Overview
In our prior audit (No. 2016-1408-3S) of the Sex Offender Registry Board (SORB), we found that SORB did not assign final classifications for 63 incarcerated first-time sex offenders at least 10 days before their earliest possible release dates. In our current audit, we again found that SORB did not ensure that all sex offenders were assigned their final classifications at least 10 days before their earliest possible release dates.
Specifically, for the 319 sex offenders5 released from incarceration during our audit period who had registered with SORB, 103 did not have final classifications at least 10 days before their earliest possible release dates. Of these 103 sex offenders, SORB issued final classifications to only 10 before their actual release dates, and it issued final classifications to another 77 after their release dates. These 77 sex offenders were assigned final classifications an average of 170 days after they were supposed to be classified. The longest time to assign a final classification was 739 days after the sex offender’s release date. For the remaining 16 sex offenders who did not have final classifications and were released during the audit period, 2 were still awaiting classification as of the end of our audit work and 14 moved out of state before they could receive a final classification from SORB.
As a result, the sex offenders’ names, addresses, offenses, and registration statuses were not posted to SORB’s website for level 2 and 3 sex offenders and were not otherwise available to the public. This could endanger children, people with disabilities, and the general public.
Authoritative Guidance
Section 178E of Chapter 6 of the Massachusetts General Laws requires SORB to “classify . . . a sex offender at least 10 days before the offender’s earliest possible release date.”
Reasons for Noncompliance
SORB officials stated that they rely on correctional facilities to provide sex offenders’ anticipated release dates, and that these dates often are subject to change. SORB claims that this makes it difficult to determine when final classifications need to be assigned and to schedule timely hearings in accordance with the General Laws.
Recommendations
- SORB should collaborate with correctional facilities to establish more reliable procedures for providing anticipated release dates.
- SORB should track the progress of each sex offender’s classification process, including identifying any delays or issues that may arise and taking appropriate actions to address them, to ensure that all sex offenders are assigned final classifications at least 10 days before their earliest release dates.
Auditee’s Response
[The Office of the State Auditor (OSA)] determined that 319 sex offenders were released from incarceration during the audit period and 103 of them did not have final classifications at least 10 days before their earliest possible release date. SORB contends that this is technically true for 86 of those 103 individuals. . . .
SORB contends that OSA misidentified 17 of the 103 sex offenders as not finally classified at least 10 days prior to their earliest possible release date. One individual was given a final classification at least 10 days prior to release but was released directly to the [United States] Marshals. One individual was a juvenile offender who was never incarcerated while the juvenile court took a motion for relief from registration under advisement during the audit period. One individual was classified at least 10 days prior to release. Six individuals were released from incarceration to another state. Another eight individuals were marked as incarcerated even though they were incarcerated out-of-state. These individuals were never in Massachusetts and their status was updated to “moved out of state” in 2020 following a change in policy. As of 2020, it is no longer SORB’s policy to mark individuals as incarcerated when they are serving a sentence in another jurisdiction. . . .
Of these 86, though, 11 individuals were issued final classifications prior to their actual release into the community and due to operational reasons discussed below, it was impossible for SORB to finally classify the remaining 75 individuals.
. . . One individual was finally classified eight days prior to their release. One individual was finally classified four days prior to release. Four individuals were finally classified three days prior to their release. Two individuals were finally classified two days before their release. One individual was finally classified the day before their release and two individuals were finally classified on the day of their release. . . .
First, 45 of the 75 individuals were sentenced to Houses of Correction with sentences that were simply too short to allow SORB to conduct final classification hearings and issue a decision prior to their release. To put this into perspective, the process to finally classify an offender takes approximately 10 to 12 months to complete. It includes procedural time to gather all relevant information to allow the Board to determine an offender’s preliminary classification, to give an offender an opportunity to challenge such recommendation, to determine whether the offender is indigent and for the case to be forwarded to the Committee for Public Counsel Service (“CPCS”) for assignment of counsel, if necessary. Once a case is assigned public counsel, additional time is needed for scheduling and to comply with discovery deadlines. After the hearing is conducted, appropriate time is needed for the examiner to issue a detailed written decision. Further, this 10–12-month timeframe does not account for any unexpected delays, which might include new counsel having to be assigned, a second day of hearing, valid continuances and scheduling conflicts. Given the above timeframe, SORB could not have possibly classified these offenders with such short sentences. For example, some of the offenders the audit team indicated were not properly classified had sentences that were less than one year. One offender was sentenced to 90 days, another was sentenced to 10 days, and another was released from court. This timeframe, which we suggest was not considered by the audit team, is what the courts have found necessary and appropriate to satisfy due process.
In addition to SORB’s enabling statute and regulations, SORB’s fulfillment of its mandate and mission is also bound by evolving case law. In Doe 7083 v. SORB, 472 Mass. 475 (2015), the [Supreme Judicial Court] held that SORB must classify incarcerated offenders in reasonable proximity to their anticipated release dates. If an incarcerated offender is classified too early, the decision remains preliminary and the offender can seek a continuation of his/her hearing at a reasonable time prior to his/her actual release date. Id. at 489. Doe 7546 v. SORB, 487 Mass. 568 (2021) further required SORB to issue final classifications that are based on an evaluation of the offender’s risk of re-offense at a time reasonably close to the actual date of discharge regardless of whether an incarcerated offender accepted their earlier classification.
Court decisions have had a significant impact on the Agency’s ability to comply with classification before release that is not addressed in the Audit Report.
Lastly, the remaining 30 cases on the audit team’s list faced other challenges. Three individuals were unexpectedly paroled, two were granted medical parole, one was found to be no longer a sexually dangerous person pursuant to [Section 1 of Chapter 123A of the General Laws] and was released from commitment, one was transferred from federal imprisonment to a federal Residential Re-Entry Center and because it was not a locked facility, SORB registered this offender at that address even though the offender was still serving his federal sentence, and two were scheduled for hearings while the offenders were still incarcerated but the hearings were continued due to COVID-19 outbreaks at the facilities and the offenders were released shortly after the continued hearings. Aside from three offenders, the remainder of the cases cited by OSA were all offenders who were given a preliminary recommendation while they were incarcerated, who requested a de novo hearing [an appellate hearing where a different judge reviews the evidence], and then were released before a final classification decision could be issued.
With regards to the audit team’s recommendations in Detailed Audit Finding 1, SORB responds as follows:
- SORB will continue to pursue a system upgrade with [the Department of Correction (DOC)] where parole and release dates will automatically transfer/populate in [the Sex Offender Registry Information System (SORIS2)] as they are updated by DOC.
- SORB will continue to track the progress of each sex offender’s classification process closely and minimize any delays while continuing to ensure each offender is afforded due process as required by law.
Auditor’s Reply
In its response, SORB acknowledges that 86 of the 103 sex offenders identified by the audit did not receive a final classification at least 10 days before their earliest possible release dates. SORB states that 11 of the 103 sex offenders were issued final classifications before their release; however, this classification occurred outside the timeframe specified by Section 178E of Chapter 6 of the General Laws, which mandates that sex offenders be classified at least 10 days before their earliest possible release dates.
SORB states that the length of the classification process and court decisions caused its inability to issue final classifications to 45 of the 103 sex offenders. While we understand the rationale regarding the length of the classification process and the time to receive court decisions, we emphasize the importance of ensuring that these challenges do not compromise public safety or violate regulatory requirements. It is SORB’s responsibility to raise these concerns with the administration and the Legislature, because ambiguity in these matters does not serve public safety.
SORB alleges multiple reasons as to why it did not issue final classifications for 30 of the 103 sex offenders at least 10 days before their earliest possible release dates. While we recognize the potential complexities involved in the classification process, we strongly reiterate that timely and accurate classifications are essential to protect the residents of the Commonwealth.
SORB states that we misidentified the remaining 17 of the 103 sex offenders as not receiving a final classification at least 10 days before their earliest possible release dates. We object to SORB’s statement that 17 of the 103 sex offenders were misidentified. Our audit fieldwork was based on data contained within the Sex Offender Registry Information System (SORIS2). Our audit finding was based on this comprehensive dataset, which we cross-referenced with the classification and registration process information that was provided to us through documented interviews and our review of SORB’s policies and procedures.
Further, SORB claims that 8 of the 17 individuals were incarcerated out-of-state. SORB also states that, as of 2020, it will no longer indicate in SORIS2 whether sex offenders are incarcerated in an out-of-state facility. In doing so, SORB relies on these states to notify Massachusetts when a sex offender is released from incarceration. This potentially exposes our residents to unnecessary risks should the sex offender return to Massachusetts and the other state does not send prior notification. We stress the critical need for SORIS2 to contain accurate and up-to-date information on classification dates, release dates, incarceration statuses, and registration statuses.
We believe SORB could address the issues raised in this finding if SORB enacts the changes proposed in its response to our recommendations. We will be conducting a post-audit review to ensure that SORB has implemented these changes.
| Date published: | October 25, 2023 |
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