Revocation in NGI cases requires finding of dangerousness, appeals court rules

By Alexandria Staubach
 
​The Wisconsin Court of Appeals last week invalidated part of a law that permitted individuals, institutionalized as "not guilty by reason of mental disease or defect” (NGI) and later released, to be sent back into state custody for mere rule violations.

Judge JoAnne F. Kloppenburg wrote for the three-judge panel in District IV, joined by Judges Brian W. Blanchard and Jennifer E. Nashold.
 
The case centered on the institutionalization, release, and reinstitutionalization of Desmond J. Wilhite.
 
Wilhite had been found NGI on a charge of threatening a law enforcement officer and committed to the care of the Wisconsin Department of Health Services.
 
In November 2022, the state stipulated to Wilhite’s conditional release, stating that he “did not 'currently pose a significant risk of harm to self, others, property.'” As a result, the circuit court ordered Wilhite conditionally released in February 2023 to the same community residential facility where he previously resided.
 
That release was later revoked by Dane County Circuit Court Judge Josann M. Reynolds. DHS had sought to have Wilhite’s conditional release revoked based on DHS rule violations, the nature of which were not specified in the appellate court’s opinion. 
  
The statute at issue allowed revocation and reinstitutionalization of NGI-committed individuals who had been released based on 1) violation of a release condition set by the court or DHS, or 2) the individual’s current dangerousness.

Reynolds found that the state had met its burden of proof regarding rule violations by Wilhite and that it was "'not a situation where (she had) to find dangerousness.'"
 
Wilhite argued on appeal that the law was unconstitutional on its face because it allowed a circuit court to revoke an NGI individual’s conditional release based solely on a violation of a court-ordered or DHS rule, absent proof of dangerousness.
 
Wilhite relied on federal law to argue that it “always violates due process” to commit an individual to institutional care without proof of dangerousness, because due process requires release from commitment when the individual is no longer dangerous.
 
The court of appeals agreed. Kloppenburg wrote that if an individual is conditionally released, the court must necessarily find that an individual no longer presents a danger to themselves or the community. “(I)f a court finds that an NGI acquittee is no longer dangerous, the court must release the acquittee because the constitution prohibits continued commitment.”
 
After that, “the inference of dangerousness from an NGI verdict is no longer sufficient to justify commitment; rather, dangerousness must be established as a matter of fact,” she wrote.
 
“It follows from this that, to avoid violating due process, a circuit court many not commit to institutional care a conditionally released NGI acquittee without making a new finding of dangerousness,” Kloppenburg wrote. “(I)n all such cases the court has previously determined that there was not clear and convincing evidence that the acquittee is dangerous.”
 
Because state and federal law require a finding of dangerousness to justify the detention of an NGI individual, the portion of the statute allowing reinstitutionalization for rule violations alone is unconstitutional, the court held. The court left in place the remainder of the statute.
 
Wilhite’s case was reversed and remanded to the circuit court with directions to vacate the order that revoked his conditional release and recommitted him to institutional care. 

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