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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 classification.

"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 information.

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 people's lives."

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 important."

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.