SJC affirms house arrest backed by GPS

Says sheriff didn't overstep by sending inmate home

The state Supreme Judicial Court yesterday ruled that the Middlesex sheriff acted appropriately when he released a three-time convicted drunk driver from jail after six months and allowed him to serve the remainder of an 18-month sentence under house arrest with a GPS monitoring device.

The decision overturned a ruling by a Middlesex Superior Court judge who said the sheriff interfered with the judiciary's sentencing role by prematurely sending inmates home. The SJC said the sheriff was within his power to place Edward Donohue into the GPS monitoring program because Donohue had already served six months of his sentence and was eligible for parole.

"Having served even more than the legislatively prescribed minimum period of incarceration, it is clear that Donohue had served what might be deemed a 'reasonable period' before he was permitted to participate in the GPS program," Justice Francis X. Spina wrote in the 6-1 decision. "Nothing set forth in [the law] restricts the sheriff's ability to place an inmate on home confinement with a GPS monitoring bracelet."

Middlesex Sheriff James DiPaola's office released Donohue from the Billerica House of Correction in September 2007. In addition to wearing the GPS device, he was required to attend Alcoholics Anonymous and Narcotics Anonymous meetings, receive counseling, and perform community service.

Superior Court Judge Diane Kottmyer ruled that DiPaola lacked the authority to declare Donohue's home a "place of confinement" and ordered Donohue back to jail. She also ordered other inmates back to jail who had been released into the GPS program before completing their sentences.

In a phone interview, DiPaola said he was pleased by the SJC ruling.

"We think the SJC has reaffirmed the authority of the sheriff's office and their trust in our ability to make these kinds of decisions," he said. "They said the sheriff was in the most unique position to make this decision."

He said only 1 percent of Middlesex's roughly 1,000 inmates are eligible to participate in the GPS program. He said there are now fewer than 10 inmates in the program.

"We are very judicious in use of this program," DiPaola said. "But it does help shift the costs off the backs of taxpayers and onto the offenders."

The attorney general's office represented Judge Kottmyer and said it appreciated the SJC's guidance on the issue. "In issuing its decision today, the SJC has resolved this difficult question," said Emily LaGrassa, a spokeswoman for the office.

"Today's decision will help guide the Commonwealth's judges and sheriffs in sentencing matters," she said.

Benjamin B. Selman, a lawyer with the Committee for Public Counsel Services who was appointed by the court to represent Donohue, said the SJC ruling will help ensure the separation of powers between the executive and judicial branches.

"I'm very happy with the opinion," Selman said.

Justice Judith Cowin was the lone dissenting vote. In a separate opinion, she wrote that state laws require that inmates remain in jail while participating in work or education programs. She contended that the court was intervening on the Legislature's turf.

"In approving the GPS program, the court simply ignores language [in the law] that is unfavorable to its position," Cowin wrote.

"The key language [in the law] is that 'before' a committed offender is allowed to participate in any program outside of a correctional facility, the commissioner must arrange for 'reasonable periods of confinement to particular correctional facilities.' "