State v. Tory L. Rachel

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2002 WI 81 SUPREME COURT CASE NO.: OF WISCONSIN 00-0467 COMPLETE TITLE: In re the Commitment of Tory L. Rachel: State of Wisconsin, Petitioner-Respondent, v. Tory L. Rachel, Respondent-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 6, 2002 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Kenosha Wilbur W. Warren JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: July 1, 2002 BRADLEY, J., concurs (opinion filed). ABRAHAMSON, C.J., dissents (opinion filed). BABLITCH, J., dissents (opinion filed). PROSSER, J., did not participate. ATTORNEYS: For the respondent-appellant there were briefs by Richard H. Hart and Hart Law Offices, Milwaukee, and oral argument by Richard H. Hart. For the petitioner-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. 2002 WI 81 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-0467 (L.C. No. 94 CF 469) STATE OF WISCONSIN : IN SUPREME COURT In re the Commitment of Tory L. Rachel: State of Wisconsin, FILED Petitioner-Respondent, JUL 1, 2002 v. Cornelia G. Clark Clerk of Supreme Court Tory L. Rachel, Respondent-Appellant. APPEAL from an order of the Circuit Court County, Honorable Wilbur W. Warren, III, Judge. ¶1 JON P. WILCOX, J. This for Kenosha Affirmed. case involves a constitutional challenge to Wis. Stat. ch. 980 (1999-2000), the state's sexually violent person commitment law. The challenge is brought by respondent Tory L. Rachel, who was involuntarily committed to institutional care under ch. 980. that the beginning State's of petition Rachel's for trial, commitment the was legislature Between the time filed passed and the several amendments to ch. 980, which primarily served to limit a ch. 980 respondent's ability to seek supervised release. Rachel alleges No. that these amendments render ch. 980 unconstitutional 00-0467 on its face. ¶2 Prior to trial, Rachel filed a motion to dismiss, claiming that ch. 980, as amended, violates the double jeopardy, due process, and ex post facto provisions of the Wisconsin and United States Constitutions. The Kenosha County Circuit Court, Wilbur W. Warren, III, Judge, denied the motion and held that ch. 980 was constitutional as amended. After a trial, the circuit court found Rachel to be a sexually violent person under ch. 980 and ordered him committed to institutional care. Rachel appealed, and the court of appeals certified the case to this court. We accepted the certification, and we now uphold the decision of the circuit court. I. BACKGROUND A ¶3 On August 9, 1994, the Kenosha County District Attorney filed a petition with the circuit court seeking the involuntary commitment Wis. Stat. § 980.02(2)(ag) of Tory L. Rachel. (1993-94), when the Pursuant petition to was filed, Rachel was within 90 days of his release on a prison sentence for imprisonment. second-degree sexual assault and false The Kenosha County Circuit Court held a probable cause hearing, found probable cause to believe that Rachel was a sexually violent person, and bound him over for trial. ¶4 Chapter 980 had just taken effect on June 2, 1994 about two months prior to the filing of the petition. 2 See 1993 No. Wis. Act 479, § 40. 00-0467 Unsurprisingly, Rachel challenged the new statute on a number of constitutional grounds, including that the statute was an ex post facto law; that it constituted double jeopardy; that it violated procedural and substantive due process; that it violated equal protection; that it was overly vague; and that it constituted cruel and unusual punishment. The circuit court denied Rachel's motions to dismiss, and the court of appeals granted Rachel leave to appeal the nonfinal order. ¶5 The court of appeals held Rachel's appeal in abeyance until December 8, 1995, when this court decided State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), and State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995), which together comprised the first constitutional assessment of ch. 980 made by this court. In Post, we held that ch. 980 did not violate the Due Process or Equal constitution. Protection Clauses of the state Post, 197 Wis. 2d at 316-17, 330-31. or federal Similarly, in Carpenter, we held that ch. 980 did not violate the state or federal Double Jeopardy or Ex Post Facto Clauses. 197 Wis. 2d at 271-72, 274. Carpenter, As a result of our decisions in Post and Carptenter, on January 11, 1996, the court of appeals summarily upheld the circuit court's decision in Rachel's case and remanded the case to the circuit court for further proceedings. ¶6 Over the next several years, Rachel's case underwent a number of procedural delays, including two changes of counsel 3 No. 00-0467 for Rachel and several adjournments, including one to await the U.S. Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346 (1997), where the Court held that Kansas's sexually violent person law was nonpunitive, and therefore did not violate the Double Jeopardy or Ex Post Facto Clauses of the U.S. Constitution. Additionally, Rachel was denied interlocutory appeal on a timeliness issue (eventually deemed waived), and was granted interlocutory appeal on a discovery issue. See State v. Rachel, 224 Wis. 2d 571, 591 Wis. 2d 920 (Ct. App. 1999). After remittitur from that appeal, the matter was scheduled for a jury trial on November 8, 1999. ¶7 On the day that the trial was supposed to commence, Rachel filed a motion to dismiss on the grounds that several amendments rendered to the ch. 980 statute, enacted unconstitutional. just See §§ 3216d-3239d (published Oct. 28, 1999). two 1999 weeks Wis. prior, Act 9, The primary thrust of these amendments was to limit a ch. 980 respondent's ability to seek supervised release commitment under ch. 980. as an alternative to institutional We now examine these amendments in some detail. B ¶8 In Wisconsin Act 9 of 1999 ("the Act"), sections 3216d through 3239d, the legislature made a number of amendments to Wisconsin's sexually Wisconsin Statutes. Wis. Stat. § 980.06, violent person law, ch. 980 of the The most notable of these were made to the statutory 4 section dealing with the No. physical commitment of sexually violent persons. 00-0467 Under the prior statutes, § 980.06(1) (1997-98) stated: If a court or jury determines that the person who is the subject of a petition under s. 980.02 is a sexually violent person, the court shall order the person to be committed to the custody of the department [of Health and Family Services] for control, care and treatment until such time as the person is no longer a sexually violent person. The Act amended this section to include the requirement that "A commitment order under this section shall specify that the person be placed in institutional care." § 3223h (emphasis added). (1997-98) was repealed. See 1999 Wis. Act 9, Accordingly, § 980.06(2)(a)-(c) See 1999 Wis. Act 9, § 3223i-3223k. Those sections had laid out the procedure by which the court could enter an initial order for a sexually violent person to be committed to supervised release, rather than institutional care, and described the methods for developing a supervised release plan. ¶9 which Additionally, dealt with Wis. Stat. § 980.065(1m) institutional care for (1997-98), sexually violent persons, was changed from: The department may place a person committed to institutional care under s. 980.06(2)(b) at a mental health unit or facility, including a secure mental health unit or facility at the Wisconsin resource center established under s. 46.056 or a secure mental health unit or facility provided by the department of corrections under sub. (2). to read: The department shall place a person committed under s. 980.06 at the secure mental health facility 5 No. 00-0467 established under s. 46.055, the Wisconsin resource center established under s. 46.056 or a secure mental health unit or facility provided by the department of corrections under sub. (2). Wis. Stat. § 980.065(1m) (1999-2000); 1999 Wis. Act 9, § 3230m. ¶10 Section 980.06(d) (1997-98), which discussed the conditions, violation, and revocation of supervised release, was moved from under Wis. Stat. § 980.08(6m) Wis. Stat. § 980.06 (1999-2000), petitions for supervised release. the (1997-98) section to detailing That section was also amended to include the language: The department shall arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the plan for supervised release approved by the court under sub. (5). 1999 Wis. Act 9, § 3223L. ¶11 Wisconsin Stat. § 980.07(1) (1997-98), covering periodic reexaminations of sexually violent persons, originally read, in pertinent part: If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge. The language "whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge" was changed to "whether the person has made sufficient progress for the court to consider 6 No. 00-0467 whether the person should be placed on supervised release or discharged." See Wis. Stat. § 980.07(1) (1999-2000); 1999 Wis. Act 9, § 3232. ¶12 Finally, Wis. Stat. § 980.08(1) (1997-98), which allowed a sexually violent person who was under institutional care to petition the committing court for supervised release after six extend months the of minimum institutional time to 18 placement, months was before the changed to individual committed under ch. 980 could petition for supervised release. See 1999 Wis. Act 9, § 3232p. allow the director of the This subsection continues to institution to petition on the individual's behalf at any time. ¶13 A number of smaller changes to the statutory language were also made throughout the chapter to give effect to these amendments. supervised The other sections that related to petitions for release and discharge, Wis. Stat. §§ 980.09 980.10, remained fundamentally unchanged.1 1 Those sections state, in relevant part: 980.09 Petition for discharge; procedure. (1) PETITION WITH SECRETARY'S APPROVAL. (a) If the secretary determines at any time that a person committed under this chapter is no longer a sexually violent person, the secretary shall authorize the person to petition the committing court for discharge. . . . . . . . (b) At a subsection . . . [t]he hearing state has 7 under this the burden of and No. 00-0467 proving by clear and convincing evidence that the petitioner is still a sexually violent person. (c) If the court is satisfied that the state has not met its burden of proof under par. (b), the petitioner shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under par. (b), the court may proceed to determine, using the criterion specified in s. 980.08 (4), whether to modify the petitioner's existing commitment order by authorizing supervised release. (2) PETITION WITHOUT SECRETARY'S APPROVAL. (a) A person may petition the committing court for discharge from custody or supervision without the secretary's approval. At the time of an examination under s. 980.07 (1), the secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the report of the department's examination under s. 980.07. If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. . . . . . . . (b) If the court determines at the probable cause hearing under par. (a) that probable cause exists to believe that the committed person is no longer a sexually violent person, then the court shall set a hearing on the issue. . . . At the hearing, the state has the burden of proving by clear and convincing evidence that the committed person is still a sexually violent person. (c) If the court is satisfied that the state has not met its burden of proof under par. (b), the person shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of 8 No. ¶14 limit 00-0467 As a whole, the consequence of these amendments was to the ch. 980 respondent's ability to obtain supervised release when the respondent is found to be a sexually violent person. Under the old statutory scheme, the circuit court could order commitment to supervised release immediately after trial under Wis. Stat. § 980.06(2) (1997-98), and the individual could petition for supervised release after six months of institutional placement under Wis. Stat. § 980.08(1) (1997-98). Under the new formulation, the circuit court no longer has the proof under par. (b), the court may proceed to determine, using the criterion specified in s. 980.08 (4), whether to modify the person's existing commitment order by authorizing supervised release. 980.10 Additional discharge petitions. In addition to the procedures under s. 980.09, a committed person may petition the committing court for discharge at any time, but if a person has previously filed a petition for discharge without the secretary's approval and the court determined, either upon review of the petition or following a hearing, that the person's petition was frivolous or that the person was still a sexually violent person, then the court shall deny any subsequent petition under this section without a hearing unless the petition contains facts upon which a court could find that the condition of the person had so changed that a hearing was warranted. If the court finds that a hearing is warranted, the court shall set a probable cause hearing in accordance with s. 980.09 (2) (a) and continue proceedings under s. 980.09 (2) (b), if appropriate. If the person has not previously filed a petition for discharge without the secretary's approval, the court shall set a probable cause hearing in accordance with s. 980.09 (2) (a) and continue proceedings under s. 980.09 (2) (b), if appropriate. 9 No. 00-0467 option to order commitment directly to supervised release after trial, Wis. Stat. § 980.06 (1999-2000); and the individual can only petition for institutional supervised placement release under after 18 months Wis. Stat. § 980.08(1) of (1999- 2000). ¶15 Under both the old and the new schemes, however, the director of the institution at which the individual is placed may still petition on the individual's behalf for supervised release at any time under Wis. Stat. § 980.08(1); and the court can still order a reexamination Wis. Stat. § 980.07(3). individual can at any time under Additionally, under both schemes, the petition for discharge under Wis. Stat. §§ 980.09(2) and 980.10; and the Wisconsin secretary of health and family services ("the Secretary") may authorize the person to petition Wis. Stat. § 980.09(1).2 for discharge at any time under Under both the old and new schemes, the individual is entitled to a periodic reexamination no later than six months after commitment, under Wis. Stat. § 980.07(1), and is entitled to subsequent periodic reexaminations at least once each 12 months thereafter. C ¶16 In his motion to dismiss, Rachel claimed that these amendments render ch. 980 an ex 2 post facto law, violate his Each of these may result in a modified commitment order authorizing supervised release rather than complete discharge from supervision. Wis. Stat. §§ 980.09(1)(c), (2)(c) (19992000). 10 No. right against double process. jeopardy, and violate his right 00-0467 to due The circuit court denied Rachel's motion and held that ch. 980 remained constitutional, despite the amendments. Rachel proceeded to a bench trial. On November 12, 1999, the circuit court a held that Rachel was sexually violent person under ch. 980, and ordered him committed to the custody, care, and treatment of the Department of Health and Family Services. ¶17 Rachel appealed his commitment. The court of appeals, recognizing the nature and scope of these issues, certified the appeal to this court. We accepted the certification, and we now affirm the holding of the circuit court. II. DOUBLE JEOPARDY AND EX POST FACTO CLAUSES A ¶18 We begin our discussion with an analysis of the double jeopardy and ex post facto challenges. When analyzing a claim under either the Ex Post Facto or the Double Jeopardy Clauses, the threshold question is whether the challenged action, in this case ch. 980, is a criminal or civil action. U.S. at 369. criminal or commitment Hendricks, 521 Here, we hold that the amended statute is not punitive under in ch. 980 nature, does not and that, violate consequently, either the a Double Jeopardy or the Ex Post Facto Clauses. ¶19 The Fifth Amendment of the U.S. Constitution states, in part, "No person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb . . . ." Similarly, Article I, Section 8, Paragraph 1 of the Wisconsin Constitution 11 No. 00-0467 states, in part, "[N]o person for the same offense may be put twice in jeopardy of punishment . . . ." Because the provisions of the state and federal constitutions are the same in scope and purpose, we have routinely followed decisions of the U.S. Supreme Court as governing the double jeopardy provisions of both constitutions. Carpenter, 197 Wis. 2d at 263; State v. Killebrew, 115 Wis. 2d 243, 246 n.2, 340 N.W.2d 470 (1983). ¶20 The Double Jeopardy Clauses protect a person against three types of action: (1) subsequent prosecution for the same offense after acquittal; (2) subsequent prosecution for the same offense after conviction; and (3) multiple punishments for the State v. Canon, 2001 WI 11, ¶8, 241 Wis. 2d 164, same offense. 622 N.W.2d 270 (citing Green v. United States, 355 U.S. 184, 187-88 (1957); State N.W.2d 35 (1998)). long-standing v. Vassos, 218 Wis. 2d 330, 341, 579 In each of these scenarios, it has been our interpretation, as well as that of the U.S. Supreme Court, that the Double Jeopardy Clause protects against subsequent criminal prosecutions. United States v. Halper, 490 U.S. 435, 440 (1989); State v. Kramsvogel, 124 Wis. 2d 101, 109, 369 N.W.2d 145 (1985). Consequently, if we conclude that one of the actions in question is civil and does not impose a criminal punishment, our double jeopardy analysis ends there. State v. Thierfelder, 174 Wis. 2d 213, 219, 495 N.W.2d 669 (1993). ¶21 analysis. Similar reasoning applies to our ex post facto Article I, Section 9 of the U.S. Constitution states, "No bill of attainder or ex post facto law shall be passed." 12 No. 00-0467 Article I, Section 12 of the Wisconsin Constitution states, "No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed . . . ." Again, because of their similarity in wording and scope, we have looked to interpretations of interpreting the Constitution. Ex the federal Post Ex Facto Post Clause Facto of Clause the when Wisconsin Carpenter, 197 Wis. 2d at 272; State v. Thiel, 188 Wis. 2d 695, 699, 524 N.W.2d 641 (1994). ¶22 It is well established that the Ex Post Facto Clauses of both the U.S. and Wisconsin Constitutions prohibit the state from enacting any law that imposes punishment for acts that were not punishable at the time they were committed. Youngblood, 497 U.S. Wis. 2d 350, 381, 577 37, 41 (1990); N.W.2d 825 State (1998). v. Thus, Collins v. Hobson, as 218 with the Double Jeopardy Clause, to violate the Ex Post Facto Clause, a statute must be criminal rather than civil in nature. Carpenter, 197 Wis. 2d at 272-73; Wis. Bingo Supply & Equip. Co. v. Bingo Control Bd., 88 Wis. 2d 293, 304-05, 276 N.W.2d 716 (1979). Our threshold question then, for both the ex post facto and double jeopardy challenges, is whether ch. 980, as amended, is a nonpunitive civil statute or a punitive criminal statute. ¶23 changes We analyze this question in two steps. in the U.S. Supreme Court's Because of double jeopardy jurisprudence since our holding in Carpenter, we focus the first part of our analysis on clarifying the standard by which this court determines whether or not a statute is punitive. 13 Second, No. we apply that standard to the amended ch. 980. questions involves questions of statutory 00-0467 Each of these construction and constitutional interpretation which this court reviews de novo. Reginald D. v. State, 193 Wis. 2d 299, 305-06, 533 N.W.2d 181 (1995). B ¶24 We begin by addressing the proper determining whether or not a statute is punitive. standard for This analysis is necessary because of a series of cases decided by this court and the U.S. Supreme Court since this court first addressed the constitutionality of ch. 980 in Carpenter. ¶25 We begin our analysis by looking at the U.S. Supreme Court's 1989 decision in United States v. Halper, 490 U.S. 435. In Halper, the defendant was a laboratory manager who was prosecuted by the federal government for multiple violations of the criminal false claims statute, 18 U.S.C. § 287 (1982). at 437. Id. After Halper was convicted, the government then brought an action under the civil False Claims Act, 31 U.S.C. §§ 37293731 (1982), in which Halper was found liable. at 438. Halper challenged the civil action, claiming that it violated the Double Jeopardy Clause. ¶26 whether The Court it violated determination, civil Halper, 490 U.S. sanction the examined double Court served the civil sanction jeopardy. attempted "the Id. twin to aims In its whether the retribution and deterrence" necessary for a statute to be punitive. 14 determine making determine of to Id. at 448. No. 00-0467 The court stated, "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving retributive or deterrent purposes, is punishment, A unanimous as we Court have come to subsequently understand held that the term." the Id. defendant's liability under the Civil False Claims Act was "sufficiently disproportionate" to the actual damages incurred by the government to constitute a second punishment, and thus violated the Double Jeopardy Clause.3 ¶27 Id. at 452. Halper was a significant departure from past double jeopardy cases, and not long after it was decided, members of the Court began to voice doubts about the holding. In Department of Revenue v. Kurth Ranch, 511 U.S. 767 (1994), the Court was asked whether Montana's tax for the storage and possession of marijuana, which was imposed in addition to other criminal drug prosecutions, violated double jeopardy. 769. Id. at The Court held that the high tax rate, the deterrent purpose, the fact that the tax was conditioned on the commission of a crime, and the fact that the tax was exacted only after the taxpayer has been arrested for the conduct that gave rise to the tax obligation, taken together, rendered the tax a "punishment" and therefore violated double jeopardy. Id. at 783-84. The Court downplayed Halper, however, noting that Halper explicitly 3 As a result, the U.S. Supreme Court remanded the case to the District Court to allow the government the opportunity to demonstrate that the court's assessment of its injuries was erroneous. United States v. Halper, 490 U.S. 435, 452 (1989). 15 No. 00-0467 applied to civil penalties, and not to taxes like the one at issue in the present case. ¶28 Id. at 778, 784. In dissent, Justice Scalia, joined by Justice Thomas, sharply questioned advocating its dissenting). holding Halper abandonment. Scalia that criminal the any decision, Id. criticized proceeding prosecution a at the that to the 804-05 majority imposes conclusion point (Scalia, for J., implicitly "punishment" that of departed is from a the Court's traditional double jeopardy jurisprudence, and even, to an extent, (Scalia, from J., the Halper dissenting). decision Scalia itself. thought Id. that at the 805-06 Court's traditional test to determine if a statute is punitive laid out in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and United States v. Ward, 448 U.S. 242 (1980) was more appropriate to determine whether the drug tax statutes constituted a second criminal prosecution. ¶29 that The Chief Justice, in a separate dissent, also noted the statute. Id. Halper Kurth dissenting). reasoning Ranch, Only 511 Justice had no place in analyzing U.S. at 786-87 (Rehnquist, O'Connor seemed to fully apply Halper in this case. be a tax C.J., willing to Id. at 798 (O'Connor, J., dissenting). ¶30 Over the next several years, the Court continued to back away from its Halper holding. In United States v. Ursery, 518 U.S. 267 (1996), the Court recognized the narrowness of the Halper rule, found it inapplicable 16 to a double jeopardy No. challenge of a "civil forfeiture," as opposed to a 00-0467 "civil penalty," and instead applied the Mendoza-Martinez factors. at 283. In Kansas v. Hendricks a holding of Id. particular relevance to our present case the majority opinion did not even cite Halper in deciding that Kansas's sexually violent person law did not violate the constitutional protection against double jeopardy. Instead, the Court once again applied many of the Mendoza-Martinez factors. ¶31 Hendricks, 521 U.S. at 361-64. In 1997, the Court finally abrogated the Halper rule explicitly. In Hudson v. United States, 522 U.S. 93 (1997), the Court redefined the basis for a double jeopardy challenge, and criticized the Halper test for spawning "a wide variety of novel double jeopardy claims." Id. at 98 & n.4. In its place, the Court reverted to the principles of Ward and Mendoza-Martinez in what is now called by some courts the "intent-effects test." See State v. Haskell, 784 A.2d 4, 8 (Me. 2001); State v. Cook, 700 N.E.2d 570, 580 (Ohio 1998). ¶32 Hudson In an opinion written by Chief Justice Rehnquist, the Court held that whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. That is, a court must first decide whether the legislature either expressly or impliedly indicated a preference that the statute in question be considered civil or criminal. Hudson, 522 U.S. at 99. ¶33 The Court also held that after making the initial determination of legislative intent, the statute must then be 17 No. 00-0467 scrutinized to determine whether it is "'so punitive either in purpose or effect' as to 'transfor[m] what was clearly intended as a civil remedy into a criminal penalty.'" Id. (quoting Rex Trailer Co. (citations v. United omitted). States, The 350 Court U.S. 148, identified the 154 (1956)) factors from Mendoza-Martinez as those that should guide the analysis: (1) [w]hether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Id. at 99-100 (citing Mendoza-Martinez, 372 U.S. at 168-69). ¶34 deviated The Court criticized significantly from the the Halper Court's analysis as having traditional double jeopardy jurisprudence by applying the Double Jeopardy Clause to a sanction without first determining whether it was criminal or civil in nature. Id. at 100. In particular, the Court noted that the Halper decision (1) incorrectly focused on whether the sanction was so grossly disproportionate to the harm caused as to constitute "punishment," rather than addressing the threshold question of (2) assessed rather whether the the character than evaluating the sanction of the statute was "criminal;" actual sanctions on face its to and imposed, determine whether it provided for what amounted to a criminal sanction. 18 No. Id. at 100-02. "unworkable." 00-0467 The Court concluded that the Halper test was Id. at 101-02. Last term, the Court reinforced its return to the pre-Halper jurisprudence in another review of a sexually violent person statute, Seling v. Young, 531 U.S. 250, 260-62 (2001). ¶35 1995 The concern in the present case arises because our decision decision in in Carpenter determining specifically that ch. 980 protection against double jeopardy. did cited not the Halper violate In the relevant section of that case, we stated: We are unpersuaded that the indicia of punishment in ch. 980 . . . is so punitive in purpose or effect as to negate the statute's remedial purpose and transform the State's intent to treat into an intent to punish. Ward, 448 U.S. at 248. As we have already stated, the relevant inquiry is directed towards the principal purposes served by the sanction, not the underlying nature of the proceedings giving rise to the sanction. Halper, 490 U.S. at 447 n.7. We conclude that the principal purposes of ch. 980 are the protection of the public and the treatment of convicted sex offenders who are at a high risk to reoffend in order to reduce the likelihood that they will engage in such conduct in the future. These constitute significant nonpunitive and remedial purposes. Chapter 980 cannot be characterized as only serving the punishment goals of deterrence or retribution. See Halper, 490 U.S. at 448-49. It is undeniable that the statute is penal to a certain degree in that it potentially subjects individuals to an affirmative restraint. However, where the principal purpose of a civil sanction is nonpunitive, the fact that a punitive motive may also be present does not make the action punishment. . . . Carpenter, 197 Wis. 2d at 271-72. 19 the No. ¶36 Rachel first asks this court to apply the broader rule of Carpenter and Halper when analyzing his case. that the 00-0467 Wisconsin Constitution can and Rachel argues should afford more protection to defendants than the U.S. Constitution, and that this court should not be forced to take "a step backward" by the U.S. Supreme Court's decision in Hudson. Rachel notes that the claims considered "novel" by the Hudson Court may be those that give rise to the "mainstream ideas and rights" of the future. ¶37 We do not find Rachel's argument persuasive. As we have previously held, because of their similarities in wording and purpose, we have looked to interpretations of the federal Ex Post Facto and Double Jeopardy Clauses when interpreting the analogous clauses of the Wisconsin Constitution. Carpenter, 197 Wis. 2d at 263, 272; Thiel, 188 Wis. 2d at 699; Killebrew, 115 Wis. 2d at 246 n.2. Thus, we afford very great weight to the U.S. Supreme Court's decisions on the federal versions of those clauses when we interpret our own. This was even the case in Carpenter, when we applied a version of the Halper analysis to ch. 980. Carpenter, 197 Wis. 2d at 262-70. We find no reason to depart from this practice for the present case. ¶38 As the Court noted in Hudson, the intent-effects test was traditionally used to determine if a statute was punitive, and proved workable for many years. Hudson, 522 U.S. at 101-02. The anomalous holdings in Halper and several subsequent cases were, as the Court said, "ill considered," and "unworkable." Id. We see no reason to disagree. 20 Thus, we conclude that No. Hudson's intent-effects test is appropriate for 00-0467 determining whether a statute violates the Ex Post Facto or Double Jeopardy Clauses of the Wisconsin Constitution as well as the federal constitution, and we will analyze Rachel's claims using that test. C ¶39 We now turn to the question of whether ch. 980 actually violates the constitutional protections against double jeopardy and ex post facto laws. In doing so, we apply the Hudson intent-effects test. ¶40 the Under the first part of the test, we must determine intent question. of the legislature Determining the in intent creating of the the statute in legislature is primarily a matter of statutory construction, and we must ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Seling, 531 U.S. at 261; Hudson, 522 U.S. at 99 (quoting Ward, 448 U.S. at 248); Hendricks, 521 U.S. at 361. ¶41 Here, there is little question that the legislature intended that ch. 980 be a civil commitment statute, passed for the purposes of control and treatment of the individual. As we noted in Carpenter: The emphasis on treatment in ch. 980 is evident from its plain language. For example, the notice provision in Wis. Stat. § 980.015(3)(b) requires the agency with jurisdiction over the person to provide the appropriate district attorney and the Department of 21 No. 00-0467 Justice with documentation of any prior treatment that the subject received while in prison. Under Wis. Stat. § 980.06(1), a person found to be sexually violent is committed to the custody of DHSS for control, care, and treatment, as opposed to the DOC for imprisonment. Further, DHSS is required to "arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person . . . ." 197 Wis. 2d at 266 (citations omitted). None of this statutory language was changed by the Act, and we can easily hold that under the first part of the Hudson test, the intent of the legislature in passing nonpunitive statute. ch. 980 was to create a civil, Rachel does not appear to dispute this point. ¶42 Moving to the second part of the intent-effects test, then, we determine whether the sanctions imposed by ch. 980 are "'so punitive in form and effect as to render them criminal'" despite the legislature's intent to the contrary. U.S. at 104 (citing Ursery, 518 U.S. at 290). Hudson, 522 In applying the second part of the test, we afford the legislative preference for the civil label great deference. proof" will remedy is, we in find that actuality, what a has Only with "the clearest been criminal denominated penalty. a civil Seling, 531 U.S. at 261; Hudson, 522 U.S. at 100 (citing Ward, 448 U.S. at 249). ¶43 To overcome by ch. 980 with determine the form respect whether and to effect the the of factors legislative the statute, identified intent we in is examine Mendoza- Martinez, and reiterated in Hudson: (1) whether ch. 980 involves 22 No. an affirmative disability or restraint; (2) whether 00-0467 it has historically been regarded as a punishment; (3) whether it comes into play only operation will on a finding promote the of scienter; traditional (4) aims whether of its punishment- retribution and deterrence; (5) whether the behavior to which ch. 980 applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Hudson, 522 U.S. at 99-100; Mendoza-Martinez, 372 U.S. at 168-69. ¶44 Because our analysis in Carpenter was guided by Halper rather than strictly by the intent-effects test of Hudson, we did not fully apply the Mendoza-Martinez factors in that case. As a result, we think it is necessary to look beyond the mere amendments in our analysis to the statute as a whole. We do place emphasis on the effect of the amendments, however, as they were the impetus for this challenge. Taking the Mendoza- Martinez factors into account in this case, we do not think that Rachel has amended, is shown, so by the punitive clearest as to proof, counteract that the ch. 980, as legislature's intent to design a civil commitment statute. ¶45 We acknowledge that ch. 980 affirmative disability or restraint. does involve an However, the mere fact of detention does not lead to the inexorable conclusion that the government has imposed punishment. Hendricks, 521 U.S. at 363 (citing United States v. Salerno, 481 U.S. 739 (1987)). 23 The No. state may take measures dangerously mentally ill. ¶46 to restrict the freedom 00-0467 of the Id. at 363. With regard to the recent amendments, however, Rachel argues that by denying a ch. 980 respondent the ability to seek supervised release until 18 months after commitment, the statute necessarily imposes an "affirmative restraint" on a ch. 980 Rachel's argument fails for several reasons. First, respondent. ¶47 as we just noted, not all forms of restraint are equivalent to punishment. Second, the "affirmative restraint" complained of by Rachel can be lifted by a number of methods, both before and after the 18-month period, even if some of those methods are not under the direct control of the individual. committed individual can petition Wis. Stat. § 980.10 (1999-2000)4. for For instance, the discharge under Likewise, the Secretary can authorize the individual to petition for discharge at any time 4 Although a sexually violent person's first petition under Wis. Stat. § 980.10 may be brought at any time, subsequent petitions brought under this section may have restrictions. The statute provides, in relevant part: [A] committed person may petition the committing court for discharge at any time, but if a person has previously filed a petition for discharge without the secretary's approval and the court determined . . . that the person's petition was frivolous or that the person was still a sexually violent person, then the court shall deny any subsequent petition under this section without a hearing unless the petition contains facts upon which a court could find that the condition of the person had so changed that a hearing was warranted. 24 No. under Wis. Stat. § 980.09(1) (1999-2000), and the 00-0467 director of the institution at which the person is committed may petition on the individual's behalf for supervised release at any time under Wis. Stat. § 980.08(1) (1999-2000). Additionally, the individual is entitled to a periodic reexamination within the first six months, and every 12 Wis. Stat. § 980.07(1) (1999-2000). months The thereafter. committing court can also order reexamination of the individual at any time under Wis. Stat. § 980.07(3) (1999-2000). ¶48 These procedures provide the individual with a periodic reevaluation of his or her mental status, a regular assessment of the efficacy of his or her treatment, and the ability to reduce the severity of the restriction, if such a reduction is appropriate.5 All of these results are consistent with the legislative intent of the statute to provide treatment to persons who have been deemed dangerously sexually violent, and to protect the public from these same individuals. State also theoretically points be out, initiated many of immediately these upon As the procedures commitment. can The fact that some of the procedures for seeking supervised release, 5 The dissent expresses particular doubt about the viability of the methods by which a committed person can gain supervised release or discharge, but which are out of the person's control. Justice Bablitch's dissent at ¶95. Despite the dissent's predictions about porcine volitation, we think it is more appropriate that the agencies and individuals that are charged with monitoring the treatment progress of institutionalized sexually violent persons be given the benefit of the assumption that they will carry out their responsibilities as the legislature has directed. 25 No. 00-0467 reexamination, and discharge are not under the direct control of the individual does not, however, convert the statute into a punitive statute. ¶49 We find it noteworthy that the Kansas sexually violent person statute reviewed by the U.S. Supreme Court in Hendricks contained no provision for immediate commitment to supervised release. Kansas Probate Code Ann. § 59-29a07 (West 2001) provides: If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the secretary of social and rehabilitation services for control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large. Such control, care and treatment shall be provided at a facility operated by the department of social and rehabilitation services. At all times, persons committed . . . shall be kept in a secure facility . . . . Additionally, the procedures by which sexually violent persons can seek currently a in supervised place in release status Wisconsin. See are similar to those Prob. Code Ann. Kan. §§ 59-29a08 (West 2001) (providing for a mandatory annual review in which the court can consider transitional release); 59-29a10 (providing circumstances under which the secretary of social and rehabilitation services can authorize a sexually violent person to petition for transitional release); 59-29a11 (providing that a sexually transitional violent release person without may, the subject to certain limitations). 26 at any approval time, of petition the for secretary, Thus, we find it hard to say No. 00-0467 that the failure to provide for immediate supervised release or the limited ability of an individual to seek supervised release necessarily converts the statute into a punitive one. ¶50 Historically, an involuntary commitment proceeding such as the one here has not been regarded as punishment, and the recent Confinement amendments under do ch. 980 not is influence premised this on a consideration. finding that the individual has a mental disorder,6 and that the disorder renders the individual dangerous to others because of the substantial likelihood that the individual will engage in acts of sexual violence. Wis. Stat. § 980.02(2)(b)-(c) (1999-2000). It is well-established that the State may take measures to restrict Hendricks, 521 the freedom of the dangerously mentally ill. U.S. at 363 (citing Salerno, 481 U.S. at 746). If it were otherwise, all involuntary civil commitments would be considered punitive. Id. As the involuntary confinement of U.S. Supreme mentally Court unstable has noted, the individuals who pose a threat to the public is a "classic example of nonpunitive detention." Id. Thus, the historical perception of such a commitment cannot reasonably be said to be punitive. ¶51 Additionally, ch. 980 does not have a scienter requirement, nor did it contain a scienter element before the statute was amended. This characteristic distinguishes ch. 980 6 For the purposes of ch. 980, "mental disorder" is defined as "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence." Wis. Stat. § 980.01(2) (1999-2000). 27 No. 00-0467 from most criminal statutes and, as the U.S. Supreme Court has pointed out, the absence of a mental state requirement is evidence that confinement under the statute is not intended to be retributive. pre- and Hendricks, 521 U.S. at 362. post-amendment, required a Chapter 980, both finding of a mental disorder, and a finding of dangerousness based on that disorder, rather than any type of culpable Wis. Stat. § 980.02(2) (1999-2000). requirement thus indicates that criminal mental state. The absence of a scienter ch. 980 is not punitive in nature. ¶52 Furthermore, ch. 980 does not promote the traditional criminal goals of punishment, retribution, and deterrence. the Kansas statute analyzed by the U.S. Supreme Like Court in Hendricks, the statute here seeks to confine persons with mental disorders that render those persons dangerous to the public. The subjects of ch. 980 are those who cannot control their actions, and who therefore would not likely be deterred by the threat of confinement. ¶53 Furthermore, the statute does not attach culpability to a respondent's conduct. Although evidence of prior acts may be admissible, it is admissible for the purposes of proving a mental disorder, or to predict future dangerousness. Likewise, a criminal conviction is not always necessary as a prerequisite for commitment under ch. 980. See 28 Wis. Stat. § 980.02(2)(a) No. (1999-2000).7 00-0467 Thus, it is not evident that the State has created a statute that serves the purposes of retribution. ¶54 Rachel argues that the amendments regarding supervised release have added a punitive effect to ch. 980. Rachel points us to the passage in Carpenter, where we held that the primary purpose of ch. 980 was to provide treatment: Respondents rely heavily on the fact that those committed under ch. 980 face an indefinite period of confinement in a secure facility as evidence that the true intent of the statute is punishment. However, ch. 980 expressly provides for supervised release either at the time of commitment, or upon the person's subsequent petition after receiving treatment. Further, the person is entitled to discharge as soon as his or her dangerousness or mental disorder abates. 197 Wis. 2d at 268 (citations omitted). Rachel suggests that, at the time, the procedures available for seeking supervised release or discharge by a person committed under ch. 980 were a primary reason Carpenter. that the Rachel statute suggests was that held constitutional confinement without in the possibility of a lesser restriction must clearly have been done for the purpose of retribution and deterrence rather than treatment. ¶55 Rachel We does disagree. not suggest The section that 7 the from Carpenter constitutionality cited by of the We note, however, that if a person is not convicted of a sexually violent offense, he or she must still either be found delinquent of a sexually violent offense or be found not guilty of a sexually violent crime by reason of mental disease or defect in order to be committed under ch. 980. Wis. Stat. § 980.02(2)(a) (1999-2000). 29 No. statute depended upon the fact that there was the 00-0467 immediate possibility for supervised release. Rather, the passage focused on indefinite" the fact that the "potentially nature of the confinement was linked to the dangerousness of the individual, and that there were avenues for decreasing the severity of the restrictions on that individual if treatment is effective in lessening the individual's dangerousness. Essentially, our discussion of supervised release in Carpenter boiled down to the fact that when a sexually violent person is no longer dangerous enough to be kept in an institutional setting, that person has the potential to be subjected to less stringent controls (such as supervised release), or when no longer dangerous, to be freed from custody completely. ¶56 present. ch. 980 Under the new amendments, that potential is still As we pointed out previously, a person committed under has many avenues for seeking release or lesser restriction, even if they are not all under the person's direct Thus, our fundamental reasoning in Carpenter still control. holds true the confinement "potentially depends on a indefinite" determination of nature the of the individual's dangerousness, which is reassessed throughout the individual's confinement to determine if lesser restriction is appropriate. ¶57 The behavior itself a crime. to which ch. 980 applies is also not As stated previously, commitment under ch. 980 requires a finding that the individual has a mental disorder, and that the disorder renders the individual dangerous to others 30 No. 00-0467 because of the substantial likelihood that the individual will engage in acts of sexual violence. Wis. Stat. § 980.02(2)(b), (c) (1999-2000). ¶58 relies Rachel is a argues crime, that and the the behavior statute is on which therefore ch. 980 punitive. However, this reasoning has been rejected by the U.S. Supreme Court in its analysis of other involuntary commitment statutes that may be "triggered" by a crime. Hendricks, 521 U.S. at 362; Allen v. Illinois, 478 U.S. 364, 371 (1986). Here, ch. 980 does require that the individual either have been found guilty of a sexually violent offense, delinquent of a sexually violent offense, or not guilty of a sexually violent offense by reason of mental disease or defect. 2000). Wis. Stat. § 980.02(2)(a) (1999- However, a mere connection to criminal activity is not sufficient to render the statute punitive. 292. the Ursery, 518 U.S. at The fundamental nature of the statute is still focused on treatment public, rather of the than individual punishment. and the protection The amendments the the to of law involving supervised release have no bearing on this factor. ¶59 Finally, the involuntary commitment, purpose. As intent we is have behind easily the ch. assigned repeatedly noted, to 980 sanction, a nonpunitive the involuntary commitment is imposed both for the treatment of the individual and for the protection of the public. We do not find this sanction purpose, excessive, given the statute's because confinement is linked to the individual's dangerousness. 31 the No. ¶60 Under the intent-effects test, we ch. 980, as amended, is not punitive in nature. that the intent of the legislature was to 00-0467 conclude that Because we hold create a civil commitment statute, and Rachel has not shown "by the clearest proof" that conclude the that effects ch. 980 of is the not a statute punitive are otherwise, criminal we statute. Because whether a statute is punitive is a threshold question for both the double jeopardy and the ex post facto analysis, we must also conclude that neither of those clauses is violated by ch. 980. III. ¶61 DUE PROCESS We now turn to Rachel's argument that the amendments to ch. 980 violate his right to the due process of law. Civil commitment, such is at issue here, constitutes a deprivation of liberty that is subject to due process protection. Texas, 441 U.S. 418, 425 (1979). Freedom Addington v. from physical restraint is a fundamental right protected by the due process clause from wrongful, arbitrary governmental action. Foucha v. Louisiana, 504 U.S. 71, 80 (1992). ¶62 We first addressed whether ch. 980 violated substantive due process in State v. Post, 197 Wis. 2d 279. In Post, in we determining looked at whether several characteristics substantive due process of was ch. 980 violated. First, we held that the use and definition of the term "mental disorder" rendered the statute narrow enough to identify those 32 No. persons it encompasses with reasonable accuracy. 00-0467 Id. at 303-04 (citing O'Connor v. Donaldson, 422 U.S. 563, 575 (1975)). ¶63 Next, we held that treatment was a bona fide goal of ch. 980, and we presumed that the legislature would proceed in good faith to fund the treatment programs described therein. Id. at 307-08 (citing State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 652, 60 ch. 980's method N.W.2d 416 for the Third, determination of we deemed "dangerousness" Id. at 311-13. constitutionally sound. ¶64 (1953)). Finally, we looked at the duration and nature of the commitment, and determined that they were consistent with the purpose of ch. 980. under ch. 980 interests with Id. at 313. permissibly the We noted that confinement balances public's right the to individual's be protected liberty from the dangers posed by those who have been proven to have a propensity toward sexual violence. Id. at 317. We also noted that the U.S. Supreme Court has recognized a compelling state interest in protecting the community from dangerously mentally ill persons and in providing care and treatment for those persons mental disorders who pose a danger to the community. with Id. at 302-03 (citing Addington, 441 U.S. at 426; Salerno, 481 U.S. at 748-49). We concluded that ch. 980 did not violate substantive due process. ¶65 In Id. at 303. the present case, Rachel appears to limit his challenge to the "duration and nature" portion of the analysis. 33 No. 00-0467 In his argument, Rachel points to language from Post, where we stated: Individuals found to be sexually violent persons are committed to the custody of DHSS "for control, care and treatment" in "the least restrictive manner consistent with the requirements of the person and in accordance with the court's commitment order." 197 Wis. 2d at 313 (quoting Wis. Stat. §§ 980.06(1) and (2)(b) (1993-94)). Rachel argues that because we "strongly relied upon" that language to find that ch. 980 did not violate due process, ch. 980 the repeal of the unconstitutional. language Rachel from the suggests that statute there makes is no longer even any pretext of treatment in the statute, and that ch. 980 clearly violates the requirements of due process set forth by the U.S. Supreme Court in Foucha v. Louisiana, 504 U.S. 71. ¶66 We do not find Rachel's argument persuasive. The mere limitation of a committed person's access to supervised release does not impose a restraint to the point where it violates due process. As we noted in our double jeopardy analysis, supra ¶¶54-56, our discussion of the "least restrictive environment" was not a holding that made a committed individual's personal ability to seek supervised release indispensable to the statute. Rather, we recognized that the statute passes constitutional muster because the physical confinement of the individual is linked to the dangerousness of the committed person. there are methods dangerousness of in the place for regularly person and reducing 34 Because determining or removing the the No. physical restrictions when the person is less or 00-0467 no longer dangerous, the intent of the statute is met. ¶67 methods This of reasoning seeking does not supervised change merely release or because some discharge from confinement are not under the committed person's direct control. The individual still can petition for discharge under Wis. Stat. § 980.10; the Secretary can authorize the individual to petition for discharge under Wis. Stat. § 980.09(1); and the director of the institution may petition for the individual's supervised release under Wis. Stat. § 980.08(1). is also entitled to regular periodic The individual reexaminations under Wis. Stat. § 980.07(1), or reexaminations at the discretion of the court under Wis. Stat. § 980.07(3). These procedures allow for consideration of any improvement in an individual's mental health, and allow the possibility of less restrictive measures or discharge from custody if the person is less dangerous or no longer dangerous. ¶68 As amended, ch. 980 still serves the legitimate and compelling state interests dangerously mentally ill dangerously mentally ill, of and and providing protecting the tailored to meet those interests. treatment the statute public is still to the from the narrowly Therefore, we conclude that ch. 980 does not violate substantive due process. IV. CONCLUSION ¶69 In conclusion, we hold that Hudson's intent-effects test is the proper threshold test to determine if a statute is 35 No. 00-0467 punitive for the purposes of the Double Jeopardy and Ex Post Facto Clauses of the Wisconsin Constitution as well as the U.S. Constitution. Applying the intent-effects test, we conclude that ch. 980, as amended by 1999 Wis. Act 9, is not a criminal, punitive statute. Therefore, we must also hold that the statute does not violate the Double Jeopardy or Ex Post Facto Clauses of the Wisconsin or the U.S. Constitution. ¶70 We also hold that the amendments do not put ch. 980 in violation of substantive due process guarantees. The statute continues to serve the compelling state interests of treatment of the dangerously mentally ill and protection of the public, and is narrowly tailored to meet those interests. Because we hold that the statute is constitutional, we affirm the decision of the circuit court and uphold the circuit court's decision to involuntarily commit Rachel as a sexually violent person under ch. 980. By the Court. The order of the circuit court is affirmed. DAVID T. PROSSER, J., did not participate. 36 No. ¶71 ANN WALSH BRADLEY, J. 00-0467.awb The (concurring). issue addressed by the majority is whether the amendments that limit a Wis. Stat. ch. 980 release are respondent's constitutional. ability to Although I seek have supervised reservations, ultimately I am persuaded that the respondent has not met the high burden of proving beyond a reasonable doubt that the amendments as written transform a constitutional statute into an unconstitutional separately to statutory voice my scheme. concerns that Nevertheless, the I supervised write release provisions as applied are on the brink of running afoul of the constitution. ¶72 In State v. Carpenter, 197 Wis. 2d 252, 267, 541 N.W.2d 105 (1995), which I authored, the court assumed that the State was "prepared to provide specific treatment to those committed under ch. 980 and not simply warehouse them." ¶73 In State v. Post, 197 Wis. 2d 279, 308, 541 N.W.2d 115 (1995), where I joined the majority, the court assumed that "the legislature will proceed in good faith and fund the treatment programs necessary for those committed under chapter 980." ¶74 as to In response to the skepticism expressed by the dissent whether supervised release is a viable option, the majority in this case once again relies on an assumption that the State obligations. will meet The its majority statutory writes: and "we constitutional think it is more appropriate that the agencies and individuals that are charged with monitoring the treatment progress of institutionalized sexually violent persons be given the benefit of the assumption 1 No. that they will carry out legislature has directed." ¶75 their 00-0467.awb responsibilities as the Majority op. at ¶48 n.5. The court's assumptions and the State's good faith are wearing thin. ¶76 We continue to gain experience with ch. 980 has played out in the real world. the way that Since Carpenter and Post, the case law has become rife with examples of the State's inability to provide appropriate placements for those committed under ch. 980. ¶77 322, For instance, in State v. Sprosty, 227 Wis. 2d 316, 595 N.W.2d 692 (1999), the committed individual went unreleased solely because his county of residence "did not have the appropriate resources to address his treatment needs in a community setting." Other counties with facilities apparently "unwilling or unable to admit him." ¶78 were Id. Likewise, in State v. Krueger, 2001 WI App 76, ¶2, 242 Wis. 2d 793, 626 N.W.2d 83, "difficulties finding a residence for Krueger derailed the planned release." with his stepfather, attention. ¶79 but this plan Krueger was to live failed accept media There was more of the same in State v. Castillo, 205 was unable the alternatives to committed were locate a community individual. rejected placement at a halfway house. the local Id. at ¶¶28, 37. Wis. 2d 599, 556 N.W.2d 425 (Ct. App. 1996). State after halfway house rejected as Id. In that case, the placement at impracticable, Id. at 605. the placement 2 it would After 610. that other settled on Soon after, however, because of fear of No. 00-0467.awb "public reaction" and that "the town would take zoning action against it." apartment Id. under A final alternative, placement in a private supervision of a private failed because of community pressure. ¶80 And there is still more: social worker also Id. In State v. Keding, No. 00- 1700 one of the many ch. 980 cases that has reached this court in this futility term of respondent. alone even attempted the State supervised During the recognized release course of oral the apparent placements arguments, for the the State acknowledged that attempted placement in five different counties had failed. When asked if there was any alternative in the community for the respondent, the State replied, "I don't know, and apparently [the circuit court judge] didn't believe there was." The State also said: "If you're asking me what should we do about it, I could come up with some things, but it's not for me to do it. ¶81 It's for the legislature to do it." One can only speculate as to how many additional cases there are that present similar facts. ¶82 When an individual committed under ch. 980 cannot be appropriately placed, his treatment is severely hampered, if not undermined completely. treatment is a constitutionality. The viability necessary and predicate feasibility to ch. of 980's Should the promise of treatment be proven an illusion, this necessary predicate to the constitutionality of ch. 980 is removed. ¶83 Although implications for the reality treatment of my is 3 supervised primary release concern in and its writing No. today, it is not my only one. 980's constitutionality procedures available is under The majority reasons that ch. also predicated the statute on for individual to secure review of his commitment. ¶48. 00-0467.awb the the various committed Majority op. at Whether these procedures are regularly followed by the State is also open to question. In one recent case, it took the State nearly two years to provide the committed individual with the reexamination that the statute requires to occur within six months. State ex rel. Marberry v. Macht, 2002 WI App 133, ¶28, ___ Wis. 2d ___, ___ N.W.2d ___, review granted June 11, 2002 (No. 99-2446). ¶84 Chapter 980 cannot continue to survive constitutional scrutiny if the predicates for its constitutionality prove to be false. The State must take steps to ensure placement and treatment actually happen. that proper When an individual committed under ch. 980 cannot be appropriately placed, or is not timely assessed, the viability and feasibility of treatment are called into question. ¶85 Treatment is a necessary component constitutionality of the ch. 980 statutory scheme. a purportedly civil commitment becomes a to the Without it, "mechanism for retribution or general deterrence functions properly those of criminal law, not civil commitment." 407, ___, omitted) 122 S. (citing Ct. 867, Kansas v. 870 Kansas v. Crane, 534 U.S. (2002) Hendricks, (1997) (Kennedy, J., concurring)). 4 (internal 521 U.S. quotations 346, 372-73 No. ¶86 00-0467.awb It is the oft-stated rule that a statute is presumed constitutional and reasonable doubt." must be proven unconstitutional "beyond See, e.g., State v. Hahn, 2000 WI 118, ¶30, 238 Wis. 2d 889, 618 N.W.2d 528. It is only this rule that leads me to join the mandate of the majority opinion. little doubt remains continues to slip away. ¶87 a Accordingly, I respectfully concur in the mandate. 5 What No. ¶88 SHIRLEY S. ABRAHAMSON, CHIEF 00-0467.ssa JUSTICE (dissenting). Justice Bradley's concurrence is very persuasive. In my opinion it leaves no doubt about the unconstitutionality of the statute. I therefore agree with the conclusion Bablitch in his dissent. 1 reached by Justice No. ¶89 WILLIAM A. BABLITCH, J. 00-0467wab I (dissenting). respectfully disagree with the majority's conclusion that the present Wis. Stat. ch. 980 is constitutional. After this court in State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), and State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995), declared ch. 980 constitutional, the legislature passed several key amendments to ch. 980 that fundamentally altered the purpose of the statute from treatment and protection to This the legislature cannot constitutionally do. punishment. Accordingly, I respectfully dissent. ¶90 to do Wisconsin's sexual predator law allows the government something quite contrary to all of our notions of individual freedom and the government's right to deprive its citizens of that freedom. It allows the government to continue to deprive a person of his freedom after he has served his sentence. The government can do that, narrowly prescribed circumstances. but only under very A majority of this court, including this writer, upheld the constitutionality of that law in Post and Carpenter, concluding that treatment and protection of the public, not punishment, were its primary purposes. See Post, 197 Wis. 2d at 313; Carpenter, 197 Wis. 2d at 266. ¶91 The majority based its conclusion that the primary purpose of the law was not punitive on two aspects of that law. First, the court's initial order must specify either supervised release or institutional care. Id. The statute set forth the considerations in determining if the commitment would be to a 1 No. secured facility or to supervised release. 00-0467wab Second, it also provided that a committed person could petition the court for supervised order. release six months after the initial commitment Id. at 268. ¶92 Both of these provisions have been fundamentally altered and accordingly have changed the very nature of the law from treatment and protection to punishment. ¶93 First, the amended statutes eliminate the option of supervised commitment release when person. a and now person is Involuntary require found to commitment mandatory be a is involuntary sexually required violent without consideration as to the most appropriate and effective treatment while providing discretion to public order safety. supervised individual's condition. The release court if no longer warranted by has an Commitment is mandatory regardless of the particulars. ¶94 Second, a person committed for institutional care must now wait three times longer (18 months instead of six months) to petition the committing court for supervised release. A committed person can no longer request a timely review of his or her own condition, thereby ensuring departmental accountability. These changes significantly alter the prior law and collectively amount to punishment of, rather than treatment for, the mentally ill. ¶95 The majority points out that there are several avenues for petitioning the court for discharge or supervised release. These are illusory. One of the options is that the petition can 2 No. 00-0467wab be initiated by the committing court, the secretary of health and family services, or the director of the facility where the person is institutionalized. See majority op. at ¶47. The reality, plain and simple, is that pigs will fly before any of these options are exercised. ¶96 The second option is for petition the court for discharge. the committed person This too is illusory. to Why would a court allow an individual to be discharged without any supervision within that 18 months when the legislature will not even allow supervised release within that 18 months? The reality is, this just won't happen. ¶97 The majority also notes that Kansas's sexually violent person statutes reviewed by the U.S. Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997), do not provide for immediate supervised release upon commitment. However, unlike Wisconsin's See majority op. at ¶49. amended Wis. Stat. ch. 980, the Kansas statutes do allow committed individuals to petition for transitional release at any time. See Kan. Stat. § 59-29a11; see also Hendricks, 521 U.S. at 353. ¶98 In essence, Wis. Stat. ch. 980 as amended involuntarily commits individuals found to be sexually violent persons regardless appropriate of treatment. what would be Involuntary the civil most effective commitment, and without even the opportunity to petition for supervised release for 18 months, cannot be described in any way except punitive. If treatment and public safety were in fact the primary purposes of ch. 980, then the nature and duration of commitment would be 3 No. based on a requirement mandatory person's of a particular minimum commitment may term condition of actually purposes of treatment and public safety. keeping an release individual could committed actually who impede rather confinement. detract 00-0467wab from the than In a fact, purported It is possible that is ready his or for her supervised successful reintegration into society. ¶99 The majority claims that the amended Wis. Stat. ch. 980 is not punitive under the 2-prong intent-effects test of Hudson v. United States, 522 U.S. 93 (1997). at ¶60. I disagree. See majority op. First, the legislature's amendments to ch. 980 demonstrate a marked shift from treatment and public safety to punishment. In Carpenter, this court reasoned that ch. 980 emphasized treatment, which was evident from its plain language: Under Wis. Stat. § 980.06(1), a person found to be sexually violent is committed to the custody of DHSS for control, care, and treatment, as opposed to the DOC for imprisonment. Further, DHSS is required to "arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person . . . ." Carpenter, 197 Wis. 2d at 266 (emphases added). ¶100 Wisconsin Stat. § 980.06 was fundamentally altered by requiring commitment to institutional care and eliminating the language that treatment and control are to be provided in the least restrictive manner. commitment order under The amended § 980.06 now states: "A this section shall person be placed in institutional care." specify that the Thus, this court's conclusion in Carpenter that the legislature's primary aim under Wis. Stat. ch. 980 is to treat sexually violent persons, rather 4 No. than punish them, rests eliminated. on statutory language that 00-0467wab has been Contrary to this court's assessment of the prior law in Carpenter, ch. 980 as amended does not "provide specific treatment to warehouse[s] those them" committed by . foreclosing . . the [but rather] option release regardless of an individual's condition. of simply supervised Carpenter, 197 Wis. 2d at 267. ¶101 Second, in determining whether Congress, despite its intentions to the contrary, enacted a statutory scheme that was so punitive in purpose and effect to negate that intention, the U.S. Supreme Court in United States v. Ward, 448 U.S. 242, 25051 (1980), used the seven considerations listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 166-68 (1963). These factors included: Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment--retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned . . . . Id. at 168-69 (footnotes omitted). guidelines leads to the Here, applying those same following determinations: (1) Wis. Stat. ch. 980, as amended, requires affirmative restraint of an individual upon being found a sexually violent person; (2) institutional confinement has historically been regarded as a form of punishment; (3) individuals committed as sexually violent persons usually have knowledge of their offenses that 5 No. 00-0467wab constitutes scienter; (4) as amended, ch. 980 promotes the aims of punishment retribution and deterrence by imposing a mandatory term of involuntary confinement; (5) the behavior to which ch. criminal; without 980 applies, and (6-7) regard to namely the an sexually mandatory individual's violent commitment offenses, under particular ch. is 980, condition, is excessive in relation to the alternative purposes of treatment and protection of the conclusion is inevitable: public. Given these factors, the the statute is punitive. ¶102 I concurred in Carpenter because under the prior law there was a "rational connection between the affirmative restraint and treatment required by the statute and its purpose of protecting the public." (Bablitch, J., concurring). Carpenter, 197 Wis. 2d at 278 I cannot reach the same conclusion due to these two fundamental changes to Wis. Stat. ch. 980: (1) the elimination of the option of supervised release at the time of commitment and (2) the tripling of the length of time an individual must wait to petition for supervised release. These amendments transform the former civil statutory scheme of ch. 980 to a punitive one and thereby violate the constitutional requirements of due process, double jeopardy, and in Rachel's case, ex post facto. Accordingly, I respectfully dissent. 6 No. 1 00-0467wab

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