Sex predator laws face changes

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Fewer of those deemed sexually violent persons may win supervised release from commitment if the provisions in a bill before the state Assembly become law — and that’s as it should be, according to one of the bill’s authors.

State Sen. Mary Lazich (R-New Berlin) told the Assembly Committee on Criminal Justice at a public hearing last week that studies show that there is no cure for individuals who commit violent sexual acts against children.

“I think that an individual that does this type of activity against children even once does not belong in the community,” she said. “Our primary goal must be to protect children from individuals who have violently — violently — sexually assaulted children. It’s just not appropriate to give them a second chance to do it.”

The bill proposes amendments to Chapter 980 of the Wisconsin Statutes, which governs commitments of “sexually violent persons.” The proposed legislation would alter the definition of that term, modify the process under which those who fall within it could be granted supervised release, require their active participation in treatment as a condition of release, establish a committee to recommend a site for the anticipated “transitional facility” to house sexual predators, and require that a sexually violent person granted supervised release be placed in a transitional facility if one exists in his county.

Current law requires a court considering a sexually violent person’s petition for supervised release to first determine whether release is appropriate. The court must find that it is if the state fails to prove that it is substantially probable that the person will commit acts of sexual violence absent continued institutionalization. If the court grants the petition, then the Department of Health and Family Services and the county in which the person is to be placed prepare a plan for treatment and any services to be provided during release and submit it to the court for approval.

The process is under fire in Milwaukee, where public resistance recently foiled attempts to place convicted sex offenders who were approved for release. In one high-profile case, convicted offender Billy Lee Morford remains in a house in an area that some call inappropriate, while attempts to find other housing failed following community uproar.

Rep. Jeff Stone (R-Greendale) who is also an author of the Assembly bill, told the committee the legislation would correct flaws in the process that allowed the Morford situation to develop.

“If we had not had a bifurcated system of release then in place, we wouldn’t have that problem,” he said.

If the Assembly bill were enacted, the court would have to deny a petition for supervised release if the state proved by clear and convincing evidence the existence of any of several specified criteria, such as a likelihood of further acts of sexual violence in the absence of institutional care, unsatisfactory treatment progress or a likelihood of noncompliance with conditions of release. The court would also have the authority to defer decision under some of the criteria until a hearing on a plan for supervised release.

If the petition were not denied outright under the criteria, the department and county would be required to consider proximity to residential subdivisions and facilities for children in evaluating any proposed residential placement, provide information to local municipalities about the proposal and provide any comments received from the municipalities to the court. Local officials would receive copies of the information and comments for proposed placements other than in transitional facilities, and they would be provided notice of the hearing on the plan.

After a hearing on the plan, the court could grant the petition and approve the plan, order modification of the plan, or deny the petition for release if the state proved the plan would not provide sufficient “security to protect the community” or that it failed other criteria. However, if the court granted a petition for supervised release and an approved transitional facility existed in the county, the person would be required to be placed there if space were available.

‘More Likely Than Not’ Standard Debated

The bill also would potentially expand the number of sex offenders who could be classified as sexually violent persons by changing the definition of the term to include those who are dangerous because of a mental disorder that makes it “more likely than not” that they will engage in acts of sexual violence, as opposed to “substantially probable” under the current Chapter 980.

A pending Senate bill also would change the standard to “more likely than not,” as would proposed legislation drafted by Attorney General Peg Lautenschlager’s office.
Raymond M. Dall’Osto, of Gimbel, Reilly, Guerin & Brown in Milwaukee, compared the “more likely than not” standard to the plot in the 2002 science fiction thriller “Minority Report,” which depicted a system under which peo
ple were arrested for alleged future crimes.

“Are we going to have a permanent preventive detention? That’s what this bill is about,” he said in a telephone interview. “It is preventive detention not for a crime that has been committed, or for a crime that you are probably going to commit, but one that you might or doctors can’t say that you will not.”

But Lautenschlager said at a press conference last month in support of her proposed legislation that the “more likely than not” standard is appropriate.

“We figure that if the odds are such that an offender is going to recommit a sexually violent offense that that offender ought to remain in custody,” she said.

John A. Birdsall of Birdsall Law Offices SC in Milwaukee said in a telephone interview last week that the Assembly bill shows a lack of concern for the people and the proper process.

“It’s going to make it incredibly easy to prove up these cases,” he said. “It really guts the whole process.

“Basically, what we’re saying is that at the discretion of the prosecutor, it’s a life sentence for these guys.”

Public Opposition Stymies Placements

Dall’Osto said that the “more likely than not” standard could raise constitutional concerns, likening it to branding or marking sex offenders.

“There’s this demonization hysteria in the media and unfortunately the Legislature has responded to that,” Dall’Osto said.

Reports in the media that Wisconsin leads the nation in the release of sexual predators attracted additional attention to the issue recently.

Richard F. Raemisch, administrator of the Department of Corrections’ Division of Community Corrections, suggested alternatives to some of the provisions in the proposed legislation, but he added that he appreciated the attempt to provide guidance in placement, a task that has been complicated by public reaction.

“The pitch forks have been sharpened, the torches have been lit, and the sexual-predator Frankensteins are being chased out of the state of Wisconsin,” he said at the committee hearing. “We need your help.”

Stone said at the hearing that the bill was an attempt to balance civil rights and public protection.

While Stone noted that the bill would not give local communities the power to “veto” a proposed supervised release plan, Birdsall told the Wisconsin Law Journal that local property owners are likely to continue to use their influence to oppose placements near them.

“Even if they don’t have children, they don’t want that kind of negative attention brought to their neighborhoods if for no other reason than property values,” he said.

Note: Tony Anderson made contributions to this article.