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Massachusetts Supreme Court: Permanent Ban on Sealing Record of Sex Offender Unconstitutional

by Dale Chappell

In 1995, Kristi Koe was convicted of rape and abuse of a child. The underlying acts occurred in 1990. The Sex Offender Registry Board (“SORB”) recommended she be classified as a level two sex offender, and she accepted. Her obligation to register commenced in 2003.

In 2013, she petitioned SORB for reclassification and relief from the obligation to register. SORB determined that she presents “no cognizable risk to reoffend and no cognizable degree of dangerousness.” However, SORB concluded that because she had been convicted of a sexually violent offense, as a matter of law, she cannot be relieved of her obligation to register.

In April 2014, she appealed to the Superior Court and obtained a preliminary injunction ordering SORB to remove her from the registry and enjoining SORB from requiring her to register. The following year, a Superior Court judge accepted SORB’s findings regarding her lack of dangerousness and granted permanent relief.

Koe subsequently filed a petition with the commissioner of probation to seal her criminal record pursuant to G.L.C. 276, § 100A. The statute prohibits sealing the record of any sex offender who at any time has been classified as a level two or three offender. Accordingly, the commissioner advised that she was ineligible to have her record sealed.

In March 2016, she challenged the commissioner’s determination, arguing that § 100A, as applied to her, “is retroactive and unreasonable, and therefore unconstitutional.”

The Supreme Court noted that a statute operates retroactively when it “attaches new legal consequences to events completed before its enactment.” The Court explained that § 100A attached “a new legal consequence (a permanent prohibition against the sealing of sex offenses, effective in 2012) to an event that occurred nearly a decade earlier (SORB’s classification of her, in 2003, as a level two sex offender).” Thus, the Court concluded that “§ 100A applies retroactively to Koe.”

Koe then had the burden of “making a factual showing that the statute is unreasonable in its application to her.” The Court applies a three-factor test in deciding reasonableness: (1) the nature of the public interest that motivated the legislature to enact the statute; (2) the nature of the rights affected; and (3) the extent or scope of the statutory effect or impact.

The first factor favored the sealing of her record. The Court instructed that the legislature “sought to make sealing broadly available to individuals whose criminal histories or records no longer presented concerns for recidivism.”

The second factor also favored Koe. While employers and housing authorities have a legitimate interest in access to accurate criminal record information, the prohibition against sealing her record will present a major barrier to her reestablishing herself as a productive member of society. But such barrier “is not connected to any substantiated concern about Koe’s present dangerousness or risk of re-offense.”

Finally, when Koe agreed to the level two classification in 2003, the law allowed the sealing of her record after 15 years, regardless of sex level classification. The Court reasoned that she was entitled to reasonably rely on the state of the then-existing law. At the time, she had no way of knowing that in 2012 the legislature would use her 2003 classification to forever bar her from having her record sealed.

The Supreme Court stated, “Balancing all of these factors, we conclude that § 100A (6) is unreasonable as applied to Koe, and therefore violates her constitutional right to due process of law.” Consequently, “State constitutional due process precludes us from enforcing it against her.” The case is remanded for entry of an order in her favor.

It must be noted that this case involved an “as-applied” constitutional challenge to the statute. With an “as-applied” challenge, the plaintiff essentially argues that the statute in question, though generally constitutional, operates unconstitutionally with respect to the plaintiff because of his or her specific circumstances. In contrast, a “facial” challenge argues that no application of the statute is constitutional. That is, it is unconstitutional as applied to everyone, not just the plaintiff.

With that in mind, to obtain relief utilizing Koe as authority, a plaintiff must convince a court that the unique circumstances are factually similar enough to the facts in Koe that the rationale for granting her relief is similarly applicable.

See: Koe v. Commissioner of Probation, 478 Mass. 12 (2017). 

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