971.165 Annotation
Constitutionality of directed verdict against criminal defendant on issue of insanity upheld. Leach v. Kolb, 911 F (2d) 1249 (1990).
971.165 Annotation
Restricting the admission of psychiatric testimony on a defendant's mental state: Wisconsin's Steele curtain. 1981 WLR 733.
971.17
971.17
Commitment of persons found not guilty by reason of mental disease or mental defect. 971.17(1)
(1)
Commitment period. When a defendant is found not guilty by reason of mental disease or mental defect, the court shall commit the person to the department of health and family services for a specified period not exceeding two-thirds of the maximum term of imprisonment that could be imposed under
s. 973.15 (2) (a) against an offender convicted of the same crime or crimes, including imprisonment authorized by
ss. 346.65 (2) (f),
(2j) (d) or
(3m),
939.62,
939.621,
939.63,
939.635,
939.64,
939.641,
939.645,
940.09 (1b) and
940.25 (1b) and
961.48 and other penalty enhancement statutes, as applicable, subject to the credit provisions of
s. 973.155. If the maximum term of imprisonment is life, the commitment period specified by the court may be life, subject to termination under
sub. (5).
971.17 Note
NOTE: Sub. (1) is shown as affected by three acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
971.17(1g)
(1g) If the defendant under
sub. (1) is found not guilty of a felony by reason of mental disease or defect, the court shall inform the defendant of the requirements and penalties under
s. 941.29.
971.17(1m)
(1m) Sexual assault; registration and testing. 971.17(1m)(a)(a) If the defendant under
sub. (1) is found not guilty by reason of mental disease or defect for a violation of
s. 940.225 (1) or
(2),
948.02 (1) or
(2) or
948.025, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
971.17(1m)(b)1.1. If the defendant under
sub. (1) is found not guilty by reason of mental disease or defect for a violation, or for the solicitation, conspiracy or attempt to commit a violation, of
s. 940.22 (2),
940.225 (1),
(2) or
(3),
944.06,
948.02 (1) or
(2),
948.025,
948.05,
948.055,
948.06,
948.07,
948.08,
948.11 or
948.30, or of
s. 940.30 or
940.31 if the victim was a minor and the defendant was not the victim's parent, the court shall require the defendant to comply with the reporting requirements under
s. 301.45.
971.17(1m)(b)2.
2. Except as provided in
subd. 1., if the defendant under
sub. (1) is found not guilty by reason of mental disease or defect for any violation, or for the solicitation, conspiracy or attempt to commit any violation, of
ch. 940,
944 or
948 or
ss. 943.01 to
943.15, the court may require the defendant to comply with the reporting requirements under
s. 301.45 if the court determines that the underlying conduct was sexually motivated, as defined in
s. 980.01 (5), and that it would be in the interest of public protection to have the defendant report under
s. 301.45.
Effective date note
NOTE: Sub. (1m) is shown as affected eff. 6-1-97 by
1995 Wis. Act 440. Prior to 6-1-97 it reads:
Effective date text
(1m) Sexual assault; registration and testing. If the defendant under sub. (1) is found not guilty by reason of mental disease or defect for a violation of s. 940.225 (1) or (2), 948.02 (1) or (2) or 948.025, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis and to comply with the reporting requirements of s. 175.45.
971.17(2)(a)(a) The court shall enter an initial commitment order under this section pursuant to a hearing held as soon as practicable after the judgment of not guilty by reason of mental disease or mental defect is entered. If the court lacks sufficient information to make the determination required by
sub. (3) immediately after trial, it may adjourn the hearing and order the department of health and family services to conduct a predisposition investigation using the procedure in
s. 972.15 or a supplementary mental examination or both, to assist the court in framing the commitment order.
971.17(2)(b)
(b) If a supplementary mental examination is ordered under
par. (a), the court may appoint one or more examiners having the specialized knowledge determined by the court to be appropriate to examine and report upon the condition of the person. In lieu thereof, the court may commit the person to an appropriate mental health facility for the period specified in
par. (c), which shall count as days spent in custody under
s. 973.155.
971.17(2)(c)
(c) An examiner shall complete an inpatient examination under
par. (b) and file the report within 15 days after the examination is ordered unless, for good cause, the examiner cannot complete the examination and requests an extension. In that case, the court may allow one 15-day extension of the examination period. An examiner shall complete an outpatient examination and file the report of examination within 15 days after the examination is ordered.
971.17(2)(d)
(d) If the court orders an inpatient examination under
par. (b), it shall arrange for the transportation of the person to the examining facility within a reasonable time after the examination is ordered and for the person to be returned to the jail or court within a reasonable time after the examination has been completed.
971.17(2)(e)
(e) The examiner appointed under
par. (b) shall personally observe and examine the person. The examiner or facility shall have access to the person's past or 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 the examiner believes that the person is appropriate for conditional release, the examiner shall report on the type of treatment and services that the person may need while in the community on conditional release.
971.17(2)(f)
(f) The costs of an examination ordered under
par. (a) shall be paid by the county upon the order of the court as part of the costs of the action.
971.17(2)(g)
(g) Within 10 days after the examiner's report is filed under
par. (c), the court shall hold a hearing to determine whether commitment shall take the form of institutional care or conditional release.
971.17(3)(a)(a) An order for commitment under this section shall specify either institutional care or conditional release. The court shall order institutional care if it finds by clear and convincing evidence that conditional release of the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage. If the court does not make this finding, it shall order conditional release. In determining whether commitment shall be for institutional care or conditional release, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.
971.17(3)(b)
(b) If the state proves by clear and convincing evidence that the person is not competent to refuse medication or treatment for the person's mental condition, under the standard specified in
s. 971.16 (3), the court shall issue, as part of the commitment order, an order that the person is not competent to refuse medication or treatment for the person's mental condition and that whoever administers the medication or treatment to the person shall observe appropriate medical standards.
971.17(3)(c)
(c) If the court order specifies institutional care, the department of health and family services shall place the person in an institution under
s. 51.37 (3) that the department considers appropriate in light of the rehabilitative services required by the person and the protection of public safety. If the person is not subject to a court order determining the person to be not competent to refuse medication or treatment for the person's mental condition and if the institution in which the person is placed determines that the person should be subject to such a court order, the institution may file with the court, with notice to the person and his or her counsel and the district attorney, a motion for a hearing, under the standard specified in
s. 971.16 (3), on whether the person is not competent to refuse medication or treatment. A report on which the motion is based shall accompany the motion and notice of motion and shall include a statement signed by a licensed physician that asserts that the person needs medication or treatment and that the person is not competent to refuse medication or treatment, based on an examination of the person by a licensed physician. Within 10 days after a motion is filed under this paragraph, the court shall determine the person's competency to refuse medication or treatment for the person's mental condition. At the request of the person, his or her counsel or the district attorney, the hearing may be postponed, but in no case may the postponed hearing be held more than 20 days after a motion is filed under this paragraph. If the district attorney, the person and his or her counsel waive their respective opportunities to present other evidence on the issue, the court shall determine the person's competency to refuse medication or treatment on the basis of the report accompanying the motion. In the absence of these waivers, the court shall hold an evidentiary hearing on the issue. If the state proves by evidence that is clear and convincing that the person is not competent to refuse medication or treatment, under the standard specified in
s. 971.16 (3), the court shall order that the person is not competent to refuse medication or treatment for the person's mental condition and that whoever administers the medication or treatment to the person shall observe appropriate medical standards.
971.17(3)(d)
(d) If the court finds that the person is appropriate for conditional release, the court shall notify the department of health and family services. The department of health and family services and the county department under
s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department of health and family services may contract with a county department, under
s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 21 days after the court finding that the person is appropriate for conditional release, unless the county department, department of health and family services and person to be released request additional time to develop the plan. If the county department of the person's county of residence declines to prepare a plan, the department of health and family services may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the individual will be living in that county.
971.17(3)(e)
(e) An order for conditional release places the person in the custody and control of the department of health and family services. A conditionally released person is subject to the conditions set by the court and to the rules of the department of health and family services. Before a person is conditionally released by the court under this subsection, the court shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement under this paragraph does not apply if a municipal department or county sheriff submits to the court a written statement waiving the right to be notified. If the department of health and family services alleges that a released person has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked, he or she may be taken into custody under the rules of the department. The department of health and family services shall submit a statement showing probable cause of the detention and a petition to revoke the order for conditional release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 48 hours after the detention. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department of health and family services may detain the person in a jail or in a hospital, center or facility specified by
s. 51.15 (2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked, it may revoke the order for conditional release and order that the released person be placed in an appropriate institution under
s. 51.37 (3) until the expiration of the commitment or until again conditionally released under this section.
971.17(4)
(4) Petition for conditional release. 971.17(4)(a)(a) Any person who is committed for institutional care may petition the committing court to modify its order by authorizing conditional release if at least 6 months have elapsed since the initial commitment order was entered, the most recent release petition was denied or the most recent order for conditional release was revoked. The director of the facility at which the person is placed may file a petition under this paragraph on the person's behalf at any time.
971.17(4)(b)
(b) If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney and, subject to
sub. (7) (b), refer the matter to the state public defender for determination of indigency 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.
971.17(4)(c)
(c) 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 conditional release, the examiner shall report on the type of treatment and services that the person may need while in the community on conditional release.
971.17(4)(d)
(d) 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 petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under
s. 51.20 (18). The court shall grant the petition unless it finds by clear and convincing evidence that the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage if conditionally released. In making this determination, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.
971.17(4)(e)
(e) If the court finds that the person is appropriate for conditional release, the court shall notify the department of health and family services. The department of health and family services and the county department under
s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department of health and family services may contract with a county department, under
s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for conditional release, unless the county department, department of health and family services and person to be released request additional time to develop the plan. If the county department of the person's county of residence declines to prepare a plan, the department of health and family services may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the individual will be living in that county.
971.17(4m)(a)2.
2. "Member of the family" means spouse, child, sibling, parent or legal guardian.
971.17(4m)(a)3.
3. "Victim" means a person against whom a crime has been committed.
971.17(4m)(b)
(b) If the court conditionally releases a defendant under this section, the district attorney shall notify all of the following in accordance with
par. (c):
971.17(4m)(b)1.
1. The victim of the crime committed by the defendant or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian.
971.17(4m)(c)
(c) The notice under
par. (b) shall inform the department of corrections and the person under
par. (b) 1. of the defendant's name and conditional release date. The district attorney shall send the notice, postmarked no later than 7 days after the court orders the conditional release under this section, to the department of corrections and to the last-known address of the person under
par. (b) 1.
971.17(4m)(d)
(d) Upon request, the department of health and family services shall assist district attorneys in obtaining information regarding persons specified in
par. (b) 1.
Effective date note
NOTE: Sub. (4m) is shown as affected eff. 6-1-97 by 1995 WIs. Act 440. Prior to 6-1-97 it reads:
Effective date text
(4m) Notice to victims about conditional release. (a) In this subsection:
971.17 Note
1. "Crime" has the meaning designated in s. 949.01 (1).
971.17 Note
2. "Member of the family" means spouse, child, sibling, parent or legal guardian.
971.17 Note
3. "Victim" means a person against whom a crime has been committed.
971.17 Note
(b) If the court conditionally releases a defendant under this section, the district attorney shall notify the following person, if he or she can be found, in accordance with par. (c): the victim of the crime committed by the defendant or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian.
971.17 Note
(c) The notice under par. (b) shall inform the person under par. (b) of the defendant's name and conditional release date. The district attorney shall send the notice, postmarked no later than 7 days after the court orders the conditional release under this section, to the last-known address of the person under par. (b).
971.17 Note
(d) Upon request, the department of health and family services shall assist district attorneys in obtaining information regarding persons specified in par. (b).
971.17(5)
(5) Petition for termination. A person on conditional release, or the department of health and family services on his or her behalf, may petition the committing court to terminate the order of commitment. If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney and, subject to
sub. (7) (b), refer the matter to the state public defender for determination of indigency 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. The petition shall be determined as promptly as practicable by the court without a jury. The court shall terminate the order of commitment unless it finds by clear and convincing evidence that further supervision is necessary to prevent a significant risk of bodily harm to the person or to others or of serious property damage. In making this determination, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and current mental condition, the person's behavior while on conditional release, and plans for the person's living arrangements, support, treatment and other required services after termination of the commitment order. A petition under this subsection may not be filed unless at least 6 months have elapsed since the person was last placed on conditional release or since the most recent petition under this subsection was denied.
971.17(6)
(6) Expiration of commitment order. 971.17(6)(a)(a) At least 60 days prior to the expiration of a commitment order under
sub. (1), the department of health and family services shall notify all of the following:
971.17(6)(a)2.
2. The district attorney of the county in which the commitment order was entered.
971.17(6)(b)
(b) Upon the expiration of a commitment order under
sub. (1), the court shall discharge the person, subject to the right of the department of health and family services or the appropriate county department under
s. 51.42 or
51.437 to proceed against the person under
ch. 51 or
55.If none of those departments proceeds against the person under
ch. 51 or
55, the court may order the proceeding.
971.17(6m)
(6m) Notice about termination or discharge. 971.17(6m)(a)2.
2. "Member of the family" means spouse, child, sibling, parent or legal guardian.
971.17(6m)(a)3.
3. "Victim" means a person against whom a crime has been committed.
971.17(6m)(b)
(b) If the court orders that the defendant's commitment is terminated under
sub. (5) or that the defendant be discharged under
sub. (6), the department of health and family services shall notify all of the following:
971.17(6m)(b)1.
1. If the person has submitted a card under
par. (d) requesting notification, the victim of the crime committed by the defendant, or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian.
971.17(6m)(c)
(c) The notice under
par. (b) shall inform the department of corrections and the person under
par. (b) 1. of the defendant's name and termination or discharge date. The department of health and family services shall send the notice, postmarked at least 7 days before the defendant's termination or discharge date, to the department of corrections and to the last-known address of the person under
par. (b) 1.
971.17(6m)(d)
(d) The department of health and family services shall design and prepare cards for persons specified in
par. (b) 1. to send to the department. The cards shall have space for these persons to provide their names and addresses, the name of the applicable defendant and any other information the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in
par. (b) 1. These persons may send completed cards to the department. All departmental records or portions of records that relate to mailing addresses of these persons are not subject to inspection or copying under
s. 19.35 (1), except as needed to comply with a request under
sub. (4m) (d) or
s. 301.46 (3) (d).
Effective date note
NOTE: Sub. (6m) is shown as affected eff. 6-1-97 by
1995 Wis. Act 440. Prior to 6-1-97 it reads:
Effective date text
(6m) Notice to victims about termination or discharge. (a) In this subsection:
971.17 Note
1. "Crime" has the meaning designated in s. 949.01 (1).
971.17 Note
2. "Member of the family" means spouse, child, sibling, parent or legal guardian.
971.17 Note
3. "Victim" means a person against whom a crime has been committed.
971.17 Note
(b) If the court orders that the defendant's commitment is terminated under sub. (5) or that the defendant be discharged under sub. (6), the department of health and family services shall notify the victim of the crime committed by the defendant, or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian, after the submission of a card under par. (d) requesting notification.
971.17 Note
(c) The notice under par. (b) shall inform the person under par. (b) of the defendant's name and termination or discharge date. The department of health and family services shall send the notice, postmarked at least 7 days before the defendant's termination or discharge date, to the last-known address of the person under par. (b)
971.17 Note
(d) The department of health and family services shall design and prepare cards for persons specified in par. (b) to send to the department. The cards shall have space for these persons to provide their names and addresses, the name of the applicable defendant and any other information the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in par. (b). These persons may send completed cards to the department. All departmental records or portions of records that relate to mailing addresses of these persons are not subject to inspection or copying under s. 19.35 (1), except as needed to comply with a request under sub. (4m) (d).
971.17(7)(a)(a) The committing court shall conduct all hearings under this section. The person shall be given reasonable notice of the time and place of each such hearing. The court may designate additional persons to receive these notices.
971.17(7)(b)
(b) Without limitation by enumeration, at any hearing under this section, the person has the right to:
971.17(7)(b)1.
1. Counsel. If the person claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations under
s. 977.07 (1).
971.17(7)(c)
(c) If the person wishes to be examined by a physician, as defined in
s. 971.16 (1) (a), or a psychologist, as defined in
s. 971.16 (1) (b), or other expert of his or her choice, the procedure under
s. 971.16 (4) shall apply. Upon motion of an indigent person, the court shall appoint a qualified and available examiner for the person at public expense. Examiners for the person or the district attorney 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).
971.17(7)(d)
(d) Upon a showing by the proponent of good cause under
s. 807.13 (2) (c), testimony may be received into the record of a hearing under this section by telephone or live audio-visual means.
971.17(8)
(8) Applicability. This section governs the commitment, release and discharge of persons adjudicated not guilty by reason of mental disease or mental defect for offenses committed on or after January 1, 1991. The commitment, release and discharge of persons adjudicated not guilty by reason of mental disease or mental defect for offenses committed prior to January 1, 1991, shall be governed by s.
971.17, 1987 stats., as affected by
1989 Wisconsin Act 31.
971.17 History
History: 1975 c. 430;
1977 c. 353;
1977 c. 428 s.
115;
1983 a. 359; Sup. Ct. Order, 141 W (2d) xiii (1987);
1987 a. 394;
1989 a. 31,
142,
334,
359; Sup. Ct. Order, 158 W (2d) xvii (1990);
1991 a. 39,
189,
269;
1993 a. 16,
98,
227;
1995 a. 27 s.
9126 (19);
1995 a. 417,
425,
440,
448; s. 13.93 (2) (c).
Effective date note
Judicial Council Note, 1990: Sub. (7) (d) [created] conforms the standard for admission of testimony by telephone or live audio-visual means at hearings under this section to that governing other evidentiary criminal proceedings. [Re Order eff. 1-1-91]
971.17 Annotation
There is no right to jury trial in recommitment proceedings under sub. (3), due process clause or equal protection clause. State v. M.S. 159 W (2d) 206, 464 NW (2d) 41 (Ct. App. 1990).
