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Sexually Violent Persons – Pre-Commitment Return to DOC Custody

State v. Carl Cornelius Gilbert, Jr. / State v. Price T. Hunt, 2012 WI 72, affirming 2011 WI App 61case activity (Gilbert), case activity (Hunt)

¶2   We are asked to decide whether Wisconsin Statutes chapter 980 (2005-06)[3] requires the dismissal of a pending commitment petition when the individual subject to the petition is re-incarcerated because of the revocation of parole or extended supervision.  We hold that the State may proceed with a ch. 980 commitment after the revocation of a subject individual’s parole or extended supervision.  Based on that holding, we conclude that both of the ch. 980 commitments at issue in this case are valid, and therefore affirm the court of appeals.

Briefly: A commitment petition was filed against Gilbert, when he reached mandatory (parole) release on a pre-TIS sentence. Sent to a DHS facility to await trial on the petition, he misbehaved a bit, causing parole to be revoked. He was returned to DOC custody so he could serve out the remainder of his sentence to discharge. The SVP petition proceeded apace, resulting in commitment notwithstanding that he would remain in DOC (prison) physical custody until discharge on the sentence (which took more than two years, at which point he was at long last transferred to DHS custody). The long and short of it: Gilbert came under an SVP commitment while a prisoner serving a sentence, and he remained in that status a relatively substantial period of time. (Hunt’s situation was similar – the particulars needn’t be recited, except to say that he was returned to prison on an ES revocation after his SVP petition was filed – so the cases were joined on appeal.) § 980.06 mandates that the committing court “order the person to be committed to the custody of the department for control, care and treatment until such time as the person is no longer a sexually violent person.” “Department” refers to DHS, not DOC. How, then, can a prisoner in exclusive DOC custody be committed to DHS control, etc.? Well once you realize that “shall … be committed to the custody of” DHS doesn’t mean what you think it does, then there is no problem at all.

¶28  We examine three portions of Wis. Stat. ch. 980 that are relevant to our determination of whether dismissal is required in these cases.  We conclude that ch. 980 does not require such a dismissal because it: 1) does not contain language allowing for dismissal in this case; 2) does not set a time period for execution of a commitment order; and 3) states that an individual may be simultaneously committed under ch. 980 and incarcerated at a DOC facility.[11]  We address each of these three components of ch. 980 in turn.

Statutory text authorizes dismissal in only two circumstances the court observes: failure to find probable cause at the preliminary hearing, and failure of proof at trial, ¶29. Thus, no authority exists to dismiss in situations such as Gilbert and Hunt’s, ¶30. This is perhaps too facile. Courts always have authority to dismiss an action as moot (the essence of this claim is that a pending petition becomes moot if the respondent is returned to DOC custody such that the § 980.06 can’t be effectuated). If a respondent dies before commitment, the petition will be dismissed, even if nothing in ch. 980 expressly authorizes it. For that matter, it surely can’t be true that a petition plainly defective on its face isn’t subject to dismissal same as any defective pleading, just because the legislature didn’t provide explicit authority. Still, the larger and more meaningful question relates to the merits of the argument, which is that mandated assumption of DHS custody can’t be implemented if DOC has exclusive custody. The court takes a chain saw to this Gordian Knot:

¶35  While we acknowledge that Wis. Stat. § 980.06 requires the circuit court to “order the person to be committed to the custody of the [DHS] for control, care and treatment,” see § 980.06, ch. 980 does not specify when that commitment must commence.  Stated a different way, while § 980.06 sets forth the requirements for a proper commitment order, neither that section nor any other section of ch. 980 contains language stating when the individual requirements (control, care, and treatment) of that order must be satisfied.  See id.

In other words, there is no timing mechanism. A commitment petition may now be filed any time. A DOC inmate two months into a 30-year confinement stretch? No problem. Here, the court replaces a statutory with a constitutional tension point. It is true that, once you relegate DHS obligations to some hazy, undefined future you eliminate the potential for statutory conflict. (That the legislature would have intended that commitments have no temporal hinge – that the State could obtain a commitment that wouldn’t go into effect for years or even decades – is a somewhat absurd result, though, isn’t it?) But now a constitutional dilemma arises. For one thing, “Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romero, 457 U.S. 307, 321-22 (1982). The court dryly notes that “that the statute does not permit, nor does our opinion contemplate, ‘commitment to prison.’ The Petitioners were not ‘committed to prison’; instead, they were re-incarcerated for parole and extended supervision violations,” ¶59. But, then, what was the purpose of the commitment, which doesn’t take effect for years and was obtained therefore on an arguably fraudulent basis, the inmate’s need for treatment. (There is no dispute, though court doesn’t get into the matter, that a prison inmate such as Gilbert or Hunt will not be receiving the sort of specialized treatment administered in a DHS facility.) But there is a separate problem, which reveals the flimsiness of the court’s “not committed to prison” position: an individual under commitment “may be held as long as he is both mentally ill and dangerous, but no longer.… Even if the initial commitment was permissible, ‘it could not constitutionally continue after that basis no longer existed.’” Foucha v. Louisiana, 504 U.S. 71, 76-77 (1992). Thus, Gilbert and Hunt argued, if an individual is committed on date X but remains a prisoner till Y (again: that could be years distant), there is no way to know whether he remains on Y a fit (therefore, constitutional) subject for commitment. Between X and Y dates he will have received neither treatment for nor examination of his condition (precisely because DHS hasn’t assumed such responsibilities, the commitment mandate notwithstanding). The argument is tautologically dispatched: Chapter 980 “procedures adequately ensure that at the issuance of a commitment order, the court has determined that the committed individual is——at that moment——a sexually violent person.  Further, if the individual serves his sentence of incarceration and is transferred to DHS custody, he will then be subject to periodic reevaluation to determine whether he remains a sexually violent person,” ¶58. Again: the premise of the commitment order is need for treatment; the “procedures” the court upholds today precisely ensure that some individuals subject to a commitment order will not receive treatment. And will ensure that some individuals will be subject to commitment order without regard to whether they remain both mentally ill and dangerous.

All and well and good, but it comes down to one thing: the court explicitly sanctions incarceration without treatment of individuals subject to commitment order. The court plays lip service to the dual function of the commitment regime, “1) the treatment of sexually violent persons, and 2) the protection of society from those persons,” ¶23, but it clear that protection of society is paramount, if not exclusive. Thus: “it is clear that the protection of the public from sexually violent persons is of central importance in Wis. Stat. ch. 980 cases.  We continue our review of ch. 980 with this principle in mind,” ¶26. And: “our holding gives effect to the overall statutory scheme, designed to protect the public from sexually violent persons, because it allows the State to retain control of sexually violent persons rather than releasing them as a result of their own bad behavior,” ¶49. The trend, to be sure, has very much been in this direction for some time. The question is whether this particular result – go ahead, incarcerate-and-commit – represents a qualitative break, such that the commitment regime should be regarded as essentially one of preventive detention. Draw your own conclusion.

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