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.

Attorney Sam’s Take: Boston’s Highest Court Rules On Sex Offender’s Probation Violation

Sometimes it seems that the criminal justice system uses the intellectual equivalent of a bazooka to tackle an issue as logically mind-bending as kindergarten mathematics. Boston’s Supreme Judicial Court, normally needed to referee issues surrounding Massachusetts Murder, Robbery or search and seizure issues has now been called upon in one of these instances.

The matter involves Mr. John Canadyan Jr. (hereinafter, the “Probationer”). The Probationer is a convicted sex offender. After pleading guilty to two counts of indecent assault and battery on a child under 14, he was sentenced to 18 months in jail. He also received a term of probation and had to register as a Massachusetts sex offender on the appropriate registry.

The Probationer also happens to be homeless.

Now, as we have discussed in the past, being on probation is not a picnic. Generally, when a probation officer tells a probationer to “Jump!”, it is the probationer’s obligation to merely ask, “How high?”

There are, however limits.

For example, what if said probationer were confined to a wheelchair because he is paralyzed from the waist down? Both the department of probation and the court can threaten to jail him, flog him or shoot him…it will not matter. He will simply not be able to jump.

You see, while every-day logic is often left on the outer side of the metal detector in many courts, reality still has a way of sneaking in through the windows. As mentioned above, the Probationer is broke and homeless.

“Homeless” generally means “without a home”.

“Without a home” often means “without free access to electrical recharging units.

Unfortunately, the GPS monitoring devices many probationers are forced to wear need to be recharged.

I guess you see the problem.

The Department of Probation saw the problem too. However, they were not willing to accept the reality aspect of it. Instead of working on solutions like, “come into our office and charge it” or some such thing, they decided to ask the court to find the Probationer in violation of probation and return him to the waiting involuntary housing units funded by the Commonwealth…jail.

The judge decided that the Probationer had indeed violated his probation. The logic was simple:

1. The Probationer did not keep his gps device charged because he did not have an electrical outlet;

2. The Probationer did not have an outlet because he did not have a home;

3. The Probationer did not have a home because he did not have money; therefore:

4. The Probationer must not be doing enough to get a job so that he could have money, get a home and therefore an electrical outlet.

The reasoning makes a great deal of sense given that there are a surplus of jobs in our booming economy of 2010!

Enter the Supreme Judicial Court of Massachusetts!

A View From The Trenches:

The SJC ruled that that the lower court’s finding that the Probationer had violated the terms of his probation was “akin to punishing the defendant for being homeless.” This is not permissible.

This is because we allegedly do not incarcerate people for being poor.

“But, Sam, what about people who get thrown into jail for not being able to pay probation fees, restitution or a plethora of costs ordered by family court?”

Yeah, how about that. However, inconsistency notwithstanding, in this area of the law, at least for today, we do not punish people for being poor.

On the other hand, being poor, even in this regard, can hurt you. For example, if you are trying to get probation (instead of incarceration) and it is clear from the onset that you cannot meet the probation conditions, you are likely not going to get probation. Unfortunately, that, too, is logical.

“Isn’t that punishing someone because they are poor?”

Well, yes, but prosecutors will tell you that getting probation instead of jail is a privilege that one is not necessarily entitled to.”

Yes, that would be a privilege that costs money most often. Keep in mind that in order to get probation, there has to be an admission of wrongdoing, whether it be a plea of guilty or admission to sufficient facts that a jury can find you guilty.

It gets complicated, you see, and the wrong move can cost you alot in terms of money and liberty.

The solution?

Be willing to spend a bit more up front to get an experienced criminal defense attorney who can guide you and get you out of criminal justice quagmire as unscathed as possible. That’s my advice.

But then, I have only been working in the trenches for around a quarter century.

If you would like to discuss such a matter with me, please feel free to call me to arrange a free initial consultation at 617-492-3000 .
To view the original story in which parts of this blog were based, please go to : http://www.boston.com/news/local/massachusetts/articles/2010/12/21/court_homeless_sex_offenders_unable_to_charge_gps/

Contact Information