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).
Effective date note
NOTE: Par. (a) is shown as amended eff. 4-1-15 by
2013 Wis. Act 20. Prior to 4-1-15 it reads:
Effective date text
(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.
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).
Effective date note
NOTE: Par. (b) is shown as amended eff. 4-1-15 by
2013 Wis. Act 20. Prior to 4-1-15 it reads:
Effective date text
(b) 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).
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).
Effective date note
NOTE: Sub. (2) is shown as amended eff. 4-1-15 by
2013 Wis. Act 20. Prior to 4-1-15 it reads:
Effective date text
(2) 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.
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. 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)(f)
(f) 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.
980.08(4)(g)
(g) 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.
980.08(5m)
(5m) The department may not arrange placement under this section in a facility that did not exist before January 1, 2006.
980.08(6m)
(6m) 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.
980.08(7)(a)(a) 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.
980.08(7)(b)
(b) 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).
980.08(7)(c)
(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) or
(b), 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.
980.08(7)(d)
(d) 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.
980.08(8)(a)(a) 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).
980.08(8)(b)
(b) 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).
980.08(9)(a)(a) 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 residence except for outings approved by the department of health services that are under the direct supervision of a department of corrections escort and that are for employment or volunteer purposes, religious purposes, educational purposes, treatment and exercise purposes, supervision purposes, or residence maintenance, or for caring for the person's basic living needs.
980.08(9)(b)
(b) The department of corrections may contract for the escort services under
par. (a).
980.08 Cross-reference
Cross-reference: See also ch.
DHS 98, Wis. adm. code.
980.08 Annotation
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.
980.08 Annotation
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.
980.08 Annotation
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 (1999),
97-1337.
980.08 Annotation
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,
00-0152.
980.08 Annotation
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, 99-3354. 980.08 Annotation
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,
00-3075.
980.08 Annotation
The relevant inquiry under sub. (4) is whether the person's behavior indicates a likelihood to reoffend. A sexual assault need not occur and the person's behavior need not be criminal. State v. Sprosty,
2001 WI App 231,
248 Wis. 2d 480,
636 N.W.2d 213,
00-2404.
980.08 Annotation
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,
01-2461.
980.08 Annotation
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,
02-1056.
