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Court of appeals upholds questionable recommitment; query whether sec. 51.20(1)(am) is unconstitutional?

Langlade County v. D.J.W., 2018AP145-FT, 5/1/18, District 3 (1-judge opinion, eligible for publication), petition for review granted, 7/10/19, reversed, 2020 WI 41; case activity

This decision makes you wonder whether §51.20(1)(am), Wisconsin’s recommitment statute, is unconstitutional either on its face or as applied to D.J.W.

At D.J.W.’s recommitment hearing a doctor testified about his treatment records. They noted that, prior to his original commitment, D.J.W. had been delusional and experienced hallucinations, and he had committed unidentified “property damage.” The doctor also said that D.J.W.’s treatment was “actually working” and that if it were withdrawn, he would become the proper subject for treatment.

D.J.W. testified that he knew he had been diagnosed with schizophrenia.  He noted, among other things, that he had not demonstrated homicidal or suicidal behaviors while committed. Plus he was not homeless; he relied on family members or housing. Opinion ¶11. He denied threatening anyone. He admitted to believing he is the Messiah and said his mission was to “invent a way out of global warming.” (Hardly a “dangerous” goal).

To recommit a person under Chapter 51, the County must to show by clear and convincing evidence that the person is (1) mentally ill, (2) a proper subject for treatment and (3) dangerous. §51.20(1)(a)1.-2., 51.20(13)(e). The County proves dangerousness by showing “a substantial likelihood, based on the subject individual’s treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn.” §51.20(1)(am).  D.J.W. argued that the County failed to prove this element. According to the court of appeals, the County is not required to offer evidence of threatening or violent behavior. Nor is it required to offer proof of recent overt threats or violent behavior to support a recommitment order. It just has to show that if treatment were withdrawn, there is a substantial likelihood, based upon the individual’s treatment record, that he would become  “a proper subject for treatment.” Opinion. ¶¶11-12.

The court of appeals’ reasoning, like the statute itself, is circular. By this logic, once a person is undergoes an original commitment, his commitment can be extended indefinitely based just on the evidence of dangerousness offered to support his original commitment. In fact, the court of appeals said: “The legislature enacted §51.20(1)(am) to avoid ‘revolving door’ scenarios where an individual is released from a commitment, during which no overt acts occurred as a result of treatment, but then commits a dangerous act and is recommitted to be treated. W.R.B., 14 Wis. 2d at 351.” See State v. W.R.B., 140 Wis. 2d 347, 411 N.W.2d 142 (Ct. App. 1987).

This holding ignores the possibility that a person can recover from mental illness or experience remission and do well in the community for periods of time. It seems at odds with the seminal United States Supreme Court case, which holds that the government cannot commit a person just because he is mentally ill. He has to be dangerous and incapable of living in the community with the support of family or friends.  Even if person’s commitment was initially permissible, it cannot constitutionally continue if its basis no longer exists. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975).

This hold also ignore the fact that it is really hard to predict future dangerousness based on past dangerousness. John Parry, Civil Mental Disability Law, Evidence and Testimony at 17 (ABA 2010)(noting studies showing that psychiatrists and psychologists are accurate in no more than 1 of 3 of their predictions of violent behavior among mental patients who had previously committed violent acts.) One way to “avoid the revolving door” is to lock the exit. That’s what the courts seem to be doing with recommitments (usually citing W.R.B.), and it may be unconstitutional. A quick search suggests that SCOW has never addressed W.R.B. Hint. Hint. Nudge. Nudge.

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