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SVP Discharge Procedure: Post-Trial Changes in Actuarial Scoring

State v. Herbert O. Richard, 2011 WI App 66 (recommended for publication); for Richard: Steven D. Grunder, SPD, Madison Appellate; case activity

Changes in the scoring of the actuarial test which was used to support Richard’s commitment at his original trial, cannot support his discharge petition even though his new score would reduce his predicted likelihood of reoffending.

¶13      Richard argues that the circuit court improperly dismissed his petition for discharge and that he is entitled to a discharge hearing.  According to Richard, the research paper he submitted that argues for changes to the Static-99 scoring system represents a fact from which a fact finder could conclude that his condition has changed such that he is no longer a sexually violent person.  We disagree.  As the circuit court noted, Richard did not allege any new historical facts to show that his condition has changed since he was committed.  Rather, Richard submitted a research paper that is unassociated with his specific condition.  That paper provides no insights into Richard’s likelihood of reoffending.

¶14      The psychologists who evaluated Richard applied three actuarial tests to the facts of Richard’s condition and concluded that Richard was more likely than not to commit another act of sexual violence.  The psychologists also relied on other substantial factors in their evaluation.  Richard’s petition relies entirely on a research report that suggests changes to the scoring model of one of the three tests used by the psychologists who evaluated Richard.  We conclude that a research paper by itself is not sufficient to get an offender past the initial “paper review” stage in the two-step review process laid out by Wis. Stat. § 980.09 and Arends.

State v. Pocan, 2003 WI App 233, 267 Wis. 2d 953, 671 N.W.2d 860, and State v. Combs, 2006 WI App 137, 295 Wis. 2d 457, 720 N.W.2d 684, distinguished: “The new diagnosis of Pocan was based on new actuarial tables; we did not say that a new actuarial table by itself could be used as evidence that an offender was no longer a sexually violent person.  As Richard has not undergone a new psychological examination, Pocan is inapplicable,” ¶17. As for Combs, which held that an expert’s mere reinterpretation of a prior actuarial test result didn’t support discharge, the court now clarifies:

¶19      Richard argues that Combs held that a new actuarial table by itself is enough to demonstrate that an offender is no longer a sexually violent person.  This is not so.  We stressed in Combs that the problem was that the court-appointed psychologist’s report was not based upon any new actuarial tools or methods.  Richard improperly deduces that Combs held that new actuarial research, absent a psychological examination, is enough to demonstrate that an offender is no longer a sexually violent person.  Combs, like Pocan, is not controlling as Richard has not undergone another psychological evaluation using the research report he cited.

Certainly, actuarial risk assessments are relevant to commitment, State v. Smalley, 2007 WI App 219, ¶18, 305 Wis. 2d 709, 741 N.W.2d 286 (cited by the court here for a different point). But as explained in State v. Brown, 2005 WI 29, 279 Wis.2d 102, 693 N.W.2d 715, ¶84 n. 31, their utility is limited in that they measure group data but not “any … individual to whom the ARAs might be administered.” Might commitment be based primarily if not solely on actuarials? The court doesn’t say. If it may, then why can’t a discharge petition be based on revision of an actuarial, without requiring “another psychological evaluation” incorporating the revision? For that matter, just where does the court find the requirement for a new “psychological examination” (or, “evaluation”) on discharge?

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