Struggling Sex Offender Registry.
October 24, 2000
MASSACHUSETTS STATE HOUSE - In the latest chapter of the state's continuing
struggle to set up a legal and functioning Sex Offender Registry,
defense lawyers on Monday said the state's plan to assess the
dangerousness of convicted predators amounts to "voodoo science."
The Sex Offender Registry Board plans to begin hearings in the coming
weeks for the estimated 17,000 sex offenders who were convicted,
paroled or on probation as of Aug. 1, 1981. A Superior Court ruling
last November held that before offenders can be required to register,
they must be afforded a hearing on whether they pose a continuing
danger. The board plans to combine registration hearings with
hearings to assess and classify offenders based on the level of danger
they pose to the community.
The law captures a wide range of offenses, from public urination to
statutory rape to child molestation to aggravated rape. As
envisioned, two people convicted of the same crime might receive
different dangerousness classifications, depending on the
circumstances surrounding the crime. Massachusetts is the only state
without an operable sex offender registry.
While information about the most serious sex offenders may be
available next year, it's going to be a while before all offenders'
information is available to the public, said board chairman Ann Dawley.
The board has appealed the Superior Court ruling and a Supreme
Judicial Court ruling on the appeal is due by the end of the year. The
board is seeking a ruling that would simplify registration and
"It will take us several years to address every single one of the
offenders," Dawley said. "We're hoping within just a few years that
we will have the backlog resolved."
The proposed regulations governing the dangerousness classification
process call for actuarial risk assessments based on factors such as
the offender's age at the time of the crime, age and gender of the
victim, and whether a weapon was used. The formulas yield a number,
with higher numbers indicating a greater chance of recidivism. The board would use
numbers to assign dangerousness levels of 1, 2 or 3.
At a hearing Monday, lawyers argued that the methodology is
unscientific and said actuarial assessments should be used only in
conjunction with clinical evidence such as interviews with the sex
offender. The lawyers still resist the fundamentals of the beleaguered
registry law, which calls for sex offenders to report their whereabouts
to police every 90 days, and allows public dissemination of the
The regulations do not allow defendants' lawyers to question board
members about the process of calculating risk, said Carol Donovan, a
lawyer for the Committee for Public Counsel Services and no relation
to the state legislator of the same name. Also, indigent defendants
are not allowed to have their own actuarial expert unless the board
agrees to pay for it, she said.
"We're left with a black box that spits out an assessment and we're
not permitted to probe the contents of it," Donovan said. "That's not
due process. It's ridiculous."
State officials "strongly disagree," said Dawley. Actuarial assessments
are "one piece of the whole puzzle," and Dawley said objections would
be "more appropriate" if it became clear that the board had relied
solely on a number value in classifying a person. The board is also required by the
Supreme Judicial Court to make "detailed findings" in all cases, she
said. "I think you'll find that our decisions don't simply rely on a score,
a number," Dawley said. "We're bound by law to go into detail."
The regulations currently provide that the seven-member board and
its 35-member staff will perform the risk assessment calculations,
which would then be either accepted or rejected by the board
member who hears the case. Boston lawyer John Swomley called the board's chosen
methodology "voodoo science and charlatanism." He said the
"overwhelming body of scientific evidence" indicates that the formulas
the board intends to use produce false positives two-thirds of the time."The scientific
community has almost universally rejected this type of predictive analysis that you
all are seeking to engage in here," Swomley said.
The best-estimated recidivism rate among sex offenders is 18
percent, but the board's calculations will place far more people than
that into Level 3, the most dangerous category, Swomley said. As a
result, people could lose their jobs or housing, he said. "These are not insignificant
repercussions," Swomley said. "You are going to be prejudicing
Swomley bluntly stated that the board members, appointed by Gov.
Paul Cellucci, would reflect his tough-on-crime ideology. "You are -
and I don't mean this derisively, I mean it truthfully - you are political
analysts," Swomley said. "Knowing what your own backgrounds and biases are is
Dawley objected to Swomley's characterization of the board as a
partisan political organ. "We take very seriously what we do," she
said. "We understand the consequences we have on the lives of sex
offenders. We don't take it lightly at all."
In addition to quibbling about the numbers, the lawyers are still
balking at the "look-back" provision of the law, which requires
registration by anyone convicted of or paroled for a sex offense after
1981. Donovan said it's not fair to suddenly punish people whose crimes go back to the
1970s and who have been living in the community, sometimes for
decades, without incident. "We think for those people, it's
inappropriate to do this sort of very broad notification," Donovan said.
Public dissemination of sex offender information is itself controversial.
Current law allows police to have full access to all information,
including that of people classified as Level 1, the lowest-level
offenders. Members of the general public are allowed to have
information about Level 2 and Level 3 offenders, and will eventually
be able to access it through either the police or the registry board.
But the lawyers worry that someone will obtain the information
lawfully, then disseminate it illegally, perhaps by handing out flyers at
the Post Office, elderly housing or on telephone poles, or by posting it
on the Internet. Boston lawyer James Doyle said a New Jersey
statute that allowed sex offender information to be posted on the
Internet foundered when it was found to be "punitive," Doyle said,
adding that it's "inexplicable" that the regulations fail to address secondary distribution.
"The board cannot launder this information and pass it along to people
who are in no way restrained, and still fulfill the second duty to
protect people's privacy," Doyle said.
After the hearing, Dawley dismissed the lawyers' complaints as the
"same old story," and said two years ago, the same lawyers were
arguing in favor of the use of actuarial risk assessment. "It's the same
argument all ove again, that we should go away, that we should leave sex offenders
alone," Dawley said. "Clearly we're not going to do that."
On Monday, Acting Gov. Jane Swift said the Legislature did a "good
job" drafting the latest version of the law, and said she hopes the SJC
rules in the state's favor. "We're hopeful we'll soon be in a position
where we can provide maximum protection to children in the
community," Swift said.
Copyright © 2000 Boston Herald. Story by Elisabeth J. Beardsley/State House News Service.