The Kickham Comment - Boston Criminal Attorney Blog
A few years ago, the Massachusetts Legislature passed a law prohibiting defendants convicted of certain Massachusetts sex offenses from being placed as residents in nursing homes. Ostensibly, the law applied only to Level 3 sex offenders, which are considered the most likely to reoffend, according to the Massachusetts Sex Offender Registry Board (“SORB.”) The goal, obviously, was to protect a vulnerable population from convicted sex offenders.
On its face, it sounds like good public policy. But, as is usually the case, something happened on the way to an otherwise good idea. In this case, that something was a Superior Court judge’s ruling that a man (known only as “John Doe” in court pleadings,) who had been previously convicted of a sex offense and classified by SORB as a Level 3 offender, was no longer a sexually dangerous person. Subsequent to that ruling, “Doe” needed to be admitted to a nursing home. After Boston Police learned that this man had been placed into a certain nursing home, they told him he had to leave the facility, which he did. “Doe’s” lawyer later claimed in court that the law was unconstitutional because it was overreaching, and because it provided no opportunity for Doe to prove that he was no longer a risk to other residents and staff in the facility.
In a unanimous (7-0) ruling, the Supreme Judicial Court (SJC) agreed, holding that the law prohibiting Level 3 sex offenders from placement in Massachusetts nursing homes violates the state’s Declaration of Rights, in that it turns a person’s right to choose where to live, into in effect a crime. The opinion was written by Associate Justice Fernande R.V. Duffly, one of the newest additions to the court under Gov. Deval Patrick. She wrote, “Those who have been released from incarceration … are free to live where they choose and to move freely within and without the Commonwealth.” A restriction on the right to choose where one lives is a further imposition on the liberty interests protected by our state constitution.”
Some would say this is a bad ruling (generally, conservatives); some would say it is a good one (generally, liberals.) Regardless of the view, one thing I can guarantee you, as a Dedham/Boston Massachusetts sex offense lawyer, is that it’s going to create a lot of confusion surrounding this law, and over the subject of Massachusetts nursing home abuse. Why? Because already, all the principal legal parties are claiming that the ruling says different things:
1) Doe’s individual attorney, trying to quell concern on the part of nursing home owners and relatives of nursing home residents, claims that the ruling applies only to Doe, and no one else.
2) In contrast, an attorney for the Committee for Public Counsel Services (CPCS,) the state agency which provides legal counsel to indigent defendants, claims the opposite: That the ruling will apply to an entire class of previously-convicted sex offenders who are similarly situated to Doe.
3) Attorney General Martha Coakley, whose office unsuccessfully represented the state in arguing that the sex offender ban was lawful, tried to blunt the impact of the ruling, saying in a released statement, “We believe the current law banning Level 3 sex offenders from nursing homes can remain an important tool for protecting the homes’ residents, visiting children and other members of the public.” Her office has stated that because the court said it was applying its rationale to John Doe’s case only, the state may continue to “legitimately prevent offenders who are shown to present a risk of harm to their elderly neighbors from living with this vulnerable population.” In my view as a Dedham Massachusetts nursing home abuse lawyer, I’m not so sure about that.
4) Nursing home owners and operators don’t know what to make of the decision. They don’t yet know if they should refuse admission of any previously-convicted Level 3 sex offender, or allow them in. While many nursing home directors say existing regulations provide them wide latitude in their admissions decisions, due to their responsibility for the safety of their vulnerable residents, I can guarantee you that the attorneys advising nursing home operators also don’t yet know exactly what to advise their clients. Worse, it isn’t just the residents of nursing homes who could be vulnerable to an active sex offender: Many such facilities employ high school volunteers, who could easily be at risk from a sex offender who was previously convicted or preying on children or teens.
5) The Massachusetts Department of Public Health, which regulates nursing homes, don’t themselves yet know what the decision really means in practice. A spokesperson for the agency has said the agency’s attorney was still reviewing the court’s decision to determine how it might impact existing regulations.
If that isn’t enough, what makes matters even more confusing, is that the SJC previously held that it was constitutionally permissible for Level 3 sex offenders to lose protections other Massachusetts residents enjoy, such as privacy rights, after being classified as a Level 3 offender. Now it issues this decision, importantly, without clarification. It needs to clarify its ruling, and soon.