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SVP – Disposition: Supervised Release – Revocation – Consideration of Alternatives to Revocation

State v. Ervin Burris, 2004 WI 91, affirming 2002 WI App 262, 258 Wis. 2d. 454, 654 N.W.2d 866
For Burris: Joseph L. Sommers

Issue: Whether, on revocation of supervised release of a sexually violent person, § 980.06(2)(d) (1997-98),  the circuit “court must, for any reason, expressly consider alternatives to revocation before revoking supervised release when the court determines that the safety of others requires revocation, or when the safety of others requires a person’s commitment to a secure facility.” (¶20)

Holding: Constitutional argument:

¶22. An alleged sexually violent person, subject to commitment under Chapter 980, is not a criminal defendant but has the same constitutional rights as a criminal defendant at trial. State ex rel. Seibert v. Macht, 2001 WI 67, ¶12, 244 Wis. 2d 378, 627 N.W.2d 881, as revised in State ex rel. Seibert v. Macht, 2002 WI 12, ¶2, 249 Wis. 2d 702, 639 N.W.2d 707; Wis. Stat. § 980.05(1m). Moreover, the court of appeals has concluded that procedural due process protections afforded to persons in probation and parole revocation proceedings also apply in supervised release revocation proceedings under Chapter 980. See State v. VanBronkhorst, 2001 WI App 190, ¶9, 247 Wis. 2d 247, 633 N.W.2d 236.¶23. Burris asserts that due process protections afforded in probation and parole revocation proceedings include a requirement that the decision-maker consider alternatives to revocation. For this proposition, he points to Plotkin. This, however, is where his analysis breaks down.

¶30. In Plotkin, this court adopted these standards for probation revocation, not as a requirement of due process but as a prescription of good policy.11 Thus, reasoning by analogy, we conclude that due process does not require that a court expressly consider and reject alternatives to revocation before revoking a sexually violent person’s supervised release when the court determines that the public safety requires the person’s commitment to a secure facility.

Statutory argument:

¶33. Under the former statute applicable in this case, the court was directed to commit a sexually violent person to the custody of DHFS for control, care, and treatment until such time as the person “is no longer a sexually violent person.” § 980.06(1). An order for commitment was to specify either institutional care or supervised release. § 980.06(2)(b). DHFS was directed to “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 court’s commitment order.” Id. (emphasis added).…

¶40. The statute does not state explicitly what the court must consider. We think it is self-evident, however, that when the court determines, on the evidence after a hearing, that “the safety of others requires that supervised release be revoked,” the court has found that there is clear and convincing evidence that it has no alternative but to revoke to assure the safety of others. Put another way, the court has found that the safety of others requires the person’s commitment to a secure facility because supervised release will not be adequate.

¶41. The dictionary definition of the word “require” contains such phrases as: “To have as a requisite,” “To call for as obligatory,” “To impose an obligation on; compel.” The American Heritage Dictionary of the English Language 1533 (3d ed. 1992). If the court finds that the safety of others compels that supervised release be revoked, the court need not provide an explicit statement why alternatives to incarceration were considered but not selected. If the court ever has question about the need to revoke on this ground, it can find that the state has not satisfied its burden of proof, or it can proactively explore alternatives to revocation.

¶44. As noted, the statute also provides that if “the court determines after hearing that any rule or condition of release has been violated . . . it may revoke the order for supervised release and order that the released person be placed in an appropriate institution.” Wis. Stat. § 980.06(2)(d) (emphasis added). Here again, the statute does not state explicitly what the court must consider or what the court must explain. However, given the wide range of potential rule violations, including the failure to pay fines and restitution, we expect courts will recognize that revocation of supervised release based upon violation of one or more conditions or rules is likely to receive much closer scrutiny than revocation based on a finding that “the safety of others requires” revocation. In such a case, a court should explore alternatives or fully explain why some step short of revocation would not be adequate.

¶45 … When supervised release is revoked on the basis of the violation of a rule or condition of release, the court should explain its decision and square that decision with the treatment-oriented purposes of the law.

The Chief Justice explains the decision’s sub-text:

¶110. The record in the present case demonstrates that the real basis for the circuit court’s decision to revoke supervised release was that placement in this half-way house was not suitable for any chapter 980 committee. The clear inference from the record is that a different placement might have been satisfactory for Burris and for public safety. But, as the circuit court was well aware, the State has had great difficulty in finding or establishing placements for chapter 980 individuals.40)

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