7th Circuit OKs sex-offender GPS monitoring

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2-1-16 Wisconsin:

Wisconsin lawmakers didn’t violate the U.S. Constitution when they mandated that anyone deemed to be a sexually violent person wear a GPS monitoring device following his or her release from civil commitment, a federal appeals court has held.

The 7th U.S. Circuit Court of Appeals last week upheld a state statute requiring such persons to wear a monitoring device for the rest of their lives.

All the members of a three-judge panel rejected Michael J. Belleau’s argument that the statute violates the Constitution’s prohibition on ex post facto laws.

The panel acknowledged the statute was enacted after Belleau committed the crimes that landed him first in prison and then in a treatment center under a civil commitment order.

And the panel acknowledged that Article I, Section 10, Clause 1 prohibits punishing people for conduct made criminal only after they engaged in it or increasing the sentence for their crime above the maximum that was in place when they committed it.

However, the panel’s majority wrote, citing cases that included Smith v. Doe, 358 U.S. 84 (2003), and Mueller v. Raemisch, 740 F.3d 1128 (7th Cir. 2014), Wisconsin’s requirement of lifetime, 24-hour-a-day monitoring “is not punishment; it is prevention.”

Belleau v. Wall, No. 15-3225 (7th Cir. 2016)

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1-30-16 Wisconsin:

In 1992 plaintiff, then age 48, was convicted of having sexually assaulted a boy repeatedly for five years beginning when the boy was eight years old. Before his probation expired he was convicted of having (in 1988) sexually assaulted a nine‐year‐old girl and sentenced to 10 years in prison.

He was paroled after six years. His parole was revoked a year later after he admitted that he had sexual fantasies about two girls, ages four and five. Scheduled to be released in 2005, he was, instead, civilly committed as a “sexually violent person,” Wis. Stat. ch. 980.

He was released in 2010, based on the opinion of a psychologist that he was no longer more likely than not to commit further sexual assaults. A 2006 Wisconsin law required that persons released from civil commitment (after 1/1/2008) for sexual offenses wear a GPS monitoring device 24 hours a day for the rest of their lives. Wis. Stat. 301.48.

The district court found the Wisconsin monitoring statute unconstitutional. The Seventh Circuit reversed, noting that a study by the National Institute of Justice found that GPS monitoring of sex criminals has a greater effect in reducing recidivism than traditional parole supervision. ..Source.. by Justia

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Municipalities ask Appeals Court to block judge on sex offender

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5-28-15 Wisconsin:

Several Milwaukee County municipalities have asked the Court of Appeals to block a circuit judge's order that a sex offender be housed in the county without regard to local ordinances restricting where such felons may live.

And because they claim Circuit Judge Dennis Moroney blatantly violated their due process rights, the municipalities want him and the court to pay their legal costs.

The unusual action comes after Moroney ruled in March that the state law allowing for the indefinite civil commitment of certain sex offenders after they've served prison terms pre-empts local residency rules.

A key aspect of the state law, known as Chapter 980, is that offenders who, after treatment, are no longer considered more likely than not to commit sex crimes be able to return to their communities under supervision.

Judge orders local rules loosened to find housing for sex offender

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4-2-15 Wisconsin:

MILWAUKEE (WSAU-Wheeler News) A judge in Milwaukee has told state officials to disregard local limits on where convicted sex offenders can live, so a home can be found for a 49-year-old man who was given a supervised release.

Circuit Judge Dennis Moroney said the various local residency restrictions defeat the purpose of a state law which allows civil commitments of certain sex offenders at halfway houses in their home areas, after their prison terms. Milwaukee and most of its suburbs have each adopted local ordinances in recent years that prohibit sex offenders from living certain distances from schools and other places where kids gather.

A number of other communities throughout Wisconsin have similar restrictions. A former lawmaker tried but failed a few years ago to create a statewide policy. Now, state officials say the local laws are stifling their efforts to find a home for Joe Wofford Junior -- who was recently found to no longer be a threat to re-offend after 19 years of confined treatment following his prison term.

Judge casts cloud over web of sex offender residency restrictions

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UPDATE 4-1 PM: Child sex offender will not be placed near school after Mayor Tom Barrett calls out state officials

4-1-15 Wisconsin:

Starting in 2005, Milwaukee suburbs began, one by one, adopting strict rules on where sex offenders could live. As they did, more and more of the released inmates wound up in the city and a shrinking number of places without bans.

Now a judge has declared that the local restrictions, while legally acceptable in isolation, collectively act to defeat the state law meant to manage sex offenders after release from secure state treatment.

City attorneys expect to challenge the ruling, which could have implications far beyond the placement of the offender in question in the case.

"We're certainly aware of it, and are evaluating an appropriate response," Deputy Assistant City Attorney Danielle Bergner said. "Every municipality in Milwaukee County is doing the same thing."

District Attorney John Chisholm said he and others have warned about such a consequence.

State seeks to commit Juneau County child sex assaulter as sex offender

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Here we see the State AG trying to commit someone on his FIRST offense. Notices how the AG speaks in plurals, but there is ONE offense.

11-26-2014 Wisconsin:

State Attorney General J.B. Van Hollen announced this week that the state Department of Justice filed a petition under the state’s sexual predator law against a Juneau County man.

The petition filed Nov. 20 in Juneau County Circuit Court alleges that Larry Whiteeagle, 68, is a sexually violent person and should be committed for treatment. A probable cause hearing is scheduled Dec. 4 before Judge Paul S. Curran.

Under Wisconsin law, a person may be subject to civil commitment when the person has been convicted of a sexually violent offense, has a mental disorder and is dangerous to others because the disorder makes it likely he or she will commit further acts of sexual violence.

A civil commitment is defined in Wisconsin law as commitment to the custody and care of the Department of Health Services for control, care and treatment until the person is no longer considered sexually violent.

Rapist and killer is probably a sexual predator, judge rules

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10-20-2014 Wisconsin:

A man who raped and killed a 17-year-old DeForest girl in 1980 could spend the rest of his life in a state mental health facility after a judge found probable cause Monday that he is a sexually violent person.

Herbert E. Droste, 62, was released from prison on Aug. 19 but is being held in a state Department of Health Services facility until a trial in Juneau County Circuit Court determines whether he is subject to indefinite civil commitment as a sexual predator under state law.

The state Department of Justice is seeking the commitment.

Droste initially served 16 years of a 35-year prison sentence for the 1980 rape and murder of Sandra Bressler. He was released on parole. Around that time, the state had tried to have Droste committed under the then-new sexual predator law, but a Sauk County judge ruled that the state failed to prove its case.

But Droste's freedom was short-lived. He was sent back to prison in 1998 after his parole was revoked because he phoned a bomb threat to a business run by Bressler's family. The call was traced to the Baraboo apartment where Droste was living. ..Source.. by Ed Treleven

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Wisconsin Supreme Court rules sex offender commitment proceedings can go on without conviction

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7-16-2015 Wisconsin:

The Wisconsin Supreme Court says the state can keep trying to commit a man as a sexually violent offender even though his convictions have been reversed.

Joseph Spaeth was convicted of child enticement in 2009. The state filed a petition to commit him as a sexually violent offender in 2010.

The Supreme Court reversed his convictions in 2012. State attorneys argued commitment proceedings should continue because the petition was valid when they filed it.

The court ruled 4-3 on Wednesday that the proceedings can continue, agreeing the petition was valid when it began. But the court warned the state's position is now weaker.

IN RE THE COMMITMENT OF HERBERT O. RICHARD

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2-19-2014 Wisconsin:

This case requires us to determine under what circumstances a petitioner committed under WIS. STAT. ch. 980[1] is entitled to a discharge hearing based on amendments to an actuarial instrument[2] used at trial that, in an evaluating expert's opinion, reduce the petitioner's risk to reoffend below the legal threshold of "more likely than not."

We conclude that when a petitioner alleges that he or she is no longer a sexually violent person, and supports his or her petition with a recent psychological evaluation applying new professional research to conclude that the petitioner is no longer likely to commit acts of sexual violence, the petitioner is entitled to a discharge hearing under WIS. STAT. § 980.09.

Because the circuit court denied Richard a hearing under those circumstances, we reverse and remand. ..Source.. by Court of Appeals of Wisconsin, District III.

[2] Actuarial instruments are "statistical research-based instruments that are created using data obtained by studying various factors associated with recidivism in groups of people who were convicted for sexual offenses, released, and followed over time." State v. Combs, 2006 WI App 137, ¶4, 295 Wis. 2d 457, 720 N.W.2d 684.

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Supreme court clarifies procedures and standards for reviewing civil commitment discharge

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6-17-2010 Wisconsin:

The Wisconsin Supreme Court on June 15 clarified the procedure and standard for reviewing discharge petitions of those civilly committed for sexual violence.

In State v. Arends, (June 15, 2010) the supreme court interpreted procedures under Wis. Stat. section 980.09 – discharge petitions for sexually violent person commitments – which was amended in 2006.

The petitioner in the case, Daniel Arends, was civilly committed as a sexually violent person in 2005 and petitioned for discharge in 2007. The circuit court denied the petition.

The court – in an opinion written by Justice Michael J. Gableman – concluded that section 980.09 “requires a circuit court to follow a two-step process in determining whether to hold a discharge hearing.” The circuit court – which denied Arends’ petition without a hearing after reviewing documents outside the petition – did not follow this procedure, the court found.

The first step – section 980.09(1)

Under section 980.09(1), a “court shall deny the petition … without a hearing unless the petition alleges facts from which the court or jury may conclude the person’s condition has changed” since the civil commitment, the court explained.

The court noted that section 980.09(1) “provides for a very limited review aimed at ensuring the petition is sufficient–that is, whether relief for the petitioner is possible based on the factual allegations in the petition” and documents attached to it.

This standard, the court noted, “is similar to that used in civil cases to decide a motion to dismiss for failure to state a claim upon which relief can be granted.”

The circuit court denied the petition after reviewing evidence outside the petition, but did not state whether it was denying the petition under section 980.09(1) or (2).

Because it “considered evidence outside of the petition … it appears that the circuit court’s denial was issued after a section 980.09(2) analysis,” the court wrote, but it “did not consider all of the items it was required to consider under section 980.09(2).”

The second step – section 980.09(2)

The purpose of the first step is to “weed out meritless and unsupported petitions,” the court wrote. If the petition has merit, a hearing must follow under section 980.09(2).

Under section 980.09(2), the hearing is held to determine if the petition “contains facts from which the court or jury may conclude” that a petitioner has changed.

In determining this, the court must consider “any current or past reports filed under s. 980.07, relevant facts in the petition and in the state’s written response, arguments of counsel, and any supporting documentation provided by the person or the state.”

Here, the court explained, the circuit court did not consider all of the items it was required to consider under section 980.09(2).

The state argued that removal of the words “probable cause” from the old statute gave courts more discretion to make limited credibility determinations. Under the new provision, the state argued, the petitioner must prove by a preponderance of the evidence that he has changed.

The court rejected the state’s argument. Under the statute, the court explained, the circuit court must determine whether a court or jury could find in the petitioners favor based on reasonably reliable facts. It does not mandate a standard beyond that.

The standard, the court wrote, “is not whether the evidence more heavily favors the petitioner, but whether the enumerated items contain facts" that allow a fact-finder to grant relief. Contrary to the state’s belief, the burden does not shift to the petitioner to make the case.

Justice David Prosser filed a dissenting opinion. ..Source.. Joe Forward, Legal Writer, State Bar of Wisconsin

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