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Massachusetts Supreme Court Rules Amended Sex Offender Registration Law Ex Post Facto

Massachusetts Supreme Court Rules Amended Sex Offender Registration Law Ex Post Facto

by Gary Hunter

On July 12, 2013, Massachusetts Governor Deval Patrick signed into law a bill requiring the state’s Sex Offender Registry Board (SORB) to amend registry requirements for defendants classified as level two and level three sex offenders, under G.L. c.6, §§ 178D and 178K. Level two offenders are deemed only a moderate risk for reoffending, and prior to the new law, the Board was barred from publishing those offenders’ registry information online. Lawmakers deliberately sought to change that policy, and enacted a law that allowed the Board to retroactively post on the Internet information about level two sex offenders.

The move promptly resulted in a class-action suit on behalf of level two sex offenders in Massachusetts, who claimed the law constituted an ex post facto violation. On July 5, 2013, even before the governor had signed the bill into law, the plaintiffs filed a brief requesting class certification, declaratory judgment and injunctive relief enjoining the SORB from publishing registry information about level two sex offenders online.

Lower courts sided with lawmakers, but the state Supreme Court reversed the previous rulings, stating, “We conclude that the amendments [to the bill] are retroactive ... but that such retroactive application would violate State constitutional due process.”

Massachusetts currently has over 11,000 sex offenders registered with the SORB. Of those, only 21.7 percent – or 2,422 level three offenders – are subject to online publication. If the new policy was permitted, that number would immediately jump to 8,496. Constitutional protections prohibit the enactment of ex post facto laws that reach backwards and increase punishment for persons who have already been convicted.

The state Supreme Court recognized that “those offenders who did not challenge their level two classification ... because they specifically relied on their accurate understanding that a level two classification did not carry the consequence of Internet publication of their registry information, would now be subject to exactly that” if the law were allowed to stand.

The Court remanded the case and directed the lower courts to enter an order certifying the plaintiffs as a class and prohibiting the online publication of information related to level two sex offenders convicted prior to July 12, 2013. See: Moe v. Sex Offender Registry Board, 467 Mass. 598, 6 N.E.3d 530 (Mass. 2014).

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Related legal case

Moe v. Sex Offender Registry Board