Massachusetts Supreme Judicial Court Announces Premature Sex Offender Classification of Incarcerated Offender Who Accepted Classification Violates Procedural Due Process
by Douglas Ankney
The Supreme Judicial Court (“SJC”) of Massachusetts held that a premature sex offender classification for an incarcerated offender who has waived her right to a classification hearing and accepted her classification violates procedural due process.
Plaintiff “Doe” was convicted of sex offenses in 1970 and 1977, and she was sentenced to life in prison in 1977. (Note: Doe has transitioned from male to female, so the SJC referred to Doe with female pronouns.) In December 2012, the Sex Offender Registry Board (“Board”) informed Doe of her responsibility to register as a sex offender and of her recommended classification as a level three, high-risk sex offender. Doe accepted the recommended classification and declined a hearing. Her classification was finalized.
In April 2019, Doe filed with the Board a “motion to vacate final classification and for further evidentiary hearing.” She argued that her classification was finalized too far in advance of her release based on Doe No. 7083 (below) and should therefore be vacated. A Board hearing examiner denied Doe’s motion because Doe had accepted her classification, thereby waiving any right to a hearing. Doe sought judicial review, and a superior court entered a judgment in favor of the Board on grounds of waiver and finality. The SJC allowed Doe direct review to answer the question of whether Doe No. 7083 “applies to incarcerated offenders who, like Doe, accepted their classification.”
In Doe, Sex Offender Registry Board No. 7083 v. Sex Offender Registry Board, 35 N.E.3d 698 (Mass. 2015), the Court held that “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” in order to satisfy procedural due process. The Board is responsible for developing guidelines to determine “each sex offender’s level of risk of reoffense and degree of dangerousness to the public.” G.L. c. 6, § 178K(1). An offender’s “recent behavior and current treatment [must] be considered as factors relevant to this determination.” Id.
The Board is responsible for making initial recommendations on classification level, which the offender may either accept or reject. 803 Code Mass. Regs. § 1.04(2). All sex offenders are required to register with the Board, and the identifying information of sex offenders who receive a level two or level three classification is made available to the public on the Board’s comprehensive registry that is easily accessible via the internet. G.L. c. 6, §§ 178D, 178K(2).
The SJC noted that G.L. c. 6, § 178E sets forth deadlines for when various steps in the classification process must be completed with respect to incarcerated offenders, but it does not state “a timeline for when the classification process may begin.”
The SJC observed that sex offenders have sufficient liberty and privacy interests protected by art. 12 of the Massachusetts Declaration of Rights that they are entitled to procedural due process before being required to register and before their information may be properly disclosed to the public. Doe No. 7083. To assess procedural due process, the SJC applies the balancing test from Matthews v. Eldridge, 424 U.S. 319 (1976), which balances the sex offender’s private interests implicated by an agency’s decision; risk of an erroneous deprivation of such interests; and the Government’s interests involved. “In the context of sex offender classification, we examine the fit between a classification and the policy that the classification serves.” Doe No. 7083.
“The private interests at stake in sex offender registration and classification are significant.” Noe, Sex Offender Registry Board No. 5340 v. Sex Offender Registry Board, 102 N.E.3d 409 (Mass. 2018). Offenders must submit to stringent reporting requirements and public dissemination of their crimes, their identifying information, and their photograph. Id. Internet dissemination exposes sex offenders to profound humiliation and community-wide ostracism. Doe, Sex Offender Registry Board No. 380316 v. Sex Offender Registry Board, 41 N.E.3d 1058 (Mass. 2015). For prisoners held outside the sex offender treatment center, there is the threat of physical danger from other inmates. See Noe.
The Government’s interests include “protecting vulnerable members of the community through reliable notification of an offender’s risk of reoffense and degree of dangerousness.” Doe No. 7083. The SJC explained that such interest is best served by ensuring that each offender’s classification is accurate because overclassification “distracts the public’s attention from those offenders who pose a real risk of reoffense.” Noe.
The Government also has an interest in the finality of its classification decisions. Doe, Sex Offender Registry Bd. No. 209081 v. Sex Offender Registry Bd., 86 N.E.3d 474 (Mass. 2017). But that finality interest isn’t as weighty with sex offender classifications as it is with criminal judgments and other civil judgments which require “a sufficient reason to reopen what society has a right to consider closed.” Commonwealth v. Amirault, 677 N.E.2d 652 (Mass. 1997). By statute and regulation, sex offender classifications are subject to regular reclassification without any requirement that the original classification be erroneous. See 803 Code Mass. Regs. §§ 1.31, 1.32 (2016).
The SJC observed that a premature and potentially unreliable or inaccurate final classification has severe consequences that affect the offender’s private interests and also undermines the public’s interest that depends on the final classifications being current and correct. Noe. This was particularly true for a petitioner such as Doe who is serving a long prison sentence. The SJC explained that the initial classification contains many factors that are subject to change over time. Further, since the offender is in prison and not in contact with the community, dissemination of identifying information is unnecessary until release from prison, according to the SJC.
The SJC ruled that its holding in Doe No. 7083 (“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”) applies to incarcerated offenders who had waived their right to a classification hearing. Consequently, the SJC concluded that denial of Doe’s motion to vacate her final classification was an abuse of discretion.
Accordingly, the SJC vacated her classification and the superior court’s judgment affirming the Board’s decision. It instructed that at a time reasonably close to Doe’s actual release date, the Board may reinitiate classification proceedings. See: Doe, Sex Offender Registry Board No. 7546 v. Sex Offender Registry Board, 168 N.E.3d 1100 (Mass. 2021).
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