Hansard

In practice, the classification process can take three months.Mr Jones might disagree with the classification and think that the risk of his reoffending is low, not moderate. That is important, because if there is low risk of someone reoffending, information on him is not publicly accessible or available. He must still register annually, but information on him is available only to law enforcement agencies that have access to our database through our criminal record information process.Let us say that Mr Jones disagrees with his recommended classification. Essentially, he is asking us for a hearing. It is not a hearing in a court of law, in which the standard would be proof beyond reasonable doubt because his liberty would be at risk. It is an administrative law hearing that is akin to the processes used by the Massachusetts Registry of Motor Vehicles. We are administrators and the rules of administrative law apply. I do not want to go into the matter in too much detail but, in addition to board members, we employ hearing examiners, who conduct the hearings.A sex offender who is indigent can request the appointment of an attorney to represent him at a hearing. There can also be interrogatories, filings and requests for information—discovery, if you will—prior to the hearing. The hearing takes place on the date that has been agreed. It is not a public or court hearing; it is an administrative law hearing that takes place in private. The sex offender or his attorney can cross-examine any witnesses against him, submit evidence and move motions to have evidence excluded; it can be a somewhat complicated process. At the end of the hearing, there is a period during which the hearing examiner draws up a final classification document for the offender. The recommendation has no bearing on the hearing examiner; he is not bound to classify an individual as someone who poses a moderate risk of reoffending, even if that was the recommended classification. Often, the hearing examiner lowers the classification from moderate risk of reoffending to low or from high risk of reoffending to moderate. He can also go in the other direction, but that happens far less often.At the end of the hearing, the hearing examiner writes up the decision. He makes findings of fact and rulings of law with regard to the factors that we must consider. There are about 25 factors, which are laid out on our website. I will not bore the committee by going through our website, but they are factors that one would normally consider when determining whether someone is a danger to the community. We ask, for example, whether the sex offender was an adult committing a crime against a child, whether violence was used and whether the offender has drug and alcohol issues. It is very important to consider whether he has undergone sex offender treatment. We strongly support such treatment, as the relapse prevention process makes offenders less likely to reoffend. Obviously, we can never say that someone is cured and will never reoffend but, through relapse prevention treatment, which generally involves group therapy, they can learn to identify the triggers for their criminal behaviour and to keep themselves from those triggers.Say that the hearing examiner determines that Mr Jones is a level 2 offender, which means that he is at moderate risk of reoffending. We notify the sex offender that that is his final classification and direct him to go to his local police department, if he lives in the state of Massachusetts or, if he works in the state but lives in another state, to the police department in the community where he works. He then registers, as I said, either for 20 years or for life, depending on the severity of the crime. He has to reregister annually, during his birth month, at the local police department.In your thinking on the issue, you must understand that our partners in the process are all the police departments in the state of Massachusetts, of which there are about 350. They have certain obligations under the law, just as we do, at that point in Mr Jones's classification. With a level 2 sex offender, the information is not disseminated publicly by proactive notices on our internet website or posters in public buildings, but it is available in the police department in the area in which the sex offender lives, works or attends college, university or school, to people who request it at the police department. An individual who requests the information must, by law, state that it is for himself or herself or for his or her personal safety or the safety of someone such as a child whom they supervise or oversee. They must also take note that they cannot use the information to commit a crime against the sex offender.I will now describe the process for a level 3 offender, so that members understand the difference, which is in the manner in which the information is disseminated. If Mr Jones were a level 3 offender, his information would be on our website, which anyone can see. Right now, we have about 1,200 or 1,300 level 3 sex offenders on our website. On the website, members can get an idea of what the posters look like and what information is publicly available. The information is posted in the city or town where the sex offender lives or works. It must also be provided to anyone who may come in contact with that sex offender, which means that it could go to a local school department or day care centre. However, the local school department will not necessarily put the poster out in the hallway for children to see. Considerable leeway is allowed from one town to another and from one school department to another to determine how best to disseminate the information.The information on level 3 sex offenders is on the internet and on posters in the communities where they live, work or attend school. For level 2 offenders, people have to ask for the information. For level 1 offenders, no public dissemination of the information takes place. I will complicate matters a little by mentioning one additional step. After we have finally classified a sex offender—when he has had his hearing and the hearing examiner has determined his final classification—the offender has the right under Massachusetts law to appeal the classification in the courts. To boil down the matter, he has to show that the Massachusetts Sex Offender Registry Board was arbitrary and capricious in the manner in which we classified him or that we otherwise violated his constitutional rights or some other law by classifying him at that level.As members will realise, an appeal can stretch out the classification process considerably, which is why the legislature—the Massachusetts General Court—has in its wisdom just given us the power to begin classifying sex offenders before they are released from incarceration. The intent is that, when a sex offender hits the street, everyone will know, if he is a level 2 or level 3, although they will not know if he is a level 1. How does that sound?