“We conclude here that the additional probation condition of GPS monitoring, paired with geographic exclusions, is so punitive in effect as to increase significantly the severity of the original probationaryconditions and therefore may be imposed only after a finding of a violation of a condition of probation.”
The complete SJC decision may be found here.
A divided Supreme Judicial Court ruled today that new probation restrictions – such as wearing a GPS device or banning them from playgrounds –cannot be imposed on sex offenders until after they violate previously imposed conditions of probation.
“[U]nless 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.
“The defendant had taken the victim, a seven year old boy, away from a social function the victim was attending with his parents by threatening to kill the victim if he refused to go along. The defendant first took the victim to an area underneath a bridge where an act of fellatio occurred. The defendant then brought the victim to the cellar of his (the defendant’s) parents’ house where other acts of fellatio were performed, and the defendant attempted to sodomize the victim. The victim was confined in the cellar overnight. The next morning the defendant committed an additional act of fellatio, after which the defendant surreptitiously removed the victim from the house in a large cardboard box and sent him home in a taxicab.”
On September 13, 1990, the defendant pleaded guilty in the Superior Court to three indictments charging rape of a child by force and one indictment charging kidnapping. On September 28, 1990, the judge sentenced the defendant to two concurrent State prison sentences of from ten to fifteen years on two of the rape convictions and a concurrent sentence of from nine to ten years on the kidnapping conviction. On the third rape conviction, the defendant received a sentence of from thirty to forty years in State prison, suspended for ten years, to be served from and after the committed sentences, with a special condition of probation that the defendant undergo psychiatric treatment. The defendant appealed from his sentence as to the third rape conviction and, after transferring the case from the Appeals Court, the SJC concluded that the sentence was properly imposed. See Commonwealth v. Goodwin, 414 Mass. 88 (1993)