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institution, or federal correction institution for a new criminal charge or conviction or because his or her parole was revoked, any reporting requirement under sub.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.
If the court finds after a hearing, by clear and convincing evidence, that any rule or condition of release has been violated and the court finds that the violation of the rule or condition merits the revocation of the order granting supervised release, the court may revoke the order for supervised release and order that the person be placed in institutional care. The court may consider alternatives to revocation. The person shall remain in institutional care until the person is discharged from the commitment under s. 980.09
or is placed again on supervised release under sub. (4) (g)
If the court finds after a hearing, by clear and convincing evidence, that the safety of others requires that supervised release be revoked the court shall revoke the order for supervised release and order that the person be placed in institutional care. The person shall remain in institutional care until the person is discharged from the commitment under s. 980.09
or is placed on supervised release under sub. (4) (g)
As a condition of supervised release granted under this chapter, for the first year of supervised release, the court shall restrict the person on supervised release to the person's home except for outings that are under the direct supervision of a department of corrections escort and that are for employment purposes, for religious purposes, or for caring for the person's basic living needs.
The department of corrections may contract for the escort services under par. (a)
See also ch. DHS 98
, Wis. adm. code.
Sub. (6m) [formerly s. 980.06 (2) (d)] requires post-hearing notice to the local law enforcement agencies. In re Commitment of Goodson, 199 Wis. 2d 426
, 544 N.W.2d 611
(Ct. App. 1996), 95-0664
Whether in a proceeding for an initial ch. 980 commitment or a later petition for supervised release, there is no requirement that the state prove the person is treatable. State v. Seibert, 220 Wis. 2d 308
, 582 N.W.2d 745
(Ct. App. 1998), 97-2554
As used in this chapter, "substantial probability" and "substantially probable" both mean much more likely than not. This standard for dangerousness does not violate equal protection nor is the term unconstitutionally vague. State v. Curiel, 227 Wis. 2d 389
, 597 N.W.2d 697
An institutionalized sex offender who agreed to a stipulation providing supervised release, giving up his right to a jury trial on his discharge petition in exchange, had a constitutional right to enforcement of the agreement. State v. Krueger, 2001 WI App 76, 242 Wis. 2d 793
, 626 N.W.2d 83
An indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her petition for supervised release. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378
, 627 N.W.2d 881
A person subject to a proceeding to revoke supervised release is entitled to the same due process protections as afforded persons in probation and parole revocation proceedings. Notice of the grounds that are the basis for the revocation must be given. A court can only base a revocation on the grounds of public safety under sub. (6m) when notice has been properly given. State v. VanBronkhorst, 2001 WI App 190, 247 Wis. 2d 247
, 633 N.W.2d 236
A sexual assault need not occur and the person's behavior need not be criminal before the court can conclude that there is a substantial probability that a person will reoffend if institutional care is not continued. The relevant inquiry under sub. (4) is whether the behavior indicates a likelihood to reoffend. State v. Sprosty, 2001 WI App 231, 248 Wis. 2d 480
, 636 N.W.2d 213
Sub. (6m), not s. 806.07 (1) (h), governs granting relief to the state from a ch. 980 committee's supervised release when the committee is confined in an institution awaiting placement on supervised release. Sub. (6m) provides no procedure for initiating revocation other than by the department of health and family services action, preventing courts or prosecutors from initiating revocations. State v. Morford, 2004 WI 5, 268 Wis. 2d 300
, 674 N.W.2d 349
Ch. 980 was not unconstitutionally applied to the defendant when an order for supervised release could not be carried out due to an inability to find an appropriate placement and the defendant remained in custody. Any judicial decision that puts the community at risk because of what agents of government may have done or not done must balance the potential injury to society's interests against the potential benefits that would flow from any rule designed to deter future conduct by those agents. State v. Schulpius, 2006 WI 2, 287 Wis. 2d 44
, 707 N.W.2d 495
A rule regulating the conduct of a sexually violent person on supervised release satisfies the procedural due process requirement of adequate notice if it is sufficiently precise for the probationer to know what conduct is required or prohibited. State v. Burris, 2004 WI 91, 273 Wis. 2d 294
, 682 N.W.2d 812
Under sub. (6m) [formerly s. 980.06 (2) (d)], a circuit court must determine whether any rule or condition of release has been violated or whether the safety of others requires revocation. A circuit court is not required to expressly consider alternatives to revocation before revoking a sexually violent person's supervised release when the court determines that the safety of the public requires the person's commitment to a secure facility. State v. Burris, 2004 WI 91, 273 Wis. 2d 294
, 682 N.W.2d 812
The sufficiency of evidence standard of review applies when reviewing a circuit court's order denying a petition for supervised release under sub. (4). The test for the sufficiency of the evidence to support the order is not whether a reviewing court is convinced by clear and convincing evidence that a person's petition for supervised release should be denied, but whether a circuit court, acting reasonably, could be so convinced by evidence it has a right to believe and accept as true. State v. Brown, 2005 WI 29, 279 Wis. 2d 102
, 693 N.W.2d 715
The legislature's creation of a presumption in favor of continued commitment in sub. (4) (cg), together with the affirmative criteria required to rebut that presumption, signal the legislature's intent to reallocate the burden of proof, together with the risk of failure of proof, to the petitioner. The proper burden of proof on the petitioner is a standard of clear and convincing evidence. State v. Rachel, 2010 WI App 60, 324 Wis. 2d 465
, 782 N.W.2d 443
Supervised Release Under Chapter 980: Alternatives to Protect Wisconsin While Upholding the Constitution. Hamrin. 2007 WLR 889.
Petition for discharge.
A committed person may petition the committing court for discharge at any time. The court shall deny the petition under this section without a hearing unless the petition alleges facts from which the court or jury may conclude the person's condition has changed since the date of his or her initial commitment order so that the person does not meet the criteria for commitment as a sexually violent person.
The court shall review the petition within 30 days and may hold a hearing to determine if it contains facts from which the court or jury may conclude that the person does not meet the criteria for commitment as a sexually violent person. In determining under this subsection whether facts exist that might warrant such a conclusion, the court shall consider any current or past reports filed under s. 980.07
, relevant facts in the petition and in the state's written response, arguments of counsel, and any supporting documentation provided by the person or the state. If the court determines that the petition does not contain facts from which a court or jury may conclude that the person does not meet the criteria for commitment, the court shall deny the petition. If the court determines that facts exist from which a court or jury could conclude the person does not meet criteria for commitment the court shall set the matter for hearing.
The court shall hold a hearing within 90 days of the determination that the petition contains facts from which the court or jury may conclude that the person does not meet the criteria for commitment as a sexually violent person. The state has the burden of proving by clear and convincing evidence that the person meets the criteria for commitment as a sexually violent person.
If the court or jury is satisfied that the state has not met its burden of proof under sub. (3)
, the petitioner shall be discharged from the custody of the department. If the court or jury is satisfied that the state has met its burden of proof under sub. (3)
, the court may proceed under s. 980.08 (4)
to determine whether to modify the petitioner's existing commitment order by authorizing supervised release.
Persons committed under ch. 980 must be afforded the right to request a jury for discharge hearings under this section. State v. Post, 197 Wis. 2d 279
, 541 N.W.2d 115
Progress in treatment is one way of showing that a person is not still a sexually violent person under (former) sub. (2) (a). A new diagnosis is another. A new diagnosis need not attack the original finding that an individual was sexually violent, but focuses on the present and is evidence of whether an individual is still a sexually violent person. State v. Pocan, 2003 WI App 233, 267 Wis. 2d 953
, 671 N.W.2d 680
Under sub. (1), the circuit court engages in a paper review of the petition only, including its attachments, to determine whether it alleges facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. This review is a limited one aimed at assessing the sufficiency of the allegations in the petition. If the petition does allege sufficient facts, the circuit court proceeds to a review under sub. (2). State v. Arends, 2010 WI 46, 325 Wis. 2d 1
, 784 N.W.2d 513
Sub. (2) requires the circuit court to review specific items enumerated in that subsection. The court need not seek out items not already within the record. Nevertheless, it may request additional enumerated items not previously submitted, and also has the discretion to conduct a hearing to aid in its determination. The court's task is to determine whether the petition and the additional supporting materials before it contain facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. State v. Arends, 2010 WI 46, 325 Wis. 2d 1
, 784 N.W.2d 513
Sub. (2) explicitly prescribes a different procedure than that for summary judgment set forth in s. 802.08. As such, summary judgment is not available in discharge proceedings under this section. The state's burden of proof is implicated only during a hearing under sub. (3). When a trial court granted summary judgment prior to a hearing under sub. (3), no one could say with any certainty whether the state possessed enough evidence to meet its burden of proof. State v. Allison, 2010 WI App 103, ___ Wis. 2d___, ___ N.W.2d ___, 09-1232
Procedures for discharge hearings. 980.095(1)(a)(a)
The district attorney or the department of justice, whichever filed the original petition, or the petitioner or his or her attorney may request that a hearing under s. 980.09 (3)
be to a jury of 6. A jury trial is deemed waived unless it is demanded within 10 days of the filing of the petition for discharge.
Juries shall be selected and treated in the same manner as they are selected and treated in civil actions in circuit court. The number of jurors prescribed in par. (a)
, plus the number of peremptory challenges available to all of the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The parties shall exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.
No verdict shall be valid or received unless at least 5 of the jurors agree to it.
(2) Post verdict motions.
Motions after verdict may be made without further notice upon receipt of the verdict.
Any party may appeal an order under this subsection as a final order under chs. 808