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SCOW: Lifetime GPS monitoring is not a punishment the judge must cover in the plea colloquy

State v. DeAnthony K. Muldrow, 2018 WI 52, 5/18/18, affirming a published court of appeals decision, 2017 WI App 47; case activity (including briefs)

A unanimous supreme court holds that lifetime GPS monitoring is not punishment, so a judge doesn’t have to advise a defendant that he or she is pleading to a crime that will require lifetime monitoring.

As a threshold matter, the court has to decide the proper test for determining whether a consequence of a conviction is a “punishment” that a defendant must be informed of before he enters a plea of guilty or no contest. The court holds that the proper test in this context is the “intent-effects” test, which asks, first, whether the statute’s intent or primary purpose is punishment, and, second, whether the effects of the statute are punitive as opposed to regulatory. (¶¶30-35). The effects part of the test is determined by applying seven (!) more factors, which are listed here.

The court fudges the actual formulation of the “intent-effects” test by implying both questions are to be asked in all cases. But if the inquiry about the statute’s intent or primary purpose reveals it is punitive, the inquiry is over; the second inquiry, about the statute’s effects, is only relevant when it isn’t clear the legislature intended to impose punishment. Cf., e.g., Hudson v. United States, 522 U.S. 93, 99 (1997); State v. Scruggs, 2017 WI 15, ¶¶16-17, 373 Wis. 2d 312, 891 N.W.2d 786.

Applying the test to lifetime GPS monitoring, the court agrees with the court of appeals that § 301.48 was not intended to be punitive (¶¶37-48) and, using the seven applicable factors, that its effects are not punitive, either (¶¶49-61).

No surprises here, given that the Seventh Circuit reached the same conclusion in Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016) (discussed in more detail here).

{ 2 comments… add one }
  • Carl J. Knapp May 20, 2018, 11:25 pm

    Bull! It’s punishment. Before these judges make a ruling as to whether something is punishment or not they should be required to wear one for a year. subject to the same penalties, such as when one is defective and quits working, you will be jailed if this happens, whether you did anything wrong or not, or when the charger quits and the battery runs out, you will be jailed for this as well. How about the fee you must pay for the privilege to wear one? How about the calls from the monitoring, usually around 3 a.m. in the morning telling you to go outside because they can’t get a signal, no matter what the weather is outside? When these judges go through that for a year, then they can say if it is punishment or not.

  • MARGARET A BACHOP May 15, 2019, 11:01 am

    GPS monitoring IS punishment, indeed. It inhibits bathing, shaving, prevents wearing of dresses, skirts, shorts & capris. It prevents swimming and other strenuous exercise. It impedes access to public buildings, such as airports. But, the most incidious result of GPS monitoring is the mental destress it engenders in the wearer. Much like the scarlet letter or branding of olden times, a monitor is a physical manifestation of the shame placed upon the wearer by society. It signifies a lifetime of sub-human status. GPS monitoring is Cruel & Unusual under the 8th Amendment and should be banned.

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