The fight against lifetime GPS monitoring in Wisconsin has been an ongoing battle.
The 7th Circuit (upheld the lifetime GPS in Belleau v. Wall, 811 F.3d 929, 937 (7th Cir. 2016), declaring that the statute did not violate the Ex Post Facto Clause of the Constitution because the monitoring was considered “prevention,” not “punishment.” WI Attorney General Brad Schimel had broadened the class of those subjected to lifetime GPS monitoring to include not just “recidivists” (those with 2 separate convictions), but more than one count even on the same offense, thus subjecting more to lifetime GPS.
A challenge to the broader provisions also failed. The 7th Circuit reaffirmed lifetime GPS in WI in the June 2022 ruling Braam v. Carr, No. 20-1059 (7th Cir. 2022). Applying the 4th Amendment’s reasonableness standard, the government’s interest in deterring recidivism by dangerous offenders outweighs the offenders’ diminished expectation of privacy. Any differences between the 2016 plaintiff & these plaintiffs are too immaterial to make the earlier holding inapplicable.
In State of Wisconsin v Muldrow, 2018 WI 52 (WI Sup Ct, 5/18/18), the Wisconsin Supreme Court denied a challenge to lifetime GPS on the grounds it is a punishment & that the consequences of a guilty plea should have included a warning that lifetime GPS would be a part of the sentencing. The state upheld lower court rulings, adding, “The Applying the intent-effects test (i.e., the Martinez-Mendoza factors), we hold that neither the intent nor effect of lifetime GPS tracking is punitive. 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.”
At least for some, there was some good news.
In State v. Corey T. Rector, 2023 WI 41, 5/23/23, Rector pleaded to 5 counts of CP in a single case, his only conviction. The sentencing judge placed him on the SOR for 15 yrs. The state appealed on the grounds any two or more convictions of registry-eligible sex offenses trigger mandatory lifetime registry. The WI Sup Ct ruled (4-3) that Rector is not required to register for life from multiple convictions stemming from a singular case. While this case did not involve someone on lifetime GPS, GPS had been issued to those with multiple convictions for the same offense. The Capital Times of Madison WI (Cap Times) reported on 8/8/23 that WIDOC began removing GPS from RPs convicted of multiple charges for the same offense; they had reported 625 RPs not under WIDOC supervision was on GPS but were unsure how many of them the new policy would impact.
But now, the Wisconsin legislature wants to override the courts by rewriting the law to place those who benefitted from the Rector decision back on debilitating lifetime GPS monitoring. This is a costly and stupid decision from the Wisconsin legislature.
*****************
2023-2024 WISCONSIN SENATE BILL 874 (Note: I made a few abbreviations to save on space but is fully spelled out in the bill, otherwise coped verbatim.) 1/52024 - Introduced by Sen. Wimberger, Felzkowski, Jacque, James, Nass & Tomczyk, cosponsored by Representatives Born, Behnke, Binsfeld, Dallman, Dittrich, Donovan, Duchow, Goeben, Gundrum, Gustafson, Hurd, Maxey, Michalski, Moses, Murphy, Mursau, Nedweski, O'Connor, Rettinger, Schmidt, Summerfield, VanderMeer, Shankland & Melotik. Referred to Committee on Judiciary & Public Safety.
An Act to amend 301.45 (5) (b) 1., 301.45 (5m) (b) 3. & 301.46 (2m) (am) 1. & 2. of the statutes; relating to: counting convictions & findings for the purpose of the SO registry & notifications.
Analysis by the Legislative Reference Bureau
This bill codifies the attorney general opinion, OAG-02-17, regarding the interpretation of the statutory phrase “two or more separate occasions” as it relates to the SO registry & notification requirements.
Under current law, a person must register with WIDOC as a SO if he or she has been convicted of certain sex offenses or found not guilty of certain sex offenses by reason of mental disease or defect. The length of time that the person must register varies depending on the offense or the number of convictions or findings. A person generally must register until he or she dies if the person has on two or more separate occasions been convicted of a sex offense or found not guilty of a sex offense by reason of mental disease or defect.
Under current law, if a person committed a sex offense in another state & is required to register in WI due to moving here, working here, or going to school here, the person must register in WI for as long as he or she lives, works, or attends school in WI if the person has on two or more separate occasions been convicted of a sex offense or found not guilty of a sex offense by reason of mental disease or defect.
Under current law, when a person who is required to register as a SO is released into the community from confinement or other care, DOC or the Dept. of Health Services, whichever agency has authority over the registrant, must notify the police chief of the community, & the sheriff of the county, in which the registrant will be residing, employed, or attending school or through which the registrant will be traveling if the registrant has been, on two or more separate occasions, convicted of a sex offense or found not guilty of a sex offense by reason of mental disease or defect. A person who is the subject of such a notification is subject to lifetime global positioning system tracking.
The phrase “on two or more separate occasions” is not defined in current law. In OAG-02-17, the attorney general concluded that the phrase referred to multiple convictions, regardless of whether they were part of the same proceeding, occurred on the same date, or were included in the same criminal complaint. This bill codifies the attorney general opinion & also applies it to findings of not guilty by reason of mental disease or defect. Under the bill, when counting convictions or such findings for the purposes described above, each conviction or finding is counted separately even if they were part of the same proceeding, occurred on the same date, or were included in the same complaint.
The bill is retroactive. Under the bill, DOC must identify persons who were released from the registry requirement or were not subject to the lifetime tracking requirement before the bill took effect but who would have been subject to the pertinent requirement had the bill been in effect. No later than 60 days after the bill takes effect, DOC must notify these persons that they must register as SOs or be subject to lifetime tracking. Under the bill, persons who are notified that they must register have 30 days after being notified to register or they are guilty of a Class H felony.
The people of the state of WI, represented in senate & assembly, do enact as follows:
(Note: Underlined words are ADDITIONS to the law. Words within the strikethrough are words REMOVED from the bill.)
Section 1. 301.45 (5) (b) 1. of the statutes is amended to read:
301.45(5)(b) 1. The person has, on 2 or more separate occasions, been convicted or two or more times, including convictions that were part of the same proceeding, occurred on the same date, or were included in the same criminal complaint, for a sex offense or for a violation, or the solicitation, conspiracy, or attempt to commit a violation, of a federal law, military law, tribal law, or law of any state that is comparable to a sex offense; has been found two or more times, including findings that were part of the same proceeding, occurred on the same date, or were included in the same criminal complaint, not guilty or not responsible by reason of mental disease or defect for a sex offense, or for a violation, or the solicitation, conspiracy, or attempt to commit a violation, of a federal law, a military law, a tribal law, or a law of any state that is comparable to a sex offense; or has been convicted one time for a sex offense or for a violation, or the solicitation, conspiracy, or attempt to commit a violation, of a federal law, military law, tribal law, or law of any state that is comparable to a sex offense & has been found one time not guilty or not responsible by reason of mental disease or defect for a sex offense, or for a violation, or the solicitation, conspiracy, or attempt to commit a violation, of a federal law, a military law, a tribal law, or a law of any state that is comparable to a sex offense. A conviction or finding of not guilty or not responsible by reason of mental disease or defect that has been reversed, set aside, or vacated is not a conviction or finding for purposes of determining counting the number of convictions or findings under this subdivision whether a person has been convicted on 2 or more separate occasions.
Section 2. 301.45 (5m) (b) 3. of the statutes is amended to read:
15301.45 (5m) (b) 3. The person has, on 2 or more separate occasions, been convicted or two or more times, including convictions that were part of the same proceeding, occurred on the same date, or were included in the same criminal complaint, for a sex offense or for a violation, or the solicitation, conspiracy, or attempt to commit a violation, of a federal law, military law, tribal law, or law of any state that is comparable to a sex offense; has been found two or more times, including findings that were part of the same proceeding, occurred on the same date, or were included in the same criminal complaint, not guilty or not responsible by reason of mental disease or defect for a sex offense or for a violation, or the solicitation, conspiracy, or attempt to commit a violation, of a federal law, military law, tribal law, or law of any state that is comparable to a sex offense; or has been convicted one time for a sex offense or for a violation, or the solicitation, conspiracy, or attempt to commit a violation, of a federal law, military law, tribal law, or law of any state that is comparable to a sex offense & has been found one time not guilty or not responsible by reason of mental disease or defect for a sex offense, or for a violation, or the solicitation, conspiracy, or attempt to commit a violation, of a federal law, military law, tribal law, or law of any state that is comparable to a sex offense. A conviction or finding of not guilty or not responsible by reason of mental disease or defect that has been reversed, set aside, or vacated is not a conviction or finding for purposes of determining counting the number of convictions or findings under this subdivision whether a person has been convicted on two or more separate occasions.
Section 3. 301.46 (2m) (am) 1. & 2. of the statutes are amended to read: 301.46 (2m) (am) 1. If an agency with jurisdiction confines a person under s.301.046, provides a person entering the intensive sanctions program under s.301.048 with a sanction other than a placement in a Type 1 prison or a jail, or releases a person from confinement in a state correctional institution or institutional care, and the agency with jurisdiction shall notify the police chief of any community & the sheriff of any county in which the person will be residing, employed, or attending school & through or to which the person will be regularly traveling if the person has been found to be a sexually violent person under ch. 980 or has, on two or more separate occasions, been convicted or two or more times, including convictions that were part of the same proceeding, occurred on the same date, or were included in the same criminal complaint, for a sex offense or for a violation of a law of this state that is comparable to a sex offense; has been found two or more times, including findings that were part of the same proceeding, occurred on the same date, or were included in the same criminal complaint, not guilty or not responsible by reason of mental disease or defect for a sex offense or for a violation of a law of this state that is comparable to a sex offense, the agency with jurisdiction shall notify the police chief of any community & the sheriff of any county in which the person will be residing, employed, or attending school & through or to which the person will be regularly traveling; or has been convicted one time for a sex offense or for a violation of a law of this state that is comparable to a sex offense & has been found one time not guilty or not responsible by reason of mental disease or defect for a sex offense or for a violation of a law of this state that is comparable to a sex offense. Notification under this subdivision is in addition to providing access to information under sub. (2) & to any other notification that an agency with jurisdiction is authorized to provide.
2. If a person described under s. 301.45 (1g) (dh), (dj), (f), or (g) becomes a resident of this state from another state under s. 304.16, becomes a student in this state, becomes employed or begins carrying on a vocation in this state, or becomes subject to a sanction in this state other than a placement in a Type 1 prison or a jail, and the Dept. shall notify the police chief of any community & the sheriff of any county in which the person will be residing, employed, carrying on a vocation, or attending school if the person has, on 2 or more separate occasions, been convicted or two or more times, including convictions that were part of the same proceeding, occurred on the same date, or were included in the same criminal complaint, for a violation of the law of another jurisdiction that is comparable to a sex offense; has been found two or more times, including findings that were part of the same proceeding, occurred on the same date, or were included in the same criminal complaint, not guilty or not responsible by reason of mental disease or defect for a violation of the law of another jurisdiction that is comparable to a sex offense , the Dept. shall notify the police chief of any community & the sheriff of any county in which the person will be residing, employed or carrying on a vocation, or attending school; or has been one time convicted for a violation of the law of another jurisdiction that is comparable to a sex offense & has been found one time not guilty or not responsible by reason of mental disease or defect for a violation of the law of another jurisdiction that is comparable to a sex offense. Notification under this subdivision is in addition to providing access to information under sub. (2) or to any other notification that the Dept. is authorized to provide.
Section 4. Nonstatutory provisions. (To save on space, I omitted this part, it just says WIDOC must notify every SO in 60 says on whether this applies to them or not.)
Section 5. Initial applicability. (1) The treatment of ss. 301.45 (5) (b) 1. & (5m) (b) 3. & 301.46 (2m) (am) 1. & 2. first applies to the counting of convictions or findings that occurred prior to the effective date of this subsection for the purposes of determining if a person has been convicted or found not guilty on 2 or more separate occasions.
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.