Supreme Judicial Court (August 18, 2009)

Commonwealth v. Cory
The statute requiring automatic GPS monitoring for persons placed on post-conviction probation for designated sex offenses does not apply retroactively. General Law c. 265, sec. 47 is punitive in effect, and under the ex post facto provisions of the United States and Massachusetts Constitutions, may not be applied automatically to persons who are placed on probation prior to the statute's effective date of December 20, 2006. Judges, however, continue to have the discretion to make individual rulings requiring GPS monitoring.

In December 1997 the defendant pleaded guilty to certain sex offenses, and was sentenced to a term of incarceration in state prison, as well as 25 years' probation. After being released and placed on probation, the defendant's probation was revoked in January 2007, and he was given a one-year house of correction sentence with a suspended sentence and probation. Although G. L. c. 265, sec. 47 was in effect, GPS monitoring was not included as a condition of probation. Subsequently, the probation department sought to amend the January 2007 probation to include GPS monitoring, and the court determined that, since probation commenced after section 47 became effective, GPS was in accordance with G.L. c. 265, sec. 47. The SJC granted direct appellate review of the defendant's appeal claiming that 1) he was placed on probation when he was originally sentenced in 1997; and 2) in his case, section 47 is an unconstitutional as an ex post facto law.

In interpreting section 47's phrase "is placed on probation," the SJC determined that a strict reading applies to sex offenders who are sentenced to probation after the effective date of the statute, regardless of whether the sex offenses were committed before or after the section 47's effective date. Section 47 applies to the defendant because he was placed on probation in January 2007.

In determining whether section 47 is an ex post facto law, the SJC found that the legislative intent was unclear as to whether the GPS provision was intended as a penal or civil remedy. Therefore, the SJC considered the punitive effects of section 47, using the seven Mendoza-Martinez factors as a guide:

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. whether 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 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. 144 (1963).

The SJC determined that the first four factors establish that the GPS requirement has a "pronounced punitive effect," and the remaining three factors, particularly when weighing all factors together, impose a "substantial burden on liberty" such that the statute is punitive in effect. Since section 47 is applied retroactively to the defendant, its application violates the ex post facto provisions of the United States and Massachusetts Constitutions. The SJC further stated that this decision does not impact the discretionary power of judges to impose GPS as a condition of probation. "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." Note that this was a 4-to-3 decision, with the dissent (Ireland, Cowin and Spina) arguing that GPS monitoring is a legally justified way to protect the public.

John Doe v. Massachusetts Parole Board
In a companion case involving GPS monitoring for parolees, the SJC reviewed G.L. c. 127, sec. 133D ½, which is substantially similar to the language of G.L. c. 265, sec. 47, with the same effective date, and concluded that ex post facto considerations require that section 133D ½ must be applied prospectively.