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"The research paper offered by Richard said nothing about the likelihood that he would reoffend sexually," says Van Hollen. "The Wisconsin Court of Appeals recognized that and properly affirmed his continued Chapter 980 commitment."
MADISON – Under Chapter 980 of the Wisconsin Statutes, state prosecutors can obtain the civil commitment of sexually violent criminal offenders. Those offenders may petition state circuit courts for discharge from their commitments if they can present historical facts which show their psychological condition has changed. This morning, the Wisconsin Court of Appeals held that a research paper showing a reduced likelihood of reoffending by older sex offenders did not justify discharging Herbert O. Richard from his commitment.
Attorney General J.B. Van Hollen, whose office represented the State of Wisconsin in the Wisconsin Court of Appeals, praised the decision. "The research paper offered by Richard said nothing about the likelihood that he would reoffend sexually," said Van Hollen. “The Wisconsin Court of Appeals recognized that and properly affirmed his continued Chapter 980 commitment."
Richard's history of sexual assault extends to 1977, with offenses committed against an adult woman and two young girls. After serving his prison sentence, the Chippewa County Circuit Court committed him civilly under Chapter 980 in 2008. Richard eventually sought release from that commitment on the strength of a research paper written by psychologists who contend that sex offenders become less likely to commit further acts of sexual violence as they become older. The Chippewa County Circuit Court denied Richard's request for release, and Richard appealed.
The Wisconsin Court of Appeals affirmed the denial of Richard's request for release. From the court's decision (with legal citations, footnotes and quotation marks omitted):
An offender who is committed as a sexually violent person under WIS. STAT. ch. 980 may petition the circuit court for discharge at any time. The circuit court must then engage in a two-step review process to determine if the offender is entitled to a discharge hearing. First, the court must conduct a paper review of the offender's petition and its attachments to see if there are any alleged facts from which the court or jury may conclude the person's condition has changed since the date of his or her initial commitment order so that the person does not meet the criteria for commitment as a sexually violent person. The purpose of the paper review is to weed out meritless and unsupported petitions. If there are no facts alleged from which a trier of fact could conclude that the offender is no longer a sexually violent person, the circuit court must deny the petition.
. . . .
Richard argues that the circuit court improperly dismissed his petition for discharge and that he is entitled to a discharge hearing. According to Richard, the research paper he submitted that argues for changes to the Static-99 scoring system represents a fact from which a fact finder could conclude that his condition has changed such that he is no longer a sexually violent person. We disagree. As the circuit court noted, Richard did not allege any new historical facts to show that his condition has changed since he was committed. Rather, Richard submitted a research paper that is unassociated with his specific condition. That paper provides no insights into Richard's likelihood of reoffending.
So, as the court explained, the statute requires that to obtain a discharge hearing under Chapter 980, a person committed as a sexually violent person must file a discharge petition that alleges new facts about the person's condition (that is, facts that have developed since the initial commitment) that would permit a court or jury to conclude that the person no longer qualifies for continued commitment under Chapter 980. The person cannot satisfy the statute's requirements by filing a petition that merely offers a new interpretation of old facts.
The Wisconsin Court of Appeals' decision in State of Wisconsin v. Herbert O. Richard, No. 2010AP1188, appears at the Court's website:
Assistant Attorney General Christopher G. Wren represented the State of Wisconsin in the Wisconsin Court of Appeals.