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Sex Offender Registry Board (SORB)

For some crimes, punishment can last far beyond release from incarceration. The Massachusetts Sex Offender Registry Board (“SORB”) can impose a lifetime registration requirement on individuals convicted of certain sex offenses who live, work, or attend school in Massachusetts. The SORB has the power to publicly disseminate information about sex offenders within the Commonwealth. This registration requirement, in the words of Supreme Court Justice Ruth Bader Ginsburg, “calls to mind shaming punishments once used to mark an offender as someone to be shunned.” Smith v. Doe, 538 U.S. 84, 116 (2003) (Ginsburg, J., dissenting). In many jurisdictions, the sex offender registration obligation can have consequences much greater than a sense of shame – it can even impact where an individual can live and work. The failure to register as a sex offender is also a criminal offense, that itself carries a minimum penalty of six months’ incarceration for a first offense and a five-year minimum for subsequent offenses. Mass. Gen. Laws c. 6, §178H(a)(1).

In Massachusetts, an offender subject to the SORB registration requirement can be classified into one of three categories of dangerousness: Level 1 (“low risk”), Level 2 (“moderate risk”), and Level 3 (“high risk”). That initial classification is important for all offenders, as each level carries with it different duties and implications for the public dissemination of the offender’s personal information. Perhaps most importantly, personal information about level one offenders is not disseminated to the public. The public may, however, request information about level two and three offenders, and the police are required to actively disseminate information about level three offenders to members of the public who are likely to encounter them.

When classifying sex offenders into one of those three categories, Massachusetts law requires that the SORB follow prescribed procedures and regulations. The factors that the SORB takes into consideration when making its classification decision are found at Mass. Gen. Laws c. 6, § 178K. Initially, the Board makes a “recommended” classification of the offender, who then has only 20 days to request a hearing at which he or she may challenge that designation. The failure to respond within 20 days is treated as acceptance of the recommendation, and the recommended level then becomes the final level. All offenders must request a hearing if they disagree with the Board’s recommendation.

At the classification hearing, Massachusetts law ensures that offenders have a right to retain private counsel. Mass. Gen. Laws c. 6, § 178L. Parties are also entitled to pre-hearing discovery, may issue subpoenas for witnesses and documents, and may retain expert witnesses to appear before the Board. We represent individuals in proceedings before the SORB to ensure that the Board follows the law in making the initial classification of an offender between the three tiers of dangerousness – a hearing that can have lifetime consequences. After the hearing before the SORB, an offender also may seek review of a classification in court, and we represent individuals in these proceedings as well.

We also recognize that the law and SORB regulations often treat juveniles differently than adults. Recidivism rates for juveniles convicted of sex offenses is far lower than that of adults, as juveniles are more likely to mature out of their misconduct and may be susceptible to treatment. In a line of recent cases, the Supreme Court of the United States has recognized the critical differences between juveniles and adults, and that juveniles therefore cannot be treated the same as adults who commit the same offenses. See Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 132 S. Ct. 2455 (2012).

In general, the registration obligation in Massachusetts lasts for a minimum of 20 years, though it can often extend for life. In narrow circumstances, however, offenders may request that the court – at the time of sentencing for their sex offense – relieve them of their registration obligation. If that fails, the SORB itself also has the statutory authority to fully relieve a former offender of the registration obligation if the offender can demonstrate that “the circumstances of the offense in conjunction with the offender’s criminal history do not indicate a risk of re-offense or a danger to the public.” Mass. Gen. Laws c. 6, § 178K(2)(d). If placed on the registry, offenders may also seek reclassification to a lower level of dangerousness. We represent former offenders who wish to be removed from the registry entirely or reduced to a lower tier of registry obligations.

If you are facing a SORB proceeding, wish to appeal a SORB classification to a higher court, or wish to be removed from the Massachusetts Sex Offender Registry, please contact our attorneys at (617) 742-6020.

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