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Constitutionality of Ch. 980 – Absence of Proof of “Imminent” Danger

State v. Terry L. Olson, 2006 WI App 32, PFR filed 3/16
For Olson: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether ch. 980 is unconstitutional because the SVP definition of “dangerousness” is not linked to imminent risk.


¶5       We deem Olson’s reliance on Lessard misplaced. In 2002, our own supreme court considered a challenge to Wis. Stat. ch. 51 and never so much as mentioned LessardSee generally Dennis H., 255 Wis. 2d 359. The court stated that substantive due process did not require the State to restrict the scope of its mental health commitment statutes to individuals who are imminently physically dangerous. Id., ¶38. Dennis H. observed that the statute was designed to protect “those who are chronically mentally ill and drop out of therapy or discontinue medication, giving rise to a substantial probability of deterioration in condition to the point of inability to function independently or control thoughts or actions.” Id., ¶41. “Deterioration,” of course, can be gradual and might not result in immediate inability to function or control one’s actions. Dennis H. wholly answers the question of whether ch. 51 requires an “imminence” requirement, and we are bound by that precedent. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (only the supreme court can overrule a supreme court decision).

¶6        If an imminence requirement is not mandated in Wis. Stat. ch. 51 commitments, it is even less appropriate for Wis. Stat. ch. 980 confinements. Our courts have recognized that ch. 980 serves two important compelling purposes: protecting the public from violent sex offenders and providing care and treatment to individuals whose mental disorders predispose them to sexual violence. Post, 197 Wis. 2d at 302-03. As a class, these individuals present a graver danger to the public than others with mental disorders. … The underlying propensity for uncontrollable violence is not confined to the immediate future but rather presents an ongoing threat to the public. Thus, the fact that the legislature did not myopically limit its view of dangerousness to the immediate future does not render the statute unconstitutionally infirm.

The result might be predictable, but the court’s rhetoric if nothing else is noteworthy. For one thing, the court rightly says that the “supreme court has had many opportunities to invalidate Wis. Stat. ch. 980” but hasn’t, and therefore must not find problematic the definition of “dangerous,” ¶11. True, no doubt. Early on, the court was somewhat hesitant about extending the reach of ch. 980 but that diffidence seems to have pretty well dissipated over time, along with restrictions to commitment. Then there is the court’s uncritical embrace of the fiction that we can refine the “science” of predicting behavior well into the future, ¶10: “What may be a ‘foreseeable’ period based on one psychiatric assessment might differ from what is reasonably predictable using different methodologies. Moreover, each case has its own facts that might influence how far into the future one can predict a likelihood of dangerous behavior. The legislature had no obligation to ignore this reality.” What “reality”? The one that says if you give your prediction a long enough time horizon you’ll be long gone before “different methodologies” cast doubt on it? ( See, e.g., State v. Henry Pocan, 2003 WI App 233.) But this just leads to the court’s observation, at the outset of the opinion, ¶1: “Our courts have recognized that, as a class, sexually violent persons pose an even greater threat to the public than ch. 51 committees. Not only have they already perpetrated acts that demonstrate their willingness to commit violent sex offenses, their existing mental disorders diminish their capacity to avoid reoffending. Those who treat ch. 980 committees must invest a great deal of time and effort in equipping these individuals with coping mechanisms that enable them to control their predatory desires. It is this propensity for sexual violence, not the precise point at which it may manifest itself, that makes the individual particularly threatening to society.” How is it that the courts dogmatically refuse to entertain a defense of diminished capacity to intend a criminal act ( State v. Repp, et al) but at the same time have no problem locking someone up forever based on a diminished capacity not to commit a criminal act? More and more, the rationale for SVP commitment is overt; it is preventive detention, dressed up in white lab coats. But we already knew that. It is just that the courts are increasingly confident that such a rationale will be upheld.


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