concluding that defendant prosecuted for failure to register had "ample notice" that New York conviction required registration, but recommending that statute be clarified
How later courts described this case
- concluding that defendant prosecuted for failure to register had "ample notice" that New York conviction required registration, but recommending that statute be clarified
- rejecting privileges and immunities challenge because “[t]he defendant was not barred from entering Massachusetts, and he was not subjected to any harsher regulation than any other citizen of the Commonwealth”
- evidence defendant was a resident sufficient where he had been living in Massachusetts for over a month
Written by the judges who cited it.
The opinion
Cohen, J.
(concurring). I agree with the result in this case because the defendant was provided ample notice that he needed to register as a sex offender in Massachusetts and took no steps either to register or to obtain administrative or judicial clarification as to his status. I write separately, however, to express my concern that the registration scheme contains neither an adequate time period nor an adequate process for individuals with out-of-State convictions, acting conscientiously, to determine whether they are required to register, before being exposed to potential criminal prosecution.
Unlike the situation presented in Roe v. Attorney Gen., 434 Mass. 418 (2001), 1 the question here is not whether an individual with an out-of-State conviction is dangerous, but whether, as a threshold matter, he is a “sex offender” as defined by the registration statute; for only “sex offenders” are required to register under the statute. In this context, the statute requires an *95 individual to recognize that he is a “sex offender” on account of his out-of-State conviction and then to register — within only two days of moving into Massachusetts. G. L. c. 6, § 178E(g).
If the statute contained a mechanical test — e.g., that an individual with an out-of-State conviction will be considered a “sex offender” if he has been required to register in the State where he was convicted 2 — this time frame might be adequate. But two days is an unreasonably short period of time for compliance in situations where it is not obvious that the out-of-State conviction is for a “like violation” of law when compared to the Massachusetts statutes listed in G. L. c. 6, § 178C.
Furthermore, neither the statute nor the SORB regulations provide a means for an individual with an out-of-State conviction to learn whether that conviction is for a “like violation” before subjecting himself either to the prehearing registration process (and the attendant dissemination of his personal information to the police and the Federal Bureau of Investigation), or, if he fails to register, to the risk of prosecution. Even if other mechanisms have been improvised for obtaining a preregistration determination and forestalling prosecution, see note 5, ante, the absence of a uniform process means that the issue of “like violation” may be considered by different decision-makers (judge, jury, administrative agency), under potentially different approaches (as an issue of law, an issue of fact, or a mixed question of law and fact), and under potentially different standards of review on appeal. 3
*96 In short, the registration scheme as it pertains to individuals with out-of-State convictions is problematic. Whether or not these problems could give rise, in an appropriate case, to issues of constitutional dimension, this area, in my view, would benefit from further Legislative attention.
In Roe v. Attorney Gen., 434 Mass. at 419-420 , the Supreme Judicial Court considered whether, within the bounds of due process, a sex offender (i.e., a person convicted of one of the crimes listed in G. L. c. 6, § 178C), even if not dangerous, could be required to register before being afforded a hearing on dangerousness, with relief from registration provided only after such a person already had registered, and his personal information had been shared with local police and the Federal Bureau of Investigation (FBI). In a divided decision, the court held constitutional the requirement that sex offenders register prior to any hearing or consideration as to their dangerousness. Id. at 442. See note 6. ante.
See, e.g., N.Y. Correct. Law § 168a(2)(d)(ii) (McKinney 2003) (“sex offense” defined, inter alla, as “a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred”).
Here, the issue has been reviewed in the context of an appeal from a criminal conviction after a jury trial. The amici John Does have sought review by way of certiorari, alleging that SORB has no jurisdiction over them because they are not “sex offenders” under the statute. See note 5, ante. The plaintiff in Roe v. Attorney Gen., 10 Mass. L. Rep. 709 (Mass. Super. Ct. 1999) (see note 5, ante) sought a declaratory judgment and obtained a preliminary injunction, successfully arguing in the Superior Court that he is not a sex offender under the registration statute. Still other individuals with out-of-State convictions may consent to participate in the prehearing registration process (thus allowing their personal information to be forwarded to the local police and the FBI) and later seek review of the SORB decision pursuant to G. L. c. 30A (see G. L. c. 6, § 178M).