Classification Process

(1) Preamble. Pursuant to M.G.L. c. 6, § 178K(1), the Board is required to publish guidelines for determining each sex offender's current level of risk of re-offense and degree of dangerousness posed to the public, or for relief from the obligation of registration. Pursuant to M.G.L. c. 6, § 178K(1) and (2), these guidelines shall provide for three levels of notification based on a sex offender's current risk of re-offense and degree of dangerousness. The offender's final classification level determines the amount of information that can be disseminated about the offender to the public through the notification procedures, pursuant to M.G.L. c. 6, §§ 178C through 178Q. The Board shall prioritize classification of sex offenders who have been convicted of a sex offense involving a child or convicted or adjudicated as a delinquent juvenile or as a youthful offender by reason of a sexually violent offense or of a sex offense of indecent assault and battery upon a person with an intellectual disability pursuant to M.G.L. c. 265, § 13F, and who have not been sentenced to incarceration for at least 90 days, followed by offenders recently released from incarceration, then offenders currently on probation or parole or scheduled to be released from incarceration within six months pursuant to M.G.L. c. 6, § 178K(3). The Board recognizes that an assessment of a sex offender's level of risk of re-offense and degree of dangerousness posed to the public should be an accurate reflection of the sex offender's current status. Thus, for incarcerated or civilly committed sex offenders, the Board will finally classify an incarcerated or civilly committed sex offender within one year of the offender's reasonably anticipated release date. (2) In the first stage, the Board makes a recommendation regarding each sex offender's duty to register and classification level pursuant to M.G.L. c. 6, § 178L. During the recommendation process, the sex offender is entitled to present documentary evidence for the Board to consider. The sex offender will be notified in writing of the Board's recommendation. The sex offender may either accept or reject the recommendation. The recommendation process is set forth at 803 CMR 1.06 through 1.08. If the sex offender accepts the Board's recommendation, then the recommended classification level shall become final and is not subject to judicial review, pursuant to M.G.L. c. 30A. (3) If the sex offender rejects the Board's recommendation, the process moves into the second stage set forth at 803 CMR 1.09 through 1.21. The sex offender is provided with a de novo hearing at which all relevant evidence is evaluated by a hearing examiner to reach a final decision regarding the sex offender's duty to register and final classification level. The hearing examiner shall base their decision on the totality of all the relevant evidence introduced at the sex offender's individualized hearing. The final agency decision issued by the hearing examiner is subject to judicial review in the Superior Court, pursuant to M.G. L. c. 30A. (4) Factors. M.G.L. c. 6, §§ 178K(2) and 178L(1), sets forth criteria to be considered by the Board in determining risk of re-offense and degree of dangerousness and authorize the Board to identify and utilize additional risk factors and criteria not specifically listed in the statute. Based on this statutory authority, the Board created 803 CMR 1.33 which describes and defines the factors that the Board shall consider in making all registration and classification decisions. In determining the final classification, the hearing examiner shall be guided by the definitions, explanations, principles, and authorities contained in the Factors set forth in 803 CMR 1.33 and shall not be bound by the Board's recommendation.