Current through Register 1531, September 27, 2024
(1)
General
Principles. The Board recognizes the risk to reoffend and the
degree of dangerous-ness posed by a sex offender may decrease over time. The
burden of proof shall be on the sex offender to show that his or her risk of
reoffense and degree of dangerousness posed to the public have decreased
following his or her final classification.
(2)
Requirements for Motion for
Reclassification.
(a) No sooner
than three years after the date of his final classification pursuant to
803 CMR
1.08, or
803 CMR
1.20, a sex offender who is finally
classified as a Level 2 or 3 sex offender may file a written motion with the
Board to re-examine his or her classification level. Sex offenders who have
been convicted of a new sex offense may not seek reclassification sooner than
ten years from the date of the last classification decision.
(b) In his or her motion, the sex offender
shall include his or her full name, date of birth, address, sex offender number
(SON), name and address of legal representative (if applicable), name and
address of legal guardian (if applicable), the classification level sought, and
grounds for seeking reclassification.
(c) In his or her motion, the sex offender
shall include proof, by clear and convincing evidence, that his or her risk of
reoffense and the degree of dangerousness he or she poses to the public have
decreased since his or her final classification. In support of his or her
motion, the sex offender shall attach documentation that supports his or her
request for reclassification, including information pertaining to:
1. participation or completion of sex
offender treatment (Factor 32);
2.
stability of current environment and support systems (Factors 33 and
34);
3. successful completion of
probation (Factor 28);
4. physical
condition (Factor 31);
5.
psychological or psychiatric profiles indicating his or her risk to reoffend
(Factor 35); and
6. substance-free
and offense-free lifestyle in the community (Factors 9 and 29). The offender
may include with his or her motion any other additional information that may be
relevant to his or her request.
(d) The sex offender shall also include an
affidavit that provides an overview of his or her behavior and lifestyle during
the three years prior to the filing of his or her motion for
reclassification.
(e) The Board may
summarily deny, without a hearing, an offenders motion for reclassification if:
1. the offender is incarcerated;
2. the offender has pending criminal
charges;
3. the offender has not
remained offense free for more than three continuous years since his or her
last classification; or
4. the
offender's last classification decision is currently under Judicial Review
pursuant to M.G.L. c. 30A, § 14 or on appeal, or on review by the Board as
a result of an order by a court of the Commonwealth or a federal court.
The Board will notify the offender, in writing, the substantive
reasons for summarily denying the motion for reclassification. The denial of a
motion for reclassification under 803 CMR 1.31(2)(e) is not subject to Judicial
Review.
(3)
Material Change in Medical
Circumstances. If a sex offender has experienced a material change
in circumstances related to a medical condition, he or she may file a motion
for reclassification sooner than three years after the date of his or her prior
classification. In addition to the requirements listed in 803 CMR 1.31(2), the
sex offender shall also include an affidavit from the treating medical provider
for his or her stated condition. The affidavit, at a minimum, shall identify
and include the following information:
(a) the
type of medical condition;
(b) the
onset or date of diagnosis of the medical condition;
(c) a detailed description of the limitations
the medical condition has caused; and
(d) a summary of the offender's treatment and
prognosis.
(4) By filing
a motion for reclassification, the offender authorizes the Board to obtain any
information accessible under M.G.L. c. 6, §§ 178E and 178K(3) to
assist in its review of the offender's motion.
(5)
Reclassification Hearing
Process. The Chair may appoint a panel of Hearing Examiners or a
single Hearing Examiner to conduct the hearing on the sex offender's motion for
reclassification.
(a) The Board will notify
the sex offender in writing of the date, time and location of the
reclassification hearing. An offender may waive his or her right to appear at
the hearing before the Board. If an offender does not appear at his or her
hearing, the Board shall treat the offender's failure to appear as a waiver of
his or her appearance and shall proceed to rule on the offender's motion for
reclassification, unless the offender presents good cause within three calendar
days of the hearing.
(b) No later
than five calendar days before the scheduled hearing date, the sex offender may
submit a written request to reschedule the hearing for good cause.
(c) No later than 20 calendar days before the
scheduled hearing date, the Board and offender shall exchange all additional
information intended to be submitted to the panel or Hearing
Examiner.
(d) The sex offender may
be represented at the hearing by privately retained counsel or an authorized
representative.
(e) Motions for
reclassification shall be decided on new and updated information not available
at the time of the original classification. This does not foreclose the panel
or Hearing Examiner from considering the information relied on by the Board to
determine the sex offender's prior classification levels, including any prior
written decisions issued by the Board.
(6)
Reclassification
Decision. The panel or Hearing Examiner shall determine whether
the sex offender has met his or her burden to reduce his or her classification
level. Pursuant to M.G.L. c. 30A, § 11(7) and (8), the panel or Hearing
Examiner shall make specific written findings detailing the reasons for its
decision after the reclassification hearing. For purposes of judicial review,
pursuant to M.G.L. c. 30A, § 14 and M.G.L. c. 6, § 178M, these
written findings shall be considered the final agency action.
(7)
Notification of
Reclassification Decision.
(a)
Notification of the final reclassification decision made pursuant to 803 CMR
1.31(6) will be mailed to the sex offender and his or her authorized
representative, if applicable, as soon as practicable. The sex offender or his
or her authorized representative may request in writing, at the time of his or
her administrative hearing, that the final decision made pursuant to
803 CMR
1.20 be sent to him via
facsimile.
(b) The Board
will notify the sex offender of his or her new classification level and the
offender shall be required to comply with registration requirements as set
forth in M.G.L. c. 6, §§ 178E, 178F1/2 and 178Q. In addition,
the Board shall update the information pertaining to the offender in the sex
offender registry.
(c) The decision
will inform the sex offender of his or her right to seek judicial review of the
final decision, pursuant to M.G.L c. 30A, § 14 and M.G.L. c. 6, §
178M. Pursuant to M.G.L. c. 30A, § 14, the sex offender has the right to
pursue judicial review within 30 calendar days from the date of receipt of the
final Sex Offender Registry Board decision. The filing of a complaint for
judicial review will not alter the final reclassification level or stay the sex
offender's registration requirements or the dissemination of registration
information.
(8) A sex
offender may re-apply for reclassification no sooner than three years from the
date of the last classification decision. Subsequent motions for
reclassification shall be based on additional information not available during
prior classifications.
