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GPS Law Violates Separation of Powers

By Robyn Hagan Cain on August 04, 2011 4:15 PM

The California Penal Code states that the county’s chief probation officer shall have the “sole discretion,” consistent with the terms and conditions of probation, to decide which persons shall be supervised using a global positioning system (GPS).

A California District Court says the GPS law is unconstitutional.

In an opinion issued on Tuesday, the court ruled that the chief probation officer cannot order a person to wear a GPS device in conflict with a court order.

In February 2010, Augustine Cruz, Jr pled no contest to felony vandalism and admitted the special allegation that he committed vandalism for a street gang. Under a plea agreement, Cruz was placed on three years of supervised probation.

The probation order included the conditions: obey all laws, do not associate with known criminals, follow all orders of the probation officer, do not change place of residence or leave the county or state without permission of the probation officer, do not drink nor possess any alcoholic beverages and stay out of places where they are the chief item of sale, do not associate with gang members, and stay away from the 2001 Clothes store and Westside Market.

In April 2010, Cruz reported to the probation department's electronic monitoring office, and agreed to be fitted with a GPS device. Four days later, Cruz told his probation officer that he was refusing further participation in GPS monitoring and would rather complete his sentence in state prison. The probation officer arrested Cruz for violating his probation.

At the probation violation hearing, the trial court refused to order Cruz to participate in GPS monitoring. The court found that the California Penal Code GPS law does not simply empower the trial court to authorize the probation department to use GPS monitoring. Instead, the section gives the probation department the "sole discretion" to decide, thus depriving the court of any say in the matter.

Whether the decision to order GPS monitoring can be characterized as ministerial or substantive, the court determined that the GPS law is an impermissible interference with the power of the trial court to set the terms and conditions of probation and violates the separation of powers.

So how does the court reconcile its decision in Augustine Cruz's case with California's long-standing policy of releasing prisoners early to combat overcrowding? While both involve the police enforcing penalties in a manner different from court-ordered punishments, the early release program reduces the court-imposed penalty, while the California Penal Code's GPS law increases the penalty.

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