00-0467 In Re: the Commitment of Tory L. Rachel v. Rachel

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“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. … We acknowledge that ch. 980 does involve an affirmative disability or restraint. However, the mere fact of detention does not lead to the inexorable conclusion that the government has imposed punishment.”

And, even though a ch. 980 respondent cannot seek supervised release until 18 months after commitment, that does not impose an ‘affirmative restraint’ on the respondent because 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. For instance, the committed individual can petition for discharge under Wis. Stat. sec. 980.10 (1999-2000). …

“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. 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. …

“Under the intent-effects test, we conclude that ch. 980, as amended, is not punitive in nature. Because we hold that the intent of the legislature was to create a civil commitment statute, and Rachel has not shown ‘by the clearest proof’ that the effects of the statute are otherwise, we conclude that ch. 980 is not a punitive criminal 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.”

Petitioner’s due process argument is similarly unavailing.

Affirmed.

CONCURRING OPINION: Bradley, J. “The issue addressed by the majority is whether the amendments that limit a Wis. Stat. ch. 980 respondent’s ability to seek supervised release are constitutional. Although I have 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 statutory scheme. Nevertheless, I write separately to voice my concerns that the supervised release provisions – as applied – are on the brink of running afoul of the constitution.”

Kenosha County, Warren, J., Wilcox, J.

Attorneys:

For Appellant: Richard H. Hart, Milwaukee

For Respondent: Warren D. Weinstein, James E. Doyle, Madison