Lifetime GPS monitoring by government is not a punishment, court rules

Lifelong government monitoring of a convicted sex offender's location and movement is not a punishment because the main intent of such GPS tracking is to protect public safety, a state appeals court ruled last week.

"While the statutory scheme no doubt works some nontrivial punitive effects, these punitive effects do not override the primarily nonpunitive intent," District II Appeals Court Judge Brian J. Hagedorn wrote for the three judge panel. Joining Hagedorn in the opinion were Appeals Judges Paul F. Reilly and Lisa S. Neubauer.

Besides, he said, a person subject to lifetime monitoring because he or she is a threat to public safety can terminate the requirement simply by moving out of state. The opinion did not discuss public safety needs of those other states.

DeAnthony K. Muldrow sought to withdraw his guilty plea to third degree sexual assault and sexual assault of a child under 16 years of age because no one told him before his plea that his conviction would make him subject to lifelong monitoring. The appeals court, though, said the nonpunitive nature of having the government know his every move meant that the judge was not required to inform him of that particular "collateral consequence to his plea."

​A person subject to monitoring must wear a 2.5- by 3.5- by 1.5-inch tracking device around his or her ankle at all times, Hagedorn wrote. Tampering with the device, which can cause discomfort and blistering, is a felony. It may not be removed, even for showering, bathing, or sleeping, and the wearer must plug it in every 24 hours for one hour while still wearing it. The tracker can bulge, or may be visible if his or her pants leg raises up.

"This may allow others to infer that the wearer is a sex offender, subjecting him or her to embarrassment, harassment, or even violence," Hagedorn wrote. 

"But merely having substantial punitive effects does not automatically render a statute punitive ...," Hagedorn wrote. "The design and legal standards governing lifetime GPS monitoring all point to the obvious goal of protecting the public from dangerous child sex offenders."

The Wisconsin Supreme Court already found that mandatory sex offender registration was not punitive because its primary intent was to protect the public and assist law enforcement, Hagedorn said.

Hagedorn

"This did not mean, however, that there were no punitive consequences," he wrote. "As the defendant argued, sex offender registration results 'in ostracism, humiliation, and retaliation.' "

The Supreme Court acknowledged that registration might result in punitive aspects such as vandalism, job loss, and harassment, but it did not accept that those possibilities overrode the primary goal of the law. 

Similarly, "The intent and primary goal of lifetime GPS monitoring is clearly to protect the public and is nonpunitive in nature," Hagedorn said. "And while the statutory scheme no doubt works some nontrivial punitive effects, these punitive effects do not override the primarily nonpunitive intent."

The monitoring provision applies to those convicted of serious child sex crimes and allows the government to know whether offenders enter "exclusion zones," such as school grounds, where children congregate.

Offenders deemed a serious threat in Wisconsin can get out of lifetime GPS monitoring by moving to another state.

Hagedorn also said that offenders may apply to have the "lifetime" monitoring lifted after 20 years. An offender also may be freed from GPS monitoring by becoming permanently incapacitated or by moving out of state "where, presumably, the person is no longer a danger to Wisconsin citizens."

"The legislature has established a reasonable scheme to monitor those who pose a serious risk of harm to others," he wrote.