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SJC curbs tracking devices on offenders

Law enforcement officials angered

BALANCING ACT Justice Margot Botsford, writing for the majority, said concerns about public safety must give way to constitutional protections against government intrusion into citizens' lives. BALANCING ACT
Justice Margot Botsford, writing for the majority, said concerns about public safety must give way to constitutional protections against government intrusion into citizens' lives.
By John R. Ellement
Globe Staff / August 19, 2009

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A divided Supreme Judicial Court ruled yesterday that sex offenders convicted before 2006 cannot automatically be forced to wear GPS devices because it creates an unconstitutional burden on their freedom.

In a 4-to-3 decision, the court said a 2006 law mandating GPS devices on all sex offenders placed on probation cannot apply retroactively.

Ruling in the case of a Bristol County sex offender convicted in 1997, the majority said public safety must give way to constitutional protections against government intrusion into citizens’ lives, including those of 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.

The decision, which forced judges to weigh child protection against constitutional rights, outraged law enforcement officials and a Beacon Hill lawmaker.

“If there is even one individual that is not required to be monitored, and that individual reoffends, which is likely the case, that is one too many,’’ said state Representative Karyn E. Polito, a Shrewsbury Republican who sponsored the law. “There are too many instances where a child is harmed that shouldn’t be.’’

It was not immediately clear how many sex offenders would be affected by the ruling. In Bristol County, it would affect fewer than 20 cases, said Bristol District Attorney C. Samuel Sutter. The Office of Probation, which is an arm of the state court system, did not return a telephone call asking for statewide information.

Botsford, in defending the ruling, called the statute “punitive in effect,’’ and said it should not automatically apply to all defendants whose crimes occurred before the law was imposed.

Joining Botsford 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 court said it was not taking a position on the legality of the law when applied to people convicted after Dec. 21, 2006.

Middlesex District Attorney Gerard T. Leone Jr. said his office will be in court today demanding that a judge order GPS monitoring for a Level 3 sex offender from Lowell. He said the SJC ruled that the law is not mandatory, but did not bar judges from applying the GPS requirement in individual cases.

“These are dangerous people,’’ Leone said. “The decision clearly makes it more difficult to keep the public safe.’’

The ruling was made in an appeal by Russell M. Cory, who pleaded guilty in Bristol Superior Court to indecent assault and battery on a child in 1997. Cory was sent to prison and given 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 placed on the GPS. According to the SJC, Cory has since returned to prison. He is a Level 3 sex offender, according to the Sex Offender Registry Board.

Cory’s lawyer, Theodore F. Riordan of Quincy, applauded the majority’s conclusion in a telephone interview as one that safeguards vital protections for citizens. Riordan said the ban on retroactive punishments was included in the US Constitution and was also part of the Massachusetts Declaration of Rights that preceded it.

“It’s really the people triumphing here,’’ Riordan 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,’’ he said. “It’s attached to you all the time. It’s kind of like a Scarlet Letter.’’

Sutter, whose office prosecuted Cory, said the ruling puts a dent in efforts to keep watch on dangerous sex offenders, but will have limited impact, because judicial discretion is retained.

“I don’t think the impact of this decision will be that great,’’ he said, adding that his prosecutors will ask judges to make individual rulings in favor of GPS devices.

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.

In a statement, the Massachusetts Parole Board said 82 paroled sex offenders now wear GPS devices. The agency said it will review those cases to determine how many are directly affected by the judicial ban.

Beth Eisenberg, the Committee for Public Counsel Services lawyer who argued for parolees, said GPS devices are “the new frontier of punishment.’’

She said her clients have been wearing GPS ankle bracelets since 2006, but have been model parolees for years, and even decades, before the law changed.

“They lead stable, productive lives,’’ Eisenberg said, adding her clients have been classified as least likely to reoffend. “They have kids in college; they have grandchildren.’’

John Ellement can be reached at ellement@globe.com.