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Can Wisconsin medicate prisoners against their will without first finding them dangerous?

Winnebago County v. C.S., 2016AP1955, 8/16/17, District 2 (1-judge opinion; ineligible for publication); case activity

C.S. argues that §51.61(1)(g) is unconstitutional because it allows the government to administer involuntary medication to a prisoner without a finding of dangerousness. The court of appeals elected not to decide the issue due to mootness, but that seems like a mistake.

This question first popped up in Winnebago County v. Christopher S., 2016 WI 1, 366 Wis. 2d, 878 N.W.2d 109, where SCOW acknowledged but did not decide it. Here, the issue is squarely presented. The court of appeals acknowledges that it has the discretion to decide moot issues in exceptional or compelling circumstances, such as when a statute’s constitutionality is involved or the issue is capable of repetition yet evades review, but it declines to do so.:

¶7 Because C.S. is no longer incarcerated, the statutory provisions allowing prisoners to be involuntarily medicated without a finding of dangerousness no longer apply to him. See WIS. STAT. § 51.20(1)(a)2., (ar) (dangerousness must be alleged in a petition for involuntary commitment for treatment unless the subject individual is a prisoner); see also Winnebago Cty., 366 Wis. 2d 1, ¶¶26-27. Therefore, C.S.’s constitutional claim is moot; resolving the claim will have no practical effect on this case.

¶8 We are not persuaded that this case presents the sort of exceptional or compelling circumstances that would—despite mootness—warrant a decision on the merits. Although C.S. challenges the constitutionality of a statute, deciding his claim would not bring any definitive clarity to the law. This is so because a decision by one judge under WIS. STAT. § 752.31 is not publishable and therefore not citable as binding authority. See WIS. STAT. § 809.23(1)(b)4., (3).

¶9 This particular issue is also not one reasonably likely to be repeated yet evading review. C.S.’s argument that we should consider his case because he could potentially be reconfined and subjected to forced medication without a finding of dangerousness depends on the premise that there is a “reasonable expectation” that C.S. will violate the terms of his extended supervision, be reincarcerated, and again be subjected to involuntary medication without a finding of dangerousness. See State ex rel. Clarke v. Carballo, 83 Wis. 2d 349, 357, 265 N.W.2d 285 (1978) (citation omitted). Although it is possible, it is by no means a “reasonable expectation.”

¶10 In short, C.S. presents us an academic question, not a genuine complaint that the state of Wisconsin is violating his constitutional rights.

While the court of appeals is correct that C.S.’s constitutional claim is moot, a petition for review is worthwhile in this case. Section 51.61.(1)(g) is clearly unconstitutional because it permits the government to medicate prisoners against their will without a finding of dangerousness. See Washington v. Harper, 494 U.S. 210, 226-227 (1990). So by declining to exercise its discretion to address this longstanding defect in §51.61(1)(g), the court of appeals is essentially saying “we’ll wait for the case where a person is currently being forcibly subjected to anti-psychotic medications in violation of his substantive due process rights and then we’ll address the constitutionality of the statute.” It could be years before the court of appeals sees this issue again. When it does, the issue will surely be moot because an initial commitment and involuntary medication order last only 6 months, extensions last only 1 year, and the postcommitment and appeals process takes longer. Think of all the substantive due process violations the court of appeals could have prevented if it had assigned this appeal to a 3-judge panel (which §809.41(3) authorizes it to do) and addressed this important issue now. Hopefully, SCOW will see things differently.


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