Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Boston’s SJC Rules On Probation’s Quest For GPS In Kidnapping – Rape Case

On Friday, Boston’s Supreme Judicial Court, the highest state court in the Commonwealth, passed down a ruling that underscores the contractual aspect of being on probation, particularly in sexual assault cases.

The ruling indicates that new probation restrictions cannot be imposed on sex offenders – such as wearing a GPS device or banning them from playgrounds — until after they violate their probation.

The case in which the issue came up was that of Ralph G. (hereinafter, the “Probationer”). The Probationer is a Level 3 sex offender who was convicted of kidnapping and raping a 7-year-old boy in 1990. After a post-conviction hearing, a jury finding him to not be “sexually dangerous” any longer, the Superior Court ordered him to get sex offender counseling and maintain mental health care. No other limits were placed on him, such as limiting where he could go or the wearing of a GPS device.

However, Middlesex District Attorney Gerard T. Leone Jr. Was not satisfied with this. His office wanted the Probationer to wear a GPS and to be banned from playgrounds, schools, and libraries.

eThe SJC has now ruled that this would not be legally permissible.

The Court’s ruling., as written by the Honorable Justice Ralph W. Gants, states that:

“We conclude that, unless a judge finds a violation of a condition of probation, a judge does not have the discretion to impose GPS monitoring as an additional condition of probation where there is no material change in the defendant’s circumstances and where GPS monitoring, paired with geographic exclusions, is so punitive as to increase significantly the severity of the original probationary terms,”

The opinion was not unanimous, however. Justices Ireland, Spina and Cowin disagreed. The Honorable Justice Ireland wrote that new probation limits can be imposed on sex offenders without violating their constitutional rights. Ordering them to wear GPS devices is “remedial rather than punitive and therefore properly may be imposed,” he wrote.

Attorney Sam’s Take:

Many people do not understand the nature of the probationer – Department of Probation relationship.

It is supposed to be a basically contractual relationship, as is reflected in the probation contract a probationer signs at the onset of the probationary term. The conditions, of course, are really set by the court. However, the Department of Probation ( hereinafter, the “Department”) has great power in enforcing said conditions and, if a probation officer feels it appropriate to amend or add to the terms, the matter can be brought forward for the court to do so.

There are, however, limits to this.

The SJC ruling addresses said limits. Generally, such changes are considered “remedial”, in that they do not impinge much on the probationer’s Constitutional rights but are merely set to help the probationer remain problem-free during probation. Usually, however, the Department brings forth a matter to the judge because the probationer has allegedly violated the terms of the probation. This is what leads to a probation violation hearing and the probationer ends up either going along with any new terms the Department wants, or being incarcerated.

The key here is that the probationer needs to have violated the terms of the probation contract in order for the Department to bring him/her forward to force this issue.

This is particularly true when the proposed new conditions are punitive.

“Well, Sam, how could the changes in this case be considered punitive? After all, what is the big deal about not going to where kids are? Further, what is the big deal about wearing a GPS device? After all, what does the Probationer have to hide?”

Well, these are limits on liberty. Further, generally, the recipient of the GPS device has to pay for the device. It is not cheap. What if he/she cannot afford it?

The basic problem, of course, is that it is also not fair…not that such a concept usually means very much in the criminal justice system.

You see, probation surrenders are based upon a probationer breaking the contract with the Department. For example, it is a violation of the contract to get charged with a new crime. As a result, when Billy Badluck, who is on probation, and Nancy Nasty gets angry at him and tells the police he hit her, he is considered to have violated the conditions of his probation.

“That can’t be, Sam. After all, Billy is going to protest his innocence and even be presumed innocent until he is convicted of the assault charge, right?”

Sure…in the assault case. However, long before that matter sees the light of trial, there will be a probation surrender hearing in which the Department will argue that Billy has violated the terms of his probation by being arrested on a new matter. As a result, he may find himself a “guest” of the Commonwealth while awaiting the trial on the new matter, in which he remains presumed innocent.

The law allows such a scenario which, in my mind, defies logic or respect for the presumption of innocence, based upon the argument that “you broke your contract, no matter it being something over which we presume you had no control”. This being the case, how can the Department look to install new conditions, which are, in fact, punitive?

In civil court, we would argue that the Department would have breached the contract. In criminal court….well….the probationers do not get such equal footing.

However, when an issue comes up that effects your liberty, be it on probation or simply being accused of wrongdoing, you will want the advice of experienced counsel. Should you wish to discuss such a case with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

For the original story upon which today’s blog is based, please go to http://www.boston.com/news/local/breaking_news/2010/09/divided_sjc_say.html?p1=News_links

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