May 30, 2018 – In two recent cases, the Wisconsin Supreme Court and the Wisconsin Court of Appeals rejected challenges related to lifetime global positioning system (GPS) tracking of sex offenders in Wisconsin, which apply to some sex offenders by statute.

In the first case, State v. Muldrow, 2018 WI 52 (May 18, 2018), the Wisconsin Supreme Court unanimously (7-0) ruled that the DeAnthony Muldrow’s due process rights were not violated when he pled guilty to second-degree sexual assault despite his argument that he was never informed that the conviction would result in lifetime GPS monitoring.

In the second case, Kaufman v. Walker, 2017AP85 (May 30, 2018), the District I Wisconsin Court of Appeals ruled that the Wisconsin statute requiring lifetime GPS monitoring for sex offenders is not unconstitutional even if retroactively applied.

State v. Muldrow

Muldrow sought a plea withdrawal for second-degree sexual assault, arguing that he was not informed that lifetime GPS monitoring is a consequence of the conviction. He said due process required the court to inform him about all “punishments.”

But the circuit court ruled that lifetime GPS tracking is not a “punishment,” and denied Muldrow’s motion to withdraw the plea. The court of appeals affirmed. Recently, the state Supreme Court affirmed, concluding that lifetime GPS tracking is not punitive.

“[W]e hold that neither the intent nor effect of lifetime GPS tracking is punitive,” wrote Justice Michael Gableman wrote for the Court. “Consequently, Muldrow is not entitled to withdraw his plea because the circuit court was not required to inform him that his guilty plea would subject him to lifetime GPS tracking.”

In reaching that conclusion, the Court clarified the proper test “for determining whether a sanction is a ‘punishment’ such that due process requires a defendant be informed of it before entering a plea of guilty.” That test, the court noted, is the “intent-effects test.”

As a result of his plea agreement, Muldrow entered an 18-year deferred judgment agreement (DJA) with one year of prison and a year of extended supervision. Muldrow was charged with five counts relating to forcible intercourse with a 15-year-old girl.

Ultimately, the court vacated the DJA because he violated the terms of extended supervision in another case. He then received 10 years of probationary supervision and became subject to lifetime GPS monitoring under Wis. Stat. section 301.48(2)(a)3m.

Arguing for a plea withdrawal, Muldrow relied on a Wisconsin federal district court decision, which concluded that lifetime GPS tracking violated the Ex Post Facto Clause.

In that case, Justice Gableman noted, the district court applied the intents-effects test and determined that the intent was not punitive but had a punitive effect. But the U.S. Court of Appeals for the Seventh Circuit reversed that decision in 2016.

The Supreme Court also noted that GPS tracking for certain sex offenders could last a lifetime, but certain offenders can petition for termination after 20 years and GPS tracking is terminated if the offender moves outside of Wisconsin.

Punishment in the form of imprisonment and fines are set forth in Wis. Stat. Ch. 939 (crimes, general provisions), the Court explained, but lifetime GPS tracking provisions are in chapter 301 (corrections), highlighting a legislative difference.

“Wis. Stat. §301.48 is, in fact, surrounded by statutes that establish various safeguards to protect the public from persons convicted of criminal conduct,” wrote Justice Gableman, noting the intent of lifetime GPS monitoring is to protect the public.

“When courts have had the opportunity to review whether these safeguards constitute punishment, the statutes have, in every instance, been found to be non-punitive in nature.”

Finally, the Supreme Court determined that lifetime GPS tracking had no punitive effect, reviewing applicable factors and noting that lifetime monitoring “does not resemble imprisonment because the offender is not confined and has substantial freedom of movement (subject only to inclusions zones and inclusion zones.”

Kaufman v. Walker

In this case, James Kaufman – who pled guilty to child sex, exploitation, and pornography crimes in the 1990s – challenged the constitutionality of Wisconsin’s lifetime GPS monitoring statute under the Ex Post Facto Clause.

Kaufman, initially sentenced to nine years in prison and 20 years of probation, also made Fourth Amendment and the Due Process Clause arguments. Ultimately, probation was revoked for violations and Kaufman received eight more years in prison. In 2013, his parole request was granted but he was subject to lifetime GPS monitoring.

The Dane County Circuit Court dismissed Kaufman’s action and he appealed, arguing that the lifetime GPS monitoring statutes violate the ex post facto clauses of the U.S. and Wisconsin constitutions because they were not in effect when he was convicted in the 1990s and would thus apply retroactive “punishment” against him.

But the Court of Appeals noted that in Muldrow, the Wisconsin Supreme Court concluded that lifetime GPS monitoring is not “punishment.”

“The recent Muldrow decision is controlling law on the issue of whether Wis. Stat § 301.48 is punitive,” wrote Judge Timothy Dugan for a three-judge panel. “Further, a law can only be an ex post facto law if it imposes punishment.”

The Appeals Court also rejected Kaufman’s Fourth Amendment and due process claims. Kaufman argued that GPS tracking constitutes an unreasonable search.

But the court explained that sex offenders do not have the same privacy rights and Wisconsin has a “particularly strong interest in reducing recidivism through the information collected by the tracking device,” making it a reasonable requirement:

“[W]e conclude that in light of the State’s special need to protect children from sex offenders, the GPS’s relatively limited scope, and Kaufman’s diminished expectation of privacy, the GPS monitoring program constitutes a reasonable special needs search.”

Finally, the court ruled that Kaufman’s due process rights are not violated in tracking him through GPS for a potential lifetime.

The GPS tracking statute, the panel explained, “conditions GPS tracking on Kaufman’s prior convictions, rather than his current dangerousness,” Judge Dugan wrote. “Therefore, due process does not entitle him to more procedural protections.”