Commonwealth v. Norman: addressing the overuse of GPS monitoring for pre-trial release conditions

Anyone who spends more than a few hours watching arraignments in a courtroom in Massachusetts may soon notice that judges are very quick to impose GPS monitoring as a condition of release from custody. Sometimes there are specific conditions of release that may be suitable for monitoring by GPS, such as a curfew or staying away from a certain location, but often the device is imposed for no clear reason.

The Supreme Judicial Court issued a good opinion in Commonwealth v. Norman that will hopefully provide some relief for people on pre-trial release.  The SJC held that when considering imposing GPS as a condition, the Government must prove that the necessity of GPS monitoring outweighs the intrusion on the defendant’s privacy.  This is important because it often seems that the judge imposes GPS for no obvious reason beyond that it seems like a good idea. This ruling will force some rigor to the judge’s analysis and hopefully reduce the frequency that GPS is imposed.

Norman is great opinion especially when you add it on to the SJC’s opinion from a year ago in Commonwealth v. Feliz. In that ruling (which dealt with mandatory GPS for people on probation for sex offense convictions), the SJC discussed in a footnote that Mr. Feliz had established through records the difficulty of being subject the GPS monitoring. He spent 5 months on GPS monitoring while the case was pending and during that time suffered THREE TO FOUR FALSE ALERTS PER WEEK when his monitoring device lost connection.  The Court wrote in footnote 11:

In its filings in the Superior Court, the Commonwealth agreed that the defendant had been subject to alerts at least three or four times per week during that period, as a result of connectivity issues in the neighborhood where he lives and works.  Examination of those reports shows that, on numerous occasions, resolution of the alerts took many hours; the defendant was at times ordered to go outside and walk around in order to obtain a signal; and multiple warrants for his arrest issued when he still was not able to obtain one, while following the instructions provided by probation.  Ultimately, all of the alerts were resolved and the warrants were recalled.

While defense lawyers routinely cite anecdotes of technical failures by GPS tracking devices and how it impacts our clients lives, it is really helpful that the SJC acknowledged records corroborating this. Mr. Feliz’s false alerts often took hours to resolve causing distress and the risk of false arrest. This is the reality for people subject to GPS monitoring yet judges routinely impose this requirement even in cases where there isn’t a good reason for monitoring.

In light of the Norman opinion, there are grounds to revisit pre-trial conditions requiring GPS monitoring. I will be raising the issue for several of my clients who are subject to GPS monitoring without compelling reason.