Supreme Judicial Court Rejects Two Day Registration Rule For Sex Offenders

The Boston Globe reports today that the Supreme Judicial Court rejected the Sex Offender Registry Board and the Commonwealth’s interpretation that incarcerated sex offenders had to register with their local police departments within two days of their release as having no basis in state law.

The state’s highest court today threw out the conviction of a serial sex offender for failing to register his address with the Boston police within two days of his release from jail. The judges said the state Sex Offender Registry Board did not have the authority to institute the two-day requirement.

The ruling in Malcolm S. Maker’s case came only a few days after the man was arrested again for exposing himself, officials said.

Maker, 52, has been designated a Level 3 sex offender, the class characterized as most likely to reoffend. Maker has a history of convictions for open and gross lewdness and lascivious behavior.

Maker was charged in 2009 with failing to notify the Boston police within two days of his release from jail that he would be living in a homeless shelter in Boston. He was convicted on Nov. 24, 2009, and sentenced to two years in jail.

But the Supreme Judicial Court ruled today that the registry board, set up to identify and monitor sex offenders, had no legal authority to enact the two-day registration requirement, which applied to both Level 2 and Level 3 offenders. Other requirements had already been established by the law creating the board and the board had no authority to go beyond that law, the court ruled.

The law requires that sex offenders mail their future home and work addresses to the board before they are released. The board then sends the information to local police. Offenders must verify their information periodically. Level 2 and Level 3 offenders are required to verify their information in person annually at their local police department. If they are living in a homeless shelter, they must verify the information every 30 days.

The high court said it would not rule on the merits of requiring the two-day registration, saying, “Nothing in the statute authorizes the board to create new registration requirements such as the regulation here at issue.”

“The wisdom or practical advantages of creating new registration obligations is of no relevance when the board lacks the power to do so,” Justice Judith Cowin wrote in a 10-page decision.

While the court was considering the case, Maker was still serving his term. He was released on Friday, according to the Suffolk sheriff’s office.

Just before 8 a.m. Tuesday morning, Maker was arrested again for masturbating in the women’s bathroom room of the Cheesecake Factory restaurant at Boston’s Prudential Center. He was charged with open and gross lewdness in Boston Municipal Court, and was ordered held on $2,500 cash bail. Prosecutors had asked that he be held on $10,000 bail.

The board issued a statement saying it would abide by the court’s ruling and had notified police departments of it. It emphasized that sex offenders still must register before they are released and must notify the board or police of any change to their registration, including address changes.

“Today’s ruling does not change local law enforcement’s authority to arrest any offender who violates registration requirements and the offender still remains subject to severe penalties if convicted of failing to register or to update registration information,” the board said in a statement.

Maker’s attorney, Elizabeth Caddick, did not immediately return a telephone message seeking comment.

This decision is important for many registered sex offenders as this interpretation has led to many failure to register convictions. The failure to register as a sex offender is a serious crime in Massachusetts with devastating consequences. If you have questions regarding your Massachusetts sex offender classification or are already a registered Massachusetts sex offender who wants assistance in reviewing or challenging his or her classification, or to request further information, you need a Boston sex offender attorney. Please contact Attorney Crouch at (617) 441-5111 or email him to set up a free, initial consultation. To request further information please contact us.