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)(dm)1.1. If the court finds that all of the criteria in par.
(cg) are met, the court shall order the county of the person's residence, as determined by the department of health services under s.
980.105, to prepare a report. The county shall create a temporary committee to prepare the report for the county. The committee shall consist of the county department under s.
51.42, a representative of the department of health services, a local probation or parole officer, the county corporation counsel or his or her designee, and a representative of the county that is responsible for land use planning or the department of the county that is responsible for land information. In the report, the county shall identify an appropriate residential option in that county while the person is on supervised release. In counties with a population of 750,000 or more, the committee shall select a residence in the person's city, village, or town of residence, as determined by the department of health services under s.
980.105 (2m). The report shall demonstrate that the county has contacted the landlord for that residential option and that the landlord has committed to enter into a lease. The county shall when identifying an appropriate residential option:
980.08(4)(dm)1.a.
a. Ensure that the person's placement is into a residence that is not less than 1,500 feet from any school premises, child care facility, public park, place of worship, or youth center. A person is not in violation of a condition or rule of supervised release under sub.
(7) (a) if any school premises, child care facility, public park, place of worship, or youth center is established within 1,500 feet from the person's residence after he or she is placed in the residence under this section.
980.08(4)(dm)1.b.
b. If the person committed a sexually violent offense against an adult at risk, as defined in s.
55.01 (1e), or an elder adult at risk, as defined in s.
46.90 (1) (br), ensure that the person's placement is into a residence that is not less than 1,500 feet from a nursing home or an assisted living facility. A person is not in violation of a condition or rule of supervised release under sub.
(7) (a) if a nursing home or an assisted living facility is established within 1,500 feet from the person's residence after he or she is placed in the residence under this section.
980.08(4)(dm)1.c.
c. If the person is a serious child sex offender, ensure that the person's placement is into a residence that is not on a property adjacent to a property where a child's primary residence exists. For the purpose of this subdivision, adjacent properties are properties that share a property line without regard to a public or private road if the living quarters on each property are not more than 1,500 feet apart. A person is not in violation of a condition or rule of supervised release under sub.
(7) (a) if a child establishes primary residence in a property adjacent to the person's residence after the person is placed in the residence under this section.
980.08(4)(dm)2.
2. When preparing the report, the county shall consult with a local law enforcement agency having jurisdiction over the residential option. The law enforcement agency may submit a written report that provides information relating to the residential option, and, if the law enforcement agency submits a report, the county department shall include the agency's report when the county department submits its report to the department of health services.
980.08(4)(dm)3.
3. To assist the county in identifying appropriate residential options for the report, within 30 days after the court orders the county to prepare the report, the department of health services shall determine the identity and location of known and registered victims of the person's acts by searching its victim database and consulting 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. The county may consult with the department of health services on other matters while preparing the report and the department of health services shall respond within 10 days.
980.08(4)(dm)4.
4. The county shall submit its report to the department of health services within 120 days following the court order. A county that does not submit its report within 120 days violates the person's rights under s.
51.61, and each day that the county does not submit the report after the 120 days have expired constitutes a separate violation under s.
51.61. Notwithstanding s.
51.61 (7), any damages beyond costs and reasonable actual attorney fees recovered by the person for a violation shall be deposited into the appropriation account under s.
20.435 (2) (gz).
980.08(4)(f)
(f) The court shall direct the department to use the report submitted under par.
(dm) to prepare a supervised release plan for the person that identifies the residential option the county identified in its report. The plan shall also 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 30 days after the county submitted its report under par.
(dm). The court may grant one extension of up to 30 days of this time period for good cause.
980.08(4)(g)
(g) The court shall review the plan submitted by the department under par.
(f). 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. If the plan is inadequate under this paragraph due to the residential option, the court shall order the county to identify and arrange to lease another residential option and to prepare a new report under par.
(dm). If the plan is inadequate under this paragraph due to the treatment options, the court shall order the department to prepare another plan under par.
(f).
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.
