Ensuring Due Process in End of Confinement Review Committee Hearings

In Minnesota, 90 days prior to being released from prison, a predatory offender is assigned a Re-offense Risk Level. This Risk Level is determined by the End of Confinement Review Committee (ECRC), a group of psychologists, criminal justice professionals, and victim advocates. The Risk Level assigned ultimately determines the scope of community notification and every-day limitations the individual will face as a registered offender. Notification for each of the three levels is described further at the end of the article.

Obviously, an offender has a lot riding on the ECRC assigning a fair Risk Level score. The committee must prepare a risk assessment report and provide a copy to the offender at least 60 days before the offender is released from confinement. Under Minn. Stat. § 244.052, subd. 3, offenders assigned to Risk Level II or III are entitled to administrative review of the ECRC’s determination. An offender must request review within 14 days of receiving notice of the committee’s risk level assessment.

Until recently, the Minnesota State Public Defender’s Office offered legal representation to offenders wishing to challenge their assigned Risk Level. These hearings require a special expertise in assessing an individual’s risk of recidivism. Inevitably, when the State announced, in early 2012, it would no longer be handling these proceedings, Minnesota was left with a shortage of private criminal defense attorneys with the specialized knowledge necessary to effectively represent would-be appellants.

As a Minneapolis criminal defense attorney with Brockton D. Hunter P.A., Ryan Else is one of very few lawyers who have successfully challenged an ECRC Risk Level determination. In a recent appeal, Ryan argued that his client’s constitutional right to due process was violated when the ECRC based its Risk Level assessment on allegations found in the confidential Pre-Sentence Investigation Report (PSI). Essentially, the committee relied on information that was unavailable to the offender and he, therefore, had no opportunity to rebut. The court agreed, holding that the ECRC failed to satisfy the fair hearing obligations of the Risk Level assignment process.

Prior to his release, Ryan’s client had every reason to believe he would be assessed as a Risk Level I offender: he was considered too low a risk, compared to others in custody, to justify in-custody treatment; he had no criminal history; and, his crime of conviction implicated an extremely small victim pool. Instead, the ECRC ignored those presumably important factors and, on their own discretion, assigned a Risk Level II.

It’s chilling to think that your future freedoms could be stripped away by a group of people who are completely uninterested in hearing your side of the story. In our review hearing, the Department of Corrections (DOC) strongly supported its practice of enhancing an offender’s Risk Level without allowing him to address the allegations affecting their decision. Unfortunately, there is no way to ensure that your ECRC hearing won’t involve the same or similar due process failures. It’s unlikely that one client’s recent success will translate to policy changes within the DOC.

But, alas, there is hope! Recent experience shows that administrative judges—for the most part—are responsive to reasonable legal challenges to a questionable Risk Level determination. But, this means—to ensure fair assessment—it is critical to understand the process, potential difficulties you will face, and how to convincingly communicate to the court where the State has failed to meet its burden.

Sex-Offender Registration Levels

Level I Offenders

The law enforcement agency may maintain information about the offender within the agency and disclose it to other law enforcement agencies. The law enforcement agency also may disclose the information to any victims or witnesses to the offense committed by the offender. The agency must disclose information to victims of the offense who have requested disclosure. The agency also must disclose information to adult members of the offender’s immediate household.

Level II Offenders

The law enforcement agency may disclose the same information it may disclose on Level I offenders, and it also may disclose information to agencies and groups the offender is likely to encounter. These agencies and groups include the staff members of public and private educational institutions, day care establishments, and establishments and organizations that primarily serve individuals likely to be victimized by the offender. The purpose of this notification is to secure these institutions and to protect individuals in the care of these institutions while they are on or near the institution’s premises. The agency also may disclose information to individuals the agency believes are likely to be victimized by the offender based on the offender’s pattern of offending or victim preference.

Level III Offenders

The law enforcement agency must disclose the information to the persons and entities who may receive notice about Level I and II offenders. When the entity primarily educates or serves children, and the offender is participating in programs offered by the facility that require or allow the person to interact with children, then the entity must notify the parents with children at the facility. In addition, the agency must disclose information to other members of the community whom the offender is likely to encounter, unless the agency determines that public safety would be compromised by the disclosure or that a more limited disclosure is necessary to protect the identity of the victim. When a Level III offender moves into a community, law enforcement typically holds a community meeting to provide information about the offender. The offender may not attend the meeting.