Chapter 971

971.17(1m)(b)2m. 2m. If the defendant under sub. (1) is found not guilty by reason of mental disease or defect for a violation, or for the solicitation, conspiracy, or attempt to commit a violation, of s. 940.22 (2), 940.225 (1), (2), or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.051, 948.055, 948.06, 948.07, 948.075, 948.08, 948.085, 948.095, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13, or 948.30, of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or of s. 940.30 or 940.31 if the victim was a minor and the defendant was not the victim’s parent, the court shall require the defendant to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the defendant, that the defendant is not required to comply under s. 301.45 (1m).

971.17(1m)(b)3. 3. In determining under subd. 1m. a. whether it would be in the interest of public protection to have the defendant report under s. 301.45, the court may consider any of the following:

971.17(1m)(b)3.a. a. The ages, at the time of the violation, of the defendant and the victim of the violation.

971.17(1m)(b)3.b. b. The relationship between the defendant and the victim of the violation.

971.17(1m)(b)3.c. c. Whether the violation resulted in bodily harm, as defined in s. 939.22 (4), to the victim.

971.17(1m)(b)3.d. d. Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.

971.17(1m)(b)3.e. e. The probability that the defendant will commit other violations in the future.

971.17(1m)(b)3.g. g. Any other factor that the court determines may be relevant to the particular case.

971.17(1m)(b)4. 4. If the court orders a defendant to comply with the reporting requirements under s. 301.45, the court may order the defendant to continue to comply with the reporting requirements until his or her death.

971.17(1m)(b)5. 5. If the court orders a defendant to comply with the reporting requirements under s. 301.45, the clerk of the court in which the order is entered shall promptly forward a copy of the order to the department of corrections. If the finding of not guilty by reason of mental disease or defect on which the order is based is reversed, set aside or vacated, the clerk of the court shall promptly forward to the department of corrections a certificate stating that the finding has been reversed, set aside or vacated.

971.17(2) (2) Investigation and examination.

971.17(2)(a) (a) The court shall enter an initial commitment order under this section pursuant to a hearing held as soon as practicable after the judgment of not guilty by reason of mental disease or mental defect is entered. If the court lacks sufficient information to make the determination required by sub. (3) immediately after trial, it may adjourn the hearing and order the department of health services to conduct a predisposition investigation using the procedure in s. 972.15 or a supplementary mental examination or both, to assist the court in framing the commitment order.

971.17(2)(b) (b) If a supplementary mental examination is ordered under par. (a), the court may appoint one or more examiners having the specialized knowledge determined by the court to be appropriate to examine and report upon the condition of the person. In lieu thereof, the court may commit the person to an appropriate mental health facility for the period specified in par. (c), which shall count as days spent in custody under s. 973.155.

971.17(2)(c) (c) An examiner shall complete an inpatient examination under par. (b) and file the report within 15 days after the examination is ordered unless, for good cause, the examiner cannot complete the examination and requests an extension. In that case, the court may allow one 15-day extension of the examination period. An examiner shall complete an outpatient examination and file the report of examination within 15 days after the examination is ordered.

971.17(2)(d) (d) If the court orders an inpatient examination under par. (b), it shall arrange for the transportation of the person to the examining facility within a reasonable time after the examination is ordered and for the person to be returned to the jail or court within a reasonable time after the examination has been completed.

971.17(2)(e) (e) The examiner appointed under par. (b) shall personally observe and examine the person. The examiner or facility shall have access to the person’s past or 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 the examiner believes that the person is appropriate for conditional release, the examiner shall report on the type of treatment and services that the person may need while in the community on conditional release.

971.17(2)(f) (f) The costs of an examination ordered under par. (a) shall be paid by the county upon the order of the court as part of the costs of the action.

971.17(2)(g) (g) Within 10 days after the examiner’s report is filed under par. (c), the court shall hold a hearing to determine whether commitment shall take the form of institutional care or conditional release.

971.17(3) (3) Commitment order.

971.17(3)(a) (a) An order for commitment under this section shall specify either institutional care or conditional release. The court shall order institutional care if it finds by clear and convincing evidence that conditional release of the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage. If the court does not make this finding, it shall order conditional release. In determining whether commitment shall be for institutional care or conditional release, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person’s mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.

971.17(3)(b) (b) If the state proves by clear and convincing evidence that the person is not competent to refuse medication or treatment for the person’s mental condition, under the standard specified in s. 971.16 (3), the court shall issue, as part of the commitment order, an order that the person is not competent to refuse medication or treatment for the person’s mental condition and that whoever administers the medication or treatment to the person shall observe appropriate medical standards.

971.17(3)(c) (c) If the court order specifies institutional care, the department of health services shall place the person in an institution under s. 51.37 (3) that the department considers appropriate in light of the rehabilitative services required by the person and the protection of public safety. If the person is not subject to a court order determining the person to be not competent to refuse medication or treatment for the person’s mental condition and if the institution in which the person is placed determines that the person should be subject to such a court order, the institution may file with the court, with notice to the person and his or her counsel and the district attorney, a motion for a hearing, under the standard specified in s. 971.16 (3), on whether the person is not competent to refuse medication or treatment. A report on which the motion is based shall accompany the motion and notice of motion and shall include a statement signed by a licensed physician that asserts that the person needs medication or treatment and that the person is not competent to refuse medication or treatment, based on an examination of the person by a licensed physician. Within 10 days after a motion is filed under this paragraph, the court shall determine the person’s competency to refuse medication or treatment for the person’s mental condition. At the request of the person, his or her counsel or the district attorney, the hearing may be postponed, but in no case may the postponed hearing be held more than 20 days after a motion is filed under this paragraph. If the district attorney, the person and his or her counsel waive their respective opportunities to present other evidence on the issue, the court shall determine the person’s competency to refuse medication or treatment on the basis of the report accompanying the motion. In the absence of these waivers, the court shall hold an evidentiary hearing on the issue. If the state proves by evidence that is clear and convincing that the person is not competent to refuse medication or treatment, under the standard specified in s. 971.16 (3), the court shall order that the person is not competent to refuse medication or treatment for the person’s mental condition and that whoever administers the medication or treatment to the person shall observe appropriate medical standards.

971.17(3)(d) (d) If the court finds that the person is appropriate for conditional release, the court shall notify the department of health services. The department of health services and the county department under s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person’s need, if any, for supervision, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department of health services may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 21 days after the court finding that the person is appropriate for conditional release, unless the county department, department of health services and person to be released request additional time to develop the plan. If the county department of the person’s county of residence declines to prepare a plan, the department of health services may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the individual will be living in that county.

971.17(3)(e) (e) An order for conditional release places the person in the custody and control of the department of health services. A conditionally released person is subject to the conditions set by the court and to the rules of the department of health services. Before a person is conditionally released by the court under this subsection, the court shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement under this paragraph does not apply if a municipal department or county sheriff submits to the court a written statement waiving the right to be notified. If the department of health services alleges that a released person has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked, he or she may be taken into custody under the rules of the department. The department of health services shall submit a statement showing probable cause of the detention and a petition to revoke the order for conditional release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 72 hours after the detention, excluding Saturdays, Sundays, and legal holidays. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department of health services may detain the person in a jail or in a hospital, center or facility specified by s. 51.15 (2) (d). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked, it may revoke the order for conditional release and order that the released person be placed in an appropriate institution under s. 51.37 (3) until the expiration of the commitment or until again conditionally released under this section.

971.17(4) (4) Petition for conditional release.

971.17(4)(a) (a) Any person who is committed for institutional care may petition the committing court to modify its order by authorizing conditional release if at least 6 months have elapsed since the initial commitment order was entered, the most recent release petition was denied or the most recent order for conditional release was revoked. The director of the facility at which the person is placed may file a petition under this paragraph on the person’s behalf at any time.

971.17(4)(b) (b) If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney and, subject to sub. (7) (b), refer the matter to the state public defender for determination of indigency 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.

971.17(4)(c) (c) Within 20 days after receipt of the petition, the court shall appoint one or more examiners having 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 30 days after appointment. The examiners 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 conditional release, the examiner shall report on the type of treatment and services that the person may need while in the community on conditional release.

971.17(4)(d) (d) The court, without a jury, shall hear the petition within 30 days after the report of the court-appointed examiner is filed with the court, unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18). The court shall grant the petition unless it finds by clear and convincing evidence that the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage if conditionally released. In making this determination, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person’s mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.

971.17(4)(e) (e)

971.17(4)(e)1. 1. If the court finds that the person is appropriate for conditional release, the court shall notify the department of health services. Subject to subd. 2. and 3., the department of health services and the county department under s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person’s need, if any, for supervision, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department of health services may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for conditional release, unless the county department, department of health services and person to be released request additional time to develop the plan.

971.17(4)(e)2. 2. If the county department of the person’s county of residence declines to prepare a plan, the department of health services may arrange for any other county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. This subdivision does not apply if the person was found not guilty of a sex offense, as defined in s. 301.45 (1d) (b), by reason of mental disease or defect.

971.17(4)(e)3. 3. If the county department for the person’s county of residence declines to prepare a plan for a person who was found not guilty of a sex offense, as defined in s. 301.45 (1d) (b), by reason of mental disease or defect, the department may arrange for any of the following counties to prepare a plan if the county agrees to do so:

971.17(4)(e)3.a. a. The county in which the person was found not guilty by reason of mental disease or defect, if the person will be living in that county.

971.17(4)(e)3.b. b. A county in which a treatment facility for sex offenders is located, if the person will be living in that facility.

971.17(4m) (4m) Notice about conditional release.

971.17(4m)(a) (a) In this subsection:

971.17(4m)(a)1. 1. “Crime” has the meaning designated in s. 949.01 (1).

971.17(4m)(a)2. 2. “Member of the family” means spouse, domestic partner under ch. 770, child, sibling, parent or legal guardian.

971.17(4m)(a)3. 3. “Victim” means a person against whom a crime has been committed.

971.17(4m)(b) (b) If the court conditionally releases a defendant under this section, the district attorney shall do all of the following in accordance with par. (c):

971.17(4m)(b)1. 1. Make a reasonable attempt to notify the victim of the crime committed by the defendant or, if the victim died as a result of the crime, an adult member of the victim’s family or, if the victim is younger than 18 years old, the victim’s parent or legal guardian.

971.17(4m)(b)2. 2. Notify the department of corrections.

971.17(4m)(c) (c) The notice under par. (b) shall inform the department of corrections and the person under par. (b) 1. of the defendant’s name and conditional release date. The district attorney shall send the notice, postmarked no later than 7 days after the court orders the conditional release under this section, to the department of corrections and to the last-known address of the person under par. (b) 1.

971.17(4m)(d) (d) Upon request, the department of health services shall assist district attorneys in obtaining information regarding persons specified in par. (b) 1.

971.17(5) (5) Petition for termination. A person on conditional release, or the department of health services on his or her behalf, may petition the committing court to terminate the order of commitment. If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney and, subject to sub. (7) (b), refer the matter to the state public defender for determination of indigency 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. The petition shall be determined as promptly as practicable by the court without a jury. The court shall terminate the order of commitment unless it finds by clear and convincing evidence that further supervision is necessary to prevent a significant risk of bodily harm to the person or to others or of serious property damage. In making this determination, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person’s mental history and current mental condition, the person’s behavior while on conditional release, and plans for the person’s living arrangements, support, treatment and other required services after termination of the commitment order. A petition under this subsection may not be filed unless at least 6 months have elapsed since the person was last placed on conditional release or since the most recent petition under this subsection was denied.

971.17(6) (6) Expiration of commitment order.

971.17(6)(a) (a) At least 60 days prior to the expiration of a commitment order under sub. (1), the department of health services shall notify all of the following:

971.17(6)(a)1. 1. The court that committed the person.

971.17(6)(a)2. 2. The district attorney of the county in which the commitment order was entered.

971.17(6)(a)3. 3. The appropriate county department under s. 51.42 or 51.437.

971.17(6)(b) (b) Upon the expiration of a commitment order under sub. (1), the court shall discharge the person, subject to the right of the department of health services or the appropriate county department under s. 51.42 or 51.437 to proceed against the person under ch. 51 or 55. If none of those departments proceeds against the person under ch. 51 or 55, the court may order the proceeding.

971.17(6m) (6m) Notice about termination or discharge.

971.17(6m)(a) (a) In this subsection:

971.17(6m)(a)1. 1. “Crime” has the meaning designated in s. 949.01 (1).

971.17(6m)(a)2. 2. “Member of the family” means spouse, domestic partner under ch. 770, child, sibling, parent or legal guardian.

971.17(6m)(a)3. 3. “Victim” means a person against whom a crime has been committed.

971.17(6m)(b) (b) If the court orders that the defendant’s commitment is terminated under sub. (5) or that the defendant be discharged under sub. (6), the department of health services shall do all of the following in accordance with par. (c):

971.17(6m)(b)1. 1. If the person has submitted a card under par. (d) requesting notification, make a reasonable attempt to notify the victim of the crime committed by the defendant, or, if the victim died as a result of the crime, an adult member of the victim’s family or, if the victim is younger than 18 years old, the victim’s parent or legal guardian.

971.17(6m)(b)2. 2. Notify the department of corrections.

971.17(6m)(c) (c) The notice under par. (b) shall inform the department of corrections and the person under par. (b) 1. of the defendant’s name and termination or discharge date. The department of health services shall send the notice, postmarked at least 7 days before the defendant’s termination or discharge date, to the department of corrections and to the last-known address of the person under par. (b) 1.

971.17(6m)(d) (d) The department of health services shall design and prepare cards for persons specified in par. (b) 1. to send to the department. The cards shall have space for these persons to provide their names and addresses, the name of the applicable defendant and any other information the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in par. (b) 1. These persons may send completed cards to the department. All departmental records or portions of records that relate to mailing addresses of these persons are not subject to inspection or copying under s. 19.35 (1), except as needed to comply with a request under sub. (4m) (d) or s. 301.46 (3) (d).

971.17(7) (7) Hearings and rights.

971.17(7)(a) (a) The committing court shall conduct all hearings under this section. The person shall be given reasonable notice of the time and place of each such hearing. The court may designate additional persons to receive these notices.

971.17(7)(b) (b) Without limitation by enumeration, at any hearing under this section, the person has the right to:

971.17(7)(b)1. 1. Counsel. If the person claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations under s. 977.07 (1).

971.17(7)(b)2. 2. Remain silent.

971.17(7)(b)3. 3. Present and cross-examine witnesses.

971.17(7)(b)4. 4. Have the hearing recorded by a court reporter.

971.17(7)(c) (c) If the person wishes to be examined by a physician or a psychologist or other expert of his or her choice, the procedure under s. 971.16 (4) shall apply. Upon motion of an indigent person, the court shall appoint a qualified and available examiner for the person at public expense. Examiners for the person or the district attorney 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).

971.17(7)(d) (d) Upon a showing by the proponent of good cause under s. 807.13 (2) (c), testimony may be received into the record of a hearing under this section by telephone or live audiovisual means.

971.17(7m) (7m) Motion for postdisposition relief and appeal.

971.17(7m)(a) (a) A motion for postdisposition relief from a final order or judgment by a person subject to this section shall be made in the time and manner provided in ss. 809.30 to 809.32. An appeal by a person subject to this section from a final order or judgment under this section or from an order denying a motion for postdisposition relief shall be taken in the time and manner provided in ss. 808.04 (3) and 809.30 to 809.32. The person shall file a motion for postdisposition relief in the circuit court before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.

971.17(7m)(b) (b) An appeal by the state from a final judgment or order under this section may be taken to the court of appeals within the time specified in s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809.

971.17(8) (8) Applicability. This section governs the commitment, release and discharge of persons adjudicated not guilty by reason of mental disease or mental defect for offenses committed on or after January 1, 1991. The commitment, release and discharge of persons adjudicated not guilty by reason of mental disease or mental defect for offenses committed prior to January 1, 1991, shall be governed by s. 971.17, 1987 stats., as affected by 1989 Wisconsin Act 31.

971.17 History History: 1975 c. 430; 1977 c. 353; 1977 c. 428 s. 115; 1983 a. 359; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 394; 1989 a. 31, 142, 334, 359; Sup. Ct. Order, 158 Wis. 2d xvii (1990); 1991 a. 39, 189, 269; 1993 a. 16, 98, 227; 1995 a. 27 s. 9126 (19); 1995 a. 417, 425, 440, 448; 1997 a. 35, 130, 181, 252, 275; 1999 a. 89; 2001 a. 95, 109; 2003 a. 50; 2005 a. 277, 431; 2007 a. 20 ss. 3875, 9121 (6) (a); 2007 a. 116; 2009 a. 26, 28, 137, 261; 2011 a. 258; 2013 a. 20, 362; 2017 a. 131, 140; 2021 a. 131; 2023 a. 224.

971.17 Cross-reference Cross-reference: See also ch. DHS 98, Wis. adm. code.

Effective date note Judicial Council Note, 1990: Sub. (7) (d) [created] conforms the standard for admission of testimony by telephone or live audio-visual means at hearings under this section to that governing other evidentiary criminal proceedings. [Re Order eff. 1-1-91]

971.17 Annotation Neither sub. (3), the due process clause, or the equal protection clause provides a right to a jury trial in recommitment proceedings. State v. M.S., 159 Wis. 2d 206, 464 N.W.2d 41 (Ct. App. 1990).

971.17 Annotation The state, and not the county, is responsible for funding the conditions for a person conditionally released under this section. Rolo v. Goers, 174 Wis. 2d 709, 497 N.W.2d 724 (1993).

971.17 Annotation It is not a denial of due process for an insanity acquitee to be confined to a state health facility for so long as the individual is considered dangerous, although sane, provided that: 1) the commitment does not exceed the maximum term of imprisonment that could have been imposed for the criminal offense charged; and 2) the state bears the burden of proof that the commitment should continue because the individual is a danger to himself, herself, or others. State v. Randall, 192 Wis. 2d 800, 532 N.W.2d 94 (1995), 93-0219.

971.17 Annotation The sentence of a defendant convicted of committing a crime while committed due to a prior not guilty by reason of mental disease or defect commitment under this section may not be served concurrent with the commitment. State v. Szulczewski, 209 Wis. 2d 1, 561 N.W.2d 781 (Ct. App. 1997), 96-1323.

971.17 Annotation A court may not order a prison sentence consecutive to a commitment under this section. A sentence can only be imposed concurrent or consecutive to another sentence. State v. Harr, 211 Wis. 2d 584, 568 N.W.2d 307 (Ct. App. 1997), 96-2815.

971.17 Annotation A commitment under this section is legal cause under s. 973.15 (8) to stay the sentence of a defendant who commits a crime while serving the commitment. Whether to stay the sentence while the commitment is in effect or to begin the sentence immediately is within the sentencing court’s discretion. State v. Szulczewski, 216 Wis. 2d 495, 574 N.W.2d 660 (1998), 96-1323.

971.17 Annotation The 30-day requirement in sub. (3) (e) is directory. The failure to have a hearing within 30 days of filing a petition to revoke a conditional release does not cause the court to lose competence to decide a second petition. State v. Schertz, 2002 WI App 289, 258 Wis. 2d 351, 655 N.W.2d 175, 02-0789.

971.17 Annotation Section 51.75, the interstate compact on mental health, does not apply to individuals found not guilty of criminal charges by reason of mental disease or defect in accord with this section. State v. Devore, 2004 WI App 87, 272 Wis. 2d 383, 679 N.W.2d 890, 03-2323.

971.17 Annotation A circuit court’s order for commitment under sub. (3) (a) should be reviewed under a sufficiency of the evidence standard. State v. Wilinski, 2008 WI App 170, 314 Wis. 2d 643, 762 N.W.2d 399, 08-0404.

971.17 Annotation Sub. (3) (c) facially satisfies substantive due process protections. A finding of dangerousness is not required to order the involuntary medication of an individual committed under this section. Findings of dangerousness based on the original commitment under sub. (3) and on the denial of a petition for conditional release under sub. (4) (d) continue to be present until they are changed or upset. With such a basis present, a court evaluating a motion for an involuntary medication order need not make separate or independent findings of dangerousness. State v. Wood, 2010 WI 17, 323 Wis. 2d 321, 780 N.W.2d 63, 07-2767.

971.17 Annotation Sub. (3) (c) is facially valid on procedural due process grounds for two primary reasons. First, the statute requires that the court grant a conditional release hearing, which the committed person may request every six months. Although that review is not specific to the medication order, it must necessarily include a review of the medication order. Second, language in this section outside sub. (3) (c) implicitly requires periodic review. State v. Wood, 2010 WI 17, 323 Wis. 2d 321, 780 N.W.2d 63, 07-2767.