Amendment #805 to H4000

Relative to counsel for sex offenders

Representatives O'Connell of Taunton, Diehl of Whitman and Lombardo of Billerica move to amend the bill by adding the following section:

“SECTIONXXXX: Chapter 6 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking section 178L in its entirety, and inserting in place thereof the following section:

Section178L.  (1) Upon review of any information useful in assessing the risk of reoffense and the degree of dangerousness posed to the public by the sex offender, including materials described in the board guidelines and any materials submitted by the sex offender, the board shall prepare a recommended classification of each offender. Such recommendation may be made by board staff members upon written approval by one board member; provided, however, that if the sex offender was a juvenile at the time of the offense, written approval must be given by a board member who is a licensed psychologist or psychiatrist with special expertise in the assessment and evaluation of juvenile sex offenders.

(a)Not less than 60 days prior to the release or parole of a sex offender from custody or incarceration, the board shall notify the sex offender of his right to submit to the board documentary evidence relative to his risk of reoffense and the degree of dangerousness posed to the public and his duty to register according to the provisions of section 178E. If the sex offender is a juvenile at the time of such notification, notification shall also be mailed to the sex offender’s legal guardian or agency having custody of the juvenile in the absence of a legal guardian and his most recent attorney of record. Such sex offender may submit such evidence to the board within 30 days of receiving such notice from the board. Upon reviewing such evidence, the board shall promptly notify the sex offender of the board’s recommended sex offender classification, his duty to register, if any, his right to petition the board to request an evidentiary hearing to challenge such classification and his right to retain counsel to represent him at such hearing; provided, however, that such indigent offender may also apply for and the board may grant payment of fees for an expert witness in any case where the board in its classification proceeding intends to rely on the testimony or report of an expert witness prepared specifically for the purposes of the classification proceeding. Such sex offender shall petition the board for such hearing within 20 days of receiving such notice. The board shall conduct such hearing in a reasonable time according to the provisions of subsection (2). The failure timely to petition the board for such hearing shall result in a waiver of such right and the registration requirements, if any, and the board’s recommended classification shall become final.

(b)The district attorney for the county where such sex offender was prosecuted may, within ten days of a conviction or adjudication of a sexually violent offense, file a motion with the board to make an expedited recommended classification upon a showing that such sex offender poses a grave risk of imminent reoffense. If the petition is granted, the board shall make such recommendation within ten days of the expiration of the time to submit documentary evidence. If the petition is not granted, the board shall make such recommended classification as otherwise provided in this section.

(c)In the case of any sex offender not in custody, upon receiving registration data from the agency, the police department at which the sex offender registered, the sentencing court or by any other means, the board shall promptly notify the sex offender of his right to submit to the board documentary evidence relative to his risk of re-offense and the degree of dangerousness posed to the public and his duty to register, if any, according to section 178E. If such sex offender is a juvenile at the time of such notification, notification shall also be mailed to such sex offender’s legal guardian or agency having custody of the juvenile in the absence of a legal guardian and his most recent attorney of record. Such sex offender may submit such evidence to the board within 30 days of receiving such notice from the board. Upon a reasonable showing, the board may extend the time in which a sex offender may submit such documentary evidence. Upon reviewing such evidence, the board shall promptly notify such sex offender of the board’s recommended sex offender classification, his duty to register, if any, and his right to petition the board to request an evidentiary hearing to challenge such classification and duty, his right to retain counsel to represent him at such hearing. Such sex offender shall petition the board for such hearing within 20days of receiving such notice. The board shall conduct such hearing in a reasonable time according to the provisions of subsection (2). The failure to timely petition the board for such hearing shall result in a waiver of such right and the registration requirements, if any, and the board’s recommended classification shall become final.

(2)If an offender requests a hearing in accordance with subsection (1), the chair may appoint a member, a panel of three board members or a hearing officer to conduct the hearing, according to the standard rules of adjudicatory procedure or other rules which the board may promulgate, and to determine by a preponderance of evidence such sex offender’s duty to register and final classification.  If the sex offender does not so request a hearing, the recommended classification and determination of duty to register shall become the board’s final classification and determination and shall not be subject to judicial review.

SECTION2. Chapter 6 of the General Laws, as so appearing, is hereby amended by striking section 178M in its entirety and inserting in place thereof the following section:

Section178M. An offender may seek judicial review, in accordance with section 14 of chapter 30A, of the board’s final classification and registration requirements. An attorney employed or retained by the board may make an appearance, subject to section 3 of chapter 12, to defend the board’s decision. The court shall reach its final decision within 60 days of such sex offender’s petition for review.

SECTION3. Section 16 of chapter 211D of the General Laws is hereby repealed.”.