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August 19, 2009

Split Massachusetts high court strikes down retroactive GPS tracking for probationers

As detailed in this Boston Globe story, in Massachusetts yesterday 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."  Here are the basics and how the decision has been received:

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.’’

The full ruling in Massachusetts v. Cory, No. SJC-10314 (Mass. Aug 18, 2009), is available at this link [NOW FIXED thanks to a helpful reader and the folks at the NC Criminal Law blog].

August 19, 2009 at 05:14 PM | Permalink


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“There are too many instances where a child is harmed that shouldn’t be.’’

Agreed. It's just too bad that most of that harm comes from political grandstanding.

Posted by: Daniel | Aug 19, 2009 5:27:51 PM

I don't understand the thought process of the ruling. It seems to be a win win for all involved including the offenders.

who would object to using this technology?

Posted by: Mclaughlinpi | Aug 20, 2009 9:04:41 PM

is it a more general issue based on the right to privacy? hence, it wouldn't really be a question of child rights AGAINST constitutional protections, but rather special cases in the rights scheme. if it is considered AGAINST constitutional protections, what is the nature of constitutional protection that citizens enjoy? to be protected from serious crimes? this, at best, could be defined as a common law right and hence, lower in the hierarchy than constitutional rights. In such cases, the right of the child to privacy should clearly be of more importance.

Posted by: Kalyani | Aug 23, 2009 6:49:52 AM

I think it is correct. Indeed in many cases the GPS tracking has been misused.

Posted by: GPS | Oct 24, 2009 2:28:28 PM

I can't understand why an offender would object to being tracked and being able to prove wehre and where they are should thier behavior come into question? Unless they have something to hide...

Posted by: Stephen Windslow | Mar 1, 2010 9:47:25 PM

Although it's hard to emotionally accept that the rights of a child molester override the possibility of preventing another crime, a law of this type could be used as justification for extending the use of GPS trackers to other ex-offenders. The concern I have isn't for the potential sex offender but for me, because that chain could gradually extend to include all of us. Anyone could offend, or become lost, or have an emergency medical situation. Would we rather be constantly monitored to make sure we live up to government standards? or take the ordinary chances and retain some privacy and freedom? First, they came for the sex offenders.


Posted by: JimmyTH | Apr 29, 2010 12:29:56 PM

GPS trackers for offenders is vital to know their whereabouts. Child sex offenders and other criminals should expect society to treat them harshly due to their actions.

As the other commenter pointed out, you should be fine if you have nothing to hide.

Posted by: gps child tracker | May 4, 2010 12:14:00 PM

GPS tracking devices can certainly be useful in many situations including vehicle tracking, fleet management and in this case, tracking felons. This ruling doesn't surprise me much, although I largely disagree with it.

Posted by: GuideDog | Jul 6, 2010 2:46:47 PM

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