Split Widened: Does Requiring Sex Offender Registration Without a Hearing Violate Due Process?

Per Doe v. Sex Offender Registry Bd., 2008 WL 661866 (Mass. Mar. 14, 2008)

Nota Bene: The holding of this case is predicated exclusively on the Massachusetts Declaration of Rights, and thus it both does not create a direct split based on the same law and is unreviewable by the Supreme Court. However, cases on both sides of the split have previously relied on the federal Constitution.

In 1979, Plaintiff Doe entered an Alford plea to a charge of rape and was sentenced to two years of probation. Twenty-two years after completing that probation without incident, the Sex Offender Registry Board notified him that he had to register because of his conviction. Doe moved for a hearing to present evidence that he posed no threat of recidivism. The statutory provisions governing this program left the Board no discretion to waive the registration requirements for those convicted of violent crimes (such as rape), and therefore the hearing was denied.

The registration statute, as applied in this case, is unquestionably retroactive; it does not permit any discretionary consideration of Doe’s current situation. Such statutory schemes, however, are regulatory as opposed to punitive, and thus do not violate double jeopardy. Retroactive regulatory laws in Massachusetts must pass an interest-balancing test, with the burden on the challenger to prove irrationality. The Massachusetts Supreme Judicial Court holds that the failure to hold a hearing violated Doe’s right to due process.

The Third Circuit (construing New Jersey law), District of the District of Columbia, The Oregon Supreme Court, and the Pennsylvania Supreme Court have all reached a similar conclusion under the Federal Constitution’s due process provisions. The Third Circuit and Pennsylvania Court both held that the state must provide pre-notification review process wherein the state bears the burden of proof that there is a potential risk of reoffense. The Massachusetts decision is also in line with opinions from Arkansas and Ohio, which have upheld registration statutes against due process challenges because of their provisions for hearings. Courts in Alaska, Illinois, Michigan, and Washington (state) have all come to the opposite conclusion, finding no due process violation in mandatory registration even in the absence of a hearing because the prior conviction was already a matter of public record. For more on various holding concerning the validity, construction, and application of community notification statutes, see 78 A.L.R.5th 489.

Also from Massachusetts on Friday – a noted split on whether the Sixth Amendment right to counsel attaches at the time of the issuance of a criminal complaint. In Commonwealth v. Holliday, 2008 WL 662242, *12 n. 18 (Mass. Mar. 14, 2008), the Supreme Judicial Court held that the answer depends on the purpose served by the complaint under state law. Prior precedent held that a complaint in Massachusetts does not trigger the Sixth Amendment, and the Court holds that Holliday’s Miranda waiver renders the Sixth Amendment violation, if any, harmless.