State v. Edwin Clarence West, 2011 WI 83, affirming unpublished opinion; for West: Ellen Henak, SPD, Milwaukee Appellate; case activity [Companion case: State v. Nordberg, 2011 WI 84 (same result, controlled by West).]
Someone under ch. 980 commitment as a sexually violent person bears the burden of proving by clear and convincing evidence the criteria for granting supervised release under § 980.08(4)(cg), as a matter of both statutory and constitutional analysis.
In its particulars, the holding will probably be of interest only to SVP practitioners, a small and surely forlorn branch of the defense bar. In a narrow sense, the court does little more than ratify State v. Rachel, 2010 WI App 60, 324 Wis. 2d 465, 782 N.W.2d 443; does little more, in other words, than decline to upset the status quo. Larger principles, of more general interest, may nonetheless be extracted, having to do with allocation of the burden of proof.
The provision at issue, § 980.08(4)(cg), requires that a court must find that “all” of 5 specified criteria exist before authorizing supervised release from institutionalization. The provision, however, fails to mention the burden of proving these criteria: which party must satisfy the court that the criteria have been satisfied, and by what standard. (West argued that this absence evinced legislative intent that the court’s task is discretionary, unmoored to any burden of proof, a proposition with which the dissent agrees, ¶112.) Despite this omission, the majority sees the statutory text as plainly allocating the burden to the SVP, ¶55. In reaching this conclusion, the court relies primarily on the 5-factor test announced by State v. McFarren, 62 Wis. 2d 492, 499-500, 215 N.W.2d 459 (1974):
¶63 The court’s holding in McFarren in 1974 lays the groundwork for our holding here. In McFarren, this court set forth a five-factor test for courts to apply in allocating the burden of proof. These factors were adopted, as modified, from McCormick on Evidence. McFarren, 62 Wis. 2d at 499-500 (citing McCormick on Evidence § 337 (2d ed. 1972). These factors are:
(1) the natural tendency to place the burdens on the party desiring change;
(2) special policy considerations such as those disfavoring certain defenses;
(4) fairness; and
(5) the judicial estimate of probabilities.
Id. at 499-503.
This framework has general applicability: McFarren was recently cited, for example, to allocate the burden of proof to a deaf defendant claiming that physical restraints interfered with his ability to communicate via signing, State v. Russ, 2006 WI App 9, ¶7, 289 Wis.2d 65, 709 N.W.2d 483. As to the specific matter at hand, supervised release under ch. 980 commitment, the court goes through each of the five factors and basically determines that those factors favoring West aren’t meaningful, while those favoring the State are entitled to great weight, ¶¶65-73. And as to the latter, they may be summed up in two words: “public safety.” The court thus seamlessly concludes that the burden of proof – entirely unspecified by the statutory text – is clear and convincing because of the “prevailing concern for the safety of the public …. Proof by a preponderance of the evidence would require a mere showing that it is more likely than not that West would not commit another act of sexual violence. Where the likelihood we are weighing is whether another individual would be more or less likely to be a victim of an act of sexual violence, we are unwilling to set the standard so low,” ¶¶79-80.
The court then dispatches due process and equal protection challenges, ¶¶83-99. Someone committed under ch. 980 “does not have a recognized, protectable liberty interest in supervised release,” ¶89 (hence, due process can hardly be violated by requiring the person to show why release is appropriate; the majority all but says that the legislature is free to abolish supervised release). And any differences in the way 980 commitments are treated in comparison to other classes of commitments (ch. 51; NGI) are permissible because of … public safety, ¶95 (“the legislature’s judgment that sexually violent persons are more dangerous”).
Have we arrived at the point where it might be more accurate to describe Sexually Violent Persons’ Commitment as “preventive detention”? The dissent is very much inclined in that direction, if using different rhetoric (“chapter 980 increasingly resembles a punitive scheme,” ¶129). Even if that is so, the scheme might still be upheld if public safety is considered the most important variable. But the court’s reliance on that variable could be misplaced: a recent study of the impact of SVP commitment on sexual violence (including data from Wisconsin) concludes “that the SVP law has no noticeable effect on the rate of sex killings or forcible rapes …. All of the empirical indicators developed in this paper are consistent with the proposition that SVP laws do not prevent forcible rape or sex killings.” LaFave & McCrary, “Assessing the Crime Impact of Sexually Violent Predator Laws” (pp. 34-35). The court may rely on “public safety” as a justification for a very expensive confinement regime that disparately treats a select group of people, but who has the burden of (dis-)proving that assumption? And if it turns out to be a false assumption, perhaps holdings such as this one will have to be revisited.