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Appeals Court Weighs Whether Registry Rulekeeping Matches New Research on Desistance
Summary
In John Doe 21732 v. Sex Offender Registry Board, defense counsel urged the Appeals Court to recognize a gap between Board regulations and recent desistance research and to require a more individualized inquiry; Board counsel said the hearing examiner gave factor 29 full weight and substantial evidence supports the level-two classification. The panel took the case under advisement.
A three-justice panel of the Massachusetts Appeals Court heard arguments over whether the Sex Offender Registry Board properly classified an offender as a level two despite lengthy offense-free time in the community.
Fred Burkeolder, counsel for John Doe 21732, told the panel that there is a “gap between what the regulations provide … and what the science is establishing,” citing research by Dr. Hansen on desistance and arguing the hearing examiner’s decision did not meaningfully apply that research to the individual before the court. Burkeolder said the client has been 18 years offense-free and that, under recent studies, longer offense-free periods can reduce risk materially; he urged that an expert or a remand may be required to assess whether the regulatory factors were applied correctly.
The Registry Board’s attorney, Nancy Morreny, responded that the hearing examiner expressly considered the scholarly articles and explained why he gave them little weight in his overall qualitative analysis. “The hearing examiner looked at all the evidence,” Morreny told the panel, noting that the examiner assigned two high‑risk factors and eight risk‑elevating factors and concluded that the record supported lowering the offender from level three to level two.
At several points the panel pressed both sides on how the regulations interact with empirical studies and whether the remedy for any mismatch is remand, additional fact‑finding or an expert. Burkeolder argued that prior appellate decisions pointed to the need for a more nuanced individualized explanation when a panel has relied on the same regulatory language; Morreny said a hearing examiner cannot give more than full weight to a regulatory factor and that some studies cited by the defense require particular measures (for example, a static‑99R score) that are not in the record here.
The court took the case under advisement. The issue centers on how the Board’s qualitative regulatory factors should be reconciled with newer empirical work on desistance and how much specificity an examiner must show when explaining weight given to particular studies.
