Recently, the Massachusetts Supreme Court struck down a GPS monitoring a level one non-contact sex offender on probation. Though the Government argued that they needed the condition to ensure that the defendant abided by all the conditions of his release, the Court rejected this argument. GPS monitoring constituted a search-an especially severe one-that overly infringed on the probationer’s rights for the Government’s stated goal.
Despite being a state case, only technically applicable in Massachusetts, Commonwealth v Feliz is encouraging for several reasons. First, it only distinguishes between pornography offenders-non contact-an other sex offenders. Noting that such offenders are unlikely to reoffend, it found that the state’s interests in regulating them and limiting their constitutional rights is not substantial, and is not the same as other sex offenders.
\Moreover, while probationers generally have diminished rights-especially of privacy-finding that sex offenders on probation cannot simply be stripped of rights is encouraging. Finally, like many conditions for sex offenders, this one served only to enforce others, or to ensure others were followed. The court seemed to suggest that these conditions had to be individualized and based on evidence, not imposed by label.
This case is not authoritative in any other state, that is, other courts don’t have to follow it. It is never the less persuasive meaning they may. At a time when the Supreme Court has admitted that releasees and probationers are on different constitutional footing, the fact that the highest court in a state found this unconstitutional for probations is informative. Presented right it could help roll back other unnecessarily broad conditions on porn offenders in other states and at the federal level.