On March 17, 2020 the Massachusetts Supreme Judicial Court issued a broad-reaching opinion that is critical to pretrial defendants subject to GPS monitoring conditions and any other conditions of pretrial release. In Commonwealth v. Norman, SJC-12744, 484 Mass. 330 (2020), a unanimous Court held that defendants arraigned under the Commonwealth’s general bail statute, G.L. c. 276, § 58, may only have pretrial conditions added which vindicate a lawful statutory purpose, which in the case of the general bail statute includes assuring return to court and preserving the integrity of the judicial process. This theory of the case, reliant on statutory interpretation to inform the legitimate government interests in a constitutional balancing, was put forth in detail by an amicus brief the Houston Institute submitted in November 2019. The Court’s reasoning, identifying these narrow statutory interests, closely tracked our amicus brief.
The decision slightly departs from other recent precedent. Last year, in Commonwealth v. Feliz, 481 Mass. 689 (2019) (mandatory GPS monitoring for sex-offenders) and Commonwealth v. Johnson, 481 Mass. 710 (2019) (discretionary GPS monitoring of post-conviction probationer), the Court held that the attachment of a GPS monitor is a constitutional search, and requires an individualized hearing that weighs the Commonwealth’s interests in imposing GPS monitoring against the defendant’s privacy interests. Norman builds on these precedents, but in the context of pretrial release under the general bail statute, G.L. c. 276, § 58, the balancing test is far more favorable to the defendant, as the government’s cognizable interests are substantially narrowed for a person who has been merely accused of a crime and is still lawfully presumed innocent under the law.
Read more on this groundbreaking decision in The Boston Globe:
The SJC on Tuesday threw out all of the GPS-related evidence. Justice Frank Gaziano, writing for the court, said Norman’s state constitutional privacy rights were violated when he had to agree to wear the GPS tracker in order to be released on bail. GPS tracking was ordered under the state’s bail law, but that law is only aimed at assuring a person keeps court dates, the SJC said.
Requiring Norman — who had not been convicted of the earlier charge — to wear a government-controlled electronic device that tracked his location and stored that information in a government computer ran afoul of his privacy rights, the SJC said.
“There is no indication on this record that GPS monitoring would have increased the likelihood of the defendant returning to court,” Gaziano wrote. “Although the general specter of government tracking could provide an additional incentive to appear in court on specified dates, the causal link in this case is too attenuated and speculative to justify GPS monitoring.”
If prosecutors believe someone poses a public safety risk, they can seek to have them held without bail under the state’s separate dangerousness law, the SJC said.