COMMONWEALTH vs. RUSSELL M. CORY.

BOTSFORD, J. General Laws c. 265, § 47, inserted by St. 2006, c. 308, § 8 (§ 47), requires any person who is "placed on probation" after conviction of a designated sex offense to wear a global positioning system (GPS) tracking device for the duration

Page 560

of his or her probation. [Note 1] In March, 2008, a judge in the Superior Court ruled that this statute applied to the defendant, and entered an order modifying the terms of the defendant's probationary sentence to require that he wear a GPS device during his probation. The defendant appealed, and we granted his application for direct appellate review. We conclude that G. L. c. 265, § 47, by its terms applies to the defendant, because he was "placed on" postconviction probation following the statute's effective date of December 20, 2006. We further conclude, however, that G. L. c. 265, § 47, is punitive in effect, and under the ex post facto provisions of the United States and Massachusetts Constitutions, may not be applied to persons who are placed on probation for qualifying sex offenses committed before the statute's effective date. [Note 2] Because the defendant committed and was convicted of his qualifying sex offense before § 47 was enacted, the statute may not be applied to him. We therefore vacate the order of the Superior Court judge and remand for further proceedings. [Note 3]

Facts and background. We recite the essential facts reflected

Page 561

in the record, which are not disputed. On December 3, 1997, the defendant pleaded guilty in the Superior Court to a charge of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, and was sentenced to twenty-five years' probation. The defendant also pleaded guilty to a charge of rape of a child, G. L. c. 265, § 23, for which he was sentenced to a term of from seven to ten years in State prison. [Note 4] In May of 2006, the defendant was released on parole, but because he was also serving his probationary sentence, the probation department assumed responsibility for his supervision beginning in July of 2006. On October 19, 2006, a probation surrender notice issued to the defendant, alleging that he had violated several conditions of his probation that required him to attend counselling and treatment programs. On December 20, 2006, G. L. c. 265, § 47, took effect. See St. 2006, c. 303, § 8. On January 5, 2007, a Superior Court judge (first Superior Court judge) held a probation revocation hearing, and found the defendant to be in violation of his probation. That probation was revoked and the judge sentenced the defendant to two and one-half years in a house of correction, with one year to serve and the balance suspended for six years, with the defendant to be on probation during the suspended portion of the sentence. Although § 47 was then in effect, the judge did not order the defendant to wear a GPS tracking device as a condition of this probation, and there was no mention of § 47 at the revocation hearing.

Subsequently, the probation department requested that the conditions of the defendant's probation ordered on January 5, 2007, be amended to include a requirement that the defendant wear a GPS device, pursuant to § 47. A hearing was held on February 22, 2008, before a second Superior Court judge. The judge concluded that § 47 applies to sex offenders who commence a term of probation after the statute's effective date. He further concluded that because, in his view, the "commencement of probation is the triggering event," the statute was not impermissibly retroactive as applied to the defendant, whose current probationary term did not begin until after § 47 became effective. Accordingly, the second judge ordered that the defendant be required to

Page 562

be monitored by the probation department with a GPS tracking device during his probationary term "in accordance with" § 47.

Discussion. The defendant's appeal from the judge's order focuses entirely on § 47. He claims that the statute does not apply to him because he was "placed on probation" when he was originally sentenced to probation in 1997, long before the statute's effective date. His primary argument, however, is that, in any event, § 47 cannot be applied to him, because in the circumstances of his case, § 47 operates as an unconstitutional ex post facto law. [Note 5]

1. Does § 47 apply to the defendant? Section 47 states in relevant part:

"Any person who is placed on probation for any offense listed within the definition of 'sex offense', a 'sex offense involving a child' or a 'sexually violent offense', as defined in [G. L. c. 6, § 178C], shall, as a requirement of any term of probation, wear a global positioning system device, or any comparable device, administered by the commissioner of probation, at all times for the length of his probation for any such offense. The commissioner of probation, in addition to any other conditions, shall establish defined geographic exclusion zones including, but not limited to, the areas in and around the victim's residence, place of employment and school and other areas defined to minimize the probationer's contact with children, if applicable. If the probationer enters an excluded zone, as defined by the terms of his probation, the probationer's location data shall be immediately transmitted to the police department in the municipality wherein the violation occurred and the commissioner of probation . . . . If the commissioner or the probationer's probation officer has probable cause to believe that the probationer has violated this term of his probation, the commissioner or the probationer's probation officer shall arrest the probationer pursuant to [G. L. c. 279, § 3]. Otherwise, the commissioner

Page 563

shall cause a notice of surrender to be issued to such probationer." (Emphasis added.)

At issue is the meaning of the phrase, "is placed on probation." In seeking to interpret a statute, the starting point is its language. Commonwealth v. Welch, 444 Mass. 80, 85 (2005). Because the Legislature used the present tense verb "is placed" before the word "probation," we conclude that § 47 by its strict terms applies to sex offenders who are convicted of designated or qualifying sex offenses and who are sentenced to probation after the effective date of the statute, regardless of whether the crimes at issue were committed before or after the statute's effective date. [Note 6] The statute applies to the defendant in this case, because he was "placed on probation" on January 5, 2007 -- the date the first Superior Court judge found him in violation of his previous probationary sentence, revoked that probation, and imposed the new sentence with a new probationary term of six years. [Note 7]

2. Is § 47 an ex post facto law? Because we conclude that

Page 564

§ 47 applies to the defendant, we must consider the defendant's claim that as so applied, the statute is an unconstitutional ex post facto law. [Note 8] An ex post facto law is, in this context, one that "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Commonwealth v. Bargeron, 402 Mass. 589, 590 (1988), quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). [Note 9] "To prevail on this sort of ex post facto claim, [the defendant] must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted." Johnson v. United States, 529 U.S. 694, 699 (2000). See Miller v. Florida, 482 U.S. 423, 430 (1987), quoting Weaver v. Graham, 450 U.S. 24, 31 (1981) ("A law is retrospective if it 'changes the legal consequences of acts completed before its effective date' ").

The defendant received his most recent probationary sentence -- and the GPS monitoring requirement imposed under § 47 as a term of that probation -- as a consequence of the violation of his prior probation. Penalties for violation of the terms of supervised release, including the penalty of additional supervised release, are attributed to the original conviction rather than to the violation. Johnson v. United States, supra at 700-701. Cf. Krochta v. Commonwealth, 429 Mass. 711, 714 (1999) ("[probation] revocation does not punish the defendant for any crime

Page 565

charged subsequent to the imposition of probation"). Thus, because the probationary sentence the defendant received in 2007 relates back to a criminal offense he committed in or before 1997 (when he was originally convicted), § 47 has a retrospective application to him. It is necessary, therefore, to consider whether § 47 constitutes punishment, or, what is to the same effect, is penal. See Opinion of the Justices, 423 Mass. 1201, 1225 (1996).

This consideration involves a two-part inquiry. First, we must try to discern whether the Legislature explicitly or implicitly intended to denominate the statute a civil remedy or criminal penalty. See Smith v. Doe, 538 U.S. 84, 93 (2003), quoting Hudson v. United States, 522 U.S. 93, 99 (1997) ("The courts 'must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other' "). See also Commonwealth v. Bruno, 432 Mass. 489, 500 (2000) (Bruno) ("Whether a statute was intended to be criminal or civil depends on the Legislature's intent, which is a matter of statutory construction"). If the Legislature intended to denominate the statute as criminal, that ends the inquiry. If, however, the Legislature evinced an intent that the statute be civil, the second part of the inquiry comes into play: is the statutory scheme " 'so punitive either in purpose or effect as to negate [the State's] intention' to deem it 'civil.' " Smith v. Doe, supra at 92, quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997). In such circumstances -- i.e., where there is an evident legislative intent to create a civil regime -- the party challenging the statute carries a very heavy burden to show that the statute is punitive in one of these ways. Smith v. Doe, supra.

For the first part of this inquiry, which focuses on legislative intent, examination of the statute's text and structure is key. Id. Courts have identified certain factors of text and structure that may signal an intent to create a civil or regulatory scheme. See, e.g., id. at 93-96 (looking to explicit statement of civil intent contained in statute; statute's lack of safeguards associated with criminal process; placement of statute within civil or criminal code); Kansas v. Hendricks, 521 U.S. at 361 (looking to statute's placement in probate, rather than criminal, code; statute's denomination as "civil commitment procedure"); Bruno, 432 Mass. at 500 (looking to denomination of "civil commitment"; placement in public welfare chapters; statute's title, "Care,

Page 566

Treatment and Rehabilitation of Sexually Dangerous Persons"; stated purposes of "protect[ing] forthwith the vulnerable members of our communities from sexual offenders" and "care, custody, treatment and rehabilitation" of offenders).

Section 47 contains not one of these recognized indicators that the Legislature intended a civil categorization: it has no statement of civil intent in its preamble, title, or text; it is imposed only in the criminal context, when an offender is sentenced to probation; and it is placed in a criminal code (G. L. c. 265, "Crimes Against the Person"). Moreover, the structure of the statute suggests a penal or punitive intent: the GPS requirement must be uniformly imposed on every defendant sentenced to probation for certain sex offenses, and for precisely the period of his or her probationary sentence, without regard to present dangerousness, and even if there are no exclusion zones that can reasonably be applied to the defendant. [Note 10], [Note 11] It bears emphasis as well that probation itself serves as a disposition of and punishment for a crime; it is not a civil program or sanction. See Commonwealth v. Power, 420 Mass. 410, 414-415 (1995), cert. denied, 516 U.S. 1042 (1996); Commonwealth v. Durling, 407 Mass. 108, 111 (1990). Cf. MacLean v. State Bd. of Retirement, 432 Mass. 339, 343-344, 348 (2000).

Text and structure may thus suggest in some respects a criminal intent, but § 47 is not without indications of civil intent as well. The statute imposes a condition of probation, and while

Page 567

probation is a type of criminal sentence with goals that include punishment, deterrence, and retribution, "[t]he primary goals of a probationary sentence are rehabilitation of the probationer and protection of the public." Commonwealth v. Power, 420 Mass. at 414. Rehabilitation and public protection may suggest more of a civil than a criminal orientation. [Note 12] In any event, the text of § 47 being silent as to the statute's intended categorization as criminal or civil, we conclude that consideration of the Legislature's intent by itself does not offer a clear guide in this case. Cf. Smith v. Doe, 538 U.S. at 110 (Souter, J., concurring in judgment) (concluding that indications whether Alaska's sex offender registration law was civil or punitive were "in rough equipoise"); id. at 114- 115, 116-118 (Ginsburg, J., dissenting) (agreeing with Justice Souter that whether Alaska's registration law was intended to be regulatory or penal was "unclear"). Accordingly, we consider the punitive effects of § 47 on sex offenders serving probationary sentences. Because this is not a case where we are asked to "reject the legislature's manifest intent," Kansas v. Hendricks, 521 U.S. 346, 361 (1997), or " 'negate [the State's] intention' to deem [the statutory scheme] 'civil,' " Smith v. Doe, supra at 92, quoting Kansas v. Hendricks, supra, we evaluate the punitive effects of the GPS requirement without placing a heightened burden on the defendant. See Smith v. Doe, supra at 107 (Souter, J., concurring in judgment); id. at 115 (Ginsburg, J., dissenting), citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963). Cf. Doe v. State, 189 P.3d 999, 1008 n.62 (Alaska 2008) ("imposing a heightened presumption requiring 'clearest proof' of punitive effect could threaten rights protected by the Alaska

Page 568

Constitution and might be inconsistent with the responsibilities of this court").

In Smith v. Doe, supra, the United States Supreme Court, in analyzing the Alaska sex offender registration law, referred to the seven factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. at 168-169 (Mendoza-Martinez factors), as "useful guideposts" in determining whether a sanction is punitive in effect. Smith v. Doe, 538 U.S. at 97, quoting Hudson v. United States, 522 U.S. 93, 99 (1997). See Powers v. Commonwealth, 426 Mass. 534, 539 & n.9 (1998) (acknowledging, although not fully applying, Mendoza-Martinez factors). Cf. Bruno, 432 Mass. at 502 n.12. The seven factors or guideposts are:

(1) "whether the behavior to which [the sanction] applies is already a crime";

(2) "whether it comes into play only on a finding of scienter";

(3) "[w]hether the sanction involves an affirmative disability or restraint";

(4) "whether its operation will promote the traditional aims of punishment-- retribution and deterrence";

(5) "whether it has historically been regarded as a punishment";

(6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and

(7) "whether it appears excessive in relation to the alternative purpose assigned."

Kennedy v. Mendoza-Martinez, 372 U.S. at 168-169. [Note 13], [Note 14] The first four of these factors by themselves establish that the

Page 569

GPS requirement has a pronounced punitive effect. The first and second ask whether the sanction "comes into play only on a finding of scienter" and "whether the behavior to which it applies is already a crime" -- questions that together consider whether the sanction is administered as a criminal penalty, that is, in response to criminal conduct. In imposing GPS monitoring as a mandatory condition of a probationary sentence for convicted sex offenders, § 47 more than meets this standard. The GPS requirement applies only to those persons who commit and are convicted of certain crimes; it applies to every person who is convicted of those crimes and receives a probationary term as part of the criminal proceeding's disposition; and it applies for the precise duration of the probationary sentence imposed. [Note 15] A sanction bearing these qualities, if it also imposes a significant limitation on liberty, carries a strong presumption of punishment. [Note 16] See Smith v. Doe, 538 U.S. at 112 (Stevens, J., dissenting); id. at 115-116 (Ginsburg, J., dissenting) (sanctions were punitive where requirements were "comparable to conditions of supervised release or parole," and triggered by past crime alone rather than current dangerousness).

Limitation or burden on liberty is the subject of the third

Page 570

Mendoza-Martinez factor, which asks "[w]hether the sanction involves an affirmative disability or restraint." The GPS device burdens liberty in two ways: by its permanent, physical attachment to the offender, and by its continuous surveillance of the offender's activities. As to the permanent, physical attachment to the offender, our observations about the Commonwealth's statutory sex offender registration system is instructive. We have said that the registration requirement "presents an 'importantly distinct kind of constitutional danger,' because it 'forces an action on the person required to register. It is a continuing, intrusive, and humiliating regulation of the person himself.' " Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 792 (2008), quoting Doe v. Attorney Gen., 426 Mass. 136, 149 (1997) (Fried, J., concurring). As "continuing, intrusive, and humiliating" as a yearly registration requirement might be, a requirement permanently to attach a GPS device seems dramatically more intrusive and burdensome. There is no context other than punishment in which the State physically attaches an item to a person, without consent and also without consideration of individual circumstances, that must remain attached for a period of years [Note 17] and may not be tampered with or removed on penalty of imprisonment. Such an imposition is a serious, affirmative restraint. [Note 18]

The intended function of the GPS device, continuous reporting of the offender's location to the probation department, also represents an affirmative burden on liberty. While GPS monitoring

Page 571

does not rise to the same level of intrusive regulation that having a personal guard constantly and physically present would impose, it is certainly far greater than that associated with traditional monitoring. [Note 19] And the impact of such intrusion is of course heightened by the physical attachment of the GPS bracelet, which serves as a continual reminder of the State's oversight.

The GPS requirement thus places significant restraints on offenders. While these liberty burdens, as is true of probation generally, may serve a goal of rehabilitation, the GPS requirement and its burdens -- again like probation generally -- also satisfy the fourth Mendoza-Martinez factor, by "promot[ing] the traditional aims of punishment -- retribution and deterrence." Kennedy v. Mendoza-Martinez, 372 U.S. at 168. See Commonwealth v. Power, 420 Mass. at 415.

We briefly discuss the remaining three Mendoza-Martinez factors. The fifth factor asks "whether [the sanction] has historically been regarded as a punishment." While there is no historical version of the GPS device (it is not the same as a ball and chain, for example, any more than it is the same as a weekly reporting requirement to the probation department), there are many historical cases where those convicted of a crime were required to wear some item for the length of their sentence, or suffer some long-term modification to their bodies. Such requirements are consistently viewed as punitive.

Page 572

The final two Mendoza-Martinez factors are respectively "whether an alternative purpose to which [the sanction] may rationally be connected is assignable for it"; and "whether [the sanction] appears excessive in relation to the alternative purpose assigned." The GPS requirement, with its instruction to designate exclusionary zones that are off limits to the sex offender, supports the rational purpose of keeping offenders away from their past victims, and more generally, the purpose of limiting opportunities for reoffense. The sanction appears excessive, however, to the extent that it applies without exception to convicted sex offenders sentenced to a probationary term, regardless of any individualized determination of their dangerousness or risk of reoffense. See Smith v. Doe, 538 U.S. at 116-117 (Ginsburg, J., dissenting) (sanction excessive in relation to nonpunitive purpose, where keyed to offense rather than offender's particularized risk of reoffense).

Weighing these factors together, we conclude that, as a result of the substantial burden on liberty § 47 imposes as part of the sentence for certain crimes, the statute is punitive in effect. And because § 47 operates retroactively with respect to the defendant, its application to him is impermissible under the ex post facto provisions of the United States and Massachusetts Constitutions.

The fact that sentencing judges prior to the enactment of § 47 had the discretionary power to impose GPS monitoring as a condition of probation does not affect our analysis. It was settled long before § 47 was enacted that "[j]udges are permitted 'great latitude' in imposing conditions of probation . . . ." Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001), quoting Commonwealth v. Pike, 428 Mass. 393, 402 (1998). A judge therefore does not implicate ex post facto provisions by exercising that discretionary power in an individual case. Cf. Buckley v. Quincy Div. of the Dist. Court Dep't, 395 Mass. 815, 818 (1985), quoting Commonwealth v. McGovern, 183 Mass. 238, 240 (1903) ( "terms and conditions [of probation] may be subject to modification from time to time as a proper regard for the welfare, not only of the defendant but of the community, may require"). It is, however, quite a different matter for the Legislature to remove discretion from the judge by imposing a greater

Page 573

minimum punishment than the crime previously required; such a law may only be applied prospectively. See Lindsey v. Washington, 301 U.S. 397, 400- 402 (1937) (ex post facto clause barred application of amended law that changed discretionary maximum sentence of fifteen years to mandatory fifteen-year sentence to defendant who committed crime before effective date of law's modification); Commonwealth v. Davis, 380 Mass. 1, 15 (1980) ("legislation which would have the effect of changing a discretionary sentence to a mandatory one could not be validly enforced with respect to crimes antedating the law"). See also Miller v. Florida, 482 U.S. 423, 432-433 (1987) (application of new presumptive sentencing guidelines violated ex post facto clause, even though defendant could have received same sentence under old guidelines).

Conclusion. The order of the Superior Court requiring the defendant to be monitored by the probation department with a GPS tracking device during his probationary term is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.

So ordered.

IRELAND, J. (dissenting, with whom Spina and Cowin, JJ., join). I agree with the court that the defendant was sentenced to probation after the effective date of the statute, G. L. c. 265, § 47, inserted by St. 2006, c. 308, § 8 (Act). [Note Dissent-1] Ante at 562-563. I write separately because I disagree with the court's conclusion that the statute should be deemed penal and therefore, it would be a violation of the ex post facto clause to apply it to this defendant, who was convicted of committing a sex offense before the statute's enactment. Ante at 560, 572.

As the court notes, in determining whether a statute constitutes an ex post facto law, we must discern whether the Legislature

Page 574

intended the statute to be a civil remedy or a criminal penalty. Ante at 565. In its analysis, the court concludes, ante at 567, that it is not clear whether the Legislature intended the statute to be criminal or civil and, therefore, the defendant should be relieved of his burden to provide " 'the clearest proof' that 'the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention' to deem it 'civil.' " Commonwealth v. Bruno, 432 Mass. 489, 500 (2000), quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997). Although I agree with the court that the Act creating the statute contains both civil and criminal elements, I do not agree that the legislative intent is so unclear that we cannot conclude that the intent was regulatory and remedial.

General Laws c. 265, § 47, concerns a term of probation. The principal goals of probation itself are the rehabilitation of the probationer and the protection of the public. Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001), citing Commonwealth v. Pike, 428 Mass. 393, 403 (1998). An important aspect of the statute is that it does not apply to all probationers, but only to those who have committed certain sex offenses, as defined in the sex offender registration law, G. L. c. 6, §§ 178C-178Q. Both the Legislature and this court have recognized that sex offenders present a serious threat to the public and have a high rate of recidivism. Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 789 (2008); Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 769 (2006); Coe v. Sex Offender Registry Bd., 442 Mass. 250, 258-260 (2004); Commonwealth v. Knapp, 441 Mass. 157, 159, 164 (2004). Determining the most effective way to control problems affecting public safety is left to the Legislature. Luk v. Commonwealth, 421 Mass. 415, 429 (1995).

Although it is true, as the court states, ante at 566, that the statute lacks a statement of civil intent, is imposed only in the criminal context, is placed in the criminal code, and is uniformly imposed on every defendant who is placed on probation for certain sex offenses, I conclude that these elements alone are not dispositive of whether the Legislature's intent is so "unclear" as to relieve the defendant of his burden.

That a statute "may be 'tied to criminal activity' is 'insufficient

Page 575

to render the statute punitive.' " Commonwealth v. Bruno, supra at 501, quoting Kansas v. Hendricks, supra at 362. The location and labels of a statute do not by themselves transform a civil remedy into a criminal one. Smith v. Doe, 538 U.S. 84, 94 (2003) (Smith). Even if the objective of a statute is consistent with the purposes of a State's criminal justice system, "the State's pursuit of it in a regulatory scheme does not make the objective punitive." Id. In addition, a legislative restriction that is incident to the State's power to protect the public will be considered regulatory rather than punitive. Smith, supra at 93-94, quoting Flemming v. Nestor, 363 U.S. 603, 616 (1960). Protecting the public from sex offenders is a nonpunitive objective. Smith, supra at 102-103.

Here, even though the location of the Act under which this statute falls is the criminal code and the Act's title, "An Act increasing the statute of limitations for sexual crimes against children" could be read as criminal, one provision establishes criminal penalties for level three sex offenders who knowingly and willingly establish residence in certain convalescent or nursing homes or facilities for the mentally retarded. Another provision concerns a statute of limitations. See respectively St. 2006, c. 303, §§ 6 and 9. Four provisions can be read as regulatory rather than criminal. See St. 2006, c. 303, §§ 1, 2, 3, and 10 (reducing number of days for certain sex offender classification and registration requirements; raising fee). One section (§ 5) mandates deleting a subsection of G. L. c. 178H, § 3, concerning registration by homeless persons, and arguably is administrative in nature. The remaining three sections concern community parole supervision (§ 4) and GPS monitoring for parolees and probationers (§§ 7 & 8) which are tied, at least in part to the offender's victims.

The Act's title references children. General Laws c. 265, § 47, itself (§ 8 of the Act), ties the global positioning system (GPS) requirement to the offender's victim by stating that the Commissioner of Probation must establish "geographic exclusion zones" that must include the "victim's residence, place of employment, school and other areas defined to minimize the probationer's contact with children, if applicable." This language clearly indicates that the Legislature's concern was protection of

Page 576

the victim. Moreover, although it does not have its own statement of civil intent, the statute references G. L. c. 6, § 178C, for the definitions of sex offenders who fall under its purview. The preamble to the sex offender registry statute states that the statute's purpose is to protect the public. St. 1999, c. 74, preamble & § 1. This court has found that purpose to be remedial. Doe v. Attorney Gen., 430 Mass. 155, 166, 168 (1999). The presumption that the Legislature is aware of the content of other statutes holds particularly true of statutes the Legislature specifically references. See Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008); Suliveres v. Commonwealth, 449 Mass. 112, 116 (2007), citing Commonwealth v. Callahan, 440 Mass. 436, 440-441 (2003).

In addition, other laws that establish regulations for sex offenders who have finished serving their sentences have been deemed to be remedial, including the confinement of those persons determined to be sexually dangerous. Commonwealth v. Bruno, 432 Mass. 489, 501-502 (2000) (commitment of sexually dangerous persons remedial). See, e.g., Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787-789 (2008) (noting that sex offender registry laws are generally regulatory); Coe v. Sex Offender Registry Bd., 442 Mass. 250, 259-260 (2004), citing Smith, supra at 105 (posting information concerning level three sex offenders on Internet nonpunitive); Opinion of the Justices, 423 Mass. 1201, 1227 (1996) (proposed community notification of sex offender information regulatory and remedial).

Moreover, I do not agree with the court's conclusion that, because the statute applies to all sex offender probationers without regard to individual dangerousness, the statute is therefore criminal. Ante at 572. "The State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make a statute punitive under the Ex Post Facto Clause." Smith, supra at 104. [Note Dissent-2] "The risk of recidivism posed by sex offenders is 'frightening and high' "; "[w]hen convicted sex offenders reenter

Page 577

society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." Id. at 103, quoting McKune v. Lile, 536 U.S. 24, 33, 34 (2002). Here, therefore, the Legislature could decide that, of all probationers, those convicted of sex offenses have a substantial risk of recidivism and, accordingly, mandate the use of a tool that assists law enforcement in protecting the public while the offender is completing his sentence. Smith, supra at 103. Moreover, the United States Supreme Court has upheld other laws without a corresponding risk assessment. Smith, supra at 104, citing Hawker v. New York, 170 U.S. 189, 197 (1898), and De Veau v. Braisted, 363 U.S. 144, 160 (1960).

I conclude that the legislative intent was to establish a regulatory rather than criminal regime and I would not relieve the defendant of his burden to show that the statute is so punitive as to be penal. However, even assuming the Legislature's intent is not clear, I conclude that, on balance, this statute establishes a nonpunitive regime to protect the public.

This court's analysis of the ex post facto clause has been identical to that of the United States Supreme Court. Commonwealth v. Bruno, 432 Mass. 489, 492 n.4 (2000). The Supreme Court has stated that, where there is no conclusive evidence of legislative intent, courts should analyze the statute on its face using the seven factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963). However, absent an express showing of an intent to punish, the determination whether a statute is so punitive in purpose and effect that it negates any remedial purpose turns on the last two Mendoza-Martinez factors, whether the statute is rationally related to a purpose other than punishment and whether the effects are excessive in relation

Page 578

to that purpose. See Schall v. Martin, 467 U.S. 253, 269 (1984), quoting Kennedy v. Mendoza-Martinez, supra; Bell v. Wolfish, 441 U.S. 520, 538 (1979). See also Smith, supra at 102-103 (stating that "most significant" factor in determining that Alaska's sex offender registration statute was not ex post facto law was its rational connection to nonpunitive purpose of protecting public from sex offenders).

Furthermore, this court has noted that, although the Mendoza-Martinez factors can be useful guidelines, without weight and priorities assigned to them, there are risks that the factors will be unmanageable for their "indefiniteness." Opinion of the Justices, 423 Mass. 1201, 1222 (1996). The court also noted, however, that it considered that the more harshly a statute bears on an individual, the more closely it resembles a criminal sanction, and the more urgent the regulatory concern and the more soundly the statute is rooted in fact and not conjecture, the more regulatory the aim. Id. at 1224.

Although our analysis of the ex post facto clause is identical to that of the Supreme Court, here, relying on dissenting opinions in Smith, this court concludes that the finding of scienter and whether the behavior to which the statute applies is a crime weigh heavily in favor a determination of punitive effect. Ante at 569. However, in the Smith case, the majority stated that its assessment of Alaska's sex offender registration law was not aided by these two factors because the scheme applied to past conduct that was and is a crime. Smith, supra at 105. In any event, I conclude that the statute does not create culpability for prior conduct; nor does it require a finding of scienter to subject a person to the statute's terms.

The determination whether the statute is an affirmative restraint must be made in the context that all probation has a supervisory element to ensure that the probationer abides by its terms. Commonwealth v. Taylor, 428 Mass. 623, 626 (1999). In any event, restraint is not automatically punitive, and even nonpunitive confinement to protect the public is a nonpunitive, legitimate government objective. Kansas v. Hendricks, 521 U.S. 346, 363 (1997). Indeed, the Court has upheld pretrial confinement as nonpunitive, where the objective was to ensure that a potentially dangerous defendant appeared for trial. See Schall v. Martin,

Page 579

supra at 272-274; Bell v. Wolfish, supra at 536-537 (restraint not necessarily punitive).

Here, the probationer must wear the device only during the term of his probation, a condition that is limited in duration and which already has restrictions that are related to the supervisory responsibility of the probation department. [Note Dissent-3] See Commonwealth v. Durling, 407 Mass. 108, 111 (1990). Although a probationer may be restricted from some geographic areas related to public safety, the statute does not otherwise prohibit the probationer from going about his or her daily business while on probation. Moreover, although entrance into an exclusion zone is a violation of probation, it is not a crime. See Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006).

Concerning whether the statute promotes the traditional aims of punishment, retribution, and deterrence, the statute would function as a deterrent. However, statutes that have a deterrent or retributive effect may be regulatory and burdens on the defendant that result from their imposition "only violate the ex post facto clauses . . . if they must be deemed punishment." Opinion of the Justices, supra at 1226. Virtually all civil regimes have some deterrent effect. Id. at 1222-1223, citing United States v. Ursery, 518 U.S. 267, 284-285 n.2 (1996). "To hold that the mere presence of a deterrent purpose renders such sanctions 'criminal' . . . would severely undermine the Government's ability to engage in effective regulation." Smith, supra at 102, quoting Hudson v. United States, 522 U.S. 93, 105 (1997).

It is true, as the court points out, ante at 570 n.18, that the GPS device could be seen by the public, [Note Dissent-4] and retribution could

Page 580

be visited on the probationer. However, retribution must be the purpose of the statute in order for it to be deemed punitive. Opinion of the Justices, supra at 1227. We have held that posting information about level three sex offenders on the Internet, although it could invite retribution, served a public safety goal and was not punitive. Coe v. Sex Offender Registry Bd., 442 Mass. 250, 259-261 & n.9 (2004), citing Smith, supra at 91, 105 (actual audience are those who would be offenders' potential victims). Unlike posting information identifying certain sex offenders on the Internet, here, it is not at all certain that the public would know that the reason the offender was wearing the GPS device was because he was a sex offender, if they were to see the device at all. See generally Commonwealth v. Donohue, 452 Mass. 256, 257, 269 (2008) (sheriff has authority to discharge or parole prisoners in special program where they wear GPS device); Commonwealth v. Morasse, 446 Mass. 113, 113-114 (2006) (GPS used for pretrial home confinement of defendant indicted on various charges). Commonwealth v. Hector H., 69 Mass. App. Ct. 43, 44 (2007) (juvenile found delinquent by reason of trespassing placed on probation with electronic monitoring for one year). [Note Dissent-5]

Turning now to the most important of the Mendoza-Martinez factors, I agree with the court that the "GPS requirement, with its instruction to designate exclusionary zones that are off limits to the sex offender, supports the rational purpose of keeping offenders away from their past victims, and more generally the purpose of limiting opportunities for reoffense." Ante at 572. However, I do not agree with the court's conclusion that because it applies, without exception, to convicted sex offenders without regard to whether they are individually dangerous, the burden on the probationer is excessive in relation to the purpose of protecting the public. Id., citing Smith, supra at 116-117 (Ginsburg, J.,

Page 581

dissenting). As discussed, the majority in the Smith case stated that to treat sex offenders as a class does not make it punitive where it is rational to conclude that there is a high rate of recidivism among sex offenders. Smith, supra at 103-104. This court has stated that recidivism among sex offenders is high and that protection of the public is a compelling State interest. See Coe v. Sex Offender Registry Bd., 442 Mass. 250, 259-260 (2004); Commonwealth v. Knapp, 441 Mass. 157, 159, 164 (2004). See also Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 789 (2008); Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 769 (2006). Moreover, "[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aim it seeks to advance . . . [unless] the nonpunitive purpose is a 'sham or mere pretext.' " Smith supra at 103, quoting Kansas v. Hendricks, 521 U.S. 346, 371 (1997) (Kennedy, J., concurring). Here, there is no evidence of sham or pretext. See Luk v. Commonwealth, 421 Mass. 415, 422 (1995) (sanctions are punitive only if they cannot be explained by nonpunitive purpose).

Given that the urgency of the regulatory concern of protecting the public from sex offenders has been found both by the Legislature and this court, and that here, the statute covers sex offenders who have yet to serve their sentences, I conclude that on balance this statute is regulatory, despite the burdens on the sex offender probationer, and thus does not violate the ex post facto clause. See Opinion of the Justices, supra at 1223-1224 (court should weigh statute's harshness on individual against urgency of regulatory concern). [Note Dissent-6]