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SVP – Post-Disposition — Failure to Obtain Residential Placement on Court Order for Supervised Release

State v. Shawn D. Schulpius, 2006 WI 1, affirming, 2004 WI App 39
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding1: Failure to place Schulpius on court-ordered supervised release did not “shock the conscience,” hence did not violate substantive due process, where the failure occurred despite good-faith, substantial efforts to comply with the order, ¶31.

Issue/Holding2: Failure to place Schulpius on court-ordered supervised release violated procedural due process.

¶38      … Although the state has a compelling interest in protecting the public from sexually violent persons, [9] the private interests at stake, freedom from physical restraint, [10] is equally critical. The risk of erroneous deprivation of an individual’s liberty is unacceptably heightened by the state’s failure to abide by procedures established to ensure the preservation of fundamental rights.

¶39      We therefore conclude that Schulpius’s continued placement in secure confinement for an extended period after the circuit court had repeatedly ordered he be placed on supervised release, violated his right to procedural due process. However, release, either outright or supervised, is not an appropriate remedy for Schulpius at this time, where his substantive due process rights were not violated, but where there was a violation of procedural due process. …

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