HOMELESS SEX OFFENDERS

An article today reports on an interesting Opinion by the Massachusetts Supreme Judicial Court (SJC).

A homeless sex offender was found by a hearing judge to be in violation of his probation because he could not find a shelter that had the connections that would enable him to re-charge the GPS unit that he was required to wear as a condition of probation.

He appealed that violation-finding to the SJC. The case is Commonwealth vs. John. J. Canadyan, Jr., SJC-10669.*

As is my practice, I’ll just make comments on what I see as significant bits in the text.

Mr. Canadyan (DFDT) was sentenced to 18 months confinement and 5 years probation after pleading guilty to 2 counts of Indecent Assault and Battery on a Child Under 14. He was released from confinement in December 2008, and in March 2009 was declared to be in violation of his probation conditions as a result of not being able to secure housing that would permit re-charging of his GPS device.

(I note here that the offenses to which he pled guilty were sufficient to classify him as a Level 3 offender and trigger the statutory GPS requirement.)

He requested a Hearing, held on March 24, 2009, at which time the Probation Department advised the Hearing Judge that alternative arrangements for re-charging had been made in his case. Nonetheless, the Hearing Judge found him in willful violation, citing his failure to find employment. Although he had made efforts to find employment, and the Probation Department seemed sympathetic to his situation, the Hearing Judge declared that his efforts were insufficient for employment that was required in the context of probation conditions, and required him to make two certifiable efforts per day to do so.

DFDT appealed to the SJC for direct appellate review and it was granted. DFDT only appeals the finding of violation and not the other requirements.

Let me say here that the SJC in this State has not always impressed me. It’s most recent significant performance was last January’s highly dubious rejection of former-priest Paul Shanley’s request for a new trial, citing grounds of judicial deference to the established science of the Diagnostic and Statistical Manual in the matter of ‘recovered/repressed memory’ – although other Courts, including the US Supreme Court, had declared that judges need not consider themselves bound to consider that (hugely dubious) ‘diagnosis’ as solidly established scientific fact. (The gravamen of the Shanley case consists of pretty much nothing else but alleged recovered-repressed memories.)

Worse, the SJC released its rejection on the Friday afternoon before (the following Tuesday) special election to fill a vacant US Senate seat; the Democratic candidate was the State’s female Attorney-General, who had made quite a record in prosecuting sex-offenses and supporting various elements of ‘victimist law reforms’. In the event, the Republican candidate won, leaving the SJC with a palpable dent in its integrity.

But that was then.

Thus to this Opinion.

The Court notes that evidence has been introduced to the effect that it is extremely difficult for homeless sex-offenders under a GPS mandate to find shelters with the necessary phone-line or even electrical circuits to handle the GPS equipment. It also notes that DFDT had made sufficient effort – and the Probation Department did not disagree – to try to find appropriately equipped housing such that he could not be considered to be willfully homeless in order merely to avoid the GPS tracking.

It notes also that DFDT “had been given an extended deadline to work out this problem”. Which, with all due respect to the SJC, approaches the ludicrous, akin to saying that a defendant had been generously given extended time to figure how to walk on water or pass through solid walls: given the Mania and the numerous housing restrictions imposed on SOs (especially if classified, for whatever reason, as Level 3, the highest and putatively most dangerous Level), then no human being in such a situation is going to be able to find the housing.

In DFDT’s case, his daughter had offered her home but since she had children under 18 her home was legally disqualified, his sister lives in Europe, and his brother lives in another State (Michigan) which politely opined that he would not be acceptable as a resident – even under GPS monitoring – there.

With a refreshing candor the SJC notes that “The facts and circumstances of this case bring more fully into view a tension between mandatory GPS monitoring of sex offenders released on probation, see G.L. c. 265, § 47, and the practical reality of homelessness--a circumstance facing an increasing number of former sex offenders”.

This is a small but real bit of progress, especially when you consider the pie-in-the-sky Op-Ed dampdreams that were delivered from the Bench in the 1995 Poritz case in New Jersey, where that State’s high court sniffed that it would be ungenerous to imagine the probability that SOs would be placed under almost-impossible strains in trying to re-integrate into the community (that had already been whipped up by the assorted elements of the Mania). Surely, that Court bleated, the public could be trusted not to go overboard – although since the Sex Offender was painted as such a horrible and incorrigible monster, you had to think that Pollyanna and the Red Queen had both joined in the Opinion or at least filed Amicus Briefs for the State.

I also note that it is gratifying to see the SJC refer to “former sex offenders”, which is another small but substantive straw in the wind now. Previously the SO had been consider as unable to change his ‘nature’ as a vampire (Joss Whedon’s ‘Angelus’, the vampire-with-a-soul in the TV show ‘Buffy the Vampire Slayer’, had yet to make his screen debut, not that I think it would have made much difference back then).

In Footnote 7 the SJC observes that both employment and housing agencies (not particularly SO-friendly) “provided substantial evidence about the extraordinary obstacles facing sex offenders attempting to secure employment”.

While the SO laws, the SJC asserts, “plainly serve a public purpose, they also affect the ability of former sex offenders to reintegrate into the work force and into the community”. And who can deny it?

But, not without reason, the SJC notes that “This larger problem is not one that can be, or need be, solved in this case”. The SO Mania Regime laws are now so deeply and broadly enmeshed that no single Court can be expected to fix things, and – in this case – the SJC takes the careful road and doesn’t attempt to.

The Hearing Judge was declared to be in error by finding that DFDT had not made sufficient efforts to comply with the State-imposed conditions of probation.

The Hearing Judge further erred in finding “that the defendant had violated the GPS condition of his probation by not, in the judge's estimation, making sufficient efforts to find employment. Securing employment was not a condition of probation”. In other words, the State cannot make as a condition-of-probation an outcome over which the SO would have no control. Which is a refreshing bit of logic in a Mania Regime not known for its logic.

Thus, the SJC decides, “For the reasons stated, we set aside the finding that the defendant violated the GPS monitoring condition of his probation. So ordered.” I have to say, it’s nice to see that type of conclusion.

In the Footnotes (FN) the SJC also makes two other interesting points.

In FN 8 the SJC acknowledges and accepts that somewhere between 65-74 percent of Level 3 SOs are homeless. And who could be surprised?

But even more remarkably, in FN 10 the SJC states frankly and clearly that “Throughout the proceedings, the [Hearing] judge was both dismissive and condescending in her treatment of defense counsel, the evidence ably presented on the defendant's behalf, and the defendant's circumstances. Such demeanor creates an unacceptable appearance of bias and partiality.” [italics mine]

Now this is an impressively decent observation, and deserving of a bit of recognition, since you don’t often see this sort of thing coming from the Bench, especially from so high a court.

But so much remains to be done.

Let us continyuh!

NOTES

*To access the short text you can go to the Mass Reports site here; then under ‘Slip Opinions’ click on the ‘Opinions’ link; that will give you a current list and the text of this case is Number 2 on that list, and you click on it. BUT if you do this after a certain period of time, then the Opinion is no longer new; in that case, just go to the Mass Reports site home page and click on ‘Opinion Archive’.