Whether a sex offender on probation, required to wear a GPS device but not to secure employment, can be held in violation of probation where he failed to secure employment or housing, and therefore had no place to charge his GPS device.

The defendant was convicted of a sex offense and later released on probation. The terms of his probation did not require him to secure employment, but did require him to wear a GPS tracking device.

The GPS tracking devices used by the Commonwealth must be charged for at least six hours a day. The defendant was homeless, and was unable to find any homeless shelter that grants access to electrical outlets. The judge gave the defendant some two months to comply with the GPS order. When he was unable to obtain employment, and thus unable to comply, the judge found him in violation of probation. The defendant appealed, and the SJC granted direct appellate review.

The defendant apparently made 20 to 40 internet searches per month for employment, and less frequent personal contacts. He presented evidence that 65% of level three sex offenders are homeless; that no homeless shelter offers facilities for charging a GPS device; and that employment opportunities for sex offenders have become nearly nonexistent in the last five years, with most offenders who receive income being self-employed. The judge commented that the defendant had a defeatist attitude, and should respond to his situation by increasing rather than decreasing his job search efforts.

The probation department was ultimately able to give the defendant access to one of its offices seven days a week to recharge his tracking device, so his probation violation did not result in incarceration, but only in enhanced probation terms. 

1. Whether impossibility is a defense to probation violation. The defendant argues that he can be liable only for intentional violations; courts in other jurisdictions have rejected probation violations where defendants were unable to pay fines, or enter drug treatment programs, because of circumstances beyond their control. The Commonwealth argues that this rule does not apply to probation terms intended to protect public safety; the Supreme Court suggested in dicta that a judge could revoke probation if a defendant was unable to control his drunk driving, even if no treatment program was available. Bearden v. Georgia, 461 U.S. 660, 669 n.9 (1983).
2. Whether the defendant’s attempted compliance was reasonable. The defendant argues that he made substantial attempts to obtain employment; if more comprehensive steps were required of him by his probation, he had a right to be informed of them in sentencing. (By contrast, a typical requirement to obtain employment specifies a number of employment attempts per day.) The Commonwealth argues that the defendant was not required to obtain employment, but to maintain a GPS tracking device, which he uncontestedly failed to do; the judge’s factual finding that he did not take reasonable efforts to do so is subject to review only for clear error.
3. Duties of the probation department. The defendant argues that it is the probation department’s statutory responsibility to provide the defendant with the means to submit to GPS tracking, and to prove by a preponderance of evidence that he failed to do so. The judge therefore erred in requiring the defendant to show why he could not comply with the particular GPS system selected by the department. The Commonwealth responds that the department did everything required of it, when it provided the defendant with a system that would function if regularly plugged in, and was ultimately able to find a way for him to do so.

The core question is what should happen when a defendant is sentenced to participate in a program for the protection of the public, on penalty of further punishment, and then the Commonwealth does not offer a program in which he can participate. Does the Commonwealth have a duty to offer a program he can enter, or is it purely his responsibility to conform to the program’s prerequisites? Do his good-faith efforts to comply matter, or can he be further punished regardless of his intent, because of the need to protect the public?

The Court has a great deal of leeway to respond. The answers may depend, essentially, on who the judges perceive as the victim of this story. If the public are the victims, and the GPS device is their protection, than the defendant is entitled only to the least invasive protection the Commonwealth can offer — either GPS, if he can support the device the probation department has selected, or prison, if he cannot. (The Commonwealth emphasizes this view of the story, when it quotes the testimony at sentencing of the victim’s mother.)

On the other hand, if the defendant is seen to some extent as the victim — victim of employers who make it impossible for him to support himself, victim of punishment for violating a term of probation he was given no chance to meet — then it makes sense to require an intentional violation, to require explicit statements of any requirement to seek employment, and possibly even to require the probation department to shoulder the burden of providing a GPS device that functions in the defendant’s situation.

The justices are likely to come down on opposite sides of this question; it is difficult to predict which side will garner a majority vote.