980.05 Annotation
A sexually violent person committed under ch. 980 preserves the right to appeal, as a matter of right, by filing postverdict motions within 20 days of the commitment order. State v. Treadway,
2002 WI App 195, 257 Wis. 2d. 467,
651 N.W.2d 334,
00-2957.
980.05 Annotation
A parole and probation agent who had been employed full-time in a specialized sex-offender unit for 3 years during which he had supervised hundreds of sex offenders was prepared by both training and experience to assess a sex offender, and was qualified to render an opinion on whether he would reoffend. That the agent did not provide the nexus to any mental disorder did not render his testimony inadmissible. State v. Treadway,
2002 WI App 195, 257 Wis. 2d. 467,
651 N.W.2d 334,
00-2957.
980.05 Annotation
Neither ch. 980 nor ch. 51 grants persons being committed under ch. 980 the right to request confidential proceedings. That ch. 51 hearings are closed while ch. 980 hearings are not does not violate equal protection. State v. Burgess,
2002 WI App 264,
258 Wis. 2d 548,
654 N.W.2d 81,
00-3074.
980.05 Annotation
Article I, section 7 does not prohibit the legislature from enacting statutes requiring that trials be held in certain counties. The legislature could properly provide in sub. (2) that ch. 980 proceedings be held in a county other than the one in which the predicate offense was committed. State v. Tainter,
2002 WI App 296,
259 Wis. 2d 387,
655 N.W.2d 538,
01-2644.
980.05 Annotation
During a commitment proceeding under ch. 980, s. 904.04 (2), relating to other crimes evidence, does not apply to evidence offered to prove that the respondent has a mental disorder that makes it substantially probable that the respondent will commit acts of sexual violence in the future, as required under [former] s. 980.01 (7). State v. Franklin,
2004 WI 38,
270 Wis. 2d 271,
677 N.W.2d 276,
00-2426.
980.05 Annotation
No error was found in giving a jury a general verdict form in a ch. 980 hearing when the defendant failed to establish that ch. 980 respondents are routinely deprived of special verdicts and that general verdicts are more likely to result in commitments. State v. Madison,
2004 WI App 46,
271 Wis. 2d 218,
678 N.W.2d 607,
02-3099.
980.05 Annotation
When a defendant seeks to exclude prior statements based upon his or her 5th amendment privilege, he or she must first establish that the statements at issue are 1) testimonial; 2) compelled; and 3) incriminating. The mere fact that a statement is compelled does not require it to be excluded from a ch. 980 commitment trial. While an individual has a pre-petition or pre-arrest right against self-incrimination, that right is ordinarily not self-executing and must be invoked. State v. Mark,
2006 WI 78,
292 Wis. 2d 1,
718 N.W.2d 90,
03-2068.
980.05 Annotation
Under
Mark,
2006 WI 78, the respondent has the same 5th amendment privilege against self-incrimination as does a defendant at a criminal trial.
Kastigar,
406 U.S. 441, articulates the scope of the privilege in terms of the protection at trial when a criminal defendant has given an immunized statement, providing that immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords the protection of the 5th amendment privilege. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness. State v. Harrell,
2008 WI App 37,
308 Wis. 2d 166,
747 N.W.2d 770,
05-2393.
980.05 Annotation
Testimony referring to incidents revealed by the defendants compelled testimony and two experts' opinions that the defendant was much more likely than not to reoffend should have been excluded because that evidence was derived from compelled statements that were testimonial and incriminating. State v. Mark,
2008 WI App 44,
308 Wis. 2d 191,
747 N.W.2d 727,
07-0522.
980.05 Annotation
A person against whom a ch. 980 petition has been filed is not entitled to a competency evaluation under s. 971.14. Although the result of a successful ch. 980 petition is confinement, the confinement is for treatment not punishment and there is no criminal-law-based due-process right to a competency hearing in a ch. 980 proceeding. State v. Luttrell,
2008 WI App 93,
312 Wis. 2d 695,
754 N.W.2d 249,
07-1840.
980.05 Annotation
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. 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,
08-2439.
980.06
980.06
Commitment. 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.
980.06 Annotation
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.
980.06 Annotation
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,
98-0576.
980.06 Annotation
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,
00-2224.
980.06 Annotation
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,
00-2899.
980.06 Annotation
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,
00-0467.
980.06 Annotation
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,
00-0467.
980.06 Annotation
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,
99-3164.
980.06 Annotation
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,
00-3074.
980.06 Annotation
Chapter 980 does not require the dismissal of a pending commitment petition when the individual subject to the petition is incarcerated because of the revocation of either parole or extended supervision. This section requires the circuit court to order the person to be committed to the custody of DHS for control, care, and treatment, but ch. 980 does not specify when that commitment must commence. While this section sets forth the requirements for a proper commitment order, neither that section nor any other section of ch. 980 contains language stating when the individual requirements of that order must be satisfied. State v. Gilbert,
2012 WI 72,
342 Wis. 2d 82,
816 N.W.2d 215,
10-0594.
980.06 Annotation
Chapter 980 does not require dismissal of a pending commitment petition when the person who is the subject of the petition is incarcerated because of a new sentence or a parole/extended supervision revocation. The wide discretion given to the trial court regarding the timing of the probable cause hearing together with the evident recognition that the subject of the petition might be incarcerated during the commitment proceedings compels the conclusion that the legislature did not intend for commitment proceedings to stop because the person subject to the petition is returned to department of corrections custody. State v. Gilbert,
2011 WI App 61,
333 Wis. 2d 157,
798 N.W.2d 889,
10-0594.
980.06 Annotation
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 (2004).
980.06 Annotation
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 (2003).
980.063
980.063
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 court shall inform the person that he or she may request expungement under
s. 165.77 (4).
980.063(1)(b)
(b) The results from deoxyribonucleic acid analysis of a specimen under
par. (a) may be used only as authorized under
s. 165.77 (3).
980.063(2)
(2) Biological samples required under
sub. (1) (a) shall be obtained and submitted as specified in rules promulgated by the department of justice under
s. 165.76 (4).
980.063 History
History: 1995 a. 440;
2013 a. 20.
980.065
980.065
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).
980.065(1r)
(1r) Notwithstanding
sub. (1m), the department may place a female person committed under
s. 980.06 at Mendota Mental Health Institute, Wisconsin Women's Resource Center, Winnebago Mental Health Institute, or a privately operated residential facility under contract with the department of health services.
980.065(2)
(2) 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.
980.065 Annotation
Chapter 980 does not require dismissal of a pending commitment petition when the person who is the subject of the petition is incarcerated because of a new sentence or a parole/extended supervision revocation. The wide discretion given to the trial court regarding the timing of the probable cause hearing together with the evident recognition that the subject of the petition might be incarcerated during the commitment proceedings compels the conclusion that the legislature did not intend for commitment proceedings to stop because the person subject to the petition is returned to department of corrections custody. State v. Gilbert,
2011 WI App 61,
333 Wis. 2d 157,
798 N.W.2d 889,
10-0594.
980.065 Annotation
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 (2005).
980.067
980.067
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.
980.067 History
History: 2001 a. 16;
2007 a. 20 s.
9121 (6) (a).
980.067 Cross-reference
Cross-reference: See also s.
DHS 95.10, Wis. adm. code.
980.07
980.07
Periodic reexamination and treatment progress; report from the department. 980.07(1)
(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 court shall appoint an examiner as provided under
s. 980.031 (3) upon request of the committed person or the person may retain an examiner. The county shall pay the costs of an examiner appointed by the court as provided under
s. 51.20 (18) (a).
980.07(2)
(2) 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.
980.07(3)
(3) 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).
980.07(4)
(4) 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:
980.07(4)(a)
(a) The specific factors associated with the person's risk for committing another sexually violent offense.
980.07(4)(b)
(b) Whether the person is making significant progress in treatment or has refused treatment.
980.07(4)(d)
(d) Any specialized needs or conditions associated with the person that must be considered in future treatment planning.
980.07(5)
(5) 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).
980.07(6)(a)(a) 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.
980.07(6)(b)
(b) When the department provides a copy of the report under
par. (a) 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.
980.07(6m)
(6m) 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),
(4), or
(6) (a) 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.
980.07(7)
(7) At any time before a hearing under
s. 980.08 or
980.09, the department may file a supplemental report if the department determines that court should have additional information. The court shall accept the supplemental report and permit testimony from the department regarding the report or any relevant portion of the report.
980.07 Annotation
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,
98-0576.
980.07 Annotation
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 (2005).
980.07 Annotation
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 [former] 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,
04-1208.
980.07 Annotation
A rule in a supervised release plan requiring the petitioner to “abide by all rules of any detention, treatment or correctional facility in which [the petitioner] may be confined" was permissible. While the rule did not give DHS the power to detain the petitioner in prison solely for a rules violation, it did require him to abide by all rules of the prison should he find himself detained there for other reasons. State v. Thiel,
2012 WI App 48,
340 Wis. 2d 654,
813 N.W.2d 709,
11-0933.
980.07 Annotation
Sub. (1) (2011 stats.) states that the committed person may retain or have the court appoint an independent examiner “at the time of a reexamination," and s. 980.031 (3) requires the circuit court to appoint, upon request, an independent examiner to perform an examination of the individual's mental condition. That the independent examiner is also to participate at trial or a hearing involving testimony does not limit his or her initial role in examining the committed person “at the time of a reexamination." The committed person does not have to wait until his or her petition has passed the paper review; indeed, the independent examiner is meant to help assess the petitioner's readiness for discharge and gather facts to support the petition, if appropriate. State v. Jones,
2013 WI App 151,
352 Wis. 2d 87,
841 N.W.2d 306,
13-0321.
980.08
980.08
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, since supervised release was denied under
s. 980.09 (4), or since 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.
980.08(2)
(2) 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.
980.08(2m)
(2m) The person submitting the petition 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.
980.08(3)(a)(a) Within 20 days after receipt of the petition, the court shall appoint one or more examiners for the court who have 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 60 days after appointment, unless the court for good cause extends this time limit. If the person requests appointment of an examiner within 20 days after the filing of the petition, the court shall appoint an examiner for the person, unless the court appointed an examiner under
s. 980.031 (3) or
980.07 (1) for the current reexamination period. If a report filed by an examiner appointed under
s. 980.07 (1) to conduct a reexamination of the person's mental condition within the 6 months preceding the filing of the petition supports supervised release, the court may appoint that examiner as the examiner for the person under this subsection.
980.08(3)(b)
(b) The examiners appointed under
par. (a) 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
par. (a) as provided under
s. 51.20 (18) (a).
980.08(4)(a)(a) The court, without a jury, shall hear the petition within 120 days after the report of the court-appointed examiner appointed under
sub. (3) (a) 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),
(c), and
(d).
980.08(4)(c)
(c) 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.
980.08(4)(cg)
(cg) 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:
980.08(4)(cg)1.
1. The person is making significant progress in treatment and the person's progress can be sustained while on supervised release.
980.08(4)(cg)2.
2. It is substantially probable that the person will not engage in an act of sexual violence while on supervised release.
980.08(4)(cg)3.
3. Treatment that meets the person's needs and a qualified provider of the treatment are reasonably available.
980.08(4)(cg)4.
4. 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.
980.08(4)(cg)5.
5. 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.
980.08(4)(cj)
(cj) The person has the burden of proving by clear and convincing evidence that the person meets the criteria in
par. (cg).
980.08(4)(cm)
(cm) 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. An actual or alleged lack of available housing for the person within a county because of an ordinance or resolution in effect or proposed by the county or by a city, town, or village within the county may not constitute good cause to select another county under this paragraph. 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.
980.08(4)(d)
(d) 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).
980.08(4)(e)
(e) 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) or
(am). The county department shall submit its report to the department within 60 days following the court order.
980.08(4)(em)
(em) The department shall consult with a local law enforcement agency having jurisdiction over any prospective residential option identified under
par. (e) and shall request the law enforcement agency to submit a written report that provides information relating to the prospective residential option.
980.08(4)(f)
(f) The court shall direct the department to use any submissions under
par. (d), the report submitted under
par. (e), any report submitted under
par. (em), and other residential options identified by the department to prepare a supervised release plan for the person. The department shall search its victim database, and consult with the office of victim services in the department of corrections, the department of justice, and the county coordinator of victims and witnesses services in the county of intended placement, the county where the person was convicted, and the county of commitment to determine the identity and location of known and registered victims of the person's acts. The department shall prepare a supervised release plan that identifies the proposed residence. 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 plan shall do all of the following:
