at stake." Craven v. State Ethics Comm'n, 390 Mass. 191, 200
(1983), quoting Herman & MacLean v. Huddleston, 459 U.S. 375,
389 (1983).
Proof by clear and convincing evidence is "not without
teeth." Matter of G.P., 473 Mass. 112, 120 (2015). It is a
greater burden than proof by a preponderance of the evidence,
but less than the proof beyond a reasonable doubt required in
criminal cases. Commonwealth v. Russell, 470 Mass. 464, 471
(2015). The evidence must be sufficient to convey a "high
degree of probability" that the contested proposition is true
(quotation omitted). Callahan v. Westinghouse Broadcasting Co.,
372 Mass. 582, 588 n.3 (1977). Otherwise put, requiring proof
by clear and convincing evidence reflects a judicial
determination that "[t]he individual should not be asked to
share equally with society the risk of error." Addington, supra
at 427.
The United States Supreme Court and this court have applied
the clear and convincing standard in a variety of civil
contexts.19 Both New Jersey and New York, the only two States
19
See, e.g., Santosky v. Kramer, 455 U.S. 745, 758, 769
(1982) (termination of parental rights); Addington v. Texas, 441
U.S. 418, 427, 433 (1979) (civil commitment); Woodby v.
Immigration & Naturalization Serv., 385 U.S. 276, 285-286 (1966)
23
that provide for adversarial risk classification hearings that
appear to have considered the standard of proof that such
classifications require,20 require that the appropriateness of
(deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960)
(denaturalization); MacDonald v. Caruso, 467 Mass. 382, 389
(2014) (termination of abuse prevention order); Birchall,
petitioner, 454 Mass. 837, 851-853 (2009) (civil contempt);
Adoption of Helen, 429 Mass. 856, 859 (1999) (parental
unfitness); Stone v. Essex County Newspapers, Inc., 367 Mass.
849, 870 (1975) (libel against public official or public
figure).
20
The Federal sex offender registry law assigns risk
classifications based on the underlying sex offense; it does not
allow for individualized assessment of risk of reoffense or
current dangerousness. 42 U.S.C. § 16911 (2012). Thirty-five
States and the District of Columbia either provide the same
public notice about all convicted sex offenders registered
within their jurisdictions, or classify an adult sex offender's
risk of reoffense solely based on the sex offender's crime of
conviction or original sentence. See Ala. Code §§ 15-20a-19,
15-20a-27 (2015); Alaska Stat. §§ 12.63.010, 12.63.020,
12.63.100 (2015); Ariz. Rev. Stat. Ann. §§ 13-3821, 13-3825, 13-
3827 (2015); Colo. Rev. Stat. §§ 16-22-102, 16-22-103, 16-22-112
(2015); Conn. Gen. Stat. §§ 54-250, 54-254, 54-256, 54-258
(Supp. VI 2015); Del. Code Ann. tit. 11, §§ 4120-4121 (2014);
D.C. Code §§ 22-4001, 22-4002 (2012); Fla. Stat. § 775.21(4)-(5)
(Supp. V 2015); Haw. Rev. Stat. § 846E-10 (2015); 730 Ill. Comp.
Stat. 150/2, 150/3, 150/3-5 (Supp. VIII 2014) (risk assessment
for juveniles only); Ind. Code §§ 11-8-8-4.5, 11-8-8-5, 11-8-8-8
(2015) (risk assessment for juveniles only); Iowa Code
§ 692A.102 (2015); Kan. Stat. Ann. §§ 22-4902, 22-4904 (2015);
Ky. Rev. Stat. Ann. §§ 17.520, 17.554 (2015); La. Rev. Stat.
Ann. §§ 15:541, 15:542.1.1, 15:544 (2015); Me. Rev. Stat. tit.
34-A, §§ 11273, 11281-11285 (Supp. IV 2014); Md. Code Ann.,
Crim. Proc. §§ 11-701, 11-704, 11-707 (Supp. VII 2015); Mich.
Comp. Laws § 28.722 (Supp. III 2015); Miss. Code Ann. §§ 45-33-
23, 45-33-47 (2015); Mo. Rev. Stat. §§ 589.400.1-589.400.2
(2015); Mont. Code Ann. §§ 46-23-502, 46-23-509 (2015); Neb.
Rev. Stat. §§ 29-4003, 29-4005, 29-4007 (2015); Nev. Rev. Stat.
§§ 179D.113, 179D.115, 179D.117 (2015); N.H. Rev. Stat. Ann.
§ 651-B:1 (Supp. VII 2014); N.M. Stat. Ann. §§ 29-11A-3, 29-11A-
5.1 (2015); N.C. Gen. Stat. §§ 14-208.6, 14-208.6A (2013); Ohio
24
Rev. Code Ann. §§ 2950.01(E)-(G) (2014); 42 Pa. Cons. Stat.
§ 9799.14 (2014); S.C. Code Ann. §§ 23-3-430, 23-3-460 (2014);
S.D. Codified Laws §§ 22-24B-2.1, 22-24B-19, 22-24B-19.1, 22-
24B-19.2 (2015); Tenn. Code Ann. §§ 40-39-202, 40-39-204, 40-39-
212 (2015); Utah Code Ann. §§ 77-41-102(17), 77-41-110 (2015);
Va. Code Ann. §§ 9.1-902, 9.1-904, 9.1-911 (2015); W. Va. Code
§§ 15-12-2, 15-12-2a, 15-12-5 (2015); Wis. Stat. § 301.45 (Supp.
IV 2014); Wyo. Stat. Ann. §§ 7-19-301 to 7-19-304 (2015).
Nine States classify a sex offender's risk of reoffense on
a more individualized basis after sentencing, but do not provide
for adversarial risk classification hearings. See Ark. Code
Ann. §§ 12-12-913, 12-12-917, 12-12-922 (2015); Cal. Penal Code
§§ 290.04, 290.06, 290.46 (Supp. I 2015); Ga. Code Ann. § 42-1-
14 (2015); Idaho Code Ann. §§ 18-8303, 18-8314, 18-8316 (2015);
N.D. Cent. Code § 12.1-32-15 (12) (2015); Okla. Stat. tit. 57,
§§ 582.1, 582.5 (2015); R.I. Gen. Laws § 11-37.1-12 (2015); Tex.
Crim. Proc. Code Ann. arts. 62.001, 62.007, 62.403 (Supp. VIII
2014); Wash. Rev. Code §§ 4.24.550, 4.24.5501, 9A.44.128,
72.09.345 (2015).
The remaining three States other than New Jersey, New York,
and Massachusetts provide for adversarial risk classification
hearings, but we are not aware of court decisions in those
States addressing whether due process requires a higher standard
of proof than a preponderance. See Minn. Stat. §§ 243.166,
244.052 (2015); Or. Rev. Stat. §§ 181.800, 181.801, 181.821
(2015); Vt. Stat. Ann. tit. 13, §§ 5401, 5405a, 5411b (Supp. VI
2015). In Minnesota, a convicted sex "offender has a right to
be present and be heard" at an administrative risk
classification proceeding, but the standard of proof required
for risk classifications is not explicit in the statute. Minn.
Stat. § 244.052(3)(d). In Oregon, in order to be relieved of
the obligation to register, a convicted sex offender must prove
by clear and convincing evidence that he or she is statistically
unlikely to reoffend and does not pose a threat to public
safety. Or. Rev. Stat. § 181.821(4)(a) (2015). The Oregon
statute does not, however, lay out what standard of proof is
required to reclassify a sex offender at a lower risk level
while preserving his or her registration obligation. See Or.
Rev. Stat. § 181.821(4)(b). In Vermont, a convicted sex
offender is guaranteed notice and an opportunity to be heard
regarding whether he or she poses a "high risk" of reoffense.
Vt. Stat. Ann. tit. 13, § 5411b. That determination is
currently made by a preponderance of the evidence. Vt. Code R.
§ 12-8-4:4 (2015).
25
offenders' risk classifications be proved by clear and
convincing evidence. See E.B. v. Verniero, 119 F.3d 1077, 1110-
1111 (3d Cir. 1997), cert. denied, 522 U.S. 1109 (1998); Doe v.
Pataki, 3 F. Supp. 2d 456, 471 (S.D.N.Y. 1998). We consider now
whether risk classifications in Massachusetts similarly should
be held to the higher standard.
7. Procedural due process. To determine whether the
preponderance standard continues to satisfy due process, "we
balance the private interests affected, the risk of erroneous
deprivation, the probable value of additional or substitute
safeguards, and the governmental interests involved." Doe No.
972, 428 Mass. at 100, citing Mathews, 424 U.S. at 335.
Consideration of these factors in light of changed circumstances
leads us to conclude that due process now requires application
of the clear and convincing standard.
a. Private interests. As described above, Doe's risk
classification level now has dramatic consequences for his
liberty and privacy interests that were not present when we
decided Doe No. 972. He faces increasingly stringent
affirmative reporting requirements, as well as the possibility
of extended incarceration for failing to meet those
requirements. He is also likely to confront stigma and legal
restrictions that will make it harder for him to find stable
housing or employment, and may even face threats of physical
26
harm. The dissemination of his registry information on the
Internet only exacerbates these difficulties.
b. Erroneous deprivation. The extensive private interests
now affected by classification counsel in favor of requiring a
higher standard of proof. Admittedly, neither the risk of
erroneous deprivation under the current preponderance standard
nor the probable value of imposing a higher standard is
altogether clear. Even if Massachusetts-specific sex offender
recidivism research were available, it would be difficult to
establish the actual risk of an erroneous deprivation of a
registered sex offender's privacy or liberty.21 Nevertheless, we
are concerned that the current procedural safeguards do not
adequately protect against this risk. Doe's opportunity to
present evidence and to examine and cross-examine witnesses at
his classification hearing, and the requirement that SORB make
particularized, detailed findings concerning his classification
21
At oral argument, counsel for SORB stated that he had "no
idea" what percentage of registered sex offenders in
Massachusetts actually recidivate. We recognize that SORB has
discretion as to how it fulfils its statutory mandate to
"promulgate guidelines for determining the level of risk of
reoffense and the degree of dangerousness posed to the public"
by convicted sex offenders. G. L. c. 6, § 178K (1).
Nonetheless, it is troubling that little emphasis has apparently
been placed by SORB on assessing the accuracy of its
classifications. This is especially true given the enormity of
the consequences of such classification decisions. Contrast
Massachusetts Parole Board, Massachusetts Parole Board Three-
Year Recidivism Analysis: 2009 (Dec. 2013); Massachusetts
Parole Bd., Trends in Revocation Among Massachusetts Parolees
(Oct. 2013).
27
were and continue to be important features of the process that
offenders are due. See Doe No. 972, 428 Mass. at 102. The harm
to the State from an erroneous underclassification, however, is
no longer "nearly equal" to the possible harm to Doe from
erroneous overclassification.22 See id. at 104 n.14.
Other developments since our decision in Doe No. 972 also
support raising the standard of proof. The 1996 statute
envisioned that SORB's guidelines would augment a set of
statutory factors that the Legislature considered relevant to
convicted sex offenders' risk of reoffense. See G. L. c. 6,
§ 178K (1), inserted by St. 1996, c. 239, § 1. Yet these
guidelines have not been updated in over fourteen years. See
Doe No. 68549, 470 Mass. at 116. Ideally, the factors would
22
Some statistical evidence also appears to support the
view that applying a higher standard of proof is appropriate.
As of March 9, 2015, SORB classified over three quarters of all
sex offenders in Massachusetts as having a moderate or high risk
of reoffense. Yet studies have indicated that relatively few
sex offenders reoffend. See, e.g., Hanson, Harris, Helmus, &
Thornton, High-Risk Offenders May Not Be High Risk Forever, 29
J. Interpersonal Violence 2792, 2796 (2014) (finding 11.9 per
cent over-all rate of sexual recidivism, although high-risk
offenders reoffend more frequently than low-risk offenders).
Other reports have shown that, contrary to popular belief, the
rates of recidivism for sex offenders are actually lower than
the rates of recidivism for those convicted of other crimes.
See, e.g., Council of State Governments, Sex Offender Management
Policy in the States, Strengthening Policy & Practice: Final
Report 2 (2010). Of course, SORB may accurately determine that
specific offenders pose a moderate or high risk of reoffense
without those people ever actually reoffending. Even so, the
sharp contrast between SORB's classification practices and the
studies' conclusions suggests that SORB may be overclassifying
offenders.
28
always reflect current research. Requiring that whatever
factors are currently in place be proved with increased rigor,
however, will ensure at least that they are applied more
accurately on their own terms.23 Furthermore, little evidence
appears to support our concern in Doe No. 972, 428 Mass. at 103,
that a heightened standard might lead to erroneous
underclassifications.24 Accordingly, Doe "should not be asked to
share equally with society the risk of error." Addington, supra
at 427.
c. Governmental interests. The State has a strong
interest in "protect[ing] children and other vulnerable people
23
In Doe No. 972, supra at 102, we acknowledged the
possibility that SORB might "apply general factors to the
offenders that may not correctly predict their propensity to
reoffend," but concluded that other procedural protections than
a heightened standard of proof were sufficient to protect
against that possibility. The changes to the statutory
landscape since our decision in Doe No. 972 persuade us that a
heightened standard is additionally necessary.
24
Recent studies of sex offender recidivism in New York and
New Jersey, the two States that already apply the clear and
convincing standard to their risk classification proceedings,
have noted that sex offenders' rates of committing an additional
sex offense are low overall. See R. Tewksbury, W.G. Jennings, &
K. Zgoba, Final Report on Sex Offenders: Recidivism and
Collateral Consequences 6, 10 (2011); Sandler, Freeman, & Socia,
Does a Watched Pot Boil? A Time-Series Analysis of New York
State's Sex Offender Registration and Notification Law, 14
Psychol. Pub. Pol'y & L. 284, 297 (2008). Although SORB argues
that a cross-State comparison blurs important distinctions in
the manner and means by which each State's registry board
reaches its classification decisions, these studies provide at
least mild support for the proposition that requiring a higher
standard of proof does not lead to erroneous
underclassifications of the risk posed by registered offenders.
29
from recidivistic sex offenders." Doe No. 972, 428 Mass. at
103. As the Legislature recognized when it amended the sex
offender registry law in 1999, classification "provide[s] law
enforcement with additional information critical to preventing
sexual victimization."25 St. 1999, c. 74, § 1. Yet the State
also has an interest in avoiding overclassification, which both
distracts the public's attention from those offenders who pose a
real risk of reoffense, and strains law enforcement resources.
And the State has no interest "in making erroneous
classifications and implementing overbroad registration and
notifications." Doe No. 972, 428 Mass. at 107 (Marshall, J.,
dissenting). Cf. E.B. v. Verniero, supra at 1107-1108; Doe v.
Pataki, supra at 470. Given these interests, a clear and
convincing standard would better "enable police and the
community to focus on those offenders who may pose an actual
threat to young children and others that the statute seeks to
protect." Doe No. 972, 428 Mass. at 104 (Marshall, J.,
dissenting).
d. Balancing. Balancing the Mathews factors, we conclude
that sex offender risk classifications must be established by
25
Some studies, however, have questioned whether
registration and notification requirements have had any effect
on convicted sex offenders' rates of reoffense. See, e.g.,
Agan, Sex Offender Registries: Fear Without Function?, 54
J. L. & Econ. 207, 208 (2011); Levenson & Cotter, supra at 52.
30
clear and convincing evidence in order to satisfy due process.26
Applying the higher standard to Doe's risk classification will
provide greater certainty that the burdens placed on him by that
classification are warranted. Replacing the current
preponderance standard will better help to advance the goal of
ensuring that the Commonwealth's "classification and
notification system is both fair and accurate."27 E.B. v.
26
Because our decision is a new constitutional rule, the
higher standard should be applied retroactively only to
classification proceedings pending before SORB, the Superior
Court, or the appellate courts on the date of the issuance of
the rescript in this case. See MacCormack v. Boston Edison Co.,
423 Mass. 652, 657 (1996).
27
Although the consequences of Internet dissemination
provide a convicted sex offender with a particularly strong
interest in avoiding classification as a level two or level
three offender, the clear and convincing standard should be
applied to all sex offender risk classification levels,
including level one. A level one offender's information may not
be disseminated publicly, but it still may be released to a
variety of State agencies and the Federal Bureau of
Investigation, as well as to a victim who has submitted a
written victim impact statement as part of the offender's
classification hearing. See 803 Code Mass. Regs. 1.28(3)
(2013). Level one offenders also are subject to extensive
parole conditions. See Massachusetts Parole Board, Sex Offender
Conditions (Nov. 2006). Furthermore, as noted above, many of
the additional burdens placed on registered offenders apply to
all levels of offenders. See G. L. c. 6, §§ 178C-178D
(requiring registration of secondary addresses and of names and
addresses of institution of higher learning attended by
offender); G. L. c. 6, § 178E (h) (requiring re-registration ten
days prior to establishing new address); G. L. c. 6, §§ 178F,
178F1/2, 178F3/4 (requiring homeless offenders to re-register
every thirty days and to wear GPS device at all times); G. L.
c. 6, § 178H (a) (1)-(2) (imposing penalties for failure to
register); G. L. c. 265, § 48 (prohibiting ice cream truck
vending). See also Doe, Sex Offender Registry Bd. No. 8725 v.
31
Verniero, supra at 1107.
A convicted sex offender's risk classification now has far
greater consequences than were present when we decided Doe No.
972 over seventeen years ago. "Classification and registration
entail possible harm to a sex offender's earning capacity,
damage to his reputation, and, 'most important, . . . 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. at 144. Internet dissemination of
level two and level three sex offenders' registry information
magnifies these consequences. Although the State has a strong
interest in protecting the public from recidivistic sex
offenders, allowing SORB to make classification determinations
with a lesser degree of confidence does not advance that
interest. In short, greater circumspection is needed before
offenders' risk classifications are made final.
8. Internet dissemination. Doe's argument that the 2013
amendment to the sex offender registry law requiring the
Internet publication of level two offenders' registry
information, St. 2013, c. 38, §§ 7, 9, was not retroactive as
Sex Offender Registry Bd., 450 Mass. 780, 793 (2008)
(recognizing that rights affected by level one classification
are "substantial"). Cf. E.B. v. Verniero, 119 F.3d 1077, 1110-
1111 (3d Cir. 1997), cert. denied, 522 U.S. 1109 (1998)
(applying clear and convincing standard to classification at
every risk level); Doe v. Pataki, 3 F. Supp. 2d 456, 471
(S.D.N.Y. 1998) (same).
32
applied to him is without merit. Although we determined in Moe
that that amendment was not retroactive as applied to
individuals finally classified as level two sex offenders on or
before July 12, 2013, the effective date of the amendment, we
stated explicitly that "[n]othing in this order affects the
ability of SORB to publish on the Internet the registry
information of any individual who was given a final
classification as a level two sex offender after July 12, 2013."
Moe, supra at 616. Doe's final classification as a level two
offender did not occur until October 23, 2013, so Internet
dissemination of his information is permissible.
Nevertheless, because Doe's classification as a level two
offender is vacated, we remand to the Superior Court for entry
of an order to SORB to cease disseminating Doe's registry
information on the Internet; unless and until he is finally
classified under the clear and convincing standard at a risk
level that requires such dissemination, to do otherwise would
violate Doe's due process rights. Compare Doe No. 7083, 472
Mass. at 489-490 (vacating final risk classification that
violated procedural due process, and treating as preliminary
SORB's attempted classification).
9. Conclusion. The decision of the Superior Court judge
affirming SORB's classification of Doe as a level two sex
offender is vacated and set aside. We remand the matter to the
33
Superior Court for entry of an order requiring SORB to conduct
an evidentiary hearing consistent with this decision, and to
cease disseminating Doe's registry information on the Internet
during the pendency of such proceedings.
So ordered.