STATE OF WISCONSIN v. DESMOND J. WILHITE
Appeal No. 2024AP2177-CR
IN COURT OF APPEALS DISTRICT IV
September 25, 2025
Cir. Ct. No. 2019CF2126
COURT OF APPEALS DECISION DATED AND FILED
September 25, 2025
Samuel A. Christensen Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
PLAINTIFF-RESPONDENT,
V.
DESMOND J. WILHITE,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Dane County: JOSANN M. REYNOLDS, Judge. Reversed and cause remanded with directions.
Before Blanchard, Kloppenburg, and Nashold, JJ.
¶1 KLOPPENBURG, P.J. In September 2022, Desmond Wilhite was committed to the care of the State of Wisconsin Department of Health Services (the department) as a person found not guilty by reason of mental disease or defect (generally, NGI acquittee or acquittee) on a charge of threat to a law enforcement officer. The circuit court granted Wilhite conditional release from institutional care
¶2 On appeal, Wilhite argues that
¶3 We conclude, pursuant to the holdings in Jones, 463 U.S. at 368, and Foucha, 504 U.S. at 77, 78 n.5, that
BACKGROUND
¶4 In August 2019, the State charged Wilhite with threat to a law enforcement officer, resisting an officer, criminal damage to property, and disorderly conduct. Pursuant to a plea agreement in September 2022, Wilhite pleaded not guilty by
¶5 In November 2022, the State stipulated to Wilhite‘s conditional release. Specifically, the State stipulated that Wilhite did not “currently pose a significant risk of harm to self, others, or property.” The circuit court ordered Wilhite conditionally released in February 2023, determining that conditional release “would not pose a significant risk of bodily harm to the defendant or others, or of serious property damage,” and further ordered that Wilhite be placed at the same community residential facility where he had previously been residing.
¶6 In February 2023, the department petitioned for revocation of Wilhite‘s conditional release based on allegations that Wilhite violated department rules. Later that month, Wilhite‘s treatment plan was adjusted, and the department withdrew the petition for revocation.
¶7 In October 2023, the department again petitioned for revocation of Wilhite‘s conditional release based on allegations that Wilhite violated department rules. The circuit court held a hearing at which the parties stipulated to withdrawal of the petition and to the addition of certain court-ordered conditions to Wilhite‘s conditional release. The court entered an order consistent with these stipulations.
¶8 In January 2024, the department petitioned again for revocation of Wilhite‘s conditional release, alleging that Wilhite violated department rules based on a recent incident. The circuit court held a hearing at which members of Wilhite‘s conditional release team, two of Wilhite‘s family members, and Wilhite testified.
¶9 At this hearing, the State asked the circuit court to revoke Wilhite‘s conditional release based on “clear and convincing evidence that rules [of Wilhite‘s conditional release] have been violated.” Wilhite argued that the State had not proven by clear and convincing evidence that he had violated the department rules cited by the State. Wilhite also argued that, even if the court determined that there was clear and convincing evidence that Wilhite had violated department rules, the court should exercise its discretion not to revoke his conditional release because Wilhite‘s behavior, including his use of coping strategies, had been improving and because placing Wilhite in a state institution would destabilize his mental state.
¶10 In issuing its ruling, the circuit court determined that the State “has met its burden by clear and convincing evidence that [Wilhite] has violated his rules, and this is not a situation where I have to find dangerousness.” The court said that it had “some significant trepidation and some serious concerns about what happens” if Wilhite were committed to institutional care, and also expressed the view that the “ideal result” would have been for the parties to agree to place Wilhite at a different community residential facility. At the same time, the court also expressed concern that Wilhite‘s behavior was “escalating” and noted that the State “petitioned three times now and withdrew the other petitions to bring him back to let him try again and yet here we are.” The court ultimately decided to grant the petition
¶11 The circuit court entered a written order consistent with its oral ruling, checking boxes on a standardized form indicating that “[t]he State has proven by clear and convincing evidence that a rule or condition of release was violated.” The court subsequently ordered Wilhite‘s placement at a specified state institution. Wilhite appeals.
DISCUSSION
¶12 Wilhite argues that
I. Forfeiture and Competency
¶13 It is not disputed that Wilhite did not raise his facial constitutional challenge to
¶14 Regarding the failure to raise the challenge in the circuit court, the State argues that Wilhite forfeited his facial constitutional challenge to
¶15 “Issues that are not preserved at the circuit court, even alleged constitutional errors, generally will not be considered on appeal.” State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727. However, our supreme court has ruled that “a facial challenge [to the constitutionality of a statute] is a matter of subject matter jurisdiction and cannot be waived” or forfeited. Bush, 283 Wis. 2d 90, ¶17; see also Milwaukee County v. Mary F.-R., 2013 WI 92, ¶¶31-34, 351 Wis. 2d 273, 839 N.W.2d 581 (declining to revisit the rule stated in Bush and assuming without deciding that the defendant did not forfeit her facial constitutional challenge by failing to contemporaneously object in the circuit court); State v. Talley, 2015 WI App 4, ¶¶16-17, 359 Wis. 2d 522, 859 N.W.2d 155 (explaining that the State‘s argument that the defendant forfeited his facial constitutional challenge is “difficult[] [to] reconcil[e]” with Bush, and clarifying that Mary F.-R. did not modify or overrule Bush). The State seeks to circumscribe the holding in Bush, but we are bound by it, and we reject the State‘s forfeiture argument on that basis. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (“The supreme court is
¶16 Turning to Wilhite‘s failure to file a motion for postdisposition relief under
¶17 However, the State cites no legal authority regarding whether and under what circumstances the court of appeals, as opposed to a circuit court, may lack competency to consider a matter. Instead, the State cites City of Cedarburg v. Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463, State v. Sanders, 2018 WI 51, 381 Wis. 2d 522, 912 N.W.2d 16, and Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190, all of which address a circuit or municipal court‘s competency to hear a case. See Hansen, 390 Wis. 2d 109, ¶¶3, 48-51; Sanders, 381 Wis. 2d 522, ¶¶20-22; Mikrut, 273 Wis. 2d 76, ¶¶12-13. In addition, none of these cases address
¶18 Separately, in challenging the propriety of this appeal, the State argues that our review of Wilhite‘s facial constitutional challenge is foreclosed by his noncompliance with
If a statute ... is alleged to be unconstitutional, or to be in violation of or preempted by federal law, or if the construction or validity of a statute is otherwise challenged, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard. If a statute is alleged to be unconstitutional, or to be in violation of or preempted by federal law, or if the construction or validity of a statute is otherwise challenged, the speaker of the assembly, the president of the senate, and the senate majority leader shall also be served with a copy of the proceeding, and the assembly, the senate, and the state legislature are entitled to be heard.
The State argues that Wilhite‘s filing of his initial appellant‘s brief does not constitute sufficient service on the attorney general. The State also points out that Wilhite did not serve the legislature before the State filed its response brief in this appeal, and from this argues that this court “should not allow [Wilhite] to prospectively cure
¶19 To begin on this issue, the office of the attorney general does not suggest that the State has been in any way prejudiced based on a lack of sufficient notice or service by Wilhite.
¶20 On a related point, the attorney general represents the State in this action, and the attorney general was served with “a copy of the proceeding” challenging the facial constitutionality of
¶21 The State cites Kurtz v. City of Waukesha, 91 Wis. 2d 103, 280 N.W.2d 757 (1979), in which our supreme court concluded that the failure to serve the attorney general with a copy of a pleading challenging the constitutionality of a statute meant that the circuit court, and the reviewing appellate court, could not properly consider or review the constitutional challenge “because the parties did not give the [S]tate an opportunity to be heard.” Id. at 117. However, in Kurtz, unlike here, the attorney general‘s office did not appear on behalf of the State at any point, nor was the State a party. See id. at 105-06. When, as here, the attorney general is given the opportunity to be heard in the court of appeals proceedings, and when there is no “claim or evidence that the interests of the [S]tate have been prejudiced by its lack of participation” in earlier proceedings, “the purpose of the Kurtz rule” is fulfilled. See William B. Tanner Co. v. Estate of Fessler, 100 Wis. 2d 437, 444, 302 N.W.2d 414 (1981), abrogated on other grounds by Sears, Roebuck & Co. v. Plath, 161 Wis. 2d 587, 468 N.W.2d 689 (1991). Accordingly, “[t]here is no reason for refusing to consider” the merits of Wilhite‘s facial constitutional challenge based on his purported failure to serve the attorney general. See Estate of Fessler, 100 Wis. 2d at 444.
¶22 Wilhite concedes that he had not yet served legislative officials as of the time when the State filed its response brief. However, he asserts, without contradiction by the State in any correspondence to this court, that Wilhite‘s counsel has “corrected this oversight by serving the speaker of the assembly, the president of the senate, and the senate majority leader.” Further, Wilhite argues that
¶23 We conclude that Wilhite‘s facial constitutional challenge to
II. Facial Constitutional Challenge
¶24 To repeat, Wilhite argues that
¶25 A facial challenge to the constitutionality of a statute presents a question of law that this court reviews de novo. Mayo v. Wisconsin Injured Patients and Fams. Comp. Fund, 2018 WI 78, ¶23, 383 Wis. 2d 1, 914 N.W.2d 678. “A statute enjoys a presumption of constitutionality. To overcome that presumption, a party challenging a statute‘s constitutionality bears a heavy burden.” State v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90 (citation omitted). That party “must prove that the challenged statute is unconstitutional beyond a reasonable doubt.” State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63. To succeed on a facial constitutional challenge, the party challenging the statute “must show that the law cannot be enforced ‘under any circumstances.‘” Id., ¶13 (quoted source omitted).
While a statute should be held valid whenever by any fair interpretation it may be construed to serve a constitutional purpose, courts cannot go beyond the province of legitimate construction to save it, and where the meaning is plain, words cannot be read into it or out of it for the purpose of saving one or other possible alternative.
State v. Hall, 207 Wis. 2d 54, 82, 557 N.W.2d 778 (1997).
A. Statutory Scheme
¶26 We now set forth pertinent parts of the statutory scheme governing the commitment, conditional release, and revocation of conditional release of NGI acquittees such as Wilhite. When a defendant
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 [the person‘s self] or to others or of serious property damage. If the court does not make this finding, it shall order conditional release.
¶27 When a circuit court orders conditional release, the department submits to the circuit court a plan for the NGI acquittee‘s treatment and services.
¶28 We now come to the key language at issue in this appeal. If the department alleges that the conditionally released NGI acquittee “has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked,” the department shall submit to the circuit court a petition to revoke conditional release, along with a statement of probable cause.
¶29 Turning to additional provisions that provide context, an NGI acquittee who is committed for institutional care may petition the circuit court to authorize 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.”
¶30 We pause to observe that, under this statutory scheme, whenever the State seeks to commit an NGI acquittee who has been conditionally released, the circuit court has necessarily made a previous finding (as of the time of the conditional release) that the State did not present clear and convincing evidence that the NGI acquittee is dangerous, whether or not the
B. United States Supreme Court Case Law
¶31 In arguing that
¶32 In Jones, the Supreme Court considered the constitutionality of a District of Columbia code provision that, among other things, allowed the commitment of NGI acquittees to institutional care until, as pertinent here, the acquittees prove by a preponderance of the evidence that they are no longer mentally ill or no longer dangerous. Jones, 463 U.S. at 356-58. Stating that due process “requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed,” the Court rejected Jones‘s argument that he was entitled to release because he had been committed to institutional care for a period longer than he could have been incarcerated if convicted in the criminal case. Id. at 368 (quoted source omitted). The Court explained that “[t]he purpose of commitment following an [NGI] acquittal ... is to treat the individual‘s mental illness and protect [the individual] and society from [the individual‘s] potential dangerousness.” Id. The Court further stated that, “because it is impossible to predict how long it will take for any given individual to recover,” it is reasonable and comports with due process to “leave the length of commitment indeterminate.” Id. In the course of this discussion, the Court clarified that “[t]he committed acquittee is entitled to release when [the acquittee] has recovered [the acquittee‘s] sanity or is no longer dangerous.” Id. The import of this statement was that due process requires that an NGI acquittee be entitled to release when either mental illness or dangerousness is no longer shown.
¶33 The Supreme Court also held in Jones that an NGI acquittal provides sufficient proof of continuing mental illness and dangerousness to justify commitment immediately following an NGI verdict. Id. at 366. The Court acknowledged that “[t]he precise evidentiary force of the [NGI] acquittal,” with respect to both mental illness and dangerousness, “may vary from case to case.” Id. But the Court stated that “the Due Process Clause does not require [the legislature] to make classifications that fit every individual with the same degree of relevance.” Id. Immediately following this conclusion, the Court explained that the procedure in the code at issue, which entitled an NGI acquittee who has been initially committed to a hearing, “at which [the acquittee] has the burden of proving by a preponderance of the evidence that [the acquittee] is no longer mentally ill or dangerous,” within 50 days of the initial commitment, provided the “assurance” sufficient to satisfy due process “that every acquittee has prompt opportunity to obtain release if [the acquittee] has recovered.” Id. at 357, 366. In other words, the Court explained that the finding of dangerousness required by the Due Process Clause for commitment is initially satisfied by the establishment through the NGI acquittal process that the NGI acquittee committed a criminal act, but that such a finding does not satisfy the Due Process Clause with respect to dangerousness at times following the initial commitment. Id. at 366, 368.
¶34 After Jones, in Foucha, the Supreme Court considered the constitutionality of a Louisiana statute that allowed the state to commit an NGI acquittee until the
¶35 In support, the Supreme Court quoted Jones, explaining that “the Constitution permits the Government, on the basis of the [NGI] judgment, to confine [the NGI acquittee] to a mental institution until such time as [the acquittee] has regained [the acquittee‘s] sanity or is no longer a danger to [the acquittee‘s self] or society.” Foucha, 504 U.S. at 77-78 (quoting Jones, 463 U.S. at 370). The Court explained that “[t]he court below was in error in characterizing the above language from Jones as merely an interpretation of the pertinent statutory law ... and as having no constitutional significance.” Foucha, 504 U.S. at 78. The Court emphasized that an NGI acquittee “could be held” only “until [the acquittee] was no longer mentally ill or no longer dangerous,” and that this defines “the outside limits on the detention of [NGI] acquittees.” Id. at 78 n.5.
¶36 The Supreme Court then explained why Foucha‘s antisocial personality and the finding that this condition rendered him dangerous were constitutionally insufficient to justify his commitment to institutional care. The first two reasons for the Court‘s holding, which were based on the lack of a finding of mental illness, are not relevant to this appeal. See id. at 78-79. The third reason was that the Due Process Clause protects the right to “[f]reedom from bodily restraint ... from arbitrary governmental action.” Id. at 80. The Court explained: “It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Id. (quoted source omitted). “A State, pursuant to its police power, may of course imprison convicted criminals for the purposes of deterrence and retribution.... Here, the State has no such punitive interest. As Foucha was not convicted, he may not be punished.” Id.; see also
¶37 The Supreme Court acknowledged that “in certain narrow circumstances persons who pose a danger to others or to the community may be subject to limited confinement” without a finding of mental illness, but explained that Louisiana‘s statutory scheme did not purport to address
C. Wisconsin Case Law
¶38 Our supreme court addressed the Foucha decision in Randall, 192 Wis. 2d 800. Specifically, in Randall, our supreme court considered whether, based on Foucha, “the Wisconsin statutory scheme, which allow[ed] the [S]tate to confine an [NGI] acquittee who is no longer mentally ill, solely on the grounds that the individual [wa]s a danger to [the acquittee‘s self] or others, violate[d] the Due Process Clause.” Randall, 192 Wis. 2d at 806 (footnote omitted). The statute at issue in Randall,
¶39 The Randall court interpreted Foucha to hold that, when there is not such a limit on the maximum duration of the commitment, it is permissible to commit an NGI acquittee only until the acquittee “is either no longer mentally ill or no longer dangerous.” Randall, 192 Wis. 2d at 840-41. But the Randall court concluded that, consistent with this proposition, when an NGI acquittee petitions for conditional release, the acquittee may continue to be committed
based on dangerousness alone, ... when all of the following criteria are met: (1) the maximum duration of the commitment is limited to reflect the acquittee‘s specific crimes; (2) the burden of proof at the hearing for recommitment or release is borne by the state; and (3) the acquittee is confined in a facility appropriate to [the acquittee‘s] mental condition.
Id. at 841 (emphasis added). The court ruled that Wisconsin‘s statutory scheme, which permitted continued commitment based on dangerousness alone, without a showing of mental illness, did not violate due process because it complied with these three criteria and required a showing of dangerousness. Id.; see also Foucha, 504 U.S. at 80 (explaining that “in certain narrow circumstances persons who pose a danger to others or to the community may be subject to limited confinement” without a showing of mental illness).
D. Analysis
¶40 Together, Jones, Foucha, and Randall teach that due process permits and requires the following in this context. A circuit court may generally commit an NGI acquittee to institutional care immediately following an NGI verdict, because such a verdict establishes that: (1) “the defendant committed an act that constitutes a criminal offense“; and (2) the defendant “committed the act because of mental illness,” and these are sufficiently probative, across cases, of continuing mental
Randall, 192 Wis. 2d at 840-41. In other words, after the initial period of commitment and following conditional release, the inference of dangerousness from an NGI verdict is no longer sufficient to justify commitment; rather, dangerousness must be established as a matter of fact.
¶41 It follows from this that, to avoid violating due process, a circuit court may not commit to institutional care a conditionally released NGI acquittee without making a new finding of dangerousness. This is because in all such cases the court has previously determined that there was not clear and convincing evidence that the acquittee is dangerous. See Foucha, 504 U.S. at 78 n.5 (an NGI acquittee may not be committed to institutional care without a finding of dangerousness because this violates the Due Process Clause);
¶42 We recognize that the statute enjoys a presumption of constitutionality. But we conclude that Wilhite has carried the heavy burden of showing that
E. State‘s Arguments
¶43 We now address and reject the State‘s substantive arguments to the contrary. The State asserts that Wilhite‘s challenge “proceeds on the flawed assumption that, as an [NGI] acquittee, he has the same constitutional rights as a person who has been committed civilly.” The State repeatedly states the proposition that “[NGI] acquittees constitute a special class that should be treated differently from other candidates for commitment.” See Jones, 463 U.S. at 370. But the State does not explain the significance of this proposition in the present context or develop this into an argument for the statute‘s constitutionality, and we reject it on that basis. See Wisconsin Conf. Bd. of Trs. of the United Methodist Church, Inc. v. Culver, 2001 WI 55, ¶38, 243 Wis. 2d 394, 627 N.W.2d 469 (stating that this court need not address arguments that are conclusory and insufficiently developed).
¶44 For the sake of completeness, we address the more salient aspects of the
¶45 To the extent that the State means to suggest that the due process protections in Jones and Foucha should not apply to NGI acquittees, this is directly refuted by the holdings in Jones and Foucha that we have summarized above. See Jones, 463 U.S. at 368; Foucha, 504 U.S. at 78.
¶46 The State argues that Foucha does not apply because
¶47 The State asserts, as a purported first difference, that under the Wisconsin statutory scheme an NGI acquittee has been found beyond a reasonable doubt to have committed a crime, and “[i]t is the determination of guilt which provides the basis for the [S]tate to incapacitate and treat the [NGI] acquittee.” See Randall, 192 Wis. 2d at 833. But the State fails to show how this feature of Wisconsin law differed from the Louisiana statutory scheme at issue in Foucha.7
In any case, while it does not violate due process for a court to immediately order commitment following an NGI verdict because of the inference of continuing mental illness and dangerousness that generally arises from an NGI verdict and proof beyond a reasonable doubt that the defendant‘s conduct satisfies the elements of a criminal law violation, Jones, 463 U.S. at 363-64, that is not what is at issue here. Instead, we address the commitment after conditional release of an NGI acquittee, which, as we have emphasized, post-dates a court determination that there was not clear and convincing evidence that the acquittee was dangerous. See
¶48 The State does identify a second difference, but it is irrelevant. The difference is that, in Wisconsin, an NGI acquittee may be committed only up to the amount of time that the individual could have been imprisoned for the underlying
¶49 It is the same with the third difference identified by the State. This is that Louisiana‘s statutory scheme did not require Louisiana to “prove by clear and convincing evidence that [the NGI acquittee was] demonstrably dangerous to the community” to justify continued commitment. See Foucha, 504 U.S. at 81. In contrast, the State asserts, the Wisconsin statutory scheme requires the State to prove by clear and convincing evidence that the NGI acquittee is dangerous in order to support a circuit court‘s denial of a petition for conditional release at six-month intervals following commitment.
¶50 Separately, the State directs us to a decision by the Colorado Court of Appeals, which rejected an argument that an NGI acquittee could not constitutionally be committed following conditional release “based solely on the violation of a condition without additional findings of a mental illness and dangerousness.” See People v. Garlotte, 958 P.2d 469, 476 (Colo. App. 1997). We reject the State‘s characterization of this decision as persuasive because the Colorado court relied on the requirement, set forth in Colorado case law, that a condition, the violation of which is cited to justify revocation of conditional release, must be substantially related to the NGI acquittee‘s mental illness in a way that implicates dangerousness. See id. at 477-78. As we explain, that requirement is not present in Wisconsin law.
¶51 Like
“the [NGI acquittee] has violated one or more conditions in [the acquittee‘s] release, or the [acquittee] is suffering from a mental disease or defect which is likely to cause [the acquittee] to be dangerous to [the acquittee‘s self], to others, or to the community in the reasonably foreseeable future, if [the acquittee] is permitted to remain on conditional release.”
Garlotte, 958 P.2d at 475 (emphasis added) (quoting Colorado statutes). In Garlotte, the circuit court revoked Garlotte‘s conditional release and committed him to institutional
¶52 The Colorado Court of Appeals acknowledged that the Court in Foucha “held that due process requires both mental illness and dangerousness in order to extend [a] commitment.” Garlotte, 958 P.2d at 473. The court then concluded that, under Colorado law, an NGI acquittee‘s conditional release could be revoked
solely because a release condition has been violated without infringing upon due process, provided that the condition violated bears a substantial relationship to the prevention of recurring mental illness or the management of an [NGI] acquittee‘s existing mental illness, and to the prevention of future dangerousness arising from the mental illness.
Id. at 477. In reaching this conclusion, the court relied on Colorado case law establishing that conditions of release for NGI acquittees must be “necessary and related to the goal of keeping [the acquittee] on conditional release by managing [the acquittee‘s] mental illness and protecting the public.” Id. at 476-77 (emphasis added) (citing People v. McCoy, 821 P.2d 873 (Colo. App. 1991), Scheidt v. Meredith, 307 F. Supp. 63 (D. Colo. 1970), and Campbell v. District Ct., 577 P.2d 1096 (Colo. 1978)). The court further explained that Colorado bears
the burden of proving that the condition violated, and on which revocation of the conditional release is based, is substantially related to the abnormal and dangerous behavior which resulted in the initial commitment; that such condition bears a substantial relation to the [NGI acquittee‘s] abnormal mental condition and propensity toward dangerousness; and that it is tailored to serve the best interests of both the [acquittee] and the community.
¶53 Unlike in Colorado, there is no statutory directive or case law in Wisconsin that requires that conditions of release ordered by circuit courts or rules established by the department be “necessary and related to the goal of managing [the NGI acquittee‘s] mental illness and protecting the public,” or that the conditions “bear[] a substantial relationship ... to the prevention of future dangerousness arising from the mental illness.” See id. at 476-77. To the contrary, the Wisconsin legislature amended
¶54 The Colorado case is not persuasive in the Wisconsin context, because this statutory history and the lack of case law in Wisconsin establish that
¶56 In reaching the conclusion that
[i]ncapacitation for the purposes of treatment and rehabilitation, limited to the maximum term which could have been imposed for the criminal conduct, does not turn commitment into an impermissible form of incarceration so long as the [S]tate houses the acquittee in a facility appropriate to [the acquittee‘s] condition and provides the acquittee with care and treatment to overcome that which makes [the acquittee] dangerous.
Randall, 192 Wis. 2d at 833-34. This is consistent with Foucha‘s acknowledgement that “in certain narrow circumstances,” individuals “may be subject to limited confinement” based on findings of dangerousness alone. See Foucha, 504 U.S. at 80.
¶57 Accordingly, we do not read Randall, as the State suggests, to establish that due process permits commitment of an NGI acquittee following conditional release so long as “there is a reasonable relationship between the nature of the commitment and the purposes for which the individual is committed.” See Randall, 192 Wis. 2d at 837-38. That language, taken in context, is in specific reference to the statutory scheme that permitted continued commitment based on dangerousness alone, without a showing of mental illness. See id. (“we hold that [WIS. STAT. §] 971.17(2) ... (1987-88) does not violate due process because we conclude that ...“). While both Randall and Jones state that treating mental illness is one of the legitimate purposes of commitment immediately following an NGI verdict, neither opinion suggests that commitment without a finding of dangerousness satisfies due process. We reject the State‘s argument to the contrary.
¶58 The State also argues, quoting State v. Burris, 2004 WI 91, ¶72, 273 Wis. 2d 294, 682 N.W.2d 812, that “the circuit court should not have had to wait for Wilhite to engage in additional ‘overtly dangerous acts’ before it revoked release.” The State asserts that our ruling today “would make courts powerless to enforce their rules and conditions of release absent a showing of overt dangerousness.” However, as we have explained, the Supreme Court made clear in Foucha and Jones that due process requires a showing of dangerousness before a court can commit a conditionally released NGI acquittee to
F. Remedy
¶59 The State argues that if we conclude, as we have, that
¶60
“Whether an unconstitutional provision is severable from the remainder of the statute in which it appears is largely a question of legislative intent, but the presumption is in favor of severability.” “Unless it is evident that the [l]egislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”
State v. Janssen, 219 Wis. 2d 362, 379, 580 N.W.2d 260 (1998) (citation and quoted source omitted).
¶61 We conclude that, given the presumption in favor of severability, see id., the portions of
¶62 Wilhite asserts that, as severed, the statute would not require a finding of dangerousness to commit a conditionally released NGI acquittee. However, as reflected in footnote 9 supra, after one has severed the three phrases in
¶63 At the same time, we reject the State‘s essentially unsupported position that this court, having determined that the provision is unconstitutional in the manner explained, should remand to the circuit court to allow the State to attempt to prove Wilhite‘s dangerousness. We reject this argument for at least the following reasons. The State fails to come to grips with the fact that the State never alleged dangerousness in the circuit court, neither in its petition nor in argument to the court. Further, on appeal, the State does not explain how further proceedings in the circuit court following remand to address dangerousness could now be conducted in a manner consistent with statutory requirements, given that Wilhite was discharged from his commitment in June 2025. Accordingly, we remand to the circuit court with directions to vacate its order revoking Wilhite‘s conditional release.
¶64 In sum, we conclude that
¶65 For the reasons stated above, we reverse and remand to the circuit court with directions to vacate the order revoking Wilhite‘s conditional release and committing him to institutional care.
By the Court.—Order reversed and cause remanded with directions.
Recommended for publication in the official reports.
Notes
An order for conditional release places the person in the custody and control of the department of health services. A conditionally released person is subject to the conditions set by the court and to the rules of the department of health 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 services alleges ... 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 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 72 hours after the detention, excluding Saturdays, Sundays, and legal holidays. 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 services may detain the person in a jail or in a hospital, center or facility specified by