Divided SJC bars new probation limits on some sex offenders

9-18-2010 Massachusetts:

A divided Supreme Judicial Court ruled today 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 the rules.

The 4-3 ruling came in the case of Ralph W. Goodwin, a Level 3 sex offender convicted of kidnapping and raping a 7-year-old boy in 1990.

Goodwin was released from custody in 2009 after a Superior Court jury concluded he was no longer sexually dangerous. He was ordered to get sex offender counseling and maintain mental health care, but no limits were placed on where he could go, and no judge required a GPS device to be used to monitor him.

The probation department and Middlesex District Attorney Gerard T. Leone Jr., however, wanted Goodwin to wear a GPS and to be banned from playgrounds, schools, and libraries. But a Superior Court judge – and today the majority of the SJC – said that was not legally permissible.

"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,'' Justice Ralph W. Gants wrote for the majority.

He was joined by Chief Justice Margaret H. Marshall and justices Robert Cordy and Margot Botsford.

But Justices Roderick Ireland, Francis X. Spina and Judith Cowin disagreed.

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. ..Source.. Boston.com