State v. Post

Wisconsin, State Petitioner-Appellant,

v. Samuel E. Post, [Case No. Respondent-Respondent.

94-2356.] Wisconsin, State Petitioner-Appellant,

v. R. Oldakowski, Ben Respondent-Respondent. [Case 94-2357.]

No. Supreme Court argument September

Oral 8, 1995. 1995. Decided December (Also 115.) reported in 541 N.W.2d cause was argued For the petitioner-appellant Wellman, L. with by Sally attorney general, assistant Doyle, attorney the briefs was James E. whom on general. the cause was respondents-respondents

For Casey, Kenneth P. public assistant state argued by A. Findley with whom on the brief was Keith defender, Martin, and Richard defenders. assistant state public GESKE, are JANINE P. J. These cases before by appeals the court certification court upon pursuant to Rule 809.61 of the Wisconsin Statutes.1 appeals The State from an order ofthe Circuit Court for County, Judge, Schwartz, Dane Stuart A. Circuit dis- missing petitions filed in both cases under Wis. Stat. Chapter Sexually 980, the Violent Person Commit- grounds statute, ments on the it unconstitutional. The circuit court found that protections against 980 violated constitutional double jeopardy post guaran- laws, and ex facto as well as the process equal protection tees substantive due and under the law. appeal

The issues certified on to this court are guaran- whether 980 violates constitutional (1) (2) against jeopardy; against post tees: double ex (3) (4) process; equal laws; facto protection of substantive due (5) gover- law;

under the whether the partial incomplete nor's veto created a law which is applied persons unworkable as under committed (the Act). chapter 975 Sex Crimes We the cir- reverse cuit court on all constitutional issues. We hold that chapter 980 does not violate the constitution on either jeopardy post grounds. double or ex Our decision facto challenges opinion on these two is controlled today companion Carpenter, case, issued in the State v. (1995). opinion 197 Wis. 2d 541 N.W.2d 105 This remaining addresses the three issues.

We hold that 980 withstands constitu- challenge tional in that it violates neither process equal protection guar- substantive due nor the antees the United States and Wisconsin

1Textual references to the Wisconsin Statutes are hereinaf xxx.xx," "chapter ter indicated xxx" or "section without designation "of the Wisconsin Statutes." Unless otherwise indi cated, opinion all references this are to the 1993-1994 Wisconsin Statutes. Chapter commit- authorizes the civil 980

constitutions. sexually previously persons, of a convicted ment of currently from a mental dis- offense, suffer who violent repeat predisposes such acts. We them to order that protecting compelling recognize interest the state's society by preventing of sexual violence future acts through iden- treatment of those the commitment and likely conclude such acts. We tified as most to commit process commit- is not offended due substantive chapter 980, nature whose ments, as those under such compelling reasonably such related to and duration are equal pro- Similarly, purposes. hold that the we state constitutionality challenge does not affect the tection chapter requires However, this court 980 as a whole. right jury determination be extended that the persons to a discharge chapter at all

committed under 980 chapter Additionally, hearings. 980 is we conclude that chapter respect complete law in and workable persons.2 committed

FACTS purposes appeal, parties do not dis- of this For history. procedural pute following In facts and (Post) convicted of two counts each Samuel E. Post was robbery degree assault, armed and false of first sexual stemming imprisonment incidents in which he from shopping parking mall lots and abducted women from he forced them to them to remote locations where drove engage in oral sex acts. The circuit court committed custody Department of the Wisconsin him to the (DHSS) under Health and Social Services brevity, person[s]" purposes 2 For the term "committed in reference to those committed under will be used originally persons as to individuals as well committed under 975. him Health Institute confined at Mendota Mental

and (Mendota). mandatory Following parole his release on again 1990, in Post confined at Mendota after revo- was parole conditions, for violation of several cation including allegations repeatedly his that he fondled stepdaughter. Post was scheduled for release on minor July 15,1994. charged Ben R.

In 1972 the State Oldakowski (Oldakowski) kidnapping of and with numerous counts involving of five women sexual assault the abductions ultimately attempted a sixth. He and the abduction of guilty rape pled of one count of in and was convicted § 975.06, him to 1972. Pursuant to the court committed custody subsequently which transferred of DHSS April in him Six months after his release of to Mendota. parole fol- 1979, the State revoked Oldakowski's initial sexually 17-year-old lowing charges that he assaulted again paroled girl. 1986, 1985, and, in In he was teenage girl. exposing Revoca- himself to a revoked only proceedings months after were initiated two tion following parole, February a con- his third repeat viction, offender, for lewd and lascivious as was returned to Mendota Oldakowski behavior. July 15,1994. released on scheduled be (DOJ) July Department of Justice 12,1994, On seeking pursuant petitions to com- filed sexually persons. as violent Post and Oldakowski mit upon hearings, probable relied the State At the cause provided by diagnoses Dr. and Oldakowski of Post Director of Men- Doren, the Forensic Clinical Dennis diagnosis primary Dr. Doren testified his dota. secondary personality with is antisocial disorder3 Post Association, Diag According Psychiatric to the American 1994) (4th Mental and Statistical Manual Disorders ed. nostic (hereinafter DSM-IV), Per- feature of Antisocial "the essential pri- diagnosed

atypical paraphilia.4 He Oldakowski including paraphilia, marily suffering sexual from suffering) (inflicting or and exhibi- humiliation sadism secondarily (exposure genitals),5 from a tionism personality specified. Dr. disorder, not otherwise opinion, that, in medical the above Doren testified his the definition of are mental disorders within disorders 980.01(2), § Oldakowski are and that both Post and dangerous their mental disorders to others because they engage probability that will create a substantial words, that both of sexual violence6—in other acts statutory per- definition of men fit probable cause to believe circuit court found sons. The sexually violent that both Post and Oldakowski were pending persons at Mendota and ordered them held trial. day hearings probable held, cause were

On the to and Oldakowski each filed motions dismiss Post chapter petitions grounds on the that commitment protections guaran- and violates various constitutional finding granted motions, The circuit court those tees.7 protections 980 violated constitutional for, disregard sonality pervasive pattern of and Disorders is a DSM-IV, of, rights of others ...." at 645. violation recurrent, Paraphilia a are "The essential features of fantasies, sexually arousing urges, sexual or behaviors intense nonconsenting generally involving... persons children or other DSM-IV, period and that a of at least 6 months." at occur over 522-23.

5 DSM-IV, at 523. abuse, case, Polysubstance and abuse and alcohol Post's (all remission) alcohol in forced were cited Oldakowski's abuse as additional risk factors which contributed to Dr. Doren's posed men risk of reoffense. assessment that both substantial 7Upon stipulation by arguments counsel that the same support dismissing petitions, were to be raised in both Post post against jeopardy laws, and ex facto as well double process equal guarantees and of substantive due protection therefore under the law. The circuit court released. The court of ordered Post Oldakowski stayed appeals the matters consolidated and ordered pending appellate release Post and Oldakowski's constitutionality This court review ofthe of the statute. accepted subsequently certification from the court of appeals.

PROCEDURAL SUMMARY virtually challenge Post and Oldakowski pro- entirety 980 on various substantive statutory Therefore, 980's cedural bases. point provide at to scheme will be summarized this opinion. Chapter of this framework the remainder agency authority discharge requires an or with may person fit the criteria for commit- release a who sexually person notify the DOJ or ment as a violent attorney pending appropriate release and to district provide docu- treatment records and other relevant concerning Wis. Stat. mentation individual. chap- petition seeking § under 980.015. A commitment (1) allege person: convicted, that the was ter 980 must delinquent, guilty or found not reason of found offense;8 disease or defect of a mental joint filed and the circuit court entered and Oldakowski briefs addressing motions. one decision both 8 chapter: Definitions. In this 980.01 (5) "Sexually purposes means that one of the for motivated" gratification. an act is for the actor's sexual arousal or (6) "Sexually any following: violent offense" means of the 948.02(1) (a) 940.225(1) (2), (2), Any specified crime in s. or or 948.025, 948.06 or 948.07. (b) 940.05, 940.06, 940.01, 940.02, Any specified crime in s. 940.19(4) (5), 940.30, 940.305, that is deter- or 940.31 or 943.10

(2) sentence, com- release from a days is within from a facility arising mitment, or secured correctional (3) disorder; and has a mental offense; violent sexually (4) creates a that mental disorder is because dangerous engage he or she will probability substantial statutorily is Mental disorder acts of sexual violence.9 affecting condition or congenital acquired defined as "a a capacity predisposes or volitional the emotional violence." Wis. Stat. in acts of sexual engage person 980.01(2). § filed petition

The court shall review if cause to only it finds the state and order detention by eligible named in the is petition believe that the person 980.05(3)(b), sexually mined, proceeding to have been in a under s. motivated. (c) solicitation, Any conspiracy attempt a crime or to commit (a) (b). par. under or contents; filing. Sexually person petition; violent 980.02 (2) allege petition A under this section shall that all filed sexually following apply person alleged to be a violent person: (a) following any person The of the criteria: satisfies sexually person The has convicted of a violent 1. been offense. sexually person delinquent The has found for a vio- 2. been lent offense. guilty sexually person 3. The has been found not violent mental disease or defect. offense reason of release, (ag) days discharge person or on The is within 90 otherwise, imposed parole for a convic- or from a sentence that was offense!,] sexually tion for a from a secured correctional 48.02(15m), facility, person placed if the was in the as defined s. facility being adjudicated delinquent under s. 48.34 on the basis sexually of a violent offense or from a commitment order that was entered as a result of a violent offense. (b) person The has a mental disorder. (c) person dangerous person's to others because the probability mental disorder creates a substantial that he or she engage in violence. will acts of sexual commitment under the statute. Within 72 hours of for filing, hearing there shall be a in which the court deter- probable to mines whether there is cause believe that subject petition sexually person. the of the is a petition The shall dismiss the if it fails to court estab- probable upon finding However, lish cause. a probable cause, the court shall order the individual to facility appropriate for be transferred to an evaluation. 980.04(l)-(3). required §§ to Wis. Stat. When submit to person may examination, an a retain his or her own (or appointed upon proof examiner one will be of indi- subject gency) who will have reasonable access to the petition past present and to treatment records. 980.03(4). § Wis. Stat. person

The is entitled to a full adversarial on trial allegations petition. During trial, in the all apply criminal rules of evidence and the state carries proof beyond the burden of a reasonable doubt. Wis. 980.05(lm) (3). person §§ Stat. who is the sub- following rights: ject petition to counsel has the (which established); appointed indigency if is to will be present witnesses; silent; remain and cross-examine jury may hearing A of 12 and to have the recorded. be requested verdict. and must arrive at a unanimous (3). 980.03(2), §§ Wis. Stat. sexually person violent under

Once a is found to be person chapter, this the circuit court must commit control, DHSS care and treatment until it for longer is no vio- determined that he or she 980.06(1). person. § Stat. The court must lent Wis. requires initially determine whether the individual super- appropriate secure institutional care or is 980.06(2)(b). § If committed to release. Wis. Stat. vised facility, person may petition for a secure treatment supervised every release six months. The court shall by proves grant petition and clear this unless the state sexually person convincing the is still evidence that substantially likely of sex- to commit acts violent and 980.08(1) §§ Wis. Stat. ual violence unless confined. (4). secretary may any time, the of DHSS and At discharge. filing petition for This authorize the of a presents petition granted the state clear will be unless convincing proof to the court that the at a trial sexually person. petitioner Wis. Stat. is still a violent 980.09(1). § are conducted six months

Mental reexaminations every year thereafter after the initial commitment and purpose determining person has whether the "forthe progress entitled to transfer to a made sufficient to be facility, supervised or to dis- less restrictive charge." release 980.07(1). original § As the Wis. Stat. with may person hire an addi- examination, the committed choosing upon or, of his or her own tional examiner request by by indigent, may appointed an one be 980.07(1). § court. Wis. Stat. § 980.07,

At the time of each examination under person the committed shall receive written notice of his discharge. right petition If this or her the court for right affirmatively per- is not waived the committed probable hearing son, at the court shall hold a cause person appear entitled to which the committed is not right represented by counsel. but does have the to be 980.09(2)(a). Upon finding probable § Stat. a Wis. person exists to that the committed is no cause believe longer sexually person, hearing violent on this issue hearing, person held At has before court. this right present, represented by counsel, to be be present silent, witnesses, remain and cross-examine hearing If and have recorded. the state cannot prove by convincing clear and that the corn- evidence person person, mitted is still a he or discharged custody she shall be from the of DHSS. Wis. 980.09(2)(b) (c). §§ Stat.

Additionally, person may peti- the committed file a discharge any § tion for following at time under However, 980.10. petition, deny

an unsuccessful the court shall any subsequent petitions filed under that section with- hearing petition out a unless the contains facts sufficient for a court to find that the individual's condi- changed hearing. tion has so as to warrant a Wis. Stat. § 980.10.

I. CONSTITUTIONAL CHALLENGES constitutionality question The of a statute is a approaches law which this court de novo without defer Migliorino, ence to the courts below. State v. 150 Wis. (1989). presump 513, 524, 442 2d N.W.2d 36 There is a constitutionality legislative tion of for enactments and every presumption favoring validity of the law must be indulged. State v. Randall, 192 Wis. 2d 800, 824, 532 (1995). challenger N.W.2d 94 Further, the bears prove beyond burden to a statute unconstitutional a reasonable doubt. State v. McManus, 113, 152 Wis. 2d (1989). 129, 447 N.W.2d 654

SUBSTANTIVE DUE PROCESS argue Post and Oldakowski that 980 is unconstitutional because it interferes with their funda- right liberty providing protection mental without guaranteed Specifi- under the Due Process Clause.10 10The United States and provide Wisconsin constitutions Const, guarantees process. similar See U.S. of due amend. andV Const, I, XIV1 and Wis. art. 8.§

301 process cally, they argue due that substantive (1) allows commitment: because violated (2) showing an illness; without a of mental without amenability showing treatment; individualized (3) showing dangerousness. an insufficient and with provided procedural protections

In addition to Supreme by Clause, United States the Due Process component recognized that Court has "a substantive arbitrary, wrongful government actions." bars certain (1992) (quoting 71, Louisiana, U.S. Foucha v. (1990)). 113, 125 Burch, U.S. Freedom Zinermon v. right physical that is a fundamental from restraint liberty always protected core of the "has been at the arbitrary governmental Clause from the Due Process (citing Youngberg v. Foucha, action." 504 U.S. at 80 (1982)). Supreme Romeo, Court 457 U.S. any purpose "[c]ivil consti that, found commitment liberty requires significant deprivation tutes Addington process protection." Texas, 441 v. U.S. due (1979). 418, 425 legislation restricts a fundamental

Review of liberty apply scrutiny requires this court to strict to its scrutiny, analysis. pass process In order to strict due compelling challenged state statute must further narrowly tailored to serve that interest. interest and be (1973). instance, Wade, 113, 155 In this Roe v. 410 U.S. community protect dual interests —to the state has pro dangerously mentally disordered and to from care and treatment to those with mental disorders vide Supreme predispose them to sexual violence. The legiti recognized interests as Court has both of these police powers mate, and the the first under a state's patriae powers. Addington, parens latter under its govern- at 426. The Court has also found that the U.S. detaining mentally persons unstable interest in ment's safety community pose is a threat to the who compelling. Salerno, 739, States v. 481 U.S. United (1987). repre- find the state's dual interests 748-49 We legitimate by chapter 980 to be both sented compelling. Mental Illness

1. Mental Disorder v. involuntary com- Post and Oldakowski assert that finding require illness" and that mitments of "mental required chapter under 980 is the "mental disorder” sufficiently narrowly tailored to survive strict scru- not tiny. Chapter "a 980 defines mental disorder as affecting congenital acquired the emo- or condition person capacity predisposes a or volitional tional engage in acts of sexual violence." Wis. Stat. 980.01(2). § Oldakowski claim that the term Post and broadly adequately sweeps and does not "disorder" too its reach. The State coun- define those who fall within of disorder in ters that the definition only sufficiently applies to a small narrow in that it group mentally persons disorders disordered whose predisposing specific them to commit have the effect agree the State and hold violent acts. We with as defined in that the term "mental disorder" component required condition 980 satisfies the mental involuntary process mental substantive due commitment. narrowly enough drawn that its

A statute must be given reasonably precise content and terms can be encompasses persons with it can be identified those accuracy. Donaldson, 422 U.S. v. reasonable O'Connor (1975). the term In the use of 563, 575 fulfill these and its definition "mental disorder" protesta- Despite requirements. Post and Oldakowski's significance that should be tions, there is no talismanic Contrary posi- given illness." to the the term "mental to by dissent, illness" not advanced the "mental tion required by and federal or state constitution either the single Supreme has declined to enunciate Court as mental condition that must be used definition involuntary mental commitments. The sufficient for statutory job creating wisely of defi- Court has left the Noting legislators to the who draft state laws. nitions procedural mechanisms that the substantive as well vary state, the from state to Court for civil commitment "[t]he is that states declared that essence federalism develop variety free of solutions to must be problems common, forced into a uniform not be Addington, Particularly when a mold." 441 U.S. at 431. fraught legislature to act in areas with "undertakes options legislative uncertainties, medical scientific especially must broad and courts should be cautious be legislation." States, to rewrite Jones v. United not (1983) (quoting 354, 370 Marshall v. United U.S. (1974)). States, U.S. Supreme Court itself has used numerous prop- mental condition of those

terms to describe the subject including erly commitment, emotional civil legislatures State have and mental "disorders."11 also 11 Addington, (discussing U.S. at See 425-26 "state's committing emotionally disturbed" and interest society problems "expanding with of mental disor concern (1972) ders"); Indiana, 715, 737 see also Jackson v. 406 U.S. (recognizing involuntary there are a number bases for civil laws, including delinquency psy commitment "defective sexual laws, persons chopath acquitted [and] commitment of reason insanity"). variety relied on of a terms and definitions.12 Even terminology. Chapter law on Wisconsin relies varied (the Act) Mental Health defines "mental illness" in the involuntary context of commitment as "a substantial thought, perception, mood, disorder of orientation, or memory grossly impairs judgment, behavior, which capacity recognize reality, ability to or meet the ordi- 51.01(13)(b) nary § demands of life." Wis. Stat. added). (emphasis important

It is to stress that the above definitions legal, primary medical, serve a not function. Even the diagnosis psychiatric tool of clinical in the the field, Diagnostic and Statistical of Manual Mental Disorders (DSM-TV), significant warns a of of risk misunder- standing descriptions designed when for clinical use transplanted setting.13 apt are into the forensic An analogy illustrating separation the need for between legal and medical definitions be can found the Wis- jury responsibility. consin instructions on In criminal 12Washington involuntary state allows civil commitment disorders," for of treatment those with "mental Wash. Code Rev. 71.05; Sexually Dangerous Illinois' provides § Persons Act for "suffering disorder," commitment those from a mental Ill. Stat., 205/1.01; Rev. ch. 725 § Indiana's civil commitment "psychiatric scheme defines "mental illness" as a disorder" is in a which turn defined as mental illness or disease. Ind. Code

12-7-2-130 and 12-7-2-150. "imperfect is the This risk due to fit" between the law diagnosis by legal necessity clinical is which exacerbated for psychiatric information that falls outside that relevant categorical designations. However, DSM-TVnotes that when used, properly diagnostic reliability can information increase understanding complex and facilitate in the matters decision- making process presence "when the of a mental disorder is a predicate subsequent legal (e.g., for determination involun commitment)." tary DSM-TV, civil at xxiii-xxiv. statutorily defined context, mental disease is

that mind which substan- "an condition abnormal processes," tially but or emotional affects mental jury labels, it is "not medical is cautioned that bound is not definitions, or as to what or conclusions 605. disease." Wis. JI-Criminal mental argument support a "mental disorder" In ofits commitment, the a sufficient condition cannot be testimony disorders are the that "mental dissent cites big all of us could fall under." umbrella that broad contrary, the states 354. DSM-IV Dissent at On only appropriate diagnosis when of "disorder" is "boundary dysfunction crosses the a manifestation of pathology." normality DSM-IV, at xxi. between acknowledges "no definition ade- The quately specifies precise that DSM-IV concept for the of

boundaries "con- However, mental disorder is 'mental disorder.'" a clinically ceptualized significant or as behavioral syndrome pattern psychological an or that occurs in distress, reflect a state of and must current individual" impaired functioning significant pain, of death or risk merely do not include or loss of freedom. Disorders prevailing that conflict with societal deviant behaviors DSM-IV, xxi-xxii. mores. at key constitutionality of of the definition to the requires that disorder in 980 is it mental persons fall reach not within 980's will nexus — unless they diagnosed are with a disorder that has specific predisposing engage in effect of them to acts sexually persons all who commit sexual violence. Not diagnosed suffering from violent crimes can be as persons mental disorders, mental nor are all with a sexually predisposed to violent disorder commit offenses.

The dissent asserts that the definition of "mental disorder" is circular and "authoriz[es] lifetime commit- ment based not on mental illness but on past crimes."14 Dissent at 354. This characterization fails to acknowl- that edge the focal point commitment is not on past acts but on current diagnosis of a present disorder suf- fered an individual that specifically causes that person to be to commit prone acts statute, drafted, future. The does not sweep too rather, broadly; it is narrowly tailored to allow commit- ment only the most dangerous sexual offenders —those whose mental condition predisposes them to reoffend.

2. Treatment Additionally, Post and argue Oldakowski their right to due process violated because treatment is not "a serious objective" of 980. They assert (1) support this claim is found in: the lack aof requirement for an individualized of amena- showing (2) bility treatment; the failure to seek commitment (3) until sentence; of a completion the "recognition" in the psychiatric-medical community that treatment

14 finding A person that a does fit the 980 criteria of person a equates no sense to automatic "life custody time commitment." Commitment to the of the DHSS necessarily does not result in immediate secure institutional ization, supervised rather it can mean release into the 980.06(2)(b). community. Further, Wis. Stat. § there are numer procedural safeguards ous for those for whom appropriate, including periodic institutionalization is deemed reexamination, review, See supervised discharge. release or 299-301, Majority opinion at 326-329. "largely all As with ineffective."

for sex offenders part good presume the enactments, on the faith we legislature. Zimmerman, 264 ex Thomson v. State rel. (1953). 644, 652, 60 N.W.2d 416 We conclude Wis. goal and we of this statute treatment is a bona fide good legislature proceed presume faith and the will necessary programs com- those the treatment fund under 980. mitted Supreme recognize, Court, We has purpose to "is treat individual's of civil commitment society protect his him and from mental illness and potential dangerousness." Jones, at How- 463 U.S. 368. correctly points not out that this does ever, the State necessarily requirement equate with a constitutional amenability to on treatment that commitment be based right treatment. These even on a constitutional to nor Burger who Chief Justice issues were addressed found: involuntarily an committed equating

... no basis for right patient's unquestioned mental constitutional process due of law with a not to be confined without right present Given the constitutional to treatment. knowledge regarding abnormal state medical treatment, things few human and its behavior fraught peril than to irrevoca- would be more with protect mentally to bly a State's power condition give "such treatment as will upon providing ill opportunity cured." [them] realistic be concurring) (Burger, C.J., O'Connor, at 422 U.S. 587-89 (footnote omitted). rely any precedent not

Post Oldakowski did on "treatability" held in prerequisite was to be constitutional which they pre- commitment nor were able to any persons sent evidence that the will state not treat chapter contrary, committed under On 980. 980.06(1) clearly statutorily obliged § is

state under to provide "control, care and treatment" to deter- those persons. mined to be addition, In chapter persons 980 committed are entitled to the patient's rights chapter 51, conferred under which "right prompt adequate include the to receive 51.61(l)(f). § treatment." Wis. Stat. We find these stat- utory obligations to treat to be consistent with the pursuant chap- nature and of duration commitments precommitment ter 980 and conclude that the of a lack finding treatability is not offensive to the constitu- process. tion under substantive due response argument In to Post and Oldakowski's timing chapter commitments, about we note specialized treatment, that even treatment directed currently offenders, sexual toward regular in available prison setting. fully For those who have availed opportunities, themselves of treatment petition may unnecessary. only be isIt those for whom previous proved ineffective, treatment has as demon- diagnosis strated their current of a mental disorder predisposes them acts, to commit violent appropriate. 980 commitment will be The focus designed per- on current mental condition is to afford persistent problems greatest with sons the most help available. This court to see fails how a statute only structured to cover those demonstrated to be most need treatment can be characterized "not seri- objective pursuit providing ous" its of the treatment. particularized

Further, the treatment that will be provided cannot, those committed under provided easily chap- infers, as the dissent be as under sexually manager acting for the Wood, unit ter 51. Dr. person Center, unit of the Wisconsin Resource violent pursuant plans law call for a to the new testified that solely wing commit- house those dedicated which will persons. unique sexually This unit will be as violent ted psychiatric by psychologists, and clinical nurses staffed regi- who facilitate treatment care technicians will person the of the men focused on needs by offering multi-component concomitant behavioral "a

program at the level of arousal address issues that will pre- relapse fantasy controls, as and as well behavioral attempt to work on both the vention and underlying potential as disorder as well dangerousness." by

Although and refer to studies Post Oldakowski in for scientists which treatment several behavioral ineffective, to be there is sexual offenders was deemed sciences no consensus within behavioral means community turn, State, in cited on this issue. The reporting positive results reduc- numerous studies through ing There are rates recidivism treatment.15 of many techniques methods, such as and treatment new "relapse preven- "cognitive-behavioral" programs and 15See, Nelson, Day, Craig e.g., Marques, Janice K. David M. West, Treatment Mary Cognitive-Behavioral on Ann of Effects Recidivism, 28, Behavior 21 Criminal Justice and Sex Offender Pithers, (1994); A 28-52 Marshall and W.D. Reconsidera W.L. Offenders, 21 Criminal tion Outcome with Sex Treatment of (1994); and W.L. Marshall H.E. Justice and Behavior 10-27 Barbaree, Cognitive-Behavioral Comprehensive Outcome of Assault, Programs Treatment in Handbook Sexual 363-85 (W.L. 1990); Marshall, Laws, eds., D.R. H.E. Barbaree William Pithers, Relapse Aggressors Sexual in Hand D. Prevention with (W.L. Assault, Laws, Marshall, 343-61 D.R. H.E. book Sexual 1990). Barbaree eds. tion" are aimed teaching at sexual offenders skills recognize with situations cope anger such substance abuse that create high risk relapse.16 The fact that studies reaching conclusions can opposite on be cited both sides of this issue not preclude does from nor legislature acting, does it compel finding unconstitutionality. Supreme Court has addressed the lack in this area: certainty agree do not the suggestion Congress'

We with power legislate this area on depends by the psychiatric community. research conducted recognized We have repeatedly "uncertainty the of diagnosis in this field and the pro- tentativeness of judgment. only thing fessional The certain that can said about present knowledge be state of therapy regarding mental disease is science that not finality has reached of . . judgment . ." The lesson we have is not government may drawn that act in uncertainty, not the face of this but rather courts pay particular that should to rea- deference legislative sonable judgments. (citations omitted).

Jones, 463 U.S. n.13 at 364 The Wisconsin has Legislature chosen to commit those to found be sexually persons and, violent for treatment heeding language, question above we do not relative merits of this treatment. Dangerousness

3. also reject We Post and Oldakowski's claim that 980's definition statutory dangerousness17 16 Pithers, at 13. person dangerous

17 A is deemed if "he or from substantially she suffers a mental disorder that it makes low of "substantial sets standard impermissibly an Supreme unconstitutional. The risk" and is therefore for to strict boundaries proscribe Court has refused degree danger- legislative determinations what for commitment.18 involuntary is necessary ousness limitations on procedural as Substantive well to the dangerously traditional commit power state's from to vary widely jurisdiction jurisdic- ill mentally (1972). Indiana, 715, v. 736-37 Jackson tion. U.S. endemic uncertainty The has noted the Court Supreme defer- particular field of held psychiatry in that decisions legislative ence must be shown Jones, recog- at 364 n.13. Court arena. 463 U.S. future although predictions nized are attain- difficult, they still an dangerousness may be able, essential, judicial process. in fact of our part (1983). Here, Estelle, v. U.S. Barefoot method has Legislature statutory Wisconsin devised probable person engage in acts of sexual violence." that the will 980.01(7). Wis. § Stat. involuntary example, provides Minnesota For law personality" who "con "psychopathic of a exhibits commitment instability, impulsiveness or of behavior" ditions of emotional personal irresponsible for conduct person which "render such dangerous thereby to other respect to matters and with sexual hinges showing "by persons." persons on Commitment matters, evi of misconduct in sexual have habitual course impulses power to their sexual an utter lack of control denced who, result, likely or inflict and as a are to attack otherwise loss, objects pain on uncon injury, or other evil their Blodgett, and desire." In re 510 N.W.2d trolled uncontrollable (1994). 910, 912-13, denied, cert. 115 S. The United Ct. against upheld vagueness this Supreme States Court scheme challenge in ex rel. v. Probate Court Ram Minnesota Pearson Minn., 270, 274 (1940), sey aff'g 205 County, U.S. Minn. (1939). N.W. danger posed persons assessing the future for predisposed and we find it constitu- to sexual violence tionally sound. Duration of Commitment

Nature and Further, Post and Oldakowski contend that bears no reasona- nature of 980 commitments relationship purposes of commitment and is to the ble holding contrary Supreme specifically to the Court's (1992). mini- Louisiana, 504 U.S. 71 At a Foucha v. process Supreme mum, requires Court has stated that "due commitment that the nature and duration of purpose for reasonable relation to the which bear some Jackson, at 738. the individual is committed." 406 U.S. purposes 980 have The of commitment under protection already of the commu- been identified as the suffering nity persons from the treatment of and sexually predispose them to commit vio- disorders that (to custody The nature ofthe commitment lent acts. potential mental confinement a secure of DHSS with facility) purposes. is consistent with both Wis. health 980.06(1) §§ Stat. and 980.065. provides language the best evi- of the statute relationship. Individuals this reasonable

dence of persons are committed found to be custody control, care and treatment" of DHSS "for the in consistent with the least restrictive manner

"the requirements person and in accordance with the of the 980.06(1) §§ order." Wis. Stat. court's commitment (2)(b). persons Chapter are defined 980 committed "patients" Act, 51, the Mental Health under rights patients, as other entitled to the same and are adequate right prompt including to "receive services treatment, rehabilitation and educational appropriate Wis. Stat. for his or her condition." 51.61(l)(f). right § An additional afforded to those "patients" require- under 51 is the defined designed positive facilities to make a ment that "be to the effective attainment of the treat- contribution 51.61(l)(m). goals hospital." § Stat. ment of the Wis. setting provides special- Commitment a secure to ized treatment for sexual offenders serves both society protect and to treat the individual. statutory language

Again, itself illustrates although poten- commitment, that the duration of tially reasonably purposes to indefinite, is related commitment. Periodic mental are of the examinations purpose determining whether the conducted "for the progress person entitled to has made sufficient to be facility, supervised transfer to a less restrictive 980.07(1). discharge." § Thus, release or to Wis. Stat. is inti- the duration of an individual's commitment mately linked to treatment of his mental condition. person no Commitment ends when the committed longer suffers from a mental disorder or when that longer predisposes commit him to acts of condition no community of the is also sexual violence. Protection statutory this scheme because the dan- well-served ger public necessarily dissipated to the has when sufficiently progressed an treatment has warrant release. individual's argue that Sexu-

Post and Oldakowski Wisconsin's ally Violent Person Commitment statute is direct Foucha, the contention that with based on conflict chapter 980 an indefinite on the allows commitment diagnosis personality of a of antisocial disorder. basis today ruling However, we see our as consistent with conceptual specific both the ings expressed framework and the find- statutory There,

in Foucha. Louisiana's insanity acquit- continuing for confinement scheme substantive due to be violative both tees was found guarantees.19 Although equal protection process it and sought a mental institu- his commitment to to extend was neither conceded that Foucha tion, the state mentally Here, the ill his condition treatable. nor was fact, concessions; makes neither of the above State pres- on the under 980 is based commitment that the state intends a mental disorder ence of treat.20 the nature of commit- reiterated that

The Court purpose and found that because must relate to its ment mentally longer ill, Foucha its no considered the state facility committing psychiatric had him to a for basis disappeared. In her concur- Foucha, 504 U.S. at 78-79. stressed that Foucha, Justice O'Connor rence in statutory specific only opinion Louisiana's addressed narrowly devised did not rule out more scheme and might opined it even "be further She schemes. insanity acquit- permissible an Louisiana to confine for sanity regained the situation if, unlike has tee who detention were duration of case, the nature and this Stevens, O'Connor, (Blackmun, majority justices A Souter) opinion discuss portion of Justice White's joined in the III, However, concerning Part process. ing due substantive plurality as Justice O'Connor garnered only a protection, equal "unnecessary to reach stating felt it join she declined to Foucha, the Court. facts on the before equal protection issues" (J. O'Connor, concurring). at 88 504 U.S. indefinite com Further, statute allowed the Louisiana insanity acquittee prove could only release if the mitment with at dangerous. Under longer or she was no that he discharge, release or petitions supervised hearings on court petitioner is still proving that the burden of the state bears 980.08(4) See, 980.09 person. Stat. §§ Wis. (2)(b). (l)(b) and pressing public safety to reflect concerns

tailored acquittee's continuing dangerousness." related to the Id. at 87-88. Justice O'Connor reasoned that the state insanity acquittees patients cannot confine as mental justification. without medical Id. at 88. As discussed statutory sufficiently earlier, Wisconsin's scheme is narrowly chal- tailored withstand constitutional lenge because the nature and duration of reasonably purposes confinements are related to the pro- for those commitments. We do not read Foucha to dangerous mentally hibit commitment persons. disordered Randall, 800,

In State v. 192 Wis. 2d 532 N.W.2d (1995), recently upheld 94 this court the constitutional- ity of Wisconsin's scheme for the commitment of insanity acquittees against challenge a based on prohibit Foucha. We held that did Foucha not the con- dangerous insanity tinued commitment of sane but acquittees long they "so are in treated a manner purposes e.g., commitment, consistent with the of their justification...." there a Randall, must be medical programs Wis. 2d at 807. We noted that the treatment secure mental Wisconsin's health facilities are designed to treat both mental and behavioral disorders goal safely returning acquittee and that the an to the community by continuing can be well-served treatment danger arising aimed at reduction of from behavioral acquittee disorders even after an was deemed to no longer suffer from a condition that could be defined under the traditional of mental rubric illness. Id. statutory chapter

Under the scheme of there justification persons is medical for the commitment of predispose engage whose mental disorders them to paraphilias, violent acts. Disorders such as diagnostic which often form the basis for urges commitments, are recurrent characterized geared specifically Treatment and behaviors. helping person recognize and con- toward committed certainly patterns serves trol these behavior community goals of individualized treatment protection. process

Finally, point due we out that substantive balancing analysis necessarily of individ- involves the organized against the "demands of an ual liberties society." Youngberg, 457 at 320. The balance can U.S. proper danger-preempting confinement under favor detaining including necessity circumstances, present danger "mentally who unstable individuals public." find Salerno, 481 U.S. at 748-49. We to chapter permissibly the individual's lib- balances protected erty public's right to from with the be interest already posed by persons dangers have demon- who willingness propensity to commit their strated sexually violent acts.

EQUAL PROTECTION challenge Post and Oldakowski also protection equal under that them on the basis it denies following They specifically claim the sub- the laws.21 statutory for the schemes differences between stantive chapter chapter 51 under and initial commitment (1) 51.20(l)(a)l equal protection: § violative of are showing requires illness" while a "mental (2) 980.02(2)(b) requires only § disorder"; "mental requirement chapter for an individual- 980 contains no interpretation to the state the same applies This court Const, 1, art. I as that § Clause found in Wis. Equal Protection Const, XIV 1. State provision, § amend. given to the federal U.S. (1994). n.3, v. Heft, 2d 517 N.W.2d 494 185 Wis.

ized finding suitability for treatment as does (3) 51.20(1); dangerousness and the standard for in § 980.02(2)(c) is insufficient because there is no recent § 51.20(l)(a)2. overt requirement act Post and § Oldakowski also there are numerous argue proce- infirmities dural 980 that chapter impermissibly more impose stringent for release.22 requirements a party When a attacks statute the grounds on equal law, that it denies under the protection party the must the demonstrate state unconstitutionally treats members of similarly situated classes differ- Here, satisfied, the ently. parties and we are also agree, that persons committed under 51 and 980 are chapters

22They following procedural claim there are the differences chapters between the two which are under unconstitutional the (1) Equal chapter Protection Clause: 980 commitments are (2) indefinite; chapter a person 980 committed must affirma tively petition discharge judicial in order to be entitled to a (3) review; petitioner proof carries the proba burden of at a (4) hearing ble discharge; discharge cause on trials are to the (5) jury; finally, court and if petition without filed without department's denied, approval deny the court must subse quent petitions they unless contain "new factors." This procedure chapter characterization of the under 980 is con (1) employed trasted chapter with the mechanisms under 51: (2) involuntary automatically expire; commitments on expiration, recommitment; the state has the burden to file for (3) (4) proof hearings; state carries the burden of at all person by jury 51 committed is entitled to a trial at all (5) hearings; commitment and recommitment and person 51 committed changed need never show new or factors 51.20(13) (16), See circumstances. Wis. Stat. §§ 980.08-980.10. §§

318 equal protection similarly purposes an situated for of comparison.23

Although they agree classes com- that the to be analysis similarly pared protection equal in the are strongly situated, Post and Oldakowski and State judicial scrutiny disagree is to be on of that the level urge comparison. applied Oldakowski to that Post and scrutiny employ State to while the this court strict applied. argues a should rational basis test be test, a run classification "cannot Under a rational basis Equal if there is a of the Protection Clause afoul relationship disparity treat- between the of rational legitimate governmental purpose." ment and some (1993). Doe, 2637, S. Ct. 2642 Classifica- Heller v. 113 alienage suspect race, class, on such as or tions based subjected scrutiny traditionally must are to strict gov- necessary promote compelling to be be shown found constitutional. ernmental interest in order to be (1971). Richardson, 365, 403 applied 376 Strict v. U.S. Graham scrutiny invidious classifica- has also been arbitrarily deprive persons, but one class tions that right. similarly a fundamental situated, not another U.S. Williamson, ex 316 Skinner v. Oklahoma rel. See (statute (1942) unconstitutionally ster- authorized 535 persons not some larcenies but ilization of convicted of City Chicago others); Department al. et Police (1972) (distinction Mosley, between v. 408 U.S. peaceful picketing peaceful picketing and other labor rights). impinged impermissibly on Amendment First analysis, court found previous equal protection this In a 975, Act, 51, the Mental Health ex State Act, similarly situated classes. Sex Crimes deal with Stovall, 159, Farrell v. Wis. 2d 207 N.W.2d rel. (1973). Supreme clearly

The Court has not articulated applied equal which of the two standards is to be to protection challenges involuntary commitment stat- previously utes, nor has this court resolved the issue. explicitly The Court declined to determine whether the heightened scrutiny applicable level of was in a recent challenge properly because the issue had not been presented in the Heller, courts below. 113 S. Ct. at argued There, 2642. solely the case had been in lower courts theory on the basis, rational and the Court finding equal maintained that level of review protection by was not violated differences in Ken- tucky's statutory procedures involuntary mentally mentally commitment of the ill and retarded. Id. involving equal protection

In our decisions chal- lenges (the involuntary commitments under Act), consistently

Sex Crimes this court has applied e.g., a rational See, basis test. State ex rel. Far- Stovall, rell v. 148, 59 Wis. 159, 2d 207 N.W.2d 809 (1973); Terry State ex rel. Schubert, v. 487, 74 Wis. 2d (1976); Hungerford, 499, 247 N.W.2d 109 State v. (1978). 236, 256, Wis. 2d 267 N.W.2d 258 The issue of heightened scrutiny whether a level of should be applied involving mentally to classifications ill was discussed this court in State ex rel. Watts v. Com- Community bined Services, 65, Wis. 2d n.8, 81-83 (1985). 362 N.W.2d 104 In instance, we found it unnecessary to resolve the issue as we concluded that challenged disparities between 51 and (which involuntary placements covers System) under the Protective Service did not survive scrutiny. even rational basis Id. question scrutiny of which level of is to be

applied complicated by Supreme has been Court's scrutiny of a third "intermediate" level of introduction only a classification need further a "substan wherein Plyer Doe, of the State." v. 457 U.S. tial interest (1982). employed only 217-8 This level of review is be legislation in limited circumstances when the facially is not give[s] invidious but "nonetheless rise to recur ring difficulties." Id. at 217. The constitutional plurality portion opinion of the Foucha added to the following language on this issue with the confusion recognized terms of art for either of which does not use scrutiny: "[f]reedom the two traditional levels of from physical being right, restraint a fundamental the State particularly convincing reason, a which must have put against forward, such discrimination it has not insanity acquittees for longer mentally ill."

who are no added). (emphasis Foucha, 504 U.S. at 86 It is this language primarily rely that Post and Oldakowski on scrutiny urging in its in this court to utilize strict review of 980. that, case,

We conclude in this we need not resolve scrutiny, appropriate find that all but the level of we disparities challenged pass one of the scrutiny. compel- highest The state's even the level of public provides ling protecting interest necessary justification of for the differential treatment persons of whose mental dis- the class distinctively dangerous because of orders make them they probability will commit the substantial future crimes of sexual violence. protection require persons

"Equal that all does not identically, require a but it does be dealt with purpose relevance to the distinction made have some is made." Baxstrom v. for which the classification (1966). Herold, 383 U.S. in diffi Differences culty diagnosis, degree dangerousness, by Supreme intrusiveness treatment found were justifications Court to be sufficient differential for mentally mentally treatment of the retarded and the Supreme Heller, ill. See 113 S. Ct. 2637. The Court has recognized danger also that distinctions between the non-dangerous mentally may ous and ill be reasonable purposes "determining type of custodial or given." Baxstrom, medical care to be 383 U.S. at 111. long adopted legislature As as the mechanism a constitutional, be, as we have found 980 to people through duly repre choose, can their elected complex problems sentatives, to address social in more way. than one There is no constitutional mandate that one alternative must be chosen over another and neither the federal nor the state constitution bars the creating implementing variety state from of solu controlling variety aimed at of ills. tions See Matter of Guardianship of KN.K, 190, 209-10, 139 Wis. 2d (Ct. 1987), App. Heller, N.W.2d 281 113 S. Ct. at 2643- 47. Supreme question noted,

theAs Court "the crucial equal protection [in cases] all is whether there an is appropriate governmental suitably interest furthered Mosley, the differential treatment." 408 U.S. at 95. legislature per- The that, class, has determined as a predisposed likely sons to sexual violence are more pose higher danger community level of to the than do mentally mentally per- other classes of ill or disabled heightened dangerousness sons. This level of and the unique persons jus- treatment needs of tify legislative approaches distinct to further purpose protection compelling governmental of the public. Challenges Equal Protection Substan-

1. tive Standards for Commitment

According Oldakowski, differences to Post and for commitment between in substantive standards (the chapter use of the term 51 and "treatability" disorder," and recent "mental lack protec- equal requirements) are violative of overt act these claimed conclude that none of tion. We The distinctions is fatal to 980. deficiencies disor- the terms "mental illness" and "mental between opinion find discussed earlier in this and we der" were no more of a difference in nomenclature to form protection impediment equal than under constitutional process. due it did under substantive "suitability for treat- do find the lack of a Nor we equal protection. requirement ment" requirement violative persons under committed "proper subject[s] has been be for treatment" must interpreted by appeals of this state to the court of reducing aggres- encompass at treatment that is aimed controlling symptomatic conduct sive behaviors and underly- that the there is a determination even when ing See In re cannot be "cured." mental condition 2d 354 N.W.2d 120 Wis. ofC.J., Mental Condition (Ct. 1984). recog- previously App. court has This facilities offer mental health nized "Wisconsin's designed comprehensive programs to reduce treatment dangerousness." patient's propensity Randall, leeway particularly appro- 192 Wis. 2d at 834. Broad prone priate to sexual in the treatment of those of control their behav- violence whose lack over violent exactly dangerous ior is what makes them so and requires their commitment for treatment. Because sex- ually persons pose specialized treatment problems may require therapies nontraditional that cannot be assessed in the same manner as for civilly persons, legis- committed other find that the we justified requiring showing in lature is not a amenability to treatment.

We further conclude that the lack of a recent overt requirement chapter danger- act in definition of 980's ousness does not render this standard unconstitutional equal protection. may under Various mental conditions statutory depending receive different treatment on the underlying state's in The interest the commitment. statutory dangerousness sup- criteria of sufficient to port involuntary already widely. commitments varies example, protective placement chapter For under require merely does not a recent overt act but that the person's condition "create a risk of serious substantial 51.06(2)(c). § harm to oneself or others." Wis. Stat. subject petition Even under if the aof prison commitment is an inmate of a state or the sub- ject inpatient hospital, treatment in a mental necessary. recent overt act is not Wis. Stat. 51.20(l)(am) (ar). legislature §§ defines dan- gerousness 980 on the basis a current diagnosis of a mental disorder that has the effect of creating probability subject a substantial that the petition engage will in acts of sexual violence. We find the lack of a recent overt act under way equal protection. no violates following Only persons cri- who fit the substantive subject chapter are to 980 commitments —those teria sexually specific have been convicted who substantially probable past to in and are acts the who engage in in future because violent acts the predisposes mental them their current disorder compelling engage in state interest such conduct. The public dangerously protecting such disor- in the from persons justifies the differentiations the dered legislature in substantive threshold has created criteria. Protection to Proce- Challenges

2. Equal dures Commitment argue equal protection that

Post and Oldakowski procedures make the that is violated parallel provisions in difficult the release more than procedures need The State that 51. counters procedural safeguards and not be identical actually stage applied are at of initial commitment thereby stringent chapter 51, those much more than reducing commitment lessen- the risk erroneous procedures ing type that the of release the need for legislature employ 51 committed chose arguments persuasive persons. find the State's We agree stat- ofthe between two that most differences justified by compelling utory are the state's schemes public protection from those who of the interest dangerous to a which creates due mental disorder are probability acts of sexual violence. of future substantial recognized proper Supreme has Court legal process [the] risk of is to minimize the "function of "[t]he erroneous decisions" that, and cautioned individ- equally society ual should not be asked to share with possible injury the risk of error when the to the individ- significantly greater any possible ual is than harm to Addington, the state." liberty through involuntary U.S. at 427. Loss of imposes just

commitment heavy duty upon Chapter properly such a the state. by providing stringent procedural balances the risks safeguards process. on the initial commitment At the subject petition trial, commitment the of the is afforded rights all of the criminal available to a defendant in a 980.05(lm). person § trial. Wis. Stat. A can be commit- chapter only jury unanimously ted under if a finds petition beyond that all of the criteria in the are met a 980.03(3). § reasonable doubt. Wis. Stat. This is con- trasted with 51, under which the state need only prove the substantive criteria clear and con- vincing evidence and which allows commitment on a 51.20(11) jury (13)(e). 5/6ths §§ verdict. Wis. Stat. The increased likelihood of accurate initial 980 com- mitment decisions reduces the need for some of the procedures safety recommitment that act as a in net chapter 51.

Specifically, expiration we find that the automatic universally 51 commitments is not a required Chapter ample mechanism. 980 offers opportunity petition fair for review and for An release. person petition institutionalized committed can for supervised every release six months and must be released unless the state can show clear and convinc- ing evidence that continued secure confinement is necessary. Annual mental reexaminations are con- probable hearing ducted and a discharge cause for will person be held unless the committed affirma- 980.09(2). right. § Thus, tively Stat. this Wis. waives person is entitled to 980 commitment a a under unless an affirma- that will annual review an beheld is submitted. tive waiver procedure argue the and Oldakowski

Post impermissibly places § onerous an 980.10 outlined Following discharge. petitions requirement for on approval petition rejection of the a filed without petitions subsequent secretary filed without DHSS, hearing approval unless without will be denied indicating person's petition condition facts contains hearing. changed Stat. Wis. as to warrant has so clearly procedure however, limited to § "subsequent petition[s] 980.10. This Wis. under this section." added). (emphasis words, this § In other Stat. 980.10 supervised apply petitions for limitation does not discharge petitions the secre- filed with release, for approval tary's approval, or those filed without yearly following does this section examination. Nor right person's way any to an affect a committed 980.09(2). discharge hearing § We under annual every opportunities six to seek release hold that annually discharge meet sufficient to are and months required is not to and the state demands constitutional provide hearings unless additional access to unlimited adequate cause is shown. chapter also claim and Oldakowski

Post analysis equal protection sexu- because under an fails ally person while are indefinite commitments violent automatically expire. In chapter commitments upheld Supreme an States, Court the Jones v. United insanity acquittees, scheme for commitment indefinite reasoning citing approval it is that "because the with impossible predict long any given to how — it will take for he ever individual to recover or indeed whether will — Congress respect chosen, recover has as it has with length commitment, the of commitment to civil to leave subject periodic indeterminate, review of the patient's suitability Jones, for release." 463 U.S. at 368. purposes here, Where, as one of the of the commitment protect public through incapacitation is to dangerous mentally treatment disturbed individuals substantially likely engage are in future who acts of properly hinges pro- violence, release sexual on gress any arbitrary rather than of treatment date purpose time. The commitment ends when this is satis- person longer poses fied—when committed no a danger community person. to the as a

Chapter argue fail, 980 must Post Oldakow- provide jury ski, because it does not for trials at discharge hearings, In as does 51. its review of chapter 975, Act, Wisconsin's Sex Crimes the United Supreme States Court commented that because com legal mitments are based on social and as well as judgments, jury medical "the serves the critical func introducing process lay judgment, tion of reflecting into the generally community,

values held con cerning potential justify the kinds of harm that confining person compulsory State in treatment." (1972). Humphrey Cady, 504, 509 v. 405 U.S. This court previously comparison chapters found, in a 51 and jury only 975, that denial of a trial to the latter in proceedings equal protection. recommitment violated Similarly, Farrell, 59 Wis. 2d at 168. find in we this justification instance that there is no for this distinc tion between 51 and 980 and that equal protection right jury demands that a to a trial be

328 important stage. made available at However, this we stress that this is conclusion not fatal to the statute itself. previously

This court has construed deficient stat- constitutionally required procedures. to utes include Terry State ex rel. v. Schubert, 487, 498, 74 Wis. 2d 247 (1976). again holding 109 N.W.2d persons We do so that chapter committed under 980 must be afforded right request jury discharge hearings to under requires §§ only 980.09 and 980.10. Because jury upon of six, the will same be made available request persons. to 980 committed We note proof discharge that burden of for the state in such hearings convincing, will remain clear and which com- ports required with the level 980.09(l)(b), hearings. §§ recommitment (2)(b) See Wis. Stat. 51.20(13)(e). Finally, argue Post and Oldakowski their right protection equal under the law is violated persons may equally dangerous because who be (because they disorders, have the same mental proclivities same and have committed the same crimes), currently incarcerated, but who are not are not by chapter Supreme affected Both 980. Court and rejected nothing" approach. this court have "all this or Supreme question Court has stated that the is not go farther, laws whether state can indeed "the legislature recognize degrees harm, is free to and it may confine its restrictions to those classes cases where the need deemed be clearest." Minnesota ex Ramsey County, rel. Pearson v. Minn., Probate Court (1940), aff'g 545, 309 U.S. 274-75 205 Minn. (1939). In vein, N.W. the same this court has held presumably evil it hits the where if "the law there are to overthrown because felt, it is not be most applied." might it have been to which instances other 58, 68-69, 277 N.W.2d Hart, 89 Wis. 2d State v. (1979) (quoting Milwaukee, 33 v. Wis. State ex rel. Baer (1967)). agree with the 634, We 2d 148 N.W.2d impossible, to difficult, if not it be legislature State that would attempted to craft had line" if the "draw the general persons encompassing in commu- the a statute "[a] recognized nity. Supreme Court has The Equal Protection Clause does not violate statute Whitney all-embracing," merely v. Cal- it is because not (1927), and we find that the 357, 370 274 U.S. ifornia, to sus- here is insufficient underinclusiveness claim of challenge. equal protection an tain summary, compelling interest In the state has mentally dangerous public protecting disor- from statutorily persons its find that we dered chapter 980, do not mechanisms, as found distinctive equal protection. of the Also, we note words violate regarding Supreme treatment of Court differential non-suspect classes: by a group

... in the affected law where individuals characteristics relevant to distinguishing have authority to implement, State has interests reluctant, very they should the courts have been respect system and with our for the be in our federal closely legisla- separation powers, scrutinize whether, how, and to what extent tive choices as pursued. should those interests be City Living Cleburne Center, v. Cleburne 473 U.S. (1985).24 legislature provide 432, 441 has chosen to narrowly a mechanism for the civil commitment of a group persons defined who have been convicted of a days offense, are within 90 release, currently predisposes have a mental disorder that repeat them to that violent conduct. We reiter legislative presumed enactments are ate — infirmities constitutional. We find no in this scheme adequately presumption. rebut that II. CHAPTER 975 COMMITTED PERSONS

Finally, argue gov- Post and Oldakowski that the partial Special Assembly ernor's veto of Session Bill 3 gap newly chapter resulted in a in the created 980 inapplicable pursu- which makes it to those committed chapter objective ant to 975, the Sex Crimes Act.25An applied following partial requiring test is a veto what "complete, remains to entire, be and workable law." 24 case, In this the Court utilized a rational basis standard finding zoning that a prohibiting group ordinance homes for mentally the Equal retarded violated the Protection Clause. 25 26, 1994, In message May his veto dated governor that, explained drafted, persons as did bill not cover who had been chapter partial committed under 975. His veto was specifically bring intended persons those within the ambit of chapter accomplished by striking 980. This was references to commitments ordered "under section 971.17" which covers insanity acquittees. remaining language merely refers to (See days order," those within 90 of release from "a commitment (b)) 980.02(l)(b)2, (4)(am), Wis. Stat. §§ "that was entered (See as a result of a violent offense." Wis. Stat. 980.02 § (2)(ag).) 706, Conta, 2d v. 82 Wis. ex rel. Kleczka

State (1978). N.W.2d 539 following law assert that the

Post and Oldakowski (1) repeal it: did not unworkable in that the veto is chapter specifies § civil commitments 975.12 extending chapter 975 com- means of exclusive (2) privileged abrogate nature of does mitment; not (3) provides no mechanism for records; and treatment pending commit- notification of release persons of otherwise ted nor for transmission appropriate confidential information authorities. claim that find Post and Oldakowski's

We provide proceedings method to the exclusive 975 committed "extend" civil commitment argument persons unpersuasive. This centers on the 975.12(1) persons language § shall which states that year discharged at the maximum be the end of one or they underlying were term for the offense which petitioned DHSS for civil commit- unless has convicted acknowledge § the veto did under 51.20. We that ment point repeal section, we find that irrele- not this but is an "extension" A 980 commitment not vant. type any § and 975.12 does not of other of commitment ability separate civil commit- to seek a limit state's chapter 980. ment under originally argued that

Post and Oldakowski abrogate physician-patient privilege veto failed to 905.04(2) prevents § the use in court of confi- which any by patient treatment dential communications to provider. argument, con- At oral Post and Oldakowski physician-patient general rule of ceded privilege subject exception once the mental state of the committed person becomes an issue at a hearing. This concession was appropriate as this court has pre ruled that viously continuation of control fall within hearings the statutory exception privilege for "proceedings hospitalization." Wis. Stat. 905.04(4)(a). Cramer, See State v. 416, 425, § 98 Wis. 2d denied, cert. (1980), N.W.2d 921 450 U.S. 924 (1981). We conclude that both initial commitment and discharge hearings under are similarly "proceedings which hospitalization" fall within the established exception to the found in privilege 905.04(4)(a). §

Post and Oldakowski's claim, final the post- veto law does not provide mechanisms for notice or release of confidential information, rests on the follow- ing language 980.015: §

(2) If agency jurisdiction an with has control or custody person over a may who meet the criteria for commitment as a sexually person, violent agency jurisdiction with shall inform each appropri- attorney ate district and the department justice regarding the person as soon as possible beginning prior months to the applicable date of the following:

(a) The anticipated discharge from a sen- tence, anticipated release on parole or anticipated release imprisonment from person who has sexually been convicted of a violent offense.

(b) The anticipated release from a secured facility, 48.02(15m), correctional as defined in s. of a person adjudicated delinquent under s. 48.34 on the basis of a violent offense.

(c) The termination or discharge person of a who has been guilty found not a sexually offense reason of mental disease or defect under s. 971.17. only per- this to cover read

Post and Oldakowski placed delinquent adjudicated imprisoned, and sons by guilty facility, found not or correctional a secure They that reason or defect. mental disease reason of impris- in lieu of persons 975, committed under categories any onment, not "fit" into do supply of their notification neither DHSS can therefore pending records. Post their release nor transmit legislature acknowledge a created Oldakowski confidentiality exception of treatment to the new specifically access: allows records attorney justice or a district department To the 980.015(3)(b), records are if the treatment s. under jurisdiction, with agency maintained an custody 980.015(1), or that has control in s. defined for commit- may meet the criteria person who over under ch. 980. person violent ment as a 51.30(4)(b)10m. they § However, assert that Wis. Stat. persons not 975 do under committed because language challenged § 980.015, "fit" into the triggered. confidentiality exception be cannot (defined "agency jurisdiction" as the If an with duty "authority agency to release or dis- or with may person custody charge") who over has "control or sexually as a for commitment meet the criteria person" attorney DOJ or district it inform the shall discharge anticipated days from sen- of the within 90 parole of such of the status release on tence or person. § 980.015. Wis. Stat. person of certain 975, a convicted

Under specialized in need of and found to be sexual offenses custody of DHSS to the could be committed treatment prison. §§ 975.001, Wis. Stat. sentenced to rather than 975.06(2). agency and DHSS remains the with the authority parole persons to release on committed chapter chapter § Thus, under 975. Wis. Stat. 975.10. persons clearly 975 committed do "fit" within the cate- 980.015(2)(a) gory persons they §in described in that may parole following be released on a conviction for a sexually violent offense. language preclude

We hold that the above does not requires provide but rather DHSS to notification of pending release and to transmit relevant treatment concerning persons chapter records committed under may 975 whom DHSS deems be candidates for commit- sexually persons. ment violent Wis. Stat. 980.015(3)(b). agency jurisdiction, § DHSS, as the with obligation provide has the ney DOJ or the district attor- concerning persons with such information all who might statutory criteria, i.e., meet the commitment (1) sexually those who: have been convicted of a (2) (§ 980.02(2)(a)); days offense are within 90 of dis- charge or release from a commitment order entered as (§ 980.02(2)(ag)); a result of a (3) violent offense (4) (§ 980.02(2)(b)); have a mental disorder are dangerous because that disorder creates a substantial probability engage that he or she will acts of sexual 980.02(2)(e)). (§ description potentially violence This encompasses persons chapter committed under way post-veto and the law no excludes them from coverage. governor's

We conclude that the veto resulted in a complete properly encompasses and workable law that persons originally chapter committed under 975.

By the order of the circuit Court.—The court reversed and cause is remanded. {dissenting). ABRAHAMSON, No J.

SHIRLEY S. passage precipitating the crimes one denies that afflicting among our most heinous 980 are readily legisla- society. why can understand One sought through wrongs, ture, such redress faced with might But much as I 980. the enactment might legislature empathize as I much with passage which led to the of share the concerns chapter beyond that 980 980, it is reasonable doubt judges join many I from Wiscon- unconstitutional. jurisdictions2 that who have found sin1 and other preventive create unconstitutional similar statutes predictions primarily on detention dangerousness. based authorizing In on incarceration individuals they already past have the basis of crimes for which sentences, 980 violates constitu- served their post tional-provisions against jeopardy and ex double creating circularly class of "sex- facto laws. In ually defined persons" who can be committed without com- mental illness and who could not be evidence of law, civil commitment mitted under Wisconsin's guarantees of sub- 980 violates constitutional equal protection. process stantive due rights The individual state cannot violate by creating special in the clas- inscribed constitutions rights constitutional are ses individuals whose 1Approximately court one-half of the Wisconsin circuit challenges judges been faced with constitutional who have chapter 980 have found the statute unconstitutional. 2 (D. See, Weston, Young e.g., v. Supp. 898 F. 744 Wash. (Minn. 1994) denied, Blodgett, In re 1995); cert. 910 N.W.2d (three (1994) Young, In re dissenting justices); 115 S. Ct. (Wash. 1993), 'd, Weston, Young rev v. Supp. F. 857 P.2d (three (D. 1995) dissenting justices). 744 Wash. Although may diminished. end result seem attrac- simply tive, under our constitutions the state cannot people up supposition they lock on the will be dangerous they already in the future when have served past. their sentences for crimes committed legislative, judicial executive and branches constitutionally other, have available valid methods of addressing dangers posed by violent criminals. tougher stringent These methods include and more supervision parole of those on or release, conditional prison 51 commitment, more intensive treat- programs, longer legislatively ment enacted sentences prosecutors' advocacy violence, for crimes of sexual judges' imposition lengthier for and or consecutive sentencing. responses sentences at the time of Such dangers posed by protect the munity sex offenders can the com- eroding guarantees

without the constitutional protect all of us. For forth, the reasons set I dissent.3

rH presented chapter The issue is whether 980's liberty principally permissi- restriction on constitutes impermissible punishment. ble civil commitment or If majority 3 I opinions. dissent from both While State v. Car penter primarily is of jeopardy addressed the issues double post and the ex facto v. primarily clause and State Post is process to the equal addressed issues substantive due and protection, respondents arguments the four do not divide their Moreover, in manner. this the consideration of these four issues together highlights majority respective analyses tensions in the not apparent. would otherwise be I address these tensions dissent, then, responds Part III. This majority opin to both ions and addresses all four of the constitutional issues which they discuss.

337 principally punitive, the ex it violates 980 is jeopardy post the Wisconsin clauses of facto and double federal constitutions.4 and "[glovernmental explained that

This court has jeopardy punishment double clause action is under the purpose punishment, principal or retribution if its principal nonpunitive, purpose is deterrence. When present punitive may also be the fact that a motive punishment." v. Kille State does not make the action (1983) added). (emphasis 243, brew, 115 2d 251 Wis. provides language insufficient 980 history, legislative its intent while evidence purpose remedial overwhelming provide evidence of and effect determining principally punitive purpose. In its chapter passes muster, however, the constitutional 980 majority opinion Carpenter, 252, 2d in State v. Wis. (1995) language relies on 980's N.W.2d history, legislative ignoring while its and structure approach purpose effect. This misconstrues the precedent very Supreme which, U.S. Court consistently majority correctly observes, court has this jeopardy interpreting ex the double followed in post and federal consti- facto clauses of the Wisconsin correctly Supreme applied, the Court's tutions. When clearly chapter test reveals that violates double post jeopardy and ex facto clauses both constitutions. post jeopardy or ex facto To violate either double

clauses, under the must consti government action statute proceeding or within the punishment tute create criminal 37, Youngblood, Collins v. meaning clauses. 497 U.S. those Halper, United v. (1990); States 46-52 490 U.S. 447-51 Thiel, 695, 702-03, State v. (1989); 188 Wis. 2d 524 N.W.2d 641 Killebrew, 246-51, State v. (1994); 243, 115 Wis. 2d 340 N.W.2d (1983). 470

338 According majority opinion Carpenter, to the in plain language 269-70, 197 Wis. 2d "we look of legislature's the statute as of intent," evidence Car- penter, (discussing possible jeopardy double violations), language and "we must consider the and structure of the statute to determine it whether serves (dis- legitimate public regulatory purpose," a Id. at 273 violations). cussing possible post majority ex facto opinion points repeatedly chapter 980's treatment provisions chapter to conclude that is remedial punitive. example, majority opin- rather than For person ion notes that "a found to be violent is custody control, committed to the of for care, DHSS and opposed imprisonment." treatment, as to the for DOC majority opinion thereby Id. at 266. The concludes that emphasis "[t]he on in treatment ch. 980 is evident from plain language." its Id.

If reference to treatment were sufficient to render chapter governing civil, however, a statute prisons state jails, transmogrified and would be into a civil Arguably punitive statute. the most all the Wiscon- chapter statutes, sin 302 nevertheless refers to chapter times; treatment 30 980 mentions 9 treatment Chapter provides times. "confinement, 302 for treat- prisons;5 ment, rehabilitation" Wisconsin's provides "control, care, 980 and treatment" purposes 980 committees.6 of the One provide just, 302 "to humane and efficient program Chapter of rehabilitation of offenders."7 302.25(1) (1993-94). Wis. § Stat. 980.06(1) (1993-94). Wis. Stat. § (1993-94). (the Chapter

7 Wis. Stat. § 301.001 Mental Act), commitments, governs Health which civil mentions treat legislative policy ment 363 times. The the Mental Health Act provision range is "to full assure of treatment evincing purpose comparable a statement no contains provide treatment. to language chapter plain

Looking solely of to the majority do, court a court the would have as the great chapter con- manifests that 302 would conclude majority applying and, the cern with treatment opinion's purpose reasoning, the conclude that would prisons governing is remedial. and effect of the statute long and treatment have rehabilitation But while both imprisonment,8 among their justifications for the been statutory language purpose and in the stated inclusion principal chapter the not the fact that 302 does alter jails prisons governing purpose is the statute Statutory language punishment. alone, then, cannot containing question a statute of whether resolve purpose. aspects principally punitive in remedial Nothing language to 980 refers in prescribes civil commitment.9 it as a the commitment expressly com- if referred its 980 had Even Supreme procedures civil, U.S. Court as mitment legislature's designation repeatedly that has warned in all mental disorders and the state for rehabilitation services illness, developmental for mental alcoholism disabilities and drug and other abuse." 8 Punishment, Greenawalt, Encyclopedia 4 See, e.g., Kent (Sanford Kadish, 1983); H. ed. Justice 1336-45 Crime and of Wayne Scott, Jr., & Austin W. Substantive Criminal R. LaFave (1986). 1.5, Law 32-33 § relating appears in the once title The word "civil" "relating 980, stating it is creating chapter Act clause of the Drafting persons." LRB to civil commitment added). also (emphasis Act The word "civil” File for 1993 itself, only reference to the but with appears once agency liability officials immunity from civil extended state provisions. See Wis. Stat. the statute's victim notification under (1993-94). 980.015(4) §

of a statute "civil" or "remedial" rather than "puni- tive," or "retributive" "deterrent" is not determinative in gauging principal purpose actually statute serves. Notwithstanding how statute is labeled or characterized "a legislature, civil as as a well criminal punishment sanction constitutes when the sanction as in the individual case applied serves the goals of punishment... [A] civil sanction that cannot solely fairly be said to serve a remedial but purpose, rather only can be explained as also serving either retributive or deterrent is as purposes, punishment, we have come to Therefore, understand the term."10 a court beyond must look a statute's struc- language and ture and inquire further whether the scheme statutory added).

10 Halper, U.S. at (emphasis 490 448 In a assessing challenge clause, jeopardy to the double Halper labels, Court discounted the value stating as follows: [T]he paramount impor- labels "criminal" and "civil" are not of commonly may tance. proceedings It is understood that civil punitive goals, and, conversely, advance as well as remedial punitive goals may by penal- and remedial he

both served criminal punishment, commonly it, ties .... The notion of we understand law, cuts across the division between the civil and the criminal purposes assessing given for the a whether sanction constitutes multiple punishment Clause, Jeopardy barred the Double we ("[T]he must the notion follow where it leads .... affixed labels proceeding imposed controlling either to the or to the relief are not applicable protections and will not to be allowed defeat the of fed- law"). eral constitutional (citations omitted). Halper, 490 U.S. at 447-48 (how Collins, See also 497 U.S. at 46 statute labeled is is not controlling scrutiny" and should not "immunize it from in determining prohibition against whether the constitutional ex "[sjubtle post violated, facto laws has been post because ex facto permissible ones,” violations are more than no overt and the laws, prohibition "constitutional their addressed 'whatever form'").

341 negate punitive purpose or effect as to either in was so aspects v. United States of the statute. the remedial Firearms, 354, 362-63 465 U.S. One Assortment of (1984) (citing U.S. Ward, v. United States (1980)). principal surprisingly, exploring a statute's in

Not legislative Supreme purpose, has Court examined history. e.g., Kennedy See, Mendoza-Martinez, 372 v. (1963); Flemming Nestor, U.S. 144,169-184 v. U.S. (1960). Flemming, majority Quoting 603, 618-619 Carpenter opinion in that courts should not asserts determining beyond language statute look Carpenter, legislative 2d at The Wis. 269. intent. legislative Flemming did, however, his Court look at determining Flemming, tory Congressional intent. Flemming length refers at 363 U.S. at 619. Court previous Supreme cases in the Court Court which history" upon "Congressional relied such or had acquaintance the events and "Court's first-hand with surrounding passage of a statute in deter the mood" mining actually nominally that civil statute was a punitive. e.g., Flemming, See, 363 U.S. at 615.

Noting "only proof the clearest could suffice to unconstitutionality the the of a statute" on establish legislative Flemming, history, 617, 363 at basis of U.S. "meagre [legis- Flemming Court concluded that the lative] history" in relation to the statute at available prove Congress' in issue that case was insufficient to punitive Flemming, at 617-619. In con- intent. U.S. history explain legislative trast, below, I all the punitive chapter provides proof pur- clear of its pose: predators to reduce the likelihood that sexual might by prolonging past reoffend their detention prison completion of their terms. passed

The in context which a statute is assists in determining legislative intent.

It practice is established in legal American processes to consider relevant information concern- ing the background historical of enactment making decisions a about how statute is to be con-

strued applied and .... These extrinsic may aids show the circumstances under which the statute passed, was the mischief at which it was aimed and object it was to supposed achieve. Singer, Statutory Norman J. 2A Sutherland Construc- (1992) (note omitted).11 § tion 48.03 at 315 preceded by The enactment of 980 was widely publicized, highly politicized extremely public following emotional debate the release of the calling notorious sex offender Gerald Turner.12 In special legislative session to enact 980, Gover- Tommy Thompson expressed hope "[w]e nor might procedure

be able use this civil commitment keep offenders] jail."13 [i.e., them convicted sex In equating jail, civil commitment with the Governor speaks concerning primarily punitive volumes purpose allegedly nature and 980's civil com- proceedings. mitment Jovoco Inc., See 736, 751, also Erdman v. 181 Wis. 2d (1994) (relying

N.W.2d 487 on fact passed that statute was during Depression the Great in adopting remedial construction). 12Greg Rosenberg, Legislative History Implemen 980, Chapter Defender, tation June-August Wisconsin 4; Kachelski, at Erich C. Straub & James E. The Constitutional ity Law, Lawyer, Wisconsin's Sexual July Predator Wisconsin of 1995, at 15. 13 predator sparks Sexual bill session call: would Offenders kept jail, Sentinel, 18,1994, be May Milwaukee at A-ll.

343 by spon- Drafting requests made and statements long legislation prior been enactment have sors of construing legislative considered authoritative Representative of Lolita stated views legislator intent.14 The sponsored chapter 980, Schneiders, who purpose primary deterrence, one that its make clear punishment." Kennedy v. aims of of "the traditional at 168. Mendoza-Martinez, 372 U.S. request Legislative drafting Refer- to the

In hér chapter 980, version of for the first ence Bureau Representative that the bill "seeks Schneiders stated place heinous of on most to repeat further restrictions insuring prison by that "the

sexual offenders" any lengthened" "predator" stay [would] who be Represen- significant society."15 "a threat to remained acknowledged request in her tative Schneiders mentally predators "[t]hese ill" sane, are not change." they "highly opined She are resistant legislation "mak[e] sought the offender which would 14 Statutory 2A Construction Singer, Norman J. Sutherland 1063, (1992); DHSS, 176 2d 364 Bartus v. Wis. 48.15 at § (1993) 1075-76, (drafting request legislative spon 419 501 N.W.2d Co., intent); Kelley v. legislative Inc. sor indicative (1992) 248-49, 68 Marquardt, 2d N.W.2d 172 Wis. (statements "legislative history" by sponsor comprise bill's Foerster, statute); Inc. Atlas Metal Parts revealing v. purpose (1981) (statements 17, 24, Co., 2d 313 N.W.2d 105 Wis. bill, regarding including press pro sponsor, release bill's intent). legislative vide evidence Representative Request Lolita Drafting Memo from Counsel, Feustel, Legisla to Bruce Assistant Chief Schneiders Bureau, Drafting AB LRB File for 1993 tive Reference (March 15,1993). accountability liberty of

face a lifetime and loss of engaging [past] in assaultive acts."16 drafting

Both the file the written views of drafting process those with associated the have also long legislative been considered reliable indicia of principal intent.17 The comments of the draftsman of chapter Legislative attorney 980, Reference Bureau Jeffrey provide Olsen, further evidence of the statute's punitive According draftsman, intent. to the he under- legislative stood that intent "to was make possi- person continued commitment ofthe as secure as ,"18 ble ... leading up passage The events to the of confirm therefore the statement of one circuit court judge sug- "[t]o who held 980 unconstitutional: gest merely benign law is this exercise parens patriae authority significant State's without a punitive ignore reality political content is to of the passed context in which this law was manner in which it drafted."19 was Putting Stop See also Lolita Sex Schneiders,

16 /<i. Offenders, Journal, Milwaukee 16,1993, November at A-15. Trucking, Robert Hansen

17 Bartus, 1075-76; Wis. 2d at LIRC, ("this (1985) Inc. v. 323, 336,377 126 Wis. 2d N.W.2d 151 given weight court has to the written comments of those Barkdoll, State v. drafting legislation"); involved in 99 Wis. (citations (written (1980) omitted) 163, 176, 2d 298 N.W.2d 539 drafting views of process properly those involved with the "can intention"); be an legislative considered as authoritative statement City Darlington, 31 Wis. 2d 570, 579, Bendorf v. (1966) (memo drafting N.W.2d 449 file repre drafter of bill sents appropriate legislative history determining source of bill). meaning of (October 25,1993).

18 Drafter's note to 19 at 1 2975/1 Carpenter, (Dane State v. July No. 94-CF-1216 Co. 1994). placement Wiscon- 980 within the support the conclusion that also lends statutes

sin punitive purpose remedial. principal rather than its placed squarely Chapter the criminal within 980 is Although the state portion statutes. the Wisconsin of "significant placement to show is not claims that this statute,"20 legislature create a criminal intended to the "position suggests otherwise. case law Wisconsin very controversy statutes] [of [a] the section of Mining v. persuasive Co. intent." Montreal as to its (1913); 195 248, 144 N.W. 245, State, 155 Wis. legisla- dispositive, Although the fact that the not itself particular placed statutes section of the in a an act ture supplemented evidence, corrobo- other can, when conveys. placement impression v. State that the rate (1980). 73-74, 809 48, 2d 291 N.W.2d Robe, 96 Wis. clearly history legislative 980 Thus nominally reme- this extent to which demonstrates punitive purpose, principally a evinces dial statute ongoing namely sex of convicted incarceration might released. otherwise be offenders who requires 980 Furthermore, because their criminal sentences offenders serve convicted sex auspices, being the statute under its committed before purpose inextricably punitive effect, linked to a is notwithstanding Why a would its remedial features.21 20 Carpenter v. at 16. State in State Brief for 21 Carpenter, 197 majority opinion in State v. Although the (1995), fact 252, claims that "the mere N.W.2d 105 Wis. 2d 541 sanction does predicate a of the current prior conviction is past for the punishment not render the current sanction 274, offense," Supreme Court Carpenter, 197 2d at the U.S. Wis. liberty on the conditioning the restraint of explained that has prohibitory "significant penal of a crime is commission Ranch, 114 Ct. v. Kurth S. Dep't Revenue Montana intent." legislature principal with a interest treatment cre- deliberately delaying promised ate statute thereby exacerbating alleged treatment and ills designed which it is An to cure? individual's need for diagnosis only and treatment does not surface at the prison end of a term. The state's failure to mandate prior completion punishment treatment to the of the phase "strongly suggests that treatment is of secon- dary, primary, Young rather than Weston, concern." v. (D. 1995).22 Supp 744, P. 753 Wash. (1994) 1937, (quoting Constantine, United v. States (1935)). U.S. Young, (Johnson, J.,

22 Seealso In re 857 P.2d at 1024 dis (when senting) treatment for sex offenders follows rather than sentences, prison "timing strong substitutes for this alone is a legislature indication that the was less interested in treatment than in confinement" and demonstrates that while "the Statute provides treatment, goal completely this is subordinated to (Dane punishment"); Carpenter, State v. No. 94-CF-1216 Co. 1994) ("The July fact that treatment is not offered until the underlying end an prison may many years of sentence which be strongly after the suggests last sexual offense that treatment virtually afterthought legislative Further, an in this scheme. requirement finding the fact that amenability there is no for a of required Chapter to in treatment as 51 commitments bolsters conclusion"); Post, this State v. Oldakowski and Nos. 94-CF- (Dane 1200-01, 2,1994) slip op. Sept. (suggesting at Co. that afterthought masking treatment is "an the real concern for keeping predators community," out of the since medical treat suggest ment models that treatment is more effective when (Dane Watson, provided earlier); State v. No. 94-CF-2377 Co. 7,1995) April (chapter 980's definition of "mental disorder" is "characterological" description persons potential whose to sexually past commit future violent acts is based on crimes illness). rather than mental majority treat- in State v. Post observes

The already within the to sex offenders available ment is setting prison is therefore and that fully availed them- have not for those who reserved opportunities previous for whom or treatment selves Majority op. proven previous ineffective. has treatment majority continues, is struc- statute, The at 308. only in to be most demonstrated "to those tured cover pursuing in serious and is therefore of treatment" need providing objective Id. treatment. prison belies treatment available The limited acting According Raymond Wood, to this observation. person at the Wiscon- unit chief of Department Resource Wisconsin of Corrections' sin currently many sex offenders Center, incarcerated being long years transferred seven before as as wait might be availa- full treatment institution where an prison testimony indicated Wood's ble.23 "nearly programs intensive" or are not treatment delays in treatment asserts that such One commentator succeed, because prospect that treatment will can reduce the mechanisms and implement defense they allow the offender turn, which, more difficult for make it cognitive distortions he has done. accept responsibility for what the offender to memory loss of events also increases the risk passage of time alcohol to start with because of poorly are often recalled which Wettstein, Psychiatric Perspec A Robert M. or substance abuse. Statute, 15 U. Washington's Sexually Violent Predators tive on (1992). 597,617 Finally, prisons when Puget even Sound L. Rev. prison milieu reduces programs, the themselves offer treatment prisons ability from treatment because an offender's to benefit disclosing personal weakness or inmate "to avoid socialize an crime, taking responsibility for his or reveal vulnerability, avoid Id. See also offender for fear of retaliation." himself to be sex Encyclo Morse, Mentally Offenders, in 3 Stephen J. Disordered (treatment Justice, 1046, is supra, at 1048 pedia Crime and and "don't have the same "broad based" number of com- ponents" following those available civil acknowledged commitment. Wood also that "there are way differences the seclusion is used in a between facility way segregation health mental facility" panoply used in a correctional as well as a regarding rights respective popu- differences of the respective lations, the care and treatment owed to the qualifications populations, and the and standards expected respective of the staffs.

Notwithstanding majority differences, these opinion Carpenter upon Illinois, relies Allen v. (1986), claiming imposi- U.S. 364 980's subsequent a criminal tion of commitment to sentence Carpenter, In the is not "fatal." 197 Wis. 2d at 270-71. Allen, however, Illinois statute under review in com- mitment was in lieu of rather than in addition to a statutory prison sentence. Hence the Illinois scheme mentally solely providing "was focused on treatment to demonstrating offenders," that "Illinois disordered sex any punishment.'" Young had interest in v. 'disavowed Supp. (citing Allen, at Weston, 898 F. at 478 U.S. 370).

This difference the Illinois and Wisconsin between underscores the remedial nature of the Illinois statutes punitive and, contrast, accents the nature of statute that the Allen decision renders 980.1 conclude chapter 980 unconstitutional.24 criminally hospitals prisons

minimal in and in that house insane). Allen, response In the second draft of choose, days a conviction or a

required the state to within 60 insanity, finding guilty by whether of not reason mental sentencing through proceeding or to file a pursue a criminal Though legislature was petition for a civil commitment. nominally pur- up, chapter remedial 980's To sum legislative revealing paper by pose trail of is belied demonstrating principally punitive purpose history its might fairly Although characterize one and effect. purposes, careful 980's treatment as one of primary pur- analysis establishes that its ofthe statute pose punitive and therefore unconstitutional. Chapter professed is fur- concern with treatment 980's requirement compromised that those slated ther a full crimi- the statute first serve for treatment under delaying possibly thereby treatment, sentence, nal decades. for presumption

According chapter of consti- 980 the every legislative tutionality owing enactment, I punitive that these indicia of a nevertheless conclude purpose beyond a reasonable doubt and effect establish protections against 980 violates the post incorporated jeopardy ex facto laws double the Wisconsin and federal constitutions. right process to substantive due bars certain 'regardless

arbitrary, wrongful fairness actions of the procedures implement v. of the used to them.'" Foucha (1992) (quoting v. Louisiana, 71, 504 U.S. 80 Zinermon (1990)). Using Burch, 113, a substantive 494 U.S. process analysis, Supreme care- due the U.S. Court has fully the state circumscribed those occasions when may, nonpunitive reasons, detain individuals and constitutionally thereby deprive pro- them of their change advised that this had been made in an effort to insulate proposed possible jeopardy challenge, law from double legislature nevertheless instructed the draftsman to redraft term, completed prison bill so that after a sex offender had his the state could seek a 980 commitment. liberty. Youngberg Romeo, 307, v.

tected 457 U.S. (1979). (1982); Addington Texas, v. U.S. According by majority opinion to the cases cited may any person Post, a not state commit without clear convincing person evidence that the men- both tally dangerous.25 ill and chapter

Because 980 allows the commitment of mentally danger- individuals who are not both ill and process ous, I conclude that it violates substantive due guarantees of the Wisconsin and federal constitutions. Further, because there is no rational basis for authoriz- ing according civil commitment to substantive standards commitment under 980 rather already than those available under current civil com- standards, I mitment also conclude that 980 equal protection guarantees violates in inscribed both constitutions.

A. majority opinion acknowledges in Post that "a component" requirement mental condition is a of sub- process stantive due for commitment under Majority op. time, At 980. at 303-07. the same majority opinion in Post the U.S. observes Supreme attempted has never one Court establish constitutionally required illness," of "mental definition degree has instead allowed the states some of lati- but developing tude in their own definitions. Id. at 304.26 (1983); Louisiana, 71, (1992); 25 Foucha v. 504 U.S. 75-76 Jones v. States, 354,368 Texas, Addington United 463 U.S. v. Donaldson, (1979); U.S. O'Connor v. U.S. 563 (1972). (1975); Indiana, Jackson v. 406 U.S. 715 majority discussing The two cases cited major power support to define mental do not states' illness ity's concerning power broad assertion a state's to define mental neolog- that mental illness or the recognition

But a be defined component" may ism "mental condition illness one that mental way hardly suggests more than the state If the con- pleases. can be defined howsoever threshold of mental illness has stitutionally prescribed then it everything, no core and can mean meaning means nothing. are not free to

The Foucha case teaches that states a mental illness and any deviancy they define please anyone might commit to mental who thereby hospitals there no limit on a state's fit their definition. Were individuals, commit a state could power substantive categories commit whole of criminal offenders civilly drivers them merely by branding such as intoxicated them disordered. designating mentally deviant in holding The Foucha Court underscored this point insanity diagnosed that an with a antisocial acquittee purposes Addington, illness for of commitment. See U.S. (1983). (1979);Jones, 463 U.S. 354 First, diagnosed had the committees both cases been universally paranoid schizophrenic, conditions associated mental illness. with

Second, Addington proof the issue in is the standard of by required in a civil commitment the Fourteenth Amendment. not discuss the definition of mental illness. decision does well, Finally, in Jones as the Court does not address mentally Jones, the committee is ill. 463 U.S. at 363 whether upheld legislative proce The Court determination of n.11. accompanying dures civil commitment in a context where the insanity proves committee "himself advances as defense and Jones, product that his criminal act was a of mental illness." quoted by majority opinion, U.S. at 367. The sentence State Post, majority op. proposition v. at for the that courts legislative judgments should defer to is followed a caveat relating insanity involving such deference to cases defense. Jones, 463 U.S. at 370.

personality mentally disorder could not be confined as Foucha, ill. 504 U.S. at 77-83. acknowledged

For even as the Foucha Court "psychiatrists widely disagree on what constitutes a mental illness," it nevertheless insisted that there was regarding sufficient consensus a definition to make specific and "reliable" determinations about who can be mentally purposes considered ill for ofthe constitution- ally required threshold for civil Foucha, commitment. 504 U.S. at If, 76 n.3. however, mental illness or a component" "mental condition means whatever a state constitutionally required means, claims it threshold deprivation liberty for meaningless would be transformed into a signifying legis-

standard whatever state signify. latures want it to legislative history

As both the 980 and drafting, the records reveal, before us those involved in enacting implementing chapter 980 understood very well that the broader, more nebulous notion of required "mental disorder" for 980 differed greatly required by from the "mental illness" the state and federal constitutions. original drafting Legis-

In her memorandum to the Representative Bureau, lative Reference Schneiders predators "[t]hese mentally stated that sane, are not despite depraved ill, nature of their crimes."27 The recognized chief draftsman the consti- problems drafting request. tutional inherent "[A]s raising problems I have said before," he warned in with the term disorder," "mental "I am not confident being narrowly enough that the law drawn because it 27 Drafting Request Representative Memo from Lolita Feustel, Schneiders to Bruce Counsel, Assistant Legisla Chief Bureau, tive Reference Drafting LRB File for 1993 AB 955 (March 15,1993). say impossible committed" on who should be sure disorder "we are not even of a mental basis exists."28 Carpenter's psychologists at who testified

The two hearing probable under for commitment cause concepts acknowledged a distinction between generic illness. Dr. and mental mental disorder "may illness be a subset testified that mental Wood disorder[s] larger group mental disor- known as Psychiatric American included within the der" and Diagnostic Statistical Manual Association's 1994) (DSM-IV).29 (4th He also ed. Mental Disorders incapacitat- "[m]ental explained illness is far more ing reality appreciation, the standard soz~ts in terms of somebody might apply if to determine of tests that we loosely crazy speaking or not." was

Greg Rybroek, director of the Mendota Van clinical Institute, drew a similar contrast Mental Health noting illness, and mental between mental disorders in terms of definition" and that "there is a distinction big are the broad umbrella that that "mental disorders Among com- fall under." the disorders all of us could big prising broad, umbrella of mental disorder this and included within the "that all of us could fall under" eating are disorders such as anorexia DSM-IV Manual sleeping insomnia; caf- bulimia; disorders such agoraphobia anxiety disorder; and feine-induced (October 25,1993). at 1 28 Drafter's Note to 2975/1 29 incorporated DSM-IV include the The disorders within acquittee personality disorder with which both the antisocial (La. Foucha, 1138,1141 1990), n.2 as well as three of 563 So. 2d prospective chapter the four 980 committees whose cases we diagnosed. now review were

(anxiety being places about or situations from which difficult).30 escape is

Finally chapter "mental disorder" is defined in 980 illness, not in terms of mental mental disease or predisposition mental defect but in terms of a to sexual chapter crimes. Under 980 "mental disorder" is "a con- genital acquired affecting or condition the emotional or capacity predisposes person engage volitional a to 980.01(2). § in acts of sexual violence." Wis. Stat. Since every necessarily congenital condition is either or acquired, capacity" and since "emotional or volitional simply decision-making processes describes the affect- ing people chapter act, how mental disorder under predisposition engage means no more than a in acts of sexual violence. chapter attempts

Thus to create a mental dis- authorizing order lifetime commitment based not on past pro- mental illness but on crimes for which the spective already prescribed committee has served the entirely prospec- sentence. This definition is circular: a past tive committee's "mental disorder" is derived from which, turn, sexual offenses are used to establish predisposition to commit future sexual offenses.31

30 DSM-IV,213, 396, 439, 539-557. 31Wettstein, Rideout, supra; Christopher J. So What's in A Reading Washington's Sexually Name? A Rhetorical Violent (1991-92). Act, 781, Puget Predators 15 U. L. Sound Rev. Young Weston, Supp. (finding See also v. 898 F. at 750 Washington statutory State definition of "mental abnormal- ity," which, like the definition of "mental disorder" under requires proof congenital acquired of "a or condi- affecting tion capacity emotional or volitional which predisposes person to the commission criminal sexual acts," unacceptable tautology: creates "an predator from a predisposes suffers mental condition that him the con- uphold majority opinions' attempt a circular on

stitutionality relying dangerous- of mental disorder on premised definition true 980 is to purpose ness reveals that dangerous, regardless lock those considered up ill. But mentally dangerousness, whether are they alone, jus- not sufficient to standing constitutionally rationale, Such a warned the tify a civil commitment. Court, allow the state to incarcer- U.S. would Supreme criminal, even he has though ate "convicted any Foucha, term." 504 U.S. at 82-83. prison his completed "a Indeed, only step away such a rationale would be confinements for substituting dangerousness from which, narrow system only exceptions our with present aside from confinements for mental permissible and illness, only proved beyond incarcerates those who are reasonable doubt to have violated a criminal law." Id. at 83.32 violence;" finding also that the

or her to commit acts of sexual "personality a circular definitional struc- term disorder" "evokes only in characteristic of the disorder is ture which the observed crimes"); predisposition Young, In re 857 P.2d to commit sex (definition J., (Johnson, dissenting) at 1021 of mental abnor- mality Washington statute is "circular" because under the person's past "abnormality" "will derived from the sexual be behavior, person's used to establish the and this turn will be behavior"); predisposition dangerous future sexual State v. to (Dane Co.) (chapter deploys Carpenter, No. 94-CF-1216 "a classically accepted watered down version of the definition illness, us[ing] mental a circular definition that is an invitation arbitrary interpretation"). and erroneous exceptions," pretrial One of detention those "narrow dangerous permitted arrestees the Bail Reform Act of 1984 (Act), Salerno, upheld was in United States v. 481 U.S. 739 (1987). majority's proposi But the reliance on this case for the danger-reducing justify tion confinement can admonition, this stern Despite majority opin- ion in Post reads Justice O'Connor's concurrence this court's decision last term in State v. Foucha Randall, (1995), 192 Wis. 2d 532 N.W.2d 94 as the state the confinement of allowing prolong poten- individuals, long albeit sane so tially dangerous some medical for that confinement contin- justification ues But this Majority op. reading to exist. at 315-16. on medical overstates both relying justification holdings.

Both Foucha Randall involved insanity who, but for acquittees original diagnoses they ill, were would have been to serve mentally required respective sentences for the commission of their prison crimes. The between Foucha's and Ran- relationship insanity length dall's and the respective acquittals if found they they time would have served had been factored in O'Connor's and guilty heavily both Justice held long they might this court's assessments of how be had aegis they under the of medical once justification violations, Post, majority op. in at constitutional State v. Post 317, misplaced. Act upheld is The Salerno Court because its legislative history regulatory punitive evinced a rather than carefully purpose "[t]he and Bail Reform Act limits the because may sought," "[t]he circumstances under which detention be prompt hearing," detention and "the arrestee is entitled to by the length pretrial maximum detention is limited strin- gent Speedy Trial Act." Id. at 747. time limitations of Act,

Having catalogued of the the Foucha these features justify rejected Court Louisiana's reliance on Salerno to its con- tinued of an individual whom doctors had assessed confinement Foucha, mentally dangerous longer but who was no ill. still Neither, then, 504 U.S. at 81-82. can Salerno rescue which, Act, legislative history evincing in contrast to the has a punitive potential lifetime incarcer- intent which allows stringently pretrial ation rather than limited detention.

regained sanity. noted in her As Justice O'Connor their holding permissibility an concurrence, "the Foucha mentally longer person acquittee ill than a is not who imprisoned is same crimes could be convicted of the open question." Simi- Foucha, 504 U.S. at 88. to serious having larly, opinion Randall, noted that this court's guilt provides "[i]t which is the determination insanity incapacitate and treat the basis for the state to strictly acquittee," "lim- held that confinement must be have been ited maximum term which could to the imposed Randall, conduct." 192 Wis. for the criminal 2d 841. at extending beyond the maximum

A commitment imposed, prison then, have been term which could requirement articulated must meet the constitutional Addington, Jones, must estab- and Foucha: the state only prospective not lish that committee is mentally Although dangerous, but also ill. Supreme pur- has not defined mental illness for Court poses commitment, the circular definition of mental clearly inadequate; it is not disorder in 980 is enough permit civil com- "reliable the courts to base convincing medical evidence mitments on clear mentally person Foucha, ill." 504 U.S. at 76 that a Instead, 980, in the words of the amicus n.3. Psychiatric Associa- curiae filed the Wisconsin brief wraps tion, in the aura of science and asks itself "compromise professional integrity clinicians to their gloss applied so that a constitutional can be to some- thing impermissible." Brief for the Wisconsin Psychiatric Association as Amicus Curiae at 3. gloss my opinion, chapter cannot,

This 980. save chapter Because 980 the indefinite confinement allows persons mentally ill, who have not it been found to be

358 beyond chapter a reasonable 980 violates doubt process protections. due substantive

B. equal protection challenge. I to the Both turn now majority opinion in and the state observe that Post analysis, persons purposes equal protection com- for chapter similarly are situated to mitted under 980 chapter persons 51, civil committed under Wisconsin's majority op. Post, 318-19; at Brief commitment statute. Consequently, requirements 13. for State Post at chapter be harmonized 51 civil commitment must pro- chapter "Equal with those for 980 commitment.33 require persons tection does not identically, that all be dealt with require made but it does that a distinction purpose to the for which the clas- have some relevance Herold, is made." Baxstrom v. 383 U.S. sification (1966). one A state cannot seek a civil commitment under rather than another when the two statutes statute apply for commitment distinct substantive standards procedural protections for commit- and afford distinct justified by distinctions can be ment unless those legitimate purpose. Chapter 980's rational basis and a premised on of mental disorder is circular definition dangerousness of mental ill- rather than on evidence justify dangerousness civil alone cannot ness. Just as justify dangerousness dis- alone cannot commitment, Because the commitment standards. tinct substantive separating from distinctions beyond basis, I conclude that it is have no rational 148, 207 Stovall, ex rel. Farrell v. 59 Wis. 2d See also State (1973) (chapter 51 civil commitments and N.W.2d 809 similarly deal with situ 975 sex crime offender commitments classes). ated chapter equal

reasonable doubt 980 violates the protection guarantees of both the Wisconsin and fed- eral constitutions.34

Chapters similarities, 51 and 980 have as the majority opinion explains. in Post Both statutes con- persons contemplate cern with mental disorders. Both treatability prospect of the individual and the prove dangerous public the individual will to the or to himself if left untreated. But the "mental disorder" required for a 980 commitment is not equivalent types readily to the of "mental disorders" subsumed under 51. What is the rational basis majority opinion for this difference? The does not question. answer this fundamental Supreme stating The U.S. it, Court has answered distinguishing that "there is no conceivable basis for person nearing the commitment of a who is the end of a penal term from all other Foucha, civil commitments." (1966)). (quoting Baxstrom, atU.S. 383 U.S. 107 In the Baxstrom, statute under review New York person expira State allowed a to be committed at the penal jury tion of a sentence without the review that persons civilly was available to all other committed. The state contended that the statute created a reasona differentiating ble classification between "criminally dangerously insane" and the "insane." The Court held that this distinction did not survive equal protection analysis. even rational basis Bax strom, 383 U.S. at 111.

34Because I conclude that 980 does not meet a standard, join rational basis majority I reserving for day another question of which standard of constitutional appropriate review is applying equal protection when an analy sis to a non-suspect class. equal pro-

In Baxstrom the Court made clear that requires tection a state to use the same standards and procedures involuntary civil commitment of incar- persons nonimprisoned cerated that it uses for prison prisoner individuals. If at the end of a term a has deprive been freed liberty him and "the state then decides to of stigmatize involuntary hospitali- him with ex-prisoner zation, the should be entitled to the same protections granted other citizens."35 willing acknowledge

The Baxstrom Court was especially dangerous might that require committees they different treatment once were committed, but emphasized dangerousness "has no relevance "show[ing] person mentally whatever" in whether a ill at post- Baxstrom, all." 383 U.S. at 111. Hence while commitment distinctions between committees with might legitimate, distinct treatment needs be the Bax- strom Court left no doubt that the initial commitment process applied equally itself must be to the entire prospective class of committees unless the state could legitimate purpose offer any a rational basis and a differences. majority opinion provide

The in Post does not rational basis for the difference the commitment Instead, standards. it elides the distinction articulated post- in Baxstrom between the initial commitment and majority op. See, commitment treatment. at 321-22. majority opinion salvage tries to the statute from equal protection challenge by stating an "heightened dangerousness unique level of and the sexually persons justify treatment needs of violent dis- legislative approaches [to chapter tinct 51 commitment persons with mental illness and 980 commit- Morse, Mentally Stephen J. Offenders, Disordered in Encyclopedia Justice, supra, Crime and at 1049. disorders] persons to further the with mental

ment of governmental purpose protection compelling of the public." Majority op. the lan- at But neither 322-23. majority guage nor the and structure opinion why particular needs of treatment reveals per- "mentally allegedly disordered" justify for civil standards sons different substantive currently under those available commitment than chapter 51. present majority a rational

Because the cannot adopts might explain why chapter 980 differ- basis that does ent standards than substantive commitment majority justification opinion's chapter 51, for the statutory to no more than distinctions reduces dangerousness" "heightened which threat of pose point major- allegedly 980 sexual offenders —a protection ity repeatedly equal in underscores its analysis.36 "height- clear,

But as Baxstrom and Foucha make dangerousness" pass equal ened does not muster under Supreme protection analysis. never "The Court has upheld preventive for a lifetime detention scheme

36 responding to arguments In advanced Post Oldakowski, majority possible for the itself refutes other bases chapter com distinguishing chapter 51 committees from 980 out, example, majority points Stat. mittees. As Wis. 51.20(l)(ar) already general requirement waives that those § its dangerousness through committed act if evince a recent overt committee, every potential chapter prospective like committee, currently imprisoned. Post, majority op. at 324. out, majority points also case And as the Wisconsin law allows who, chapter many under 51 of even like commitment those 980, potential chapter might committees under be unamenable State, or 2d hostile treatment. C.J. v. 120 Wis. (Ct. 1984); Post, App. majority op. at 323-25. N.W.2d dangerous." Young, those who are feared re In 857 P.2d (Wash. 1993) (Johnson, dissenting), 989, 1023 J., rev'd, (D. 1995). Young Supp. Weston, v. 898 F. 744 Wash. chapter stated, For the reasons I conclude that equal protection guarantees violates the of the Wiscon- sin and federal constitutions.

hH HHHH Although they address distinct constitutional majority opinions salvage chapter issues, both fail to they 980 for the same reason: are unable to demon- chapter principally strate that addressing 980 is concerned with persons

the treatment needs of who are mentally dangerous. both ill and But the tension majority opinions' respective attempts between the demonstrate that 980 meets the crucial consti- (mental prerequisites tutional for civil commitment dangerousness) illness and cannot be resolved. post jeop-

In order to surmount ex facto and double ardy challenges, majority opinion Carpenter principal purpose must demonstrate that 980's provide thereby is to treatment and that the statute is punitive. civil and remedial rather than process In order to surmount substantive due equal protection challenges, majority opinion prospective Post must demonstrate that the commit- mentally tees under 980 are ill. But because chapter 980's circular definition of mental disorder dangerousness substitutes for evidence of ill- mental majority opinion compelled rely ness, the in Post is to heavily heightened dangerousness on the threat of prospective allegedly pose. which 980 committees majority opinion To the extent that the in Post emphasizes dangerousness society large at rather mentally than ill, treatment for the it undercuts the

363 Carpenter argument in advanced of the thrust advancing principally chapter the statute a civil 980 is providing purpose than treatment rather remedial principally advancing punitive the deterrent statute preventing purpose harm. Carpen-

Conversely, emphasis on treatment the inability glaring to offer more Post's makes all the ter chapter chapter separate for rational basis consequent and its standards commitment substantive justification primary dangerousness the reliance on chapter commitments. 980 civil chapter dividing preserving 980's task of In the only opinions constitutionality, majority have . problem emphasized 980: intrinsic attempt punishment Despite as "treat- to recast its good criminal," for the ment punishes dangerous- treats; its focus is on rather than illness, than on mental and deterrence rather ness component." disorder, or a "mental condition mental problem approach important, to the in their And most posed by offenders, 980 and sex legal majority are in themselves fictions which foster dangerous. forth, I conclude that it is reasons set

For the enacting chapter beyond doubt that reasonable legislature adopted an unconstitutional has Accordingly, goals. I dissent. method to achieve its

Case Details

Case Name: State v. Post

Court Name: Wisconsin Supreme Court

Date Published: Dec 8, 1995

Citation: 541 N.W.2d 115

Docket Number: 94-2356, 94-2357

Court Abbreviation: Wis.