Opinion of the Justices to the Senate

• Decision Date: 18 July 1996
• Citation: 668 N.E.2d 738,423 Mass. 1201
• Parties: OPINION OF THE JUSTICES TO THE SENATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 738

668 N.E.2d 738

423 Mass. 1201

OPINION OF THE JUSTICES TO THE SENATE.

Supreme Judicial Court of Massachusetts July 18, 1996.

On July 18, 1996, the Justices submitted the following responses to questions propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit their responses to the questions set forth in an order adopted by the Senate on May 29, 1996, and transmitted to this court on May 31, 1996. The order indicates that there is pending before the General Court Senate Bill No. 2276 entitled "An Act relative to sex offender registration, community notification and information access." A copy of the bill was transmitted with the order.

The order provides a brief description of the proposed statute, which we shall describe more completely below, and states that grave doubts exist as to the constitutionality of the community notification provisions of the bill, if enacted, and requests our opinion on the following questions:

"1. If Senate Bill No. 2276 is enacted into law, would the community notification provisions, as set forth in the proposed section 174B of chapter 6 of the General Laws, violate the prohibitions against ex post facto laws under Clause 1 of Section 10 of Article I of the United States Constitution and Article XXIV of the Massachusetts Constitution as applied to a person adjudicated or convicted of a sex offense committed prior to the effective date of this proposed act?

"2. If enacted into law, would the community notification provisions, as set forth in the bill's proposed section 174B of chapter 6 of the General Laws, violate the due process rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and Article I of the Massachusetts Constitution of a person who was convicted or adjudicated of committing a sex offense either before or after the effective date of Senate Bill No. 2276 or violate the terms of a plea agreement of a person sentenced for a sex offense after the enactment of Senate Bill No. 2276?

"3. Would the provisions of Senate Bill No. 2276, proposing section 174B of chapter 6 of the General Laws, if enacted into law, unconstitutionally violate the Fourteenth Amendment of the United States Constitution or Article I of the Massachusetts Constitution which guarantee equal protection under the law or violate the protections granted by the Fourteenth Amendment of the United States Constitution against invasion of privacy?

"4. Would the provisions of the proposed section 174B of chapter 6 of the General Laws, as provided in Senate Bill No. 2276, if enacted into law, violate the Eighth Amendment of the United States Constitution prohibiting cruel and unusual punishment or violate double jeopardy principles protected under the Fifth Amendment of the United States Constitution?"

We invited interested persons and organizations to file briefs on or before June 19, 1996. We acknowledge the assistance of the submissions of the Governor, Attorney General, District Attorneys, and Massachusetts Association of Chiefs of Police; Counsel to the Senate; the Committee for Public Counsel Services; American Civil Liberties Union Foundation of Massachusetts; Stephen R. Kaplan, and Mary Doe. In addition, at the request of the clerk of this court, the United States Department of Justice submitted copies of the briefs it had filed in Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995), and Artway v. Attorney Gen. of N.J., 81 F.3d 1235 (3d Cir.1996), which considered the constitutionality of similar legislation in New Jersey.

1. Senate Bill No. 2276. ¹ The stated legislative purpose of the bill is 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." The bill sets forth findings that "releasing information about sex offenders to law enforcement agencies and, under certain circumstances, to the public will further the primary governmental interest of protecting children and other vulnerable populations from potential harm." Finally, the bill proposes to bring Massachusetts in compliance with the Federal Crime Control Act.

The registration provisions direct the criminal history systems board (board) to establish a central computerized registry of all sex offenders required to register. ² § 174A (d ). The registry will contain extensive data about the sex offender, including personal descriptive information, photograph, fingerprints, the nature of the sex offense, the city or the town where the offense occurred, the date of conviction, the sentence imposed, and the city or the town where the offender intends to work and live. Id. All persons "convicted of a sex offense, found delinquent by reason of a sex offense, or released from incarceration for such a conviction or adjudication on or after the effective date of this act, or within fifteen years prior to the effective date of this act," are required to register. § 174A(c )(3). ³

Actual registration proceeds in the following manner. Any agency holding a sex offender must notify the sex offender of his duty to register and transmit the registration data to the board not less than thirty days before his release. § 174A(e )(1). The board then must transmit that information to the police departments where the sex offender intends to live, where he intends to work, where he committed the sex offense, and to the Federal Bureau of Investigation (FBI). "Within two days of the release of the sex offender from custody, the sex offender shall register in person at the police department in the city or town where the sex offender resides." Id. The bill creates a similar regime for sex offenders on parole and for sex offenders who were convicted or adjudicated delinquent of a sex offense but who were not sentenced to a term of confinement. § 174A(e )(2) & (3).

If a sex offender intends to move, he must notify the police departments of his current and future residences. § 174A(e )(4). If the sex offender intends to move out of the Commonwealth, he must notify his local police department, and the police department shall transmit the registration information to the board and the FBI. Id. If the offender's new jurisdiction has a registration requirement, the board shall notify the sex offender of his duty to register and shall transmit the registration information to the appropriate law enforcement agency in the new jurisdiction. Id. Finally, § 174A(e )(5) includes a provision that requires any sex offender residing in the Commonwealth but not accounted for by the previous provisions to register within thirty days of the effective date of the statute with the police department in the town or city where he resides.

In order to verify the sex offender's location, each year the bill requires the sex offender to visit the police department and the board to mail a certified, nonforwardable letter to the sex offender that he must sign and return. § 174A(f ). The statute requires registration for fifteen years after release "unless the sex offender was convicted or adjudicated delinquent of two or more sex offenses committed on different occasions, in which case the duty to register is for life." § 174A(g ). The penalty for failing to register or verify registration can be imprisonment for not more than two and one-half years or a fine of not more than $1,000, or both. ⁴ § 174A(h ). The statute grants police officials and public employees acting in good faith immunity from liability in any civil or criminal proceeding for providing or failing to provide registry information pursuant to this act. § 174(j).

Section 174B contains the notification provisions. All notification provisions are mandatory. Section 174B begins by creating the board of examiners of sex offenders. This section charges the board of examiners with the duty to "promulgate guidelines for determining the level of risk of re-offense sex offenders, apply the guidelines to assess the risk level of particular sex offenders, develop community notification plans and make recommendations to the superior court regarding risk levels and community notification plans as set forth herein." § 174B(a ).

The bill lists twelve factors that the board of examiners must take into account when assessing risk to reoffend. ⁵ § 174B(a )(1). After a hearing at which the risk of reoffense is determined, each offender is assigned to one of three risk levels--low, moderate, and high. If the offender is adjudicated to be a low risk (level one), then the board must transmit the registration data to the police departments where the sex offender intends to live and work and the FBI. § 174B(b )(1). If the sex offender is adjudicated to pose a moderate risk (level two), the board shall notify the police, and the police shall notify organizations in the community which are "likely to encounter" the sex offender including schools, day care centers, religious and youth organizations, and sports leagues. Id. A high-risk adjudication (level three), requires the police to notify all those receiving level two notification and "individual members of the public who are likely to encounter the sex offender." § 174B(b )(3). "All notices to the community shall include a warning regarding the criminal penalties for use of sex offender registry information to commit a crime." Id. ⁶

The board of examiners must make the risk of reoffense determination sixty days prior to notification. § 174B(c ). An offender assigned a level one risk is accorded no right of judicial review of that determination. Id. The statute provides for judicial review of the risk assessment determination for those adjudicated a level two or level three...