Section 904.04 (2) does not apply in ch. 980 commitment proceedings. The Franklin court discerned an unambiguous legislative intent to restrict the application of s. 904.04 (2) to analyzing evidence used to prove past acts. The substantial probability of future conduct is the relevant question in ch. 980 proceedings. The nature of ch. 980 hearings demands the jury consider evidence that would normally be barred in a traditional criminal trial. Although Franklin did not discuss the due process implications of its decision, the inapplicability of s. 904.04 (2) is consistent with the demands of due process under both the United States and Wisconsin constitutions. State v. Kaminski, 2009 WI App 175, 322 Wis. 2d 653
, 777 N.W.2d 654
If a court or jury determines that the person who is the subject of a petition under s. 980.02
is a sexually violent person, the court shall order the person to be committed to the custody of the department for control, care and treatment until such time as the person is no longer a sexually violent person. A commitment order under this section shall specify that the person be placed in institutional care.
In the event that there is a failure to develop an appropriate treatment program, the remedy is to obtain appropriate treatment and not supervised release. State v. Seibert, 220 Wis. 2d 308
, 582 N.W.2d 745
(Ct. App. 1998), 97-2554
Chapter 980 and s. 51.61 provide the statutory basis for a court to issue an involuntary medication order for individuals who suffer from a chronic mental illness and are committed under ch. 980. State v. Anthony D.B. 2000 WI 94, 237 Wis. 2d 1
, 614 N.W.2d 435
The incremental infringement by s. 980.06 on the liberty interests of those who have a sexually-violent, predatory past and are currently suffering from a mental disorder that makes them dangerous sexual predators does not violate constitutional guarantees of due process. State v. Ransdell, 2001 WI App 202, 247 Wis. 2d 613
, 634 N.W.2d 871
Although ch. 51 is more "lenient" with those who are subject to its provisions than is ch. 980, the significant differences between the degree of danger posed by each of the two classes of persons subject to commitment under the two chapters, as well as the differences in what must be proven in order to commit under each, does not result in a violation of equal protection. State v. Williams, 2001 WI App 263, 249 Wis. 2d 1
, 637 N.W.2d 791
Chapter 980, as amended, is not a punitive criminal statute. Because whether a statute is punitive is a threshold question for both double jeopardy and ex post facto analysis, neither of those clauses is violated by ch. 980. State v. Rachel, 2002 WI 81, 254 Wis. 2d 215
, 646 N.W.2d 375
The mere limitation of a committed person's access to supervised release does not impose a restraint to the point that it violates due process. As amended, ch. 980 serves the legitimate and compelling state interests of providing treatment to, and protecting the public from, the dangerously mentally ill. The statute is narrowly tailored to meet those interests, and, as such, it does not violate substantive due process. State v. Rachel, 2002 WI 81, 254 Wis. 2d 215
, 646 N.W.2d 375
Commitment under ch. 980 does not require a separate factual finding that an individual's mental disorder involves serious difficulty for the person in controlling his or her behavior. Proof that the person's mental disorder predisposes the individual to engage in acts of sexual violence and establishes a substantial probability that the person will again commit those acts necessarily and implicitly includes proof that the person's mental disorder involves serious difficulty in controlling his or her behavior. State v. Laxton, 2002 WI 82, 254 Wis. 2d 185
, 647 N.W.2d 784
Chapter 980 does not preclude finding that a person with a sexually-related mental disorder has difficulty in controlling his or her behavior even if that person is able to conform his conduct to the requirements of the law. State v. Burgess, 2002 WI App 264, 258 Wis. 2d 548
, 654 N.W.2d 81
. Affirmed. 2003 WI 71, 262 WI 2d 354, 665 NW2d 354.
Patients civilly committed under ch. 980 are not employees under federal or Wisconsin minimum wage law. Tran v. Speech, 2010 WI App 58, 324 Wis. 2d 567
, 782 N.W.2d 107
The use of polygraph tests as part of a sex offender treatment program does not violate due process. Wilson v. Watters, 348 F. Supp. 2d 1031
To the extent that plaintiffs are uncontrollably violent and pose a danger to others, the state is entitled to hold them in segregation for that reason alone. Preserving the safety of the staff and other detainees takes precedence over medical goals. West v. Schwebke, 333 F.3d 745
Deoxyribonucleic acid analysis requirements. 980.063(1)(a)(a)
If a person is found to be a sexually violent person under this chapter, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
The results from deoxyribonucleic acid analysis of a specimen under par. (a)
may be used only as authorized under s. 165.77 (3)
. The state crime laboratories shall destroy any such specimen in accordance with s. 165.77 (3)
The department of justice shall promulgate rules providing for procedures for defendants to provide specimens under sub. (1)
and for the transportation of those specimens to the state crime laboratories for analysis under s. 165.77
History: 1995 a. 440
Institutional care for sexually violent persons. 980.065(1m)(1m)
The department shall place a person committed under s. 980.06
at the secure mental health facility established under s. 46.055
, the Wisconsin resource center established under s. 46.056
or a secure mental health unit or facility provided by the department of corrections under sub. (2)
Notwithstanding sub. (1m)
, the department may place a female person committed under s. 980.06
at Mendota Mental Health Institute, Winnebago Mental Health Institute, or a privately operated residential facility under contract with the department of health services.
The department may contract with the department of corrections for the provision of a secure mental health unit or facility for persons committed under s. 980.06
. The department shall operate a secure mental health unit or facility provided by the department of corrections under this subsection and shall promulgate rules governing the custody and discipline of persons placed by the department in the secure mental health unit or facility provided by the department of corrections under this subsection.
Nothing in the U.S. Constitution prevents state officials from temporarily detaining a civil committee in conditions normally reserved for inmates so that he or she may attend court proceedings concerning his commitment. Thiel v. State, 399 F. Supp. 929
Activities off grounds.
The superintendent of the facility at which a person is placed under s. 980.065
may allow the person to leave the grounds of the facility under escort. The department of health services shall promulgate rules for the administration of this section.
History: 2001 a. 16
; 2007 a. 20
s. 9121 (6) (a)
See also s. DHS 95.10
, Wis. adm. code.
Periodic reexamination and treatment progress; report from the department. 980.07(1)
If a person is committed under s. 980.06
and has not been discharged under s. 980.09 (4)
, the department shall appoint an examiner to conduct a reexamination of the person's mental condition within 12 months after the date of the initial commitment order under s. 980.06
and again thereafter at least once each 12 months to determine whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged. The examiner shall apply the criteria under s. 980.08 (4) (cg)
when considering if the person should be placed on supervised release and shall apply the criteria under s. 980.09 (3)
when considering if the person should be discharged. At the time of a reexamination under this section, the person who has been committed may retain or have the court appoint an examiner as provided under s. 980.031 (3)
. The county shall pay the costs of an examiner appointed by the court as provided under s. 51.20 (18) (a)
Any examiner conducting a reexamination under sub. (1)
shall prepare a written report of the reexamination no later than 30 days after the date of the reexamination. The examiner shall provide a copy of the report to the department.
Notwithstanding sub. (1)
, the court that committed a person under s. 980.06
may order a reexamination of the person at any time during the period in which the person is subject to the commitment order. Any reexamination ordered under this subsection shall conform to sub. (1)
At any reexamination under sub. (1)
, the treating professional shall prepare a treatment progress report. The treating professional shall provide a copy of the treatment progress report to the department. The treatment progress report shall consider all of the following:
The specific factors associated with the person's risk for committing another sexually violent offense.
Whether the person has made significant progress in treatment or has refused treatment.
Any specialized needs or conditions associated with the person that must be considered in future treatment planning.
Any examiners under sub. (1)
and treating professionals under sub. (4)
shall have reasonable access to the person for purposes of reexamination, to the person's past and present treatment records, as defined in s. 51.30 (1) (b)
, and to the person's patient health care records, as provided under s. 146.82 (2) (c)
The department shall submit an annual report comprised of the reexamination report under sub. (1)
and the treatment progress report under sub. (4)
to the court that committed the person under s. 980.06
. A copy of the annual report shall be placed in the person's treatment records. The department shall provide a copy of the annual report to the person committed under s. 980.06
, the department of justice, and the district attorney, if applicable. The court shall provide a copy of the annual report to the person's attorney as soon as he or she is retained or appointed.
If a person committed under s. 980.06
is incarcerated at a county jail, state correctional institution, or federal correction institution for a new criminal charge or conviction or because his or her parole was revoked, any reporting requirement under sub. (1)
, or (6)
does not apply during the incarceration period. A court may order a reexamination of the person under sub. (3)
if the courts finds reexamination to be necessary. The schedule for reporting established under sub. (1)
shall resume upon the release of the person.
The 6-month period under sub. (1) for the 1st reexamination does not begin to run until the court conducts the dispositional hearing and issues an initial commitment order under s. 980.06 (2). State v. Marberry, 231 Wis. 2d 581
, 605 N.W.2d 612
(Ct. App. 1999), 98-2883
As part of an annual review, an involuntary medication order must be reviewed following the same procedure used to obtain the initial order. State v. Anthony D.B. 2000 WI 94, 237 Wis. 2d 1
, 614 N.W.2d 435
It is within the committed person's discretion to ask for an independent examination. The trial court does not have discretion to refuse the request. State v. Thiel, 2001 WI App 32, 241 Wis. 2d 465
, 626 N.W.2d 26
The 6-month time period in sub. (1) for an initial reexamination is mandatory. State ex rel. Marberry v. Macht, 2003 WI 79, 262 Wis. 2d 720
, 665 N.W.2d 155
The Supreme Court's decision to uphold the commitment in Laxton in light of the jury instructions in the case was not diametrically different or opposite in character or nature from any clearly established federal law. Laxton v. Bartow, 421 F.3d 565
The 14th amendment due process guarantee was violated by a delay of over 22 months between the first annual periodic examination report was provided to the circuit court under s. 980.07 and the circuit court's probable cause hearing under s. 980.09 (2) (a) to determine if facts warranted a hearing on whether the committee was still a sexually violent person. Discharge is not an appropriate remedy for a sexually violent person who is dangerous because he or she suffers from a mental disorder that makes it likely that he or she will engage in acts of sexual violence. Appropriate remedies are motions for mandamus or equitable relief, but because a ch. 980 committee may encounter considerable obstacles to pursuing these remedies, DHFS, the Department of Justice, the bar, and the circuit courts must bear substantial responsibility for ensuring prompt judicial review of annual periodic examination reports. State v. Beyer, 2006 WI 2, 287 Wis. 2d 1
, 707 N.W.2d 509
Patient petition process. 980.075(1)
When the department submits its report to the court under s. 980.07 (6)
, the person who has been committed under s. 980.06
may retain or have the court appoint an attorney as provided in s. 980.03 (2) (a)
When the department provides a copy of the report under s. 980.07 (6)
to the person who has been committed under s. 980.06
, the department shall provide to the person a standardized petition form for supervised release under s. 980.08
and a standardized petition form for discharge under s. 980.09
The department shall, after consulting with the department of justice and the state public defender, develop the standardized petition forms required under par. (a)
Within 30 days after the department submits its report to the court under s. 980.07 (6)
, the person who has been committed under s. 980.06
or his or her attorney may submit one of the completed forms provided under sub. (1m)
to the court to initiate either a petition for supervised release or a petition for discharge.
If no completed petition is filed in a timely manner under par. (a)
, the person who has been committed under s. 980.06
will remain committed and the person's placement at a facility described under s. 980.065
or the person's supervised release status under s. 980.08
remains in effect without review by the court.
If the person files a petition for discharge under s. 980.09
without counsel, the court shall serve a copy of the petition and any supporting documents on the district attorney or department of justice, whichever is applicable. If the person petitions for discharge under s. 980.09
through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.
The petitioner may use experts or professional persons to support his or her petition.
The district attorney or the department of justice may use experts or professional persons to support or oppose any petition.
Subject to s. 980.03 (2) (a)
, before proceeding under s. 980.08
but as soon as circumstances permit, the court shall refer the matter to the authority for indigency determinations under s. 977.07 (1)
and appointment of counsel under s. 977.05 (4) (j)
if the person is not represented by counsel.
At any time before a hearing under s. 980.08
, the department may file a supplemental report if the department determines that court should have additional information.
History: 2005 a. 434
Supervised release; procedures, implementation, revocation. 980.08(1)(1)
Any person who is committed under s. 980.06
may petition the committing court to modify its order by authorizing supervised release if at least 12 months have elapsed since the initial commitment order was entered or at least 12 months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked. The director of the facility at which the person is placed may file a petition under this subsection on the person's behalf at any time.
If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney or department of justice, whichever is applicable and, subject to s. 980.03 (2) (a)
, refer the matter to the authority for indigency determinations under s. 977.07 (1)
and appointment of counsel under s. 977.05 (4) (j)
. If the person petitions through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.
Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment. The examiners shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b)
, and patient health care records, as provided under s. 146.82 (2) (c)
. If any such examiner believes that the person is appropriate for supervised release under the criteria specified in sub. (4) (cg)
, the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release. The county shall pay the costs of an examiner appointed under this subsection as provided under s. 51.20 (18) (a)
The court, without a jury, shall hear the petition within 30 days after the report of the court-appointed examiner is filed with the court, unless the court for good cause extends this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b)
, and (d)
In making a decision under par. (cg)
, the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition under s. 980.02 (2) (a)
, the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, and what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the person is a serious child sex offender. A decision under par. (cg)
on a petition filed by a person who is a serious child sex offender may not be made based on the fact that the person is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or on the fact that the person is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.
The court may not authorize supervised release unless, based on all of the reports, trial records, and evidence presented, the court finds that all of the following criteria are met:
The person has made significant progress in treatment and the person's progress can be sustained while on supervised release.
It is substantially probable that the person will not engage in an act of sexual violence while on supervised release.
Treatment that meets the person's needs and a qualified provider of the treatment are reasonably available.
The person can be reasonably expected to comply with his or her treatment requirements and with all of his or her conditions or rules of supervised release that are imposed by the court or by the department.
A reasonable level of resources can provide for the level of residential placement, supervision, and ongoing treatment needs that are required for the safe management of the person while on supervised release.
If the court finds that all of the criteria in par. (cg)
are met, the court shall select a county to prepare a report under par. (e)
. Unless the court has good cause to select another county, the court shall select the person's county of residence as determined by the department under s. 980.105
. The court may not select a county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also that person's county of residence.
The court shall authorize the petitioner, the person's attorney, the district attorney, any law enforcement agency in the county of intended placement, and any local governmental unit in the county of intended placement to submit prospective residential options for community placement to the department within 60 days following the selection of the county under par. (cm)
The court shall order the county department under s. 51.42
in the county of intended placement to prepare a report, either independently or with the department of health services, identifying prospective residential options for community placement. In identifying prospective residential options, the county department shall consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a)
. The county department shall submit its report to the department within 60 days following the court order.
The court shall direct the department to use any submissions under par. (d)
, the report submitted under par. (e)
, or other residential options identified by the department to prepare a supervised release plan for the person. The department shall prepare a supervised release plan that identifies the proposed residence. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The supervised release plan shall be submitted to the court within 90 days of the finding under par. (cg)
. The court may grant extensions of this time period for good cause.
The court shall review the plan submitted by the department under par. (cm)
. If the details of the plan adequately meet the treatment needs of the individual and the safety needs of the community, then the court shall approve the plan and determine that supervised release is appropriate. If the details of the plan do not adequately meet the treatment needs of the individual or the safety needs of the community, then the court shall determine that supervised release is not appropriate or direct the preparation of another supervised release plan to be considered by the court under this paragraph.
The department may not arrange placement under this section in a facility that did not exist before January 1, 2006.
An order for supervised release places the person in the custody and control of the department. The department shall arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the plan for supervised release approved by the court under sub. (4) (g)
. A person on supervised release is subject to the conditions set by the court and to the rules of the department. Within 10 days of imposing a rule, the department shall file with the court any additional rule of supervision not inconsistent with the rules or conditions imposed by the court. If the department wants to change a rule or condition of supervision imposed by the court, the department must obtain the court's approval. Before a person is placed on supervised release by the court under this section, the court shall so notify the municipal police department and county sheriff for the municipality and county in which the person will be residing. The notification requirement under this subsection does not apply if a municipal police department or county sheriff submits to the court a written statement waiving the right to be notified.
If the department believes that a person on supervised release, or awaiting placement on supervised release, has violated, or threatened to violate, any condition or rule of supervised release, the department may petition for revocation of the order granting supervised release as described in par. (c)
or may detain the person.
If the department believes that a person on supervised release, or awaiting placement on supervised release, is a threat to the safety of others, the department shall detain the person and petition for revocation of the order granting supervised release as described in par. (c)
If the department concludes that the order granting supervised release should be revoked, it shall file with the committing court a statement alleging the violation and or threat of a violation and a petition to revoke the order for supervised release and provide a copy of each to the regional office of the state public defender responsible for handling cases in the county where the committing court is located. If the department has detained the person under par. (a)
, the department shall file the statement and the petition and provide them to the regional office of the state public defender within 72 hours after the detention, excluding Saturdays, Sundays and legal holidays. Pending the revocation hearing, the department may detain the person in a jail or a facility described under s. 980.065
. The court shall refer the matter to the authority for indigency determinations under s. 977.07 (1)
and appointment of counsel under s. 977.05 (4) (j)
. The determination of indigency and the appointment of counsel shall be done as soon as circumstances permit.
The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. A final decision on the petition to revoke the order for supervised release shall be made within 90 days of the filing. Pending the revocation hearing, the department may detain the person in the county jail or return him or her to institutional care.