Massachusetts News

The publicity surrounding the Ron Leno case has spotlighted some unsettled legal issues surrounding sexual offender laws.

The Supreme Court will soon decide if the sexual-offender law enacted last September can be applied to offenders who committed their crimes before the law was passed.

If so, when a person completes his prison sentence for sexual crimes, the state can seek to classify him as sexually dangerous based on his past record and have him committed indefinitely to the Massachusetts Treatment Center at Bridgewater.

The new law is an attempt to protect the public from the high likelihood of an offender committing future sex crimes, by imposing a form of civil incarceration upon his release from prison. The state would be required to show probable cause before an offender can be committed as a sexually dangerous person.

The ACLU has denounced such civil confinements in the past as "disingenuous, phony due process" and "punishment" for past offenses.

From 1957 until 1990, sexual offenders who were diagnosed as having a "personality disorder" or being "mentally abnormal," were committed indefinitely to the state’s Treatment Center in Bridgewater after they completed their prison sentences.

After state officials decided that such treatment was ineffective, all new commitments to the Center were abolished by law in 1990, leaving 200 sexual offenders still incarcerated there.

On September 10th, 1999 a new statute called chapter 74 was hastily enacted which, among other things, seeks to reinstitute commitments of sexually dangerous persons to the Treatment Center under certain circumstances.

Several Superior Court judges have faced the issue of applying the new law retroactively to offenders who have come to the end of their prison sentences. At least six judges have held that the law does not specifically address whether it was meant to be applied to offenses committed before September 10.

In addition, doubts have been raised by the judiciary about the constitutionality of applying the law retroactively.

The Commonwealth has appealed those decisions and stayed the release of the prisoners temporarily. Three of those cases, Devila, Wilson and Bruno, are scheduled to be heard by the SJC in April.

Similar cases across the state are waiting to see what the high court decides before proceeding with sexual dangerousness hearings and are holding offenders temporarily.

Leno’s attorney, Bruce Carroll, told Massachusetts News, "Mr. Leno and people in his position are being wrongfully detained by a statute that is being inappropriately applied by the DA’s office."

Making a point that the legislature could not have left such a glaring omission when drafting the law, Carroll said, "Clearly they know how to make a law apply retroactively, they did it for the sex offender registry passed in the same statute."

Other sections of the September 10th law deal with lifetime parole for sex offenders and registration of sex offenders living in the community.

A spokesman for the governor, John Birtwell, told Massachusetts News that although Governor Cellucci is aware of the imminent release of Ron Leno, "There is nothing in state law permitting him to intervene in an individual case if the judiciary is of the mind to release Mr. Leno."

He said the Governor can propose changes to the law that allows changes to terms of parole and probation for dangerous people like Leno so they would have to report. He said they have already made such proposals but some judges have interpreted the law to say that it is illegal punishment because it’s applied retroactively.

Birtwell said Ralph Martin, the District attorney who is handling the Leno case, as well as DA’s from virtually every other county have been very adamant in terms of trying to keep sex offenders from being released without any terms or conditions of parole or probation.

The Sex Offender Registry Board is another piece Birtwell says has to get up and running. "So if a Ron Leno moves in next door, neighbors would be able to be alerted to that fact. That vision is also under attack by the judiciary."

Birtwell explained how even though a criminal has been convicted multiple times for sex offenses, a Superior Court Judge said in December that he still has to be availed of a whole new hearing before he is classified and registered as a sex offender. "Along with the District Attorneys, we feel that is an incorrect interpretation of the law. There is nothing in Massachusetts Constitutional state law that requires that degree of procedural safeguard," said Birtwell.

"There are 13,000 individuals under this rule who will have to be provided with a hearing," he said.

The state first enacted a sexual-offender registry in 1996. The law was struck down by the SJC however because it did not require a hearing for convicted sexual offenders prior to registering them.

The sexual registry law was struck down twice more last year because it still required an offender to register in some form before being allowed a hearing. A Superior Court judge issued an injunction in December basically saying nobody had to register while the constitutionality of the sex offender registry is being litigated.
 

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