Right to counsel

Sex offenders in Massachusetts may be declared sexually violent predators, and the designation impacts the information disseminated to the public and the offender’s registration requirements.  The sex offender registry board, after classifying a sex offender under a level 3 classification (most dangerous/restrictive), shall transmit a report to the sentencing court explaining the basis of the recommendation to have the offender declared a sexually violent predator.  M.G.L. ch. 6, § 178K(2)(c).  The report is not subject to judicial review, but the sentencing court must provide the offender the opportunity to be heard and inform the offender of the right to have counsel appointed if indigent.  Id.

Indigent sex offenders are also entitled to have counsel appointed to represent them in evidentiary hearings before the sex offender registry board if the offender submits to the board documentary evidence pertaining to risk of recidivism, dangerousness to the public, and duty to register, and then petitions the board for a hearing to challenge the offender’s classification and registration duty.  Id. § 178L(1)(a) (offenders in custody), (1)(c) (offenders not in custody); (3) (reclassifications initiated by registry board either on own initiative or at request of police or district attorney).  Indigent sex offenders seeking judicial review of the sex offender registry board’s final classification and registration requirements are also entitled to have court appointed counsel.  M.G.L. ch. 6, § 178M.  

In Noe, SORB No. 5340 v. Sex Offender Registry Board, 2018 Mass. LEXIS 479, (Mass. 2018), the Supreme Judicial Court of Massachusetts held that indigent offenders are statutorily entitled to appointed counsel in a reclassification hearing initiated by the offender.  The court pointed to M.G.L. ch. 6, § 178L(3) (entitling the offender to appointed counsel when the board itself seeks reclassification) and M.G.L. ch. 6, § 178M (entitling the offender to appointed counsel when seeking judicial review of the reclassification hearing), and commented:

[T]he board's interests depend greatly on the classification being accurate and current. Therefore, a key purpose of the reclassification process is ensuring that the offender is accurately classified, based on current information ... Indeed, reclassification is an essential component of the registration scheme because it is the only means through which an offender can obtain a lower classification level where the circumstances warrant it. Without such a provision, an offender could face indefinite registration and classification at his or her original classification level, regardless of any subsequent changes in circumstance or rehabilitation ... Even under the board's own interpretation of the statute, the sex offender registry law provides sex offenders with the right to counsel at the initial classification hearing, at board-initiated upward reclassification hearings, and at a termination hearing. Given that the sex offender registry law provides the right to counsel at each of these other hearings, it makes little sense to interpret § 178L (3) as depriving indigent offenders of the right to counsel exclusively in the context of offender-initiated reclassification hearings, particularly in the absence of any statutory language to that effect.  By contrast, providing indigent offenders with a right to counsel in offender-initiated reclassification hearings logically comports with the complex nature of the reclassification process.