classification hearing in Massachusetts

2017See, e.g., Doe 380316, supra, 473 Mass. at 311 (a sex offender’s “risk classification level... has dramatic consequences for his liberty and privacy interests . . .”); Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 106 (2014) (“Doe 68549”) (“We have emphasized that the sex offender registration requirement implicates constitutionally protected liberty and privacy interests”) (internal quotation marks and citation omitted); Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813 (2010) (“Poe”) (“At stake in a classification hearing is the sex offender’s const

2017The court essentially concludes that the standard for reopening a classification hearing is the same for an individual who received the ineffective assistance of counsel as for an individual who was denied the right to counsel altogether, even though we have recognized that classification as a sex offender implicates a "constitutionally protected liberty . . . interest." Doe No. 972, 428 Mass. at 100 .

2013See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 777 (2008) (hearing examiner may not consider offense resulting in continuance without a finding [CWOF] as “ ‘prior offense’ in relation to the classification factor that looks at the dates, number, and nature of prior offenses, [but] is permitted to take into account the misconduct underlying the CWOF on the issue whether the sex offender’s conduct was repetitive and compulsive”). 7 A sex offender at a classification hearing has the right to testify, to offer evidence, and to challenge through cross-exam

2010Poe is correct that, at the time of his hearing, the board would grant an indigent sex offender’s motion for funds to retain an expert only if the board also intended to rely on expert evidence prepared specifically for the classification hearing. 7 Id. at 770 .

2017See, e.g., Doe 380316, supra, 473 Mass. at 311 (a sex offender’s “risk classification level... has dramatic consequences for his liberty and privacy interests . . .”); Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 106 (2014) (“Doe 68549”) (“We have emphasized that the sex offender registration requirement implicates constitutionally protected liberty and privacy interests”) (internal quotation marks and citation omitted); Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813 (2010) (“Poe”) (“At stake in a classification hearing is the sex offender’s const

2017In Poe v. Sex Offender Registry Bd., 456 Mass. 801, 812 (2010), we held that a sex offender's statutory right to counsel at a classification hearing implies a right to effective counsel.

2023In Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 478 (2015) (Doe No. 7083), the Supreme Judicial Court concluded that holding a classification hearing ten months before the plaintiff's earliest parole eligibility date and eighteen months before their earliest possible release date from the treatment center violated the plaintiff's right to procedural due process because of the risk that the classification decision was based on 10 "stale" information.

2023See 803 Code Mass. Regs. § 1.31. 15 deprived of an appellate proceeding due to the incompetency of counsel, given the passage of time and the purpose of a classification hearing, to assess a sex offender's present risk, Doe's rights can be fully restored only by vacating his original classification and granting him a de novo hearing.9 See Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 483 (2015) ("the registration statute requires [the board] to base its classification determinations on a sex offender's 'current' risk to the community, in order to protect

2018Doe, Sex Offender Registry Bd. No. 1 v. Sex Offender Registry Bd ., 79 Mass. App. Ct. 683 , 692-695 (2011).

2015Our 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).

2017See, e.g., Doe 380316, supra, 473 Mass. at 311 (a sex offender’s “risk classification level... has dramatic consequences for his liberty and privacy interests . . .”); Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 106 (2014) (“Doe 68549”) (“We have emphasized that the sex offender registration requirement implicates constitutionally protected liberty and privacy interests”) (internal quotation marks and citation omitted); Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813 (2010) (“Poe”) (“At stake in a classification hearing is the sex offender’s const

2015“A challenge to the validity of a *500 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.

2010Classification 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, supra at 813 , quoting Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd. v. Attorney Gen., 426 Mass. 136, 144 (1997).

2010Classification 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.” Doe v. Attorney Gen., 426 Mass. 136, 144 (1997).

2025Id. at 90 .

2024After careful review of the hearing examiner's decision, we discern no error and conclude that the level two classification was supported by clear and convincing evidence in the record.4 See Doe, No. 523391, 95 Mass. App. Ct. at 94 ("Under the clear and convincing standard, [t]he evidence must be sufficient to 3 We note that SORB "may give appropriate evidentiary weight to documentary reports and risk assessment, but the ultimate risk opinion, if any, will be excluded from consideration unless the mental health professional testifies as an expert witness at the classification hearing." 803 Cod

2017See, e.g., Doe 380316, supra, 473 Mass. at 311 (a sex offender’s “risk classification level... has dramatic consequences for his liberty and privacy interests . . .”); Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 106 (2014) (“Doe 68549”) (“We have emphasized that the sex offender registration requirement implicates constitutionally protected liberty and privacy interests”) (internal quotation marks and citation omitted); Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813 (2010) (“Poe”) (“At stake in a classification hearing is the sex offender’s const

2016Doe is nonetheless entitled to a new classification hearing in light of Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297 (2015) (Doe No. 380316).

2026See Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 135 (2019) (Doe No. 23656).

2023An examiner's classification decision must "show that the classification is based on a sound exercise of informed discretion rather than the mechanical application of a checklist or some other reflex." Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 651 (2012).

2023Doe argues that the hearing examiner's failure to inquire into Doe's potential conflict with his attorney violated his right to counsel. "[T]he sex offender registration law provides sex offenders with the right to counsel at the initial classification hearing." Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 209 (2018).

2023Further support for the board's position also can be found in Patton, 458 Mass. at 128-130 (affirming denial of probationer's motion for new trial).

2017See Doe, Sex Offender Registry Bd. No. 326573 v. Sex Offender Registry Bd., 477 Mass. 361 , 367 n.7 (2017).

2017Where the performance of counsel at a classification hearing "fall[s] measurably below that which might be expected from an ordinary fallible lawyer," id. at 812 , quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we order a new hearing where the plaintiff proves prejudice, that is, "a 'reasonable probability' that 'but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Poe, supra at 813 , quoting Commonwealth v. 9 Mahar, 442 Mass. 11, 15 (2004).

2017Moreover, the concerns that in the past have typically weighed in favor of finality -- the deterioration of evidence, the need to resummon witnesses, the cost and time associated with readjudication, see Commonwealth v. Amirault, 424 Mass. 618, 637 (1997) -- are present in a criminal case but largely absent in the context of a classification hearing.

2017Where the performance of counsel at a classification hearing "fall[s] measurably below that which might be expected from an ordinary fallible lawyer," id. at 812 , quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we order a new hearing where the plaintiff proves prejudice, that is, "a 'reasonable probability' that 'but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Poe, supra at 813 , quoting Commonwealth v. 9 Mahar, 442 Mass. 11, 15 (2004).

2017Cf., e.g., Commonwealth v. Rosario, 477 Mass. 69, 73, 80-81 (2017) (motion judge did not abuse discretion in granting new trial approximately thirty years after defendant's conviction where defendant's motion cited newly discovered evidence). 10 Mass. 257 , 262 (1987) ("There must be some showing of prejudice before an agency's disregard of its own rules may constitute reversible error").

2015Our 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).

2015Similarly, 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 examiner, and proffered no scientific studies or expert testimony at the

2015“A challenge to the validity of a *500 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.

2013While the criminal trial was scheduled to commence only twenty-two days after the scheduled hearing date, “[g]iven the unhappy vagaries which sometimes accompany the criminal process, the [board] could by no means be certain that the [plaintiff’s] criminal case would conclude within a reasonable period of time.” Care & Protection of Quinn, supra at 122.

2013See Doe, Sex Offender Registry Bd. No. 16748 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 152 , 162 n.11 (2012) (regulatory authority in 803 Code Mass. Regs. § 1.37C[2] “provides the sole mechanism for protection of an offender’s constitutionally based rights where the passage of time has reduced the risk of dangerousness such that the Commonwealth’s interest in disclosure is eroded, properly permitting him to obtain a lower classification level”).

2013The plaintiff notes that the United States Court of Appeals for the District of Columbia announced in 1955 that “due process is not observed if an accused person is subjected, without his consent, to an administrative hearing on a serious criminal charge that is pending against him.” Silver v. McCamey, 221 F.2d 873, 874-875 (1955).

2013Moreover, unlike the cases of Raymond v. Board of Registration in Med., 387 Mass. 708, 717 (1982), and D’Amour v. Board of Registration in Dentistry, 409 Mass. 572, 581 (1991), the hearing examiner in question here was the adjudicator in the plaintiff’s classification hearing, and the examiner’s decision amounted to the board’s final decision. 3 We have significant doubt whether the plaintiff received a hearing conducted by a fair, unbiased, and impartial hearing examiner. 4 Consequently, the plaintiff has met his burden of proof with respect to due process violations caused by the hearing. 3.