A split SJC says 2006 law violates rights of some sex offenders

“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 original US Constitution 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.