7-18-2010 Washington DC:
A federal appeals court today vacated restrictions imposed on a convicted sex offender that required him to keep a daily log of his computer use and to permit the authorities to monitor that use, saying that the trial judge failed to articulate why the limits were necessary for a crime that did not involve the Internet.
The defendant, Aaron Burroughs, a volunteer football coach in Maryland, was convicted on charges of sexually exploiting a minor and was sentenced to about 16 years in federal prison.
But the offense, which involved a 14-year-old girl and prostitution, did not involve the use of a computer and Burroughs has no prior history of illicit computer use, court records show. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit voted 2 - 1 in vacating two computer use restrictions but kept in place a third—the requirement that he inform any potential employer of any computer-related conditions of his supervised release.
The appeals court said the trial judge failed to explain why the government should be allowed to monitor Burroughs’s Internet use and why he should be required to keep a daily log of his computer use. Chief Judge David Sentelle and Judge Thomas said there was a lack of evidence in the record supporting those two conditions. The court remanded for additional proceedings.
“The government argues that these restrictions are related to Burroughs’s conduct because the Internet can be used to arrange sexual encounters with minors and to advertise minors for prostitution,” Griffith wrote. “Of course it can. But from drug dealers and Ponzi schemers and smugglers to stalkers—nearly any criminal can use the Internet to facilitate illegal conduct.”
The appeals court majority said it disagrees that the computer restrictions are “reasonably related” to the sex offenses. Judge Janice Rogers Brown said in dissent that she would have affirmed the district judge's sentence in all respects. The computer restrictions against Burroughs cannot be likened to full computer use bans that the majority points to, Brown said.
“Not knowing the court’s reasons for imposing these conditions, finding the government’s reasons unsupported by the record, and unable to identify any ourselves, we vacate the conditions as plainly out of sync with the relevant factors and remand for further proceedings,” Griffith said.
The court said that if Internet restrictions were appropriate for every defendant convicted of a sex offense against a minor, the federal sentencing guidelines would say as much. ..Source..
July 18, 2010
D.C. Circuit Vacates Sex Offender's Computer Restrictions
May 22, 2010
Sex offender label requires hearing, court rules
5-22-2010 Texas:
AUSTIN — Texas has been unconstitutionally designating some prison inmates as sexual criminals without giving them an appropriate hearing, the 5th Circuit Court of Appeals ruled Friday.
The ruling could affect as many as 6,900 prison inmates who have never been convicted of a sex offense although they may be sexual predators.
The lawsuit was brought by Raul Meza, who was convicted in the 1982 murder of a 9-year old girl. He was released from prison in 1993 under the state’s mandatory supervision law and then re-incarcerated until 2002.
At that time the Board of Pardon’s and Paroles listed Meza as a sex offender, a condition that was rescinded in 2005. Meza was not allowed to see the evidence against him or have a hearing before the board.
"Meza is no longer required to register as a sex offender," the court said.
Meza’s lawsuit
Meza says he cannot get out of incarceration in a Travis County Correctional Complex because the terms of his release require a parole officer to accompany him at all times. He says he has been allowed to leave the jail only twice and that he was denied one job because it was close to a "child safety" zone and on another occasion because he was not allowed to obtain a driver’s license.
The 5th Circuit noted that in previous cases it has ruled that inmates cannot be designated as a sex offender without a due process hearing.
No chance to see records
The 5th Circuit said the state has an interest in rehabilitating sex offenders before they re-enter society, but it said inmates also have a legitimate interest in making certain the record against them is free of errors. But the state at present does not allow inmates to review the record that is used to designate them as sex offenders or to put additional provisions on their parole.
"We conclude that the current procedure provided to parolees who have never been convicted of a sex offense and who face possible sex offender registration and therapy is constitutionally insufficient," the court said.
"In compiling 6,900 parolee packets, human error will inevitably occur and parolees may be falsely accused of sexually deviant behavior," the court said. "By simply granting the parolees the right to review his packet, such human errors could be avoided."
Texas Department of Criminal Justice spokeswoman Michelle Lyons said the agency plans to review the ruling next week with the Texas Attorney General’s Office to see what step to take next.
Meza became a statewide story at the time of his 1993 release in the rape and murder of Kendra Page on a South Austin playground. Parole officers found it difficult to find a home for Meza because one community after another rejected his local release. He eventually ended up back in Austin and had his parole revoked when he broke curfew to leave his mother’s home to buy a pack of cigarettes. ..Source.. R.G. RATCLIFFE
April 24, 2010
Contract To Help Sex Offenders Awarded To Non-Profit They're Forbidden to Enter
Is there anyone within the California Parole-Probation Office capable of doing something right? Worse yet, this contract lasts for three years...4-24-2010 California:
Paroled sex offenders forced into homelessness in San Francisco by Jessica's Law used to have at least one place they could call "home": the day-reporting center for parolees at the Northern California Service League, a non-profit in an alley across from the Hall of Justice. There, they could grab a snack, receive counseling, and charge their Jessica's Law-mandated GPS unit as they must do for two hours each day. Many of the sex offender parolees we wrote about in a December cover story spent hours there daily as an alternative to roaming the streets.
Yet the contract to operate the day reporting center recently expired, and the California Department of Corrections and Rehabilitation recently relocated the service to Walden House, a non-profit providing drug rehab programs at Mission and 15th Streets.
But there's a problem with the new location: Walden House sits across the street from Marshall Elementary School -- and the powers that be have decided that congregating sex offenders a stone's throw from a school is a poor idea. So now, the parole department has told the sex offenders they're out, though all other parolees are still welcome at the center.
That's right, the contract to help the sex offenders was awarded to a place they are now forbidden to enter.
Now some parolees say they simply stay outdoors all day long, charging their GPS units at the bus station, public health clinics, the library or the welfare office.
That's the case of Monroe Jones, a paroled sex offender who used to frequent the Service League. On Friday afternoon he instead sat on a crate on Bluxome Street in SoMa alongside a rolling suitcase of possessions, after having walked to Food Co. to get some lunch.
Jones has been homeless ever since the parole department started enforcing Jessica's Law in 2007, which bans sex offenders from living within 200 feet of a school or park. In dense San Francisco, that means they have to register as transients. State experts have blasted the law as making the public less safe; case workers have even blamed the law for one parolees' recent death.
Jones said he's spent his days for the last two years of homelessness at the Service League. He then spent about 10 days at the new center at Walden House. He loved the change of location at first; there were "thousands of plugs" to charge their GPS units and the place served them three meals a day, including "eggs, pancakes, and sausage" for breakfast. "It was perfect," he said. At first, the sex offenders got instructions to take their smoke breaks on Mission Street in order to stay away from the school on 15th and Capp, Jones says. Then, after a few days, a Walden employee told him and about 10 other paroled sex offenders that the parole department said they had to leave.
Jones and the other parolees walked a block down Mission to the San Fransisco parole office to ask what was going on. He says they spoke with San Francisco parole supervisor Arnel Farnsworth, who didn't know they weren't allowed to be at Walden House. He says Farnsworth left the room to make a phone call, and then came back and said it was true.
Farnsworth declined to comment on this story.
Walden House CEO Vitka Eisen says that CDCR reps should have known about the school's proximity to the non-profit: They toured the facility "to make sure it met specifications" during the bid process, and that "we showed them the community and other programs in proximity."
Obviously they must have seen the big words "Marshall Elementary School" across the street? No?
CDCR spokesman Fred Bridgewater was not familiar with the decision (and says he would have to wait until Monday to get to the bottom of it). Yet he says he can understand the rationale, and stresses that the program serves all types of parolees, not just sex offenders.
"We don't want a large group of sex offenders being right there in close proximity to schools," Farnsworth said. "You'd probably be asking us other questions if a kid was accosted by a parolee attending that location."
Then why award a contract to a place near a school in the first place?
It seems this Kafkaesque situation won't be resolved easily. Walden House's contract lasts three years. "They contracted [the program] at that site, so moving it would require a contract amendment," Eisen says.
She says Walden House isn't necessarily the best provider for sex offenders in the first place. "I believe sex offenders should be in places they can get treatment for sex offending -- that's not our area of expertise. We're substance abuse rehab and mental health providers."
Apparently that statement didn't make it into the contract application. Northern California Service League declined comment for this story. ..Source.. SF Weekly
November 13, 2009
TX- No liability for parole chief
11-13-2009 Texas:
by Mike Ward
Judge repeals jury fine but chides state parole board.
An Austin federal judge has overturned personal damages of $21,250 that a jury had imposed on the chairwoman of the state parole board a month ago, but .the judge did not change the finding that officials violated a paroled convict's constitutional rights by denying him a required hearing for 576 days.
U.S. District Judge Sam Sparks again harshly criticized state parole officials for the way .they classify parolees as sex offenders, including many who have never been convicted of a sex crime.
The Tuesday decision absolves Texas Board of Pardons and Paroles Chairwoman Rissie Owens of personal liability in actions against Ray Curtis Graham and still leaves state taxpayers liable for paying Graham's legal fees, which are estimated at more than $100,000.
In his new order, Sparks wrote that Owens has been aware of problems in the parole system but did nothing until the court ordered her to do so.
"Her inattention is mystifying, and it shows her to be some combination ... of 'indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed,' " Sparks wrote, quoting from another court decision in a related case.
Even so, Sparks said, "her inaction, however abstruse, does not make her personally liable in this case." He left intact the portion of the verdict that determined that Owens and state Parole Director Stuart Jenkins had violated Graham's right to due process. Owens could not be reached for comment.
Graham's lead attorney, Richard Gladden of Denton, said an appeal of Sparks' new order is planned.
"The judge has reached out and found hyper-technical reasons to foreclose the jury verdict," he said. "Maybe he thinks he's scared her enough to make her change her ways in how these cases are handled, but this order is definitely an about-face from the verdict."
Graham had sued the parole board after he was classified as a sex offender in December 2007 though he was never convicted of a sex crime. He was arrested on aggravated rape charges in the 1980s, and parole officials used that as a basis for classifying him as a sex offender five years after he had been released on parole.
Graham said he was never allowed to review evidence against him before the parole board made its decision in December 2007, despite several federal court orders requiring such hearings. The jury verdict on Oct. 8 came after an unusually contentious, high-profile trial, during which Sparks had declared a mistrial and fined an assistant attorney general for disregarding his warnings about making prejudicial comments in front of jurors.
Spark's new order continued his earlier harsh criticism of the parole process.
"The Board as a whole seems to regard the procedural due process rights at issue ... as annoying pests that plague and torment it through no fault of its own," Sparks wrote in his 32-page order made public Thursday. ..Source..
August 18, 2009
MA- A split SJC says 2006 law violates rights of some sex offenders
8-18-2009 Massachusetts:
A bitterly divided Supreme Judicial Court ruled today that sex offenders convicted before 2006 cannot be forced to wear GPS devices if they violate probation or parole because it creates an unconstitutional burden on their freedom.
In a 4-3 decision, the majority said a 2006 law that requires GPS devices to be installed on all sex offenders placed on probation cannot apply retroactively.
Ruling in the case of a Bristol County man convicted in 1997, the majority said concerns about public safety must give way to constitutional protections against government intrusion into the lives of citizens, including sex offenders.
“The GPS device burdens liberty in two ways: by its permanent, physical attachment to the offender, and by its continuous surveillance of the offender's activities,’’ Justice Margot Botsford wrote for the majority.
“We conclude that, as a result of the substantial burden on liberty [the 2006 law] imposes as part of the sentence for certain crimes, the statute is punitive in effect,’’ Botsford wrote. “And because [the 2006 law] operates retroactively with respect to the defendant, its application to him is impermissible under the ex post facto provisions of the United States and Massachusetts Constitutions.’’
Joining Botsford in tossing out the retroactive application of the law were Chief Justice Margaret H. Marshall and Justices Robert J. Cordy and Ralph D. Gants.
In the dissent, Justices Roderick L. Ireland, Judith A. Cowin, and Francis X. Spina said the use of GPS monitoring on probationers and parolees was a legally justified way to protect the public.
“This court has stated that recidivism among sex offenders is high and protection of the public a compelling state interest,’’ Ireland wrote. “This statute establishes a nonpunitive regime to protect the public.’’
The ruling came in an appeal by Russell M. Cory, who plead guilty in Bristol Superior Court to indecent assault and battery on a child on Dec. 3, 1997, and was imprisoned for several years – and sentenced to 25 years probation. He was released from prison in May 2006, but failed to attend mandatory treatment and counseling sessions, the court said.
Just weeks after the 2006 law took effect, Cory was found in violation of probation and was placed on the GPS. According to the SJC, Cory has since been sent back to prison. Cory is a Level 3 sex offender, according to the Sex Offender Registry Board.
Cory’s attorney, Theodore F. Riordan of Quincy, applauded the majority’s conclusion in a telephone interview today. “it’s a well-written decision,’’ he said.
Riordan noted that the ban on retroactive punishments is part of the Bill of Rights and was included in the Massachusetts Declaration of Rights earlier.
“It’s really the people triumphing here,’’ he said. “The ex post facto clause is working exactly like it should.’’
Riordan said being forced to wear a GPS device is a burden, both emotionally and physically for Cory.
“It’s a big deal to wear a GPS device. It’s attached to you all the time,’’ he said. “It’s unseemly to walk around with. It’s kind of like a Scarlet Letter. It made him feel like he had to stay in his house all the time. It’s not an insignificant issue.’’
In a companion case involving state parolees, the SJC applied its new thinking and barred the state Parole Board from using GPS devices on parolees whose convictions predated 2006.
“The language in the two statutes is substantially identical,’’ the court said in an unsigned opinion. “Application of the statute to [parolees] in this case is impermissible.’’
In a statement, the Massachusetts Parole Board said a total of 82 paroled sex offenders are currently required to wear GPS devices. The agency said it will now review those cases to determine how many are directly affected by the judicial ban.
The court said it was not taking a position on the legality of the law when applied against people convicted after Dec. 21, 2006. ..Source.. by John R. Ellement, Globe Staff
COMMONWEALTH vs. Russell M. CORY.
SJC-10314
January 8, 2009. - August 18, 2009.
Sex Offender. Sex Offender Registration and Community Notification Act. Global Positioning System Device. Practice, Civil, Sex offender. Constitutional Law, Ex post facto law, Sex offender. Due Process of Law, Sex offender. Statute, Retrospective statute, Construction. Words, "Is placed on probation."
INDICTMENTS found and returned in the Superior Court Department on January 16, 1997.
A proceeding for revocation of probation was heard by Robert J. Kane, J.
The Supreme Judicial Court granted an application for direct appellate review.
Theodore F. Riordan (Deborah Bates Riordan with him) for the defendant.
M. Catherine Huddleson, Special Assistant District Attorney, for the Commonwealth.
Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ.
BOTSFORD, J.
General Laws c. 265, § 47, inserted by St.2006, c. 308, § 8 (§ 47), requires any person who is "placed on probation" after conviction of a designated sex offense to wear a global positioning system (GPS) tracking device for the duration of his or her probation. [FN1] In March, 2008, a judge in the Superior Court ruled that this statute applied to the defendant, and entered an order modifying the terms of the defendant's probationary sentence to require that he wear a GPS device during his probation. The defendant appealed, and we granted his application for direct appellate review. We conclude that G.L. c. 265, § 47, by its terms applies to the defendant, because he was "placed on" postconviction probation following the statute's effective date of December 20, 2006. We further conclude, however, that G.L. c. 265, § 47, 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. [FN2] Because the defendant committed and was convicted of his qualifying sex offense before § 47 was enacted, the statute may not be applied to him. We therefore vacate the order of the Superior Court judge and remand for further proceedings. [FN3]
Facts and background. We recite the essential facts reflected in the record, which are not disputed. On December 3, 1997, the defendant pleaded guilty in the Superior Court to a charge of indecent assault and battery on a child under fourteen, G.L. c. 265, § 13B, and was sentenced to twenty-five years' probation. The defendant also pleaded guilty to a charge of rape of a child, G.L. c. 265, § 23, for which he was sentenced to a term of from seven to ten years in State prison. [FN4] In May of 2006, the defendant was released on parole, but because he was also serving his probationary sentence, the probation department assumed responsibility for his supervision beginning in July of 2006. On October 19, 2006, a probation surrender notice issued to the defendant, alleging that he had violated several conditions of his probation that required him to attend counselling and treatment programs. On December 20, 2006, G.L. c. 265, § 47, took effect. See St.2006, c. 303, § 8. On January 5, 2007, a Superior Court judge (first Superior Court judge) held a probation revocation hearing, and found the defendant to be in violation of his probation. That probation was revoked and the judge sentenced the defendant to two and one-half years in a house of correction, with one year to serve and the balance suspended for six years, with the defendant to be on probation during the suspended portion of the sentence. Although § 47 was then in effect, the judge did not order the defendant to wear a GPS tracking device as a condition of this probation, and there was no mention of § 47 at the revocation hearing.
Subsequently, the probation department requested that the conditions of the defendant's probation ordered on January 5, 2007, be amended to include a requirement that the defendant wear a GPS device, pursuant to § 47. A hearing was held on February 22, 2008, before a second Superior Court judge. The judge concluded that § 47 applies to sex offenders who commence a term of probation after the statute's effective date. He further concluded that because, in his view, the "commencement of probation is the triggering event," the statute was not impermissibly retroactive as applied to the defendant, whose current probationary term did not begin until after § 47 became effective. Accordingly, the second judge ordered that the defendant be required to be monitored by the probation department with a GPS tracking device during his probationary term "in accordance with" § 47.
Discussion. The defendant's appeal from the judge's order focuses entirely on § 47. He claims that the statute does not apply to him because he was "placed on probation" when he was originally sentenced to probation in 1997, long before the statute's effective date. His primary argument, however, is that, in any event, § 47 cannot be applied to him, because in the circumstances of his case, § 47 operates as an unconstitutional ex post facto law. [FN5]
1. Does § 47 apply to the defendant? Section 47 states in relevant part:
"Any person who is placed on probation for any offense listed within the definition of 'sex offense', a 'sex offense involving a child' or a 'sexually violent offense', as defined in [G.L. c. 6, § 178C], shall, as a requirement of any term of probation, wear a global positioning system device, or any comparable device, administered by the commissioner of probation, at all times for the length of his probation for any such offense. The commissioner of probation, in addition to any other conditions, shall establish defined geographic exclusion zones including, but not limited to, the areas in and around the victim's residence, place of employment and school and other areas defined to minimize the probationer's contact with children, if applicable. If the probationer enters an excluded zone, as defined by the terms of his probation, the probationer's location data shall be immediately transmitted to the police department in the municipality wherein the violation occurred and the commissioner of probation.... If the commissioner or the probationer's probation officer has probable cause to believe that the probationer has violated this term of his probation, the commissioner or the probationer's probation officer shall arrest the probationer pursuant to [G.L. c. 279, § 3]. Otherwise, the commissioner shall cause a notice of surrender to be issued to such probationer." (Emphasis added.)
At issue is the meaning of the phrase, "is placed on probation."
In seeking to interpret a statute, the starting point is its language. Commonwealth v. Welch, 444 Mass. 80, 85 (2005). Because the Legislature used the present tense verb "is placed" before the word "probation," we conclude that § 47 by its strict terms applies to sex offenders who are convicted of designated or qualifying sex offenses and who are sentenced to probation after the effective date of the statute, regardless of whether the crimes at issue were committed before or after the statute's effective date.
[FN6] The statute applies to the defendant in this case, because he was "placed on probation" on January 5, 2007--the date the first Superior Court judge found him in violation of his previous probationary sentence, revoked that probation, and imposed the new sentence with a new probationary term of six years. [FN7]
2. Is § 47 an ex post facto law? Because we conclude that § 47 applies to the defendant, we must consider the defendant's claim that as so applied, the statute is an unconstitutional ex post facto law. [FN8] An ex post facto law is, in this context, one that "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Commonwealth v. Bargeron, 402 Mass. 589, 590 (1988), quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). [FN9] "To prevail on this sort of ex post facto claim, [the defendant] must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted." Johnson v. United States, 529 U.S. 694, 699 (2000). See Miller v. Florida, 482 U.S. 423, 430 (1987), quoting Weaver v. Graham, 450 U.S. 24, 31 (1981) ("A law is retrospective if it 'changes the legal consequences of acts completed before its effective date' ").
The defendant received his most recent probationary sentence--and the GPS monitoring requirement imposed under § 47 as a term of that probation--as a consequence of the violation of his prior probation. Penalties for violation of the terms of supervised release, including the penalty of additional supervised release, are attributed to the original conviction rather than to the violation. Johnson v. United States, supra at 700-701. Cf. Krochta v. Commonwealth, 429 Mass. 711, 714 (1999) ("[probation] revocation does not punish the defendant for any crime charged subsequent to the imposition of probation"). Thus, because the probationary sentence the defendant received in 2007 relates back to a criminal offense he committed in or before 1997 (when he was originally convicted), § 47 has a retrospective application to him. It is necessary, therefore, to consider whether § 47 constitutes punishment, or, what is to the same effect, is penal. See Opinion of the Justices, 423 Mass. 1201, 1225 (1996).
This consideration involves a two-part inquiry. First, we must try to discern whether the Legislature explicitly or implicitly intended to denominate the statute a civil remedy or criminal penalty. See Smith v. Doe, 538 U.S. 84, 93 (2003), quoting Hudson v. United States, 522 U.S. 93, 99 (1997) ("The courts 'must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other' "). See also Commonwealth v. Bruno, 432 Mass. 489, 500 (2000) (Bruno ) ("Whether a statute was intended to be criminal or civil depends on the Legislature's intent, which is a matter of statutory construction"). If the Legislature intended to denominate the statute as criminal, that ends the inquiry. If, however, the Legislature evinced an intent that the statute be civil, the second part of the inquiry comes into play: is the statutory scheme " 'so punitive either in purpose or effect as to negate [the State's] intention' to deem it 'civil.' " Smith v. Doe, supra at 92, quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997). In such circumstances--i.e., where there is an evident legislative intent to create a civil regime--the party challenging the statute carries a very heavy burden to show that the statute is punitive in one of these ways. Smith v. Doe, supra.
For the first part of this inquiry, which focuses on legislative intent, examination of the statute's text and structure is key. Id. Courts have identified certain factors of text and structure that may signal an intent to create a civil or regulatory scheme. See, e.g., id. at 93-96 (looking to explicit statement of civil intent contained in statute; statute's lack of safeguards associated with criminal process; placement of statute within civil or criminal code); Kansas v. Hendricks, 521 U.S. at 361 (looking to statute's placement in probate, rather than criminal, code; statute's denomination as "civil commitment procedure"); Bruno, 432 Mass. at 500 (looking to denomination of "civil commitment"; placement in public welfare chapters; statute's title, "Care, Treatment and Rehabilitation of Sexually Dangerous Persons"; stated purposes of "protect[ing] forthwith the vulnerable members of our communities from sexual offenders" and "care, custody, treatment and rehabilitation" of offenders).
Section 47 contains not one of these recognized indicators that the Legislature intended a civil categorization: it has no statement of civil intent in its preamble, title, or text; it is imposed only in the criminal context, when an offender is sentenced to probation; and it is placed in a criminal code (G.L. c. 265, "Crimes Against the Person"). Moreover, the structure of the statute suggests a penal or punitive intent: the GPS requirement must be uniformly imposed on every defendant sentenced to probation for certain sex offenses, and for precisely the period of his or her probationary sentence, without regard to present dangerousness, and even if there are no exclusion zones that can reasonably be applied to the defendant. [FN10], [FN11] It bears emphasis as well that probation itself serves as a disposition of and punishment for a crime; it is not a civil program or sanction. See Commonwealth v. Power, 420 Mass. 410, 414-415 (1995), cert. denied, 516 U.S. 1042 (1996); Commonwealth v. Durling, 407 Mass. 108, 111 (1990). Cf. MacLean v. State Bd. of Retirement, 432 Mass. 339, 343-344, 348 (2000).
Text and structure may thus suggest in some respects a criminal intent, but § 47 is not without indications of civil intent as well. The statute imposes a condition of probation, and while probation is a type of criminal sentence with goals that include punishment, deterrence, and retribution, "[t]he primary goals of a probationary sentence are rehabilitation of the probationer and protection of the public." Commonwealth v. Power, 420 Mass. at 414. Rehabilitation and public protection may suggest more of a civil than a criminal orientation. [FN12] In any event, the text of § 47 being silent as to the statute's intended categorization as criminal or civil, we conclude that consideration of the Legislature's intent by itself does not offer a clear guide in this case. Cf. Smith v. Doe, 538 U.S. at 110 (Souter, J., concurring in judgment) (concluding that indications whether Alaska's sex offender registration law was civil or punitive were "in rough equipoise"); id. at 114-115, 116-118 (Ginsburg, J., dissenting) (agreeing with Justice Souter that whether Alaska's registration law was intended to be regulatory or penal was "unclear"). Accordingly, we consider the punitive effects of § 47 on sex offenders serving probationary sentences. Because this is not a case where we are asked to "reject the legislature's manifest intent," Kansas v. Hendricks, 521 U.S. 346, 361 (1997), or " 'negate [the State's] intention' to deem [the statutory scheme] 'civil,' " Smith v. Doe, supra at 92, quoting Kansas v. Hendricks, supra, we evaluate the punitive effects of the GPS requirement without placing a heightened burden on the defendant. See Smith v. Doe, supra at 107 (Souter, J., concurring in judgment); id. at 115 (Ginsburg, J., dissenting), citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963). Cf. Doe v. State, 189 P.3d 999, 1008 n. 62 (Alaska 2008) ("imposing a heightened presumption requiring 'clearest proof' of punitive effect could threaten rights protected by the Alaska Constitution and might be inconsistent with the responsibilities of this court").
In Smith v. Doe, supra, the Supreme Court, in analyzing the Alaska sex offender registration law, referred to the seven factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. at 168-169 (Mendoza-Martinez factors), as "useful guideposts" in determining whether a sanction is punitive in effect. Smith v. Doe, 538 U.S. at 97, quoting Hudson v. United States, 522 U.S. 93, 99 (1997). See Powers v. Commonwealth, 426 Mass. 534, 539 & n. 9 (1998) (acknowledging, although not fully applying, Mendoza-Martinez factors). Cf. Bruno, 432 Mass. at 502 n. 12. The seven factors or guideposts are:
(1) "whether the behavior to which [the sanction] applies is already a crime";
(2) "whether it comes into play only on a finding of scienter";
(3) "[w]hether the sanction involves an affirmative disability or restraint";
(4) "whether its operation will promote the traditional aims of punishment--retribution and deterrence";
(5) "whether it has historically been regarded as a punishment";
(6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and
(7) "whether it appears excessive in relation to the alternative purpose assigned."
Kennedy v. Mendoza-Martinez, 372 U.S. at 168-169. [FN13], [FN14]
The first four of these factors by themselves establish that the GPS requirement has a pronounced punitive effect. The first and second ask whether the sanction "comes into play only on a finding of scienter" and "whether the behavior to which it applies is already a crime"--questions that together consider whether the sanction is administered as a criminal penalty, that is, in response to criminal conduct. In imposing GPS monitoring as a mandatory condition of a probationary sentence for convicted sex offenders, § 47 more than meets this standard. The GPS requirement applies only to those persons who commit and are convicted of certain crimes; it applies to every person who is convicted of those crimes and receives a probationary term as part of the criminal proceeding's disposition; and it applies for the precise duration of the probationary sentence imposed. [FN15] A sanction bearing these qualities, if it also imposes a significant limitation on liberty, carries a strong presumption of punishment. [FN16] See Smith v. Doe, 538 U.S. at 112 (Stevens, J., dissenting); id. at 115-116 (Ginsburg, J., dissenting) (sanctions were punitive where requirements were "comparable to conditions of supervised release or parole," and triggered by past crime alone rather than current dangerousness).
Limitation or burden on liberty is the subject of the third Mendoza-Martinez factor, which asks "[w]hether the sanction involves an affirmative disability or restraint." The GPS device burdens liberty in two ways: by its permanent, physical attachment to the offender, and by its continuous surveillance of the offender's activities. As to the permanent, physical attachment to the offender, our observations about the Commonwealth's statutory sex offender registration system is instructive. We have said that the registration requirement "presents an 'importantly distinct kind of constitutional danger,' because it 'forces an action on the person required to register. It is a continuing, intrusive, and humiliating regulation of the person himself.' " Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 792 (2008), quoting Doe v. Attorney Gen., 426 Mass. 136, 149 (1997) (Fried, J., concurring). As "continuing, intrusive, and humiliating" as a yearly registration requirement might be, a requirement permanently to attach a GPS device seems dramatically more intrusive and burdensome. There is no context other than punishment in which the State physically attaches an item to a person, without consent and also without consideration of individual circumstances, that must remain attached for a period of years [FN17] and may not be tampered with or removed on penalty of imprisonment. Such an imposition is a serious, affirmative restraint. [FN18]
The intended function of the GPS device, continuous reporting of the offender's location to the probation department, also represents an affirmative burden on liberty. While GPS monitoring does not rise to the same level of intrusive regulation that having a personal guard constantly and physically present would impose, it is certainly far greater than that associated with traditional monitoring. [FN19] And the impact of such intrusion is of course heightened by the physical attachment of the GPS bracelet, which serves as a continual reminder of the State's oversight.
The GPS requirement thus places significant restraints on offenders. While these liberty burdens, as is true of probation generally, may serve a goal of rehabilitation, the GPS requirement and its burdens--again like probation generally--also satisfy the fourth Mendoza-Martinez factor, by "promot[ing] the traditional aims of punishment--retribution and deterrence." Kennedy v. Mendoza-Martinez, 372 U.S. at 168. See Commonwealth v. Power, 420 Mass. at 415.
We briefly discuss the remaining three Mendoza-Martinez factors. The fifth factor asks "whether [the sanction] has historically been regarded as a punishment." While there is no historical version of the GPS device (it is not the same as a ball and chain, for example, any more than it is the same as a weekly reporting requirement to the probation department), there are many historical cases where those convicted of a crime were required to wear some item for the length of their sentence, or suffer some long-term modification to their bodies. Such requirements are consistently viewed as punitive.
The final two Mendoza-Martinez factors are respectively "whether an alternative purpose to which [the sanction] may rationally be connected is assignable for it"; and "whether [the sanction] appears excessive in relation to the alternative purpose assigned." The GPS requirement, with its instruction to designate exclusionary zones that are off limits to the sex offender, supports the rational purpose of keeping offenders away from their past victims, and more generally, the purpose of limiting opportunities for reoffense. The sanction appears excessive, however, to the extent that it applies without exception to convicted sex offenders sentenced to a probationary term, regardless of any individualized determination of their dangerousness or risk of reoffense. See Smith v. Doe, 538 U.S. at 116-117 (Ginsburg, J., dissenting) (sanction excessive in relation to nonpunitive purpose, where keyed to offense rather than offender's particularized risk of reoffense).
Weighing these factors together, we conclude that, as a result of the substantial burden on liberty § 47 imposes as part of the sentence for certain crimes, the statute is punitive in effect. And because § 47 operates retroactively with respect to the defendant, its application to him is impermissible under the ex post facto provisions of the United States and Massachusetts Constitutions.
The fact that sentencing judges prior to the enactment of § 47 had the discretionary power to impose GPS monitoring as a condition of probation does not affect our analysis. It was settled long before § 47 was enacted that "[j]udges are permitted 'great latitude' in imposing conditions of probation...." Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001), quoting Commonwealth v. Pike, 428 Mass. 393, 402 (1998). A judge therefore does not implicate ex post facto provisions by exercising that discretionary power in an individual case. Cf. Buckley v. Quincy Div. of the Dist. Court Dep't, 395 Mass. 815, 818 (1985), quoting Commonwealth v. McGovern, 183 Mass. 238, 240 (1903) ("terms and conditions [of probation] may be subject to modification from time to time as a proper regard for the welfare, not only of the defendant but of the community, may require"). It is, however, quite a different matter for the Legislature to remove discretion from the judge by imposing a greater minimum punishment than the crime previously required; such a law may only be applied prospectively. See Lindsey v. Washington, 301 U.S. 397, 400-402 (1937) (ex post facto clause barred application of amended law that changed discretionary maximum sentence of fifteen years to mandatory fifteen-year sentence to defendant who committed crime before effective date of law's modification); Commonwealth v. Davis, 380 Mass. 1, 15 (1980) ( "legislation which would have the effect of changing a discretionary sentence to a mandatory one could not be validly enforced with respect to crimes antedating the law"). See also Miller v. Florida, 482 U.S. 423, 432-433 (1987) (application of new presumptive sentencing guidelines violated ex post facto clause, even though defendant could have received same sentence under old guidelines).
Conclusion. The order of the Superior Court requiring the defendant to be monitored by the probation department with a GPS tracking device during his probationary term is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
So ordered.
IRELAND, J. (dissenting, with whom Spina and Cowin, JJ., join).
I agree with the court that the defendant was sentenced to probation after the effective date of the statute, G.L. c. 265, § 47, inserted by St.2006, c. 308, § 8(Act). [FN1] Ante at,--. I write separately because I disagree with the court's conclusion that the statute should be deemed penal and therefore, it would be a violation of the ex post facto clause to apply it to this defendant, who was convicted of committing a sex offense before the statute's enactment. Ante at ----.
As the court notes, in determining whether a statute constitutes an ex post facto law, we must discern whether the Legislature intended the statute to be a civil remedy or a criminal penalty. Ante at. In its analysis, the court concludes, ante at--, that it is not clear whether the Legislature intended the statute to be criminal or civil and, therefore, the defendant should be relieved of his burden to provide " 'the clearest proof' that 'the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention' to deem it 'civil.' " Commonwealth v. Bruno, 432 Mass. 489, 500 (2000), quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997). Although I agree with the court that the Act creating the statute contains both civil and criminal elements, I do not agree that the legislative intent is so unclear that we cannot conclude that the intent was regulatory and remedial.
General Laws c. 265, § 47, concerns a term of probation. The principal goals of probation itself are the rehabilitation of the probationer and the protection of the public. Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001), citing Commonwealth v. Pike, 428 Mass. 393, 403 (1998). An important aspect of the statute is that it does not apply to all probationers, but only to those who have committed certain sex offenses, as defined in the sex offender registration law, G.L. c. 6, §§ 178C-178Q. Both the Legislature and this court have recognized that sex offenders present a serious threat to the public and have a high rate of recidivism. Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 789 (2008); Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 769 (2006); Coe v. Sex Offender Registry Bd., 442 Mass. 250, 258-260 (2004); Commonwealth v. Knapp, 441 Mass. 157, 159, 164 (2004). Determining the most effective way to control problems affecting public safety is left to the Legislature. Luk v. Commonwealth, 421 Mass. 415, 429 (1995).
Although it is true, as the court states, ante at, that the statute lacks a statement of civil intent, is imposed only in the criminal context, is placed in the criminal code, and is uniformly imposed on every defendant who is placed on probation for certain sex offenses, I conclude that these elements alone are not dispositive of whether the Legislature's intent is so "unclear" as to relieve the defendant of his burden.
That a statute "may be 'tied to criminal activity' is 'insufficient to render the statute punitive.' " Commonwealth v. Bruno, supra at 501, quoting Kansas v. Hendricks, supra at 362. The location and labels of a statute do not by themselves transform a civil remedy into a criminal one. Smith v. Doe, 538 U.S. 84, 94 (2003) (Smith ). Even if the objective of a statute is consistent with the purposes of a State's criminal justice system, "the State's pursuit of it in a regulatory scheme does not make the objective punitive." Id. In addition, a legislative restriction that is incident to the State's power to protect the public will be considered regulatory rather than punitive. Smith, supra at 93-94, quoting Flemming v. Nestor, 363 U.S. 603, 616 (1960). Protecting the public from sex offenders is a nonpunitive objective. Smith, supra at 102-103.
Here, even though the location of the Act under which this statute falls is the criminal code and the Act's title, "An Act increasing the statute of limitations for sexual crimes against children" could be read as criminal, one provision establishes criminal penalties for level three sex offenders who knowingly and willingly establish residence in certain convalescent or nursing homes or facilities for the mentally retarded concerns a statute of limitations. One provision concerns a statute of limitations. See respectively St.2006, c. 303, §§ 6 and 9. Four provisions can be read as regulatory rather than criminal. See St.2006, c. 303, §§ 1, 2, 3, and 10 (reducing the number of days for certain sex offender classification and registration requirements; raising a fee). One section (§ 5) mandates deleting a subsection of G.L. c. 178H, § 3, concerning registration by homeless persons, and arguably is administrative in nature. The remaining three sections concern community parole supervision (§ 4) and GPS monitoring for parolees and probationers (§§ 7 & 8) which are tied, at least in part to the offender's victims.
The Act's title references children. General Laws c. 265, § 47, itself (§ 8 of the Act), ties the global positioning system (GPS) requirement to the offender's victim by stating that the Commissioner of Probation must establish "geographic exclusion zones" that must include the "victim's residence, place of employment, school and other areas defined to minimize the probationer's contact with children, if applicable." This language clearly indicates that the Legislature's concern was protection of the victim. Moreover, although it does not have its own statement of civil intent, the statute references G.L. c. 6, § 178C, for the definitions of sex offenders who fall under its purview. The preamble to the sex offender registry statute states that the statute's purpose is to protect the public. St.1999, c. 74, preamble & § 1. This court has found that purpose to be remedial. Doe v. Attorney Gen., 430 Mass. 155, 166, 168 (1999). The presumption that the Legislature is aware of the content of other statutes holds particularly true of statutes the Legislature specifically references. See Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008); Suliveres v. Commonwealth, 449 Mass. 112, 116 (2007), citing Commonwealth v. Callahan, 440 Mass. 436, 440-441 (2003).
In addition, other laws that establish regulations for sex offenders who have finished serving their sentences have been deemed to be remedial, including the confinement of those persons determined to be sexually dangerous. Commonwealth v. Bruno, 432 Mass. 489, 501-502 (2000) (commitment of sexually dangerous persons remedial). See, e.g., Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787-789 (2008) (noting that sex offender registry laws are generally regulatory); Coe v. Sex Offender Registry Bd., 442 Mass. 250, 259-260 (2004), citing Smith, supra at 105 (posting information concerning level three sex offenders on Internet nonpunitive); Opinion of the Justices, 423 Mass. 1201, 1227 (1996) (proposed community notification of sex offender information regulatory and remedial).
Moreover, I do not agree with the court's conclusion that, because the statute applies to all sex offender probationers without regard to individual dangerousness, the statute is therefore criminal. Ante at. "The State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make a statute punitive under the Ex Post Facto Clause." Smith, supra at 104. [FN2] "The risk of recidivism posed by sex offenders is 'frightening and high"; "[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." Id. at 103, quoting McKune v. Lile, 536 U.S. 24, 33, 34 (2002). Here, therefore, the Legislature could decide that, of all probationers, those convicted of sex offenses have a substantial risk of recidivism and, accordingly, mandate the use of a tool that assists law enforcement in protecting the public while the offender is completing his sentence. Smith, supra at 103. Moreover, the Court has upheld other laws without a corresponding risk assessment. Smith, supra at 104, citing Hawker v. New York, 170 U.S. 189, 197 (1898), and De Veau v. Braisted, 363 U.S. 144, 160 (1960).
I conclude that the legislative intent was to establish a regulatory rather than criminal regime and I would not relieve the defendant of his burden to show that the statute is so punitive as to be penal. However, even assuming the Legislature's intent is not clear, I conclude that, on balance, this statute establishes a nonpunitive regime to protect the public.
This court's analysis of the ex post facto clause has been identical to that of the United States Supreme Court. Commonwealth v. Bruno, 432 Mass. 489, 492 n. 4 (2000). The Supreme Court has stated that, where there is no conclusive evidence of legislative intent, courts should analyze the statute on its face using the seven factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963). However, absent an express showing of an intent to punish, the determination whether a statute is so punitive in purpose and effect that it negates any remedial purpose, turns on the last two Mendoza-Martinez factors, whether the statute is rationally related to a purpose other than punishment and whether the effects are excessive in relation to that purpose. See Schall v. Martin, 467 U.S. 253, 269 (1984), quoting Kennedy v. Mendoza-Martinez, supra; Bell v. Wolfish, 441 U.S. 520, 538 (1979). See also Smith, supra at 102-103 (stating that "most significant" factor in determining that Alaska's sex offender registration statute was not an ex post facto law, was its rational connection to the nonpunitive purpose of protecting the public from sex offenders).
Furthermore, this court has noted that, although the Mendoza-Martinez factors can be useful guidelines, without weight and priorities assigned to them, there are risks that the factors will be unmanageable for their "indefiniteness." Opinion of the Justices, 423 Mass. 1201, 1222 (1996). The court also noted, however, that it considered that the more harshly a statute bears on an individual, the more closely it resembles a criminal sanction and the more urgent the regulatory concern and the more soundly the statute is rooted in fact and not conjecture, the more regulatory the aim. Id. at 1224.
Although our analysis of the ex post facto clause is identical to that of the Supreme Court, here, relying on dissenting opinions in Smith, this court concludes that the finding of scienter and whether the behavior to which the statute applies is a crime, weigh heavily in favor a determination of punitive effect. Ante at. However, in the Smith case, the majority stated that its assessment of Alaska's sex offender registration law was not aided by these two factors because the scheme applied to past conduct that was and is a crime. Smith, supra at 105. In any event, I conclude that the statute does not create culpability for prior conduct; nor requires a finding of scienter to subject a person to the statute's terms.
The determination whether the statute is an affirmative restraint, must be made in the context that all probation has a supervisory element to ensure that the probationer abides by its terms. Commonwealth v. Taylor, 428 Mass. 623, 626 (1999). In any event, restraint is not automatically punitive, and even nonpunitive confinement to protect the public is a nonpunitive, legitimate government objective. Kansas v. Hendricks, 521 U.S. 346, 363 (1997). Indeed, the Court has upheld pretrial confinement as nonpunitive, where the objective was to ensure that a potentially dangerous defendant appeared for trial. See Schall v. Martin, supra at 272-274; Bell v. Wolfish, supra at 536-537 (restraint not necessarily punitive).
Here, the probationer must wear the device only during the term of his probation, a condition that is limited in duration and which already has restrictions that are related to the supervisory responsibility of the probation department. [FN3] See Commonwealth v. Durling, 407 Mass. 108, 111 (1990). 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. Moreover, although entrance into an exclusion zone is a violation of probation, it is not a crime. See Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006).
Concerning whether the statute promotes the traditional aims of punishment, retribution, and deterrence, the statute would function as a deterrent. However, statutes that have a deterrent or retributive effect may be regulatory and burdens on the defendant that result from their imposition "only violate the ex post facto clauses ... if they must be deemed punishment." Opinion of the Justices, supra at 1226. Virtually all civil regimes have some deterrent effect. Id. at 1222-1223, citing United States v. Ursery, 518 U.S. 267, 284-285 n. 2 (1996). "To hold that the mere presence of a deterrent purpose renders such sanctions 'criminal' ... would severely undermine the Government's ability to engage in effective regulation." Smith, supra at 102, quoting Hudson v. United States, 522 U.S. 93, 105 (1997).
It is true, as the court points out, ante at n. 18, that the GPS device could be seen by the public, [FN4] and retribution could be visited on the probationer. However, retribution must be the purpose of the statute in order for it to be deemed punitive. Opinion of the Justices, supra at 1227. We have held that posting information about level three sex offenders on the Internet, although it could invite retribution, served a public safety goal and was not punitive. Coe v. Sex Offender Registry Bd., 442 Mass. 250, 259- 261 & n. 9 (2004), citing Smith, supra at 91, 105 (actual audience are those who would be the offenders' potential victims). 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. See generally Commonwealth v. Donohue, 452 Mass. 256, 257, 269 (2008) (sheriff has authority to discharge or parole prisoners in special program where they wear GPS device); Commonwealth v. Morasse, 446 Mass. 113, 113-114 (2006) (GPS used for pretrial home confinement of defendant indicted on various charges). Commonwealth v. Hector H., 69 Mass.App.Ct. 43, 44 (2007) (juvenile found delinquent by reason of trespassing placed on probation with electronic monitoring for one year). [FN5]
Turning now to the most important of the Mendoza-Martinez factors, I agree with the court that the "GPS requirement, with its instruction to designate exclusionary zones that are off limits to the sex offender, supports the rational purpose of keeping offenders away from their past victims, and more generally the purpose of limiting opportunities for reoffense." Ante at--. However, I do not agree with the court's conclusion that because it applies, without exception, to convicted sex offenders without regard to whether they are individually dangerous, the burden on the probationer is excessive in relation to the purpose of protecting the public. Ante at, citing Smith, supra at 116-117 (Ginsburg, J., dissenting). As discussed, the majority in the Smith case stated that to treat sex offenders as a class does not make it punitive where it is rational to conclude that there is a high rate of recidivism among sex offenders. Smith, supra at 103-104. This court has stated that recidivism among sex offenders is high and protection of the public a compelling State interest. See Coe v. Sex Offender Registry Bd., 442 Mass. 250, 259-260 (2004); Commonwealth v. Knapp, 441 Mass. 157, 159, 164 (2004). See also Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 789 (2008); Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 769 (2006). Moreover, "[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aim it seeks to advance ... [unless] the nonpunitive purpose is a 'sham or mere pretext.' " Smith supra at 103, quoting Kansas v. Hendricks, 521 U.S. 346, 371 (1997) (Kennedy, J., concurring). Here, there is no evidence of sham or pretext. See Luk v. Commonwealth, 421 Mass. 415, 422 (1995) (sanctions are punitive only if they cannot be explained by nonpunitive purpose).
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 is regulatory, despite the burdens on the sex offender probationer, and thus does not violate the ex post facto clause. See Opinion of the Justices, supra at 1223-1224 (court should weigh statute's harshness on individual against urgency of regulatory concern).
[FN6]
FN1. "A GPS [global positioning system] device, as implemented by the Commissioner of Probation ... consists of two pieces of electronic equipment: an ankle bracelet, which is permanently attached to the probationer, and a GPS-enabled cellular telephone, which communicates with the ankle bracelet and transmits the probationer's current location to the probation department." Commonwealth v. Raposo, 453 Mass. 739, 740 (2009).
FN2. The defendant does not challenge prospective application of G.L. c. 265, § 47, and so we do not consider the constitutionality of the statute as prospectively applied.
FN3. The judge's order may be moot. The Commonwealth reports that, since this case was argued, the defendant was found to be in violation of his probation, based in part on failure to comply with GPS monitoring requirements and in part on failure to undergo a required mental health evaluation, and was sentenced to serve the balance of his sentence without further probation. The Commonwealth nevertheless requests that we address the issues raised by the defendant's appeal, and the defendant has not opposed that request. In light of the fact that the defendant's probation was revoked for reasons that related in part to the GPS requirement, the case may still present a live issue. In any event, the case is fully briefed and argued, and the issues raised are certain to arise again. Because of the significant public interest in deciding those issues, we exercise our discretion to reach the merits of the defendant's appeal regardless of mootness. See Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 629 n. 4 (1988), cert. denied, 490 U.S. 1066 (1989); Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943). See generally Commonwealth v. McCulloch, 450 Mass. 483, 486 (2008), and cases cited.
FN4. The rape charge is not at issue in this case.
FN5. The Commonwealth does not disagree that the judge's order that GPS monitoring be added as a term of probation was premised on the judge's conclusion that G.L. c. 265, § 47, mandated this result, and that therefore the issues raised in this case are whether § 47 applies and can be applied to the defendant.
FN6. We therefore reject both the defendant's and the Commonwealth's reading of § 47. As has been stated, the defendant argues that for purposes of § 47, he was "placed on probation" in 1997, when he received the twenty-five year probationary sentence, and therefore long before § 47 was in effect. In light of the facts that (1) the probationary term the defendant was serving pursuant to the 1997 sentence had been revoked and a new probationary sentence imposed after § 47's effective date; and (2) the challenged order imposing the GPS monitoring requirement pursuant to § 47 applied only to the new probationary sentence, the defendant's argument fails. The Commonwealth's argument is that § 47 governs sex offenders serving sentences of probation on and after the effective date of § 47, and it does not matter whether they were sentenced before or after that date. This assertion finds no support in the language the Legislature chose to use in § 47. If the Legislature had intended the statute to apply to all qualifying sex offenders currently on probation, presumably it would have written "any person who has been placed on probation," or else omitted the words "is placed" altogether.
FN7. The second Superior Court judge pointed out, correctly, that our cases have sometimes used the phrase "placed on probation" to refer to the time that the defendant was sentenced to a term of probation, see, e.g., Commonwealth
v. Bruzzese, 437 Mass. 606, 610 (2002); and at other times, have used the same phrase to refer to the time the defendant began serving a probationary sentence. See, e.g., Commonwealth v. Delisle, 440 Mass. 137, 138 (2003). As indicated in the text above, we adopt here the former meaning--the time that the defendant is sentenced to probation--but the choice makes no difference in this case, because the effective date of § 47 preceded both the imposition of the probationary sentence in 2007 and the later commencement of the probationary term under that sentence.
FN8. The Commonwealth argues that the defendant did not raise his ex post facto challenge to the statute below. The defendant argues that he did preserve it when his attorney argued, in essence, that it was not fair to apply the new statute to the defendant; certainly the judge considered the question of retroactive application. In the circumstances, we consider the issue raised. See Commonwealth v. Cancel, 394 Mass. 567, 573 (1985). Cf. Commonwealth v. Welch, 444 Mass. 80, 81, 93 (2005) (noting that in certain circumstances court will consider constitutional issue even where not necessary to particular outcome).
FN9. The United States Constitution prohibits ex post facto laws in art. I, § 10, cl. 1, which reads: "No state shall ... pass any ... ex post facto
law." Article 24 of the Massachusetts Declaration of Rights provides: "Laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government." We have treated the meaning and scope of the ex post facto provisions in the Federal and State Constitutions as identical. See Commonwealth v. Bruno, 432 Mass. 489, 492 n. 4 (2000).
FN10. An offender might, for example, have had a single adult victim who is now deceased; have been convicted of possessing child pornography in his home; or have committed two acts of lewd and lascivious behavior on a public sidewalk. See G.L. c. 6, § 178C ("[S]ex offense" defined). In no case would an exclusion zone be relevant to monitoring the offender.
FN11. Relying on Smith v. Doe, 538 U.S. 84, 104 (2003), the dissent argues that the statute's burden on all sex offenders, for the duration of their probationary sentence and without regard to present dangerousness, has no bearing on the statute's intended denomination as punitive or civil. Post at-- (Ireland, J., dissenting), citing Smith v. Doe, supra at 104. The dissent's reliance on Smith is doubly misplaced. First, Smith v. Doe deals with sex offender registration, which the Supreme Court explicitly distinguished from the greater restraint imposed by probation or supervised release. Smith v. Doe, supra at 101. Second, the part of Smith v. Doe relied on by the dissent discusses punitive effects, a very different analysis; by the time the Court reached the issue of punitive effects, it had already determined that Alaska's sex offender registry law was explicitly civil in intent, based entirely on factors lacking in the present case. Id. at 93-96.
FN12. The dissent argues that, because "[t]he principal goals of probation itself are the rehabilitation of the probationer and the protection of the public" (emphasis in original), we should conclude that the Legislature affirmatively intended to denominate § 47 a civil regulation. Post at (Ireland, J., dissenting). While it is true that probation has rehabilitative and protective purposes (as all punishment does, to some extent), it is nevertheless a punishment. See Commonwealth v. Power, 420 Mass. 410, 414- 415 (1995), cert. denied, 516 U.S. 1042 (1996). The dissent does not suggest, nor can it, that a statute imposing a mandatory period of probation for a crime could be applied retroactively. Cf. Commonwealth v. Talbot, 444 Mass. 586, 597 (2005). We do not disagree with the dissent that "[d]etermining the most effective way to control problems affecting public safety is left to the Legislature." Post at (Ireland, J., dissenting). However, where the Legislature chooses to control a problem through punitive means, its solution must be applied prospectively.
FN13. We place the factors in the order we will discuss them, rather than in the order they appear in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963) (Mendoza-Martinez ).
FN14. The dissent begins its analysis of punitive effects by stating the position that the final two Mendoza-Martinez factors are dispositive, "absent an express showing of an intent to punish." Post at ---- (Ireland, J., dissenting). This view, which the dissent supports with a reference to Justice Rehnquist's opinion for the court in Schall v. Martin, 467 U.S. 253, 269 (1984), would effectively overrule Mendoza-Martinez. The Supreme Court has not applied Schall v. Martin, supra, in such a fashion. See Smith v. Doe, supra at 97-105 (considering all seven Mendoza-Martinez factors in ex post facto analysis of sex offender registry law explicitly denominated civil). Moreover, it is not correct to suggest, as the dissent does, that the Supreme Court has determined that "the most important" of the Mendoza-Martinez factors is whether the statute may be rationally connected to a nonpunitive purpose (emphasis added). See post at ----, (Ireland, J., dissenting). In Smith v. Doe, supra, the Court described this factor as "a [m]ost significant factor" in connection with its analysis whether the Alaska
sex offender registration statute violated the ex post facto clause. Id. at 102. It went no further.
FN15. It is true that the GPS requirement will not apply to offenders whom sentencing judges choose not to sentence to a term of probation. The discretionary nature of the sanction does not remove it from the realm of punishment, however. A sentence imposing incarceration itself is often discretionary, and is certainly so in the case of the defendant's crime of indecent assault and battery on a child. See G.L. c. 265, § 13B.
FN16. By way of analogy, a statute expanding the length of time that probation must run would clearly be punitive. Cf. Commonwealth v. Talbot, 444 Mass. 586, 597 (2005) ("Lifetime community parole constitutes 'an enhanced penalty for sex offenders,' " and therefore cannot be imposed ex post facto). A statute expanding the burden imposed during the time probation is to run is punitive for similar reasons.
FN17. As the defendant's case shows, the term of probation in sex offense cases may be quite long; he was initially sentenced to twenty-five years of probation. Cf. G.L. c. 6, § 178H (a ); G.L. c. 127, § 133D 1/2 (violation of sex offender registration requirement by certain offenders punishable by parole
supervision for life, including GPS monitoring).
FN18. To the extent that the ankle bracelet portion of the GPS device is potentially visible to the public, it may have the additional punitive effect of exposing the offender to persecution or ostracism, or at least placing the offender in fear of such consequences. Cf. Smith v. Doe, 538 U.S. 84, 115 (2003) (Ginsburg, J., dissenting) (affirmative restraint established by "profound humiliation and community-wide ostracism" of sex offender registry); Note, Who Are the People in your Neighborhood? Due Process, Public Protection, And Sex Offender Notification Laws, 74 N.Y.U. L.Rev. 1451, 1467-1469 (1999) (describing acts of violence against registered sex offenders). Cf. also N. Hawthorne, The Scarlet Letter 58 (1871) ("Ah, but ... let her cover the mark as she will, the pang of it will be always in her heart")
FN19. Section 47 creates an additional affirmative disability or restraint by requiring the Commissioner of Probation to "establish defined geographic exclusion zones including, but not limited to, the areas in and around the victim's residence, place of employment and school and other areas defined to minimize the probationer's contact with children, if applicable." The record does not specify what exclusion zones, if any, were applied to the defendant, so it is difficult to evaluate the extent of this burden. However, such
exclusion zones could dramatically limit an offender's freedom of movement. See, e.g., Towns Push Sex Offender Limits, Boston Globe, June 15, 2008 (over ninety per cent of Weymouth within 1,500 feet of school, park, or daycare center); Levenson, Sex Offender Residence Restrictions: Sensible Crime Policy Or Flawed Logic?, 71 Fed. Probation 2, 4 (2007) (near-total lack in urban areas of residences not within 1,000 feet of school, park, or childcare center). Cf. Doe v. Schwarzenegger, 476 F.Supp.2d 1178, 1181 (E.D.Cal.2007) (applying sex offender residency law retroactively "would raise serious ex post facto concerns"). A geographic exclusion zone, in contrast to a residency prohibition, not only prevents offenders from living in areas that would allow contact with children, but even from passing through such areas while driving to another destination.
FN1. In his memorandum of decision and order, the Superior Court judge held that the statute applied retroactively to sex offenders who were sentenced to probation before the statute's effective date. Because the defendant was placed on probation after the statute's effective date, I would leave to another day the issue whether the words "is placed on probation" applies to the day probation was imposed or when the probation commences.
FN2. The court states, ante at n. 11, that my reliance on Smith v.
Doe, 538 U.S. 84, 104 (2003) (Smith ), is mistaken because, in the Smith case, in response to the reasoning of the lower court, the Court distinguished Alaska's sex offender registration requirement from probation stating, "Probation ... entail[s] a series of mandatory conditions and allow[s] the supervising officer to seek the revocation of probation ... in case of infraction" but, in the case of registration, failure to report results in criminal prosecution where the "proceeding [is] separate from the individual's original offense." Id. at 102. The Court's discussion of probation in the Smith case is not dispositive here. Specific conditions of probation were not at issue in the case. In addition, the Court did not say that any statute that imposes a condition of probation, the violation of which would result in a proceeding related to the defendant's original offense, is per se a violation of the ex post facto clause.
Moreover, the Court's determination that a legislature can identify classes of persons to regulate without violating the ex post facto clause is based on the police powers of a State. Id. at 104, quoting Hawker v. New York, 170 U.S. 189, 197 (1898). The Hawker case involved a law excluding convicted felons from practicing medicine. Hawker v. New York, supra at 190, 192-193.
FN3. I acknowledge that, as illustrated by this defendant's first probation
of twenty-five years for a sexual offense against a child, probation may be for a long duration. The length of probation is within the discretion of the judge. See Commonwealth v. Power, 420 Mass. 410, 413-414 (1995), cert. denied, 516 U.S. 1042 (1996), citing Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993) (judge has great latitude in sentencing where sentence imposed is within the limits of applicable statute). I also note that, elsewhere, the Legislature has determined that offenders who commit certain sex crimes are subject to more stringent requirements. See, e.g., G.L. c. 6, § 178K (2) (d ) prohibiting offenders who commit a sex offense involving a child or a sexually violent offense from process whereby sex offender could be relieved "of any further obligation to register."
FN4. The statute itself indicates that the terms of the GPS monitoring will be administered by the Commissioner of Probation and that the commissioner and one local police department would be informed of a probationer's whereabouts only if a violation occurs. G.L. c. 265, § 47. There is nothing in the statute that authorizes making public any information concerning a probationer.
FN5. As the court notes, there is no historical version of this GPS statute, to assist in resolving whether a GPS has been historically regarded as punishment. Ante at. See Smith v. Doe, 538 U.S. 84, 97-99
(2003) (rejecting argument that dissemination of sex offender information over the Internet is similar to historic shaming or branding punishments that involved setting up direct confrontation between offender and public).
FN6. Because I conclude that this statute does not violate the ex post facto clause, a due process analysis is necessary because it applies to a crime for which the defendant was convicted before its enactment. See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 788 (2008), quoting American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 191 (1978) (court examines statute by considering nature of public interest that motivated Legislature to enact it, nature of rights affected, and extent or scope of statutory effect). I conclude that the statute does not violate a probationer's due process rights. I have already discussed the compelling nature of the public interest and the extent and scope of the effect on the probationer during his term of probation. Concerning the nature of the probationer's rights, I conclude that they do not outweigh the compelling public interest where probationers have a limited liberty interest. Commonwealth v. Wilcox, 446 Mass. 61, 64 (2006).
July 21, 2009
CT- Probation Officers Often Unfair To Sex Offenders
7-21-2009 Connecticut:
Hugh Keefe has a gift for superlatives. As one of the deans of Connecticut’s defense bar, he has earned the right to make pronouncements as he tap dances through his twilight years. He may not yet have made the cover of Super Lawyers magazine, but he grabs as many front pages of the daily press as any lawyer in the state.
So when he announced in the New Haven Register that the case of State v. Dulin was “the signature case dealing with who has the power: judges or probation,” my eyes rolled. I wondered what princely fee this client had paid for the privilege of an almost inevitable guilty plea.
The Dulin case is sadly typical. Mr. Dulin plead guilty to second-degree sexual assault. The middle-aged man had apparently been playing Romeo to a teenage Juliet. Consent, as we know, is no defense to fiddling on too young a set of strings.
Mr. Dulin was sentenced to 18 months in prison. He did his time. And then he was released to begin a period of probation. At a hearing just before he was released, a Superior Court judge ordered Mr. Dulin to register as a sex offender for a period of 10 years, have no contact with his former paramour or her family, and attend outpatient sex offender treatment. The judge ruled that these were the only specific conditions he ordered.
I’ve not seen the transcript of the sentencing hearing, so I am relying on press accounts of the case. I suspect, however, that the judge did not rule that these were the only conditions Mr. Dulin faced. The standard conditions require a probationer to avoid breaking the law, to keep probation workers informed of his residence and a host of other ho-hum things.
It is unclear whether the judge also ordered what I refer to as the “Trojan horse” condition — compliance with “such other conditions as adult probation deems necessary.”
Keefe is too good a lawyer to let that slip from a judge’s lips unchallenged. The words are the kiss of death for probationer. If the court orders that probation officers can do what it thinks necessary, it is difficult to then challenge their discretion. Since most pleas contain this ridiculous language, most probation officers have grown accustomed to treating probationers as plantation slaves.
In Mr. Dulin’s case, a probation officer ordered that he take a polygraph examination and required that he move out of the home he shared with his wife and children. These are not specific conditions ordered by the judge. But they are conditions that are routinely imposed on folks designated as sex offenders by the Office of Adult Probation. Keefe apparently advised his client not to comply with these requirements.
Every defense lawyer in the state knows that the Office of Adult Probation is out of control when it comes to sex offenders. And too many judges roll over and play dead when asked to rein in a probation officer. Who wants to face reappointment years down the line and be asked questions about the lusty recidivist who was released only to offend again?
I do not know whether Mr. Dulin violated the conditions of his probation. But I do know that the state’s treatment of sex offenders is a farce. I’ve had clients who were faced with the choice of admitting things they did not do or face jail; men whose only crime was lust have been told to desert their families. Blurring the line between fantasy and reality in areas such as Internet solicitation and child pornography has placed probationers in a netherworld of so-called “treatment” where a new class of Puritans demands compliance with standardless norms. Probation is out of control.
Mr. Dulin is right to litigate this issue. But it will take more than occasional litigation to resolve this problem. What’s needed is systemic review. But who has the courage to peer into the nares of the state’s libidinal blue noses and then declare the obvious? There’s an awful lot of garbage clogging the airways of justice.
Sadly, these issues may never be reached in this case. Mr. Dulin’s best defense is advice of counsel. That works here. But how can Keefe wage it as an advocate? Isn’t he a witness? ..Source.. by Norm Pattis is a criminal defense lawyer and civil rights attorney in Bethany
November 12, 2008
TX- Criminals, advocates target Texas parole restrictions as unfair to low-level offenders
11-12-2008 Texas:
It's called Condition X: tough restrictions on the way some criminals, mostly paroled sex offenders, must live once they're out of prison.
Condition X determines the minutiae of their daily lives – whether they can visit a school or attend church; whether they can live with their families or in an apartment with a swimming pool; whether they can access the Internet, work at a convenience store, even whom they can date or marry.
But a growing number of offenders are fighting back against the strict limits, which they say are most often imposed without a fair hearing, and treat low-level offenders and violent predators alike.
"I'm not at war trying to defend sex offenders," said attorney Bill Habern, who has scored several incremental victories in court against how Condition X is imposed. "I'm at war trying to protect our Constitution."
The current system is unfair to low-level offenders such as young people who had consensual sex with minors, said Mary Sue Molnar, co-founder of Texas Voices, a new organization devoted to changing sex offender laws.
Ms. Molnar's son was 22 when he had sex with his 16-year-old girlfriend. He received deferred adjudication but was sent to prison several months later when he was caught with drugs and alcohol. She worries how he'll cope with the Condition X restrictions he'll face upon release.
"You're looking at a young man who, because the place of employment is listed on the [public] registration, cannot find or keep a job – which is one of his probation or parole conditions.
"Where is he supposed to live? You're looking at a man who cannot come up with the money for the order to pay probation fees, treatment fees, polygraph."
Matter of due process
Ms. Molnar and others say they're not championing pedophiles or rapists. But when someone has consensual sex with an older teen, "it is not as serious a crime as someone who has fondled a 6-year-old," she said.
That distinction is one reason Mr. Habern and attorney Richard Gladden are determined to force state officials to give parolees more due process.
And though their efforts mostly have been rebuffed by state judges, they're gaining some traction in federal courts:
• In 2004, the 5th U.S. Circuit Court of Appeals ruled that "Condition X" can't be imposed on parolees who haven't been convicted of a sex offense, without an "appropriate hearing."
• In 2006, the Texas parole board quit automatically denying sex offenders access to their own children, after a lawsuit claimed the board did not give a parolee notice or a hearing.
• Earlier this year, federal Judge Sam Sparks in Austin expressed "grave concerns over the fundamental fairness" of such parole board hearings and commented that the Texas attorney general's office, which represents state agencies, "has apparently failed to take such constitutional challenges seriously."
Assistant Attorney General David Morales said his office "takes all constitutional challenges seriously."
Condition X is imposed on almost all paroled sex offenders, from those who had consensual sex with an underage teen to violent pedophiles. In some instances, sex offender conditions are even imposed on offenders who don't have a conviction for a sex crime, but whose offense included a sexual aspect. According to the Texas Department of Criminal Justice, about 90 percent of paroled sex offenders have Condition X imposed on them.
Majority vote
It doesn't take much to require the sweeping restrictions of Condition X – just a majority vote of a three-person panel from the Texas Board of Pardons and Paroles. No face-to-face hearing is held before the vote. Instead, each member individually reviews a "parole packet" with information from an institutional parole officer and prison officials, and any supporting material from the inmate's friends and family.
The system gives "someone who is getting out on parole with sex offense stuff less due process than someone who is having their driver's license suspended," said Mr. Gladden, whose business card bears a picture of the Revolutionary War-era "Don't Tread on Me" flag.
Mr. Gladden and Mr. Habern are challenging that procedure in Judge Sparks' court.
When board members consider putting a convict under Condition X, the inmate doesn't know what evidence is presented against him and has no opportunity to respond. He can't even be sure panel members have read his file, Judge Sparks noted.
A parole division employee testified in one case that board members spend an average of 10 to 30 minutes reviewing materials in each case.
"It would certainly appear that if the voting members actually reviewed the files, the ... [process] would take substantially longer than 30 minutes," the judge wrote.
Parole board member Jose Aliseda, who is a lawyer and former county judge, said the recent court cases "have caused us to examine our policy," and the board is trying "to make sure our policies meet constitutional muster." But he said he's "sufficiently comfortable" with the current process.
In a recent 5-4 decision in one case, the Texas Court of Criminal Appeals found the system acceptable.
Going case-by-case
But Mr. Habern intends to keep chipping away, hoping eventually to "force the parole board to examine each individual situation" about what restrictions are needed, rather than impose blanket restrictions on all offenders.
Mr. Gladden agreed.
"In Texas, before your driver's license can be suspended, you have a right to an in-person hearing," he said. "You have a right to know on what grounds they're going to suspend. You have a right to be heard as to why your license should not be suspended. And you have a right to appeal from that determination.
"And it seems to me that ... you start saying, 'What's more important – my driver's license or not being able to live with my kids?' "
Ms. Molnar, of Texas Voices, which has about a thousand members and supporters, said the system is not set up for offenders "to reintegrate into society and be productive members of society. It's set up for them to be roadblocked at every single turn."
Parole board member Aliseda acknowledges that the restrictions make life difficult, but "I see success stories all the time," he said. "It's not impossible and it's especially not impossible after an offender has established the trust."
Torie Camp, deputy director of the Texas Association Against Sexual Assault, a victim's advocacy group, said the restriction issue is difficult for everyone.
"I can easily see how being a parole board member, you would want to err on the side of caution," she said. "They want to do their very best to keep the community safe."
Balancing the offender's constitutional rights with public safety is hard, she said. But painting all sex offenders with a broad brush "does a disservice to victims of sexual assault," she said, because the restrictions become meaningless.
Like Mr. Habern, she advocates a more individualized approach instead of the restrictions routinely recommended by the parole division and imposed by the parole board.
"For our own community safety, we actually have to look at reasonable and fair treatment for sex offenders when they're coming back into our communities, so they can reintegrate," Ms. Camp said.
Those concerned about the process blame the parole division and the Legislature, which crafted the sweeping laws, for the problem, not the parole board.
"The parole division does not exercise discerning judgment," said parole attorney Gary Cohen. Mr. Cohen said he has no doubt the parole division "deliberately sat down to fashion the most minimal cursory review that they possibly could."
Officials with the parole division declined to comment, citing pending litigation.
Mr. Cohen has little faith that politicians will rush to protect the constitutional rights of sex offenders.
"It's not a politically favorable position for them," he said.
Michele Deitch, who teaches criminal justice policy at the University of Texas LBJ School of Public Affairs, said that eventually, the courts will have to address the issue of how to balance public safety with restricting individual freedoms.
The issue of restrictions is "affecting more and more people," she said, and the inability to live a certain way is more than an inconvenience.
"It's very clear there's an open question. ... Clearly there's deprivation going on there that needs some kind of due process protection," Ms. Deitch said.
..News Source.. by DIANE JENNINGS / The Dallas Morning News
