Right to counsel

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Legislation, Sexually Dangerous Persons - Registration/Notification

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. The court shall then determine, by a preponderance of the evidence, whether the sex offender is a sexually violent predator. Id. The determination does not affect the classification of the offender, but the dissemination of information about the offender to the public shall include the “sexually violent predator” designation. 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). In Noe v. Sex Offender Registry Bd., 2017 Mass. Super. LEXIS 9, *37-38 (Mass. 2017), the court held that “[T]he statutory protections afforded to sex offenders by Section 178L(3), including an ‘offender's right to have counsel appointed if the offender is indigent,’ applies with equal force to all reclassification hearings that the Board may conduct, including hearings held in response to a request for reclassification made by an offender” (emphasis added).

 

Finally, indigent sex offenders seeking judicial review of the sex offender registry board’s final classification and registration requirements are entitled to have court appointed counsel represent them if the offender requests appointment from the court. M.G.L. ch. 6, § 178M.

Appointment of Counsel: categorical Qualified: no