Wednesday, August 19, 2009

Court strikes down GPS monitoring for earlier sex offender parolees

By Kyle Cheney
State House News Service

STATE HOUSE, BOSTON — The state Parole Board improperly required GPS monitoring bracelets for paroled sex offenders who committed their crimes before a 2006 law passed, the Supreme Judicial Court ruled in a 4-3 decision issued Tuesday. The ruling that could affect state monitoring of several dozen offenders.

The court ruled that a 2006 state law requiring Level 2 sex offenders on parole or probation to wear a GPS device had been unfairly applied to those already on probation at the time the law passed. In a separate but related opinion, the SJC vacated a lower court decision to require a sex offender on probation prior to the law's passage to wear a GPS device. In the latter ruling, the majority, in an opinion by Justice Margot Botsford, argued that retroactively applying GPS monitoring violates the state and federal constitutions.

"[The GPS law] is punitive in effect, and under the ex post facto provisions of the United States and Massachusetts Constitutions, may not be applied to persons who are placed on probation for qualifying sex offenses committed before the statute's effective date," Botsford wrote.

Currently, the state monitors 82 sex offenders with GPS devices. It was unclear how many of the 82 were improperly required to wear the bracelets.

"We're currently assessing the effect," Parole Board Executive Director Donald Giancioppo, in a phone interview. "It's likely there will be cases affected."

Giancioppo said the parole board would examine each monitored parolee on a case-by-case basis to determine "if the GPS condition should be removed to comply with the ruling." The ruling, he noted, only affects parolees who received GPS monitoring conditions as a result of the law, not as a result of a Parole Board vote.

Sex offenders are designated Level 2 when "the risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information," according to the state Sex Offender Registry Board.

The decisions are a victory for a handful of paroled offenders, who had challenged the Parole Board's decision to monitor them in Superior Court. The Superior Court judge denied the offenders' move for an injunction and relief, but the SJC granted a direct appeal. The SJC decision sends the case back to Superior Court, vacating the judge's decision to deny an injunction, and requiring action on the offenders' motion within a month.

The dual decisions - one on a complaint filed by a group of ex-offenders, another on the complaint an individual offender, Russell Cory, who pled guilty in 1997 to indecent assault and battery on a child under 14, as well as rape of a child - conclude that the Legislature's intent in passing the 2006 law was unclear. That lack of clarity - whether the statute was intended purely as a criminal sanction or as a "civil remedy" to provide for public safety - prevents the state from applying the retroactive penalty to parolees.

But dissenting justices Roderick Ireland, Francis Spina and Judith Cowin, said lack of clarity in the legislation should not preclude GPS monitoring.

The Legislature, in 2006, passed the GPS provision as part of a more comprehensive sex crime proposal aimed at allowing victims of sex abuse more time to come forward to authorities. Signed into law by Lt. Gov. Kerry Healey, the statute also prohibits the most egregious sex offenders from living in a nursing or rest home, imposes lifetime parole on serious sex offenders who fail to register, and requires sex offenders living in homeless shelters to update registration information every 45 days, as opposed to the typical 90 days.

In a point-by-point dissent, Ireland argues that the Legislature intended with its 2006 law to apply monitoring to paroled sex offenders, regardless of when they were released, and that the law doesn't rise to the level of a breach of prohibitions on "ex post facto" punishment in the Constitution. Rather, the dissenters argued, the law enhances public safety without adding any undue burden on the parolees.

"Although a probationer may be restricted from some geographic areas related to public safety, the statute does not otherwise prohibit the probationer from going about his or her daily business while on probation," Ireland wrote.

Ireland also disputed concerns that a GPS monitoring device could invite retribution on parolees seen in public.

"Unlike posting information identifying certain sex offenders on the Internet, here, it is not at all certain that the public would know that the reason the offender was wearing the GPS device was because he was a sex offender, if they were to see the device at all," he wrote. "Given that the urgency of the regulatory concern of protecting the public from sex offenders has been found both by the Legislature and this court, and that here, the statute covers sex offenders who have yet to serve their sentences, I conclude that on balance this statute ... does not violate the ex post facto clause."

Both of Gov. Deval Patrick's appointees to the court, Justices Margot Botsford and Ralph Gants, sided with the majority.

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