Whether a probationer could be held on a finding of probable cause for probation violation because the probation department was unable to supply a GPS device for him to wear.

The defendant was convicted of a sex offense and ordered to wear a GPS tracking device as a term of his probationary sentence after release from jail. Probation was unable to supply a GPS device for the first five days of the defendant’s release, apparently because of a miscommunication between the jail and the probation department. Probation therefore served the defendant with a notice of detention, stating that he had failed to meet the condition of wearing a GPS device.

The judge found probable cause for probation violation. The defendant was detained until the GPS device was installed five days later, and then released. No final hearing on probation violation was held. The defendant appealed from the finding of probable cause, and the SJC granted direct appellate review.

The judge reasoned that the Legislature requires without exception that sex offenders to wear GPS devices as a term of probation, pursuant to G.L. c. 265, § 47. Given the clear statement by the Legislature and the strong public safety interest, the judge ruled that it was the defendant’s affirmative duty to ensure—from jail—that he could be placed on a GPS device upon his release: “Here, the defendant agreed to a plea that included probation, incarceration and a GPS requirement. It was his affirmative obligation to prepare for release and the GPS conditions.” Although the defendant offered to submit to house arrest enforced by electronic monitoring, the judge ruled that that system was not a “comparable device” to GPS under § 47.

The defendant argues that: (1) the judge’s reading of the probation laws would require him to affirmatively ensure that the probation department fulfills its duties, a construction of the criminal statutes so unforeseeable as to violate his due process rights; (2) use of revocation proceedings violated due process, where probation admitted that it never had any intent of holding a final hearing on violation, only of holding the defendant on probable cause until the GPS device could be installed; (3) no probable cause existed, where the statute makes it probation’s responsibility, not the defendant’s, to obtain GPS equipment, and the defendant was never notified otherwise; and (4) home monitoring is comparable to GPS monitoring, so the judge should have permitted it as an alternative until the GPS could be installed.

This case presents an odd analytical problem. It is clear that the defendant did not “violate” the terms of his probation; the judge’s attempt to place some “affirmative obligation” on him is unsustainable. (Indeed, probation can hardly be pleased by judicial instructions for offenders to arrange for their own GPS installation via collect calls from prison, which this decision apparently would require.) So the means used to incarcerate the defendant—a claim of probation violation that was dropped prior to final hearing—are a poor fit, and possibly an unconstitutional one.

On the other hand, it is not clear what probation should do when it lacks the resources to enforce a public safety requirement. One option would be a short-term detention procedure in the nature of a public safety detention, to hold probationers until the condition of release can be enforced. That option would protect public safety at the expense of liberty, where the offender has already served his sentence. Another option would be to simply require that the condition be waived until it can be enforced. That option creates a strong incentive for probation to ensure that it has the resources to fulfill its mandate, at some expense to public safety. Crafting this compromise may ultimately fall to the Legislature, rather than the Court.