Section 980.08. Supervised release; procedures, implementation, revocation.

 

(1)  Any person who is committed under s. 980.06 may petition the committing court to modify its order by authorizing supervised release if at least 12 months have elapsed since the initial commitment order was entered or at least 12 months have elapsed since the most recent release petition was denied, since supervised release was denied under s. 980.09 (4) , or since the most recent order for supervised release was revoked. The director of the facility at which the person is placed may file a petition under this subsection on the person's behalf at any time.

(2)  If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney or department of justice, whichever is applicable and, subject to s. 980.03 (2) (a) , refer the matter to the authority for indigency determinations under s. 977.07 (1) and appointment of counsel under s. 977.05 (4) (j) . If the person petitions through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.

(2m)  The person submitting the petition may use experts or professional persons to support his or her petition. The district attorney or the department of justice may use experts or professional persons to support or oppose any petition.

(3)  

(a) Within 20 days after receipt of the petition, the court shall appoint one or more examiners for the court who have the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 60 days after appointment, unless the court for good cause extends this time limit. If the person requests appointment of an examiner within 20 days after the filing of the petition, the court shall appoint an examiner for the person, unless the court appointed an examiner under s. 980.031 (3) or 980.07 (1) for the current reexamination period. If a report filed by an examiner appointed under s. 980.07 (1) to conduct a reexamination of the person's mental condition within the 6 months preceding the filing of the petition supports supervised release, the court may appoint that examiner as the examiner for the person under this subsection.

(b) The examiners appointed under par. (a) shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b) , and patient health care records, as provided under s. 146.82 (2) (c) . If any such examiner believes that the person is appropriate for supervised release under the criteria specified in sub. (4) (cg) , the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release. The county shall pay the costs of an examiner appointed under par. (a) as provided under s. 51.20 (18) (a) .

(4)  

(a) The court, without a jury, shall hear the petition within 120 days after the report of the court-appointed examiner appointed under sub. (3) (a) is filed with the court, unless the court for good cause extends this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b) , (c) , and (d) .

(c) In making a decision under par. (cg) , the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition under s. 980.02 (2) (a) , the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, and what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the person is a serious child sex offender. A decision under par. (cg) on a petition filed by a person who is a serious child sex offender may not be made based on the fact that the person is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or on the fact that the person is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.

(cg) The court may not authorize supervised release unless, based on all of the reports, trial records, and evidence presented, the court finds that all of the following criteria are met:

1. The person is making significant progress in treatment and the person's progress can be sustained while on supervised release.

2. It is substantially probable that the person will not engage in an act of sexual violence while on supervised release.

3. Treatment that meets the person's needs and a qualified provider of the treatment are reasonably available.

4. The person can be reasonably expected to comply with his or her treatment requirements and with all of his or her conditions or rules of supervised release that are imposed by the court or by the department.

5. A reasonable level of resources can provide for the level of residential placement, supervision, and ongoing treatment needs that are required for the safe management of the person while on supervised release.

(cj) The person has the burden of proving by clear and convincing evidence that the person meets the criteria in par. (cg) .

(cm) If the court finds that all of the criteria in par. (cg) are met, the court shall select a county to prepare a report under par. (e) . Unless the court has good cause to select another county, the court shall select the person's county of residence as determined by the department under s. 980.105 . An actual or alleged lack of available housing for the person within a county because of an ordinance or resolution in effect or proposed by the county or by a city, town, or village within the county may not constitute good cause to select another county under this paragraph. The court may not select a county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also that person's county of residence.

(d) The court shall authorize the petitioner, the person's attorney, the district attorney, any law enforcement agency in the county of intended placement, and any local governmental unit in the county of intended placement to submit prospective residential options for community placement to the department within 60 days following the selection of the county under par. (cm) .

(e) The court shall order the county department under s. 51.42 in the county of intended placement to prepare a report, either independently or with the department of health services, identifying prospective residential options for community placement. In identifying prospective residential options, the county department shall consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am) . The county department shall submit its report to the department within 60 days following the court order.

(em) The department shall consult with a local law enforcement agency having jurisdiction over any prospective residential option identified under par. (e) and shall request the law enforcement agency to submit a written report that provides information relating to the prospective residential option.

(f) The court shall direct the department to use any submissions under par. (d) , the report submitted under par. (e) , any report submitted under par. (em) , and other residential options identified by the department to prepare a supervised release plan for the person. The department shall search its victim database, and consult with the office of victim services in the department of corrections, the department of justice, and the county coordinator of victims and witnesses services in the county of intended placement, the county where the person was convicted, and the county of commitment to determine the identity and location of known and registered victims of the person's acts. The department shall prepare a supervised release plan that identifies the proposed residence. The supervised release plan shall be submitted to the court within 90 days of the finding under par. (cg) . The court may grant extensions of this time period for good cause. The plan shall do all of the following:

1. Address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment.

2. Ensure that the person's placement is into a residence that is not less than 1,500 feet from any school premises, child care facility, public park, place of worship, or youth center. A person is not in violation of a condition or rule of supervised release under sub. (7) (a) if any school premises, child care facility, public park, place of worship, or youth center is established within 1,500 feet from the person's residence after he or she is placed in the residence under this section.

3. If the person committed a sexually violent offense against an adult at risk, as defined in s. 55.01 (1e) , or an elder adult at risk, as defined in s. 46.90 (1) (br) , ensure that the person's placement is into a residence that is not less than 1,500 feet from a nursing home or an assisted living facility. A person is not in violation of a condition or rule of supervised release under sub. (7) (a) if a nursing home or an assisted living facility is established within 1,500 feet from the person's residence after he or she is placed in the residence under this section.

4. If the person is a serious child sex offender, ensure that the person's placement is into a residence that is not on a property adjacent to a property where a child's primary residence exists. For the purpose of this subdivision, adjacent properties are properties that share a property line without regard to a public or private road if the living quarters on each property are not more than 1,500 feet apart. A person is not in violation of a condition or rule of supervised release under sub. (7) (a) if a child establishes primary residence in a property adjacent to the person's residence after the person is placed in the residence under this section.

(g) The court shall review the plan submitted by the department under par. (cm) . If the details of the plan adequately meet the treatment needs of the individual and the safety needs of the community, then the court shall approve the plan and determine that supervised release is appropriate. If the details of the plan do not adequately meet the treatment needs of the individual or the safety needs of the community, then the court shall determine that supervised release is not appropriate or direct the preparation of another supervised release plan to be considered by the court under this paragraph.

(5m)  The department may not arrange placement under this section in a facility that did not exist before January 1, 2006.

(6m)  An order for supervised release places the person in the custody and control of the department. The department shall arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the plan for supervised release approved by the court under sub. (4) (g) . A person on supervised release is subject to the conditions set by the court and to the rules of the department. Within 10 days of imposing a rule, the department shall file with the court any additional rule of supervision not inconsistent with the rules or conditions imposed by the court. If the department wants to change a rule or condition of supervision imposed by the court, the department must obtain the court's approval. Before a person is placed on supervised release by the court under this section, the court shall so notify the municipal police department and county sheriff for the municipality and county in which the person will be residing. The notification requirement under this subsection does not apply if a municipal police department or county sheriff submits to the court a written statement waiving the right to be notified.

(7)  

(a) If the department believes that a person on supervised release, or awaiting placement on supervised release, has violated, or threatened to violate, any condition or rule of supervised release, the department may petition for revocation of the order granting supervised release as described in par. (c) or may detain the person.

(b) If the department believes that a person on supervised release, or awaiting placement on supervised release, is a threat to the safety of others, the department shall detain the person and petition for revocation of the order granting supervised release as described in par. (c) .

(c) If the department concludes that the order granting supervised release should be revoked, it shall file with the committing court a statement alleging the violation and or threat of a violation and a petition to revoke the order for supervised release and provide a copy of each to the regional office of the state public defender responsible for handling cases in the county where the committing court is located. If the department has detained the person under par. (a) or (b) , the department shall file the statement and the petition and provide them to the regional office of the state public defender within 72 hours after the detention, excluding Saturdays, Sundays and legal holidays. Pending the revocation hearing, the department may detain the person in a jail or a facility described under s. 980.065 . The court shall refer the matter to the authority for indigency determinations under s. 977.07 (1) and appointment of counsel under s. 977.05 (4) (j) . The determination of indigency and the appointment of counsel shall be done as soon as circumstances permit.

(d) The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. A final decision on the petition to revoke the order for supervised release shall be made within 90 days of the filing. Pending the revocation hearing, the department may detain the person in the county jail or return him or her to institutional care.

(8)  

(a) If the court finds after a hearing, by clear and convincing evidence, that any rule or condition of release has been violated and the court finds that the violation of the rule or condition merits the revocation of the order granting supervised release, the court may revoke the order for supervised release and order that the person be placed in institutional care. The court may consider alternatives to revocation. The person shall remain in institutional care until the person is discharged from the commitment under s. 980.09 or is placed again on supervised release under sub. (4) (g) .

(b) If the court finds after a hearing, by clear and convincing evidence, that the safety of others requires that supervised release be revoked the court shall revoke the order for supervised release and order that the person be placed in institutional care. The person shall remain in institutional care until the person is discharged from the commitment under s. 980.09 or is placed on supervised release under sub. (4) (g) .

(9)  

(a) As a condition of supervised release granted under this chapter, for the first year of supervised release, the court shall restrict the person on supervised release to the person's residence except for outings approved by the department of health services that are under the direct supervision of a department of corrections escort and that are for employment or volunteer purposes, religious purposes, educational purposes, treatment and exercise purposes, supervision purposes, or residence maintenance, or for caring for the person's basic living needs.

(b) The department of corrections may contract for the escort services under par. (a) .

1993 a. 479 ; 1995 a. 276 ; 1997 a. 27 , 275 , 284 ; 1999 a. 9 ss. 3223L , 3232p to 3238d ; 1999 a. 32 ; 2001 a. 16 ; 2003 a. 187 ; 2005 a. 431 , 434 ; 2007 a. 20 ss. 3929 , 3930 , 9121 (6) (a) ; 2007 a. 96 , 97 ; 2013 a. 84 ; 2015 a. 156 . Cross-reference: See also ch. DHS 98 , Wis. adm. code. Sub. (6m) [formerly s. 980.06 (2) (d)] requires post-hearing notice to the local law enforcement agencies. In re Commitment of Goodson, 199 Wis. 2d 426 , 544 N.W.2d 611 (Ct. App. 1996), 95-0664 . Whether in a proceeding for an initial ch. 980 commitment or a later petition for supervised release, there is no requirement that the state prove the person is treatable. State v. Seibert, 220 Wis. 2d 308 , 582 N.W.2d 745 (Ct. App. 1998), 97-2554 . As used in this chapter, "substantial probability" and "substantially probable" both mean much more likely than not. This standard for dangerousness does not violate equal protection nor is the term unconstitutionally vague. State v. Curiel, 227 Wis. 2d 389 , 597 N.W.2d 697 (1999), 97-1337 . An institutionalized sex offender who agreed to a stipulation providing supervised release, giving up his right to a jury trial on his discharge petition in exchange, had a constitutional right to enforcement of the agreement. State v. Krueger, 2001 WI App 76 , 242 Wis. 2d 793 , 626 N.W.2d 83 , 00-0152 . An indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her petition for supervised release. State ex rel. Seibert v. Macht, 2001 WI 67 , 244 Wis. 2d 378 , 627 N.W.2d 881 , 99-3354 . A person subject to a proceeding to revoke supervised release is entitled to the same due process protections as afforded persons in probation and parole revocation proceedings. Notice of the grounds that are the basis for the revocation must be given. A court can only base a revocation on the grounds of public safety under sub. (6m) when notice has been properly given. State v. VanBronkhorst, 2001 WI App 190 , 247 Wis. 2d 247 , 633 N.W.2d 236 , 00-3075 . The relevant inquiry under sub. (4) is whether the person's behavior indicates a likelihood to reoffend. A sexual assault need not occur and the person's behavior need not be criminal. State v. Sprosty, 2001 WI App 231 , 248 Wis. 2d 480 , 636 N.W.2d 213 , 00-2404 . Sub. (6m), not s. 806.07 (1) (h), governs granting relief to the state from a ch. 980 committee's supervised release when the committee is confined in an institution awaiting placement on supervised release. Sub. (6m) provides no procedure for initiating revocation other than by the department of health and family services action, preventing courts or prosecutors from initiating revocations. State v. Morford, 2004 WI 5 , 268 Wis. 2d 300 , 674 N.W.2d 349 , 01-2461 . Ch. 980 was not unconstitutionally applied to the defendant when an order for supervised release could not be carried out due to an inability to find an appropriate placement and the defendant remained in custody. Any judicial decision that puts the community at risk because of what agents of government may have done or not done must balance the potential injury to society's interests against the potential benefits that would flow from any rule designed to deter future conduct by those agents. State v. Schulpius, 2006 WI 2 , 287 Wis. 2d 44 , 707 N.W.2d 495 , 02-1056 . A rule regulating the conduct of a sexually violent person on supervised release satisfies the procedural due process requirement of adequate notice if it is sufficiently precise for the probationer to know what conduct is required or prohibited. State v. Burris, 2004 WI 91 , 273 Wis. 2d 294 , 682 N.W.2d 812 , 00-1425 . Under sub. (6m) [formerly s. 980.06 (2) (d)], a circuit court must determine whether any rule or condition of release has been violated or whether the safety of others requires revocation. A circuit court is not required to expressly consider alternatives to revocation before revoking a sexually violent person's supervised release when the court determines that the safety of the public requires the person's commitment to a secure facility. State v. Burris, 2004 WI 91 , 273 Wis. 2d 294 , 682 N.W.2d 812 , 00-1425 . The sufficiency of evidence standard of review applies when reviewing a circuit court's order denying a petition for supervised release under sub. (4). The test for the sufficiency of the evidence to support the order is not whether a reviewing court is convinced by clear and convincing evidence that a person's petition for supervised release should be denied, but whether a circuit court, acting reasonably, could be so convinced by evidence it has a right to believe and accept as true. State v. Brown, 2005 WI 29 , 279 Wis. 2d 102 , 693 N.W.2d 715 , 03-1419 . Sub. (4) (cg) unambiguously places the burden of proof with the committed individual. The appropriate burden of persuasion is clear and convincing evidence. This allocation does not violate the guarantees of due process and equal protection in the Wisconsin and United States Constitutions. State v. West, 2011 WI 83 , 336 Wis. 2d 578 , 800 N.W.2d 929 , 09-1579 . Supervised Release Under Chapter 980: Alternatives to Protect Wisconsin While Upholding the Constitution. Hamrin. 2007 WLR 889.