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Federal court denies habeas relief for “sane but dangerous” NGI-acquittee; offers novel interpretation of Randall I

Graham L. Stowe v. Gregory Van Rybroek, 18-CV-400-wmc (W.D. Wis. 11/6/23).

Having recently prevailed on a judicial bias claim in state court, Stowe makes a return appearance to the blog on his 2018 federal habeas petition. Unfortunately, the Western District of Wisconsin denied the petition, which had been pending for close 5 years. The petition sought relief from the Wisconsin courts’ denial of his 2016  petition for conditional release under Wis. Stat. § 971.17(4)(d). In a novel reading of a nearly three-decades old Wisconsin Supreme Court decision, State v. Randall, 192 Wis. 2d 800, 532 N.W.2d 94 (1995) (“Randall I”), the federal court concludes that “one can reasonably read Randall I to require a showing of both mental illness and dangerousness.”

This reading would presumably come as a surprise to Wisconsin courts that have repeatedly interpreted and applied Randall I. In Foucha v. Louisiana, 504 U.S. 71 (1992), the U.S. Supreme Court invalidated Louisiana’s statutory scheme because it allowed for the indefinite confinement of an insanity acquittee until he proved he was no longer dangerous. The Court held the scheme violated Foucha’s right to procedural and substantive due process. Relying on Addington v. Texas, 441 U.S. 418 (1979), Foucha reaffirmed the burden to establish dangerousness and mental illness by clear and convincing evidence rested with the government. Foucha, 504 U.S. at 75-76. Citing Jones v. United States, 463 U.S. 354 (1983), Foucha reaffirmed “[t]he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous…the acquittee may be held as long as he is both mentally ill and dangerous, but no longer.” Id. at 77. (Emphasis added).

Foucha relied on procedural due process to invalidate Louisiana’s scheme that was both indefinite and placed the burden on the committed person to prove they were no longer dangerous and relied on substantive due process to invalidate the portion of the scheme that allowed the continued confinement of an insanity acquittee on dangerousness alone. An insanity acquittee “may not be punished” and may only be confined if the state shows by clear and convincing evidence that “the individual is mentally ill and dangerous.” Id. at 80.

In Randall I, the Wisconsin Supreme Court upheld Wisconsin’s conditional release provision under Foucha despite the fact that § 971.17(4)(d) allows for the continued confinement of an NGI acquitee so long as the state establishes that the individual is dangerous. Randall I “read Foucha to permit the continued confinement of dangerous but sane acquittees in a mental health facility, so long as they are treated in a manner consistent with the purposes of their confinement, e.g., there must be a medical justification to continue holding a sane but dangerous insanity acquittee in a mental health facility.” 532 Wis. 2d at 806-07.

To the extent that this tortured reading could have been said to impose an affirmative burden on the state to prove that a “sane but dangerous” NGI acquittee is mentally ill or is actually receiving treatment consistent with the purposes of their confinement,” the court of appeals subsequently shot down that theory in State v. Randall, 222 Wis. 2d 53, 586 N.W.2d 318 (Ct. App. 1998) (“Randall II“). Instead, the court of appeals explained that Randall I held, “as a matter of law, that there is a therapeutic value to confining a [currently] sane but dangerous acquittee to one of this state’s mental health facilities.” See Randall II, 222 Wis. 2d at 66. In other words, Wisconsin’s rule is that so long as a sane but dangerous NGI acquittee is confined to a state mental health institution, the confinement complies with Foucha. Notably, Randall II, specifically rejected Randall’s argument that the state had any obligation to prove the “therapeutic” value of his continued confinement to the fact-finder. Id.

As Judge Conely acknowledges, Randall I’s “description of its own holding admittedly somewhat varies, as do others’ readings.” Nevertheless, while the court agrees generally with Stowe’s interpretation of Foucha, and cites multiple Seventh Circuit opinions that interpret Foucha to mean that an NGI-acquittee may not be confined based on dangerousness alone, see Op. at 12-13, the court reasons that Randall I held that § 971.17(4)(d) contains a requirement to show “both mental illness and dangerousness.” For support, the court relies on the fact that when considering whether to grant a petition for conditional release, a court “may consider…the person’s mental history and present mental condition…[and] what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.” See § 971.17(4)(d). How a list of permissible discretionary factors satisfies the due process requirement set forth in Foucha is unclear.

There’s more to this decision, but for now, and until the Seventh Circuit has the opportunity to review Stowe’s facial challenge to § 971.17(4)(d), on which the court granted a certifiate of appealability, the main takeaway is that at least one federal judge reads Randall I to impose a burden on the state, consistent with Foucha, to show that an NGI-acquittee is both mentally ill and dangerous to justify continued confinement.

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