Supreme Judicial Court (February 20, 2006)

Pretrial probation conditions, such as home confinement and the requirement to wear an electronic bracelet, are not a form of custody and therefore do not entitle a defendant to sentencing credit under c. 279, § 33A.

The defendant was indicted on several charges, released on bail, and placed on pretrial probation. The conditions of probation included a requirement that the defendant remain confined to his home and be monitored by way of an electronic bracelet. The defendant ultimately pleaded guilty and after sentencing claimed that he should be deemed to have served a portion of his sentence based on the number of days that he was subject to home confinement.

G. L. c. 279, § 33A provides that a judge shall give credit for the time a defendant spent "in confinement" while awaiting and during trial. In the event the court fails to calculate the appropriate number of days, c. 127, § 129B similarly provides that the sentence of any prisoner shall be reduced by the number of days the defendant "was held in custody" awaiting trial.

The SJC acknowledged that probation conditions may involve substantial and severe conditions on a person's liberty, however, the Court held that such restrictions are not considered "custody." The Court interpreted "confinement" to mean confinement in a jail or prison, or in some comparably secure and restrictive institutional setting. "Confinement to one's home is not comparable to incarceration, and does not entitle a defendant to sentencing credit under G.L. c. 279, § 33A."