Issue (composed by On Point)
Does lifetime GPS monitoring mandated under § 301.48 constitute “punishment,” thus requiring a judge to advise a defendant that he or she will be subject to the monitoring as a consequence of a guilty or no contest plea?
The court of appeals held that lifetime GPS monitoring is not punishment, the same conclusion reached by the Seventh Circuit in Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016) (discussed in more detail here). Thus, a judge doesn’t have to advise a defendant that he or she is pleading to a crime that will require lifetime monitoring. With this case the supreme court adds to its docket a fourth case dealing with proper plea colloquies, the other three being Reyes Fuerte (immigration warning), Hendricks (advising about elements of alternate modes of commission of a crime), and Odom (advising about the DNA surcharge).
Also, note there’s a threshold issue lurking in the background. As noted in our post on the court of appeals decision, the parties argued about the proper test for determining whether GPS monitoring is “punishment” that must be covered during a plea colloquy. The state argued the test is whether punishment is the “fundamental purpose” of GPS monitoring, which appears to have been the approach in State v. Dugan, 193 Wis. 2d 610, 620-21, 534 N.W.2d 897 (Ct. App. 1995), and State v. Bollig, 2000 WI 67, ¶¶18-22, 232 Wis. 2d 561, 605 N.W.2d 199. But Muldrow said the court should apply the “intent-effects” test used in ex post facto cases, e.g., State v. Scruggs, 2017 WI 15, ¶¶16-17, 373 Wis. 2d 312, 891 N.W.2d 786. That test first asks whether the legislature intended GPS monitoring to be punishment; if so, the inquiry is over; but if not, the inquiry moves on to whether, despite the nonpunitive intent, the effects of it are punitive.
The court of appeals dodged the question by saying that under either test lifetime GPS monitoring is nonpunitive. (¶¶13-23). The supreme court could do the same dodge, but in light of the parties’ dispute it seems more likely they’ll pick one test or another.