Issue1: Whether the § 980.08(1) requirement that the SVP wait 18 months after initial commitment before petitioning for supervised release violates substantive due process.
¶7. … (N)o one can be committed as a sexually violent person under chapter 980 unless he or she is a clear and present danger to others in society-shown not only by a prior conviction (or the equivalent) but also by a significant current risk to commit more crimes of sexual violence. Thus, as we pointed out in Ransdell, the initial mandatory commitment-‘requiring that the person first undergo initial evaluation and initial treatment in an institutional setting before any decisions are made as to whether that person is suitable for supervised release’-directed by Wis. Stat. § 980.06, passes strict-scrutiny due-process muster. Ransdell, 2001 WI App 202 at ¶8. We also believe that adding twelve months to the time before which a person committed as a sexually violent person can formally petition for supervised release similarly survives constitutional challenge.¶8 … Although someone committed as a sexually violent person must now wait eighteen months before formally petitioning the committing court to be placed in the community on supervised release, Wis. Stat. § 980.08(1), rather than the six-month period under the earlier version of that section, the committing court can always consider supervised release whenever the committed person seeks discharge, Wis. Stat. §§ 980.09(1)(c) and 980.09(2)(c), and the committed person may file an initial petition for discharge ‘at any time.’ Wis. Stat. § 980.10 (emphasis added). One of three things happens after the person files a petition for discharge:
·the person shall be discharged from custody if he or she petitions ‘the committing court for discharge,’ and the State does not carry its burden of ‘proving by clear and convincing evidence that the petitioner is still a sexually violent person.’ Wis. Stat. §§ 980.09(1)(a) and 980.09(1)(b).
·the person shall be placed on ‘supervised release’ if the State carries its burden of proving by clear and convincing evidence that the person is still a sexually violent person, but the court determines, applying the criteria under Wis. Stat. § 980.08(4), that the State has not proven-again, by clear and convincing evidence-‘that it is still substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care,’ Wis. Stat. § 980.08(4).·the person remains in institutional care if the State carries its dual burden of proving by clear and convincing evidence that the person is still a sexually violent person and that he or she will commit acts of sexual violence unless he or she is ‘continued in institutional care.’ Wis. Stat. § 980.08(4).
The Department must also ‘conduct an examination’ of the ‘mental condition’ of the committed person ‘within 6 months after an initial commitment under s. 980.06.’ Wis. Stat. § 980.07. The person being examined under § 980.07 must be told of his or her ‘right to petition the court for discharge over the secretary’s objection.’ Wis. Stat. § 980.09(2)(a). Further, the committing court ‘may order a reexamination of the person at any time during the period in which the person is subject to the commitment order’ Wis. Stat. § 980.07(3) (emphasis added).
¶9. In light of all the safeguards and alternative methods by which a person committed under Wis. Stat. ch. 980 can obtain supervised release, we cannot say that Hogan and Williams have carried their burden of showing beyond a reasonable doubt that the marginal impediment to supervised release created by the amendment to Wis. Stat. § 980.08(1) (1997-1998) violates their right to substantive due process because § 980.08(1) now requires an additional twelve months before they may formally file a petition for supervised release.
Issue2: Whether the requirement in § 980.08(1) that the SVP wait 18 months after initial commitment before petitioning for supervised release violates equal protection.
Holding: Though a ch. 51 initial commitment order lasts 6 months, equal protection isn’t violated by an 18-month ch. 980 initial commitment, because 980 commitment subjects are more dangerous as a class than ch. 51s. ¶¶13-16. Nor does the eligibility for conditional release on an NGI initial commitment violate equal protection: an NGI finding represents a mere inference of current mental illness and dangerous, while a an SVP finding represents proof beyond reasonable doubt that the person is now mentally disordered and dangerous. ¶¶17-18.
This seems to split an awfully fine hair. Though the supposition of present mental illness and dangerousness in an NGI finding may be inferential, it is no less binding for that. It remains true, as a constitutional matter, that the subject is committed precisely because of this inference “that, at the time of the verdict, the defendant was still mentally ill and dangerous, and hence could be committed.” On the other hand, when the subject is not presently mentally ill or danger, he or she must be released. Foucha v. Louisiana, 504 U.S. 71, 76-77 (1992). In short, inference or not, automatic NGI confinement is based on current mental illness and dangerousness. Just like SVP.