NGI Commitments – Commitment for Institutional Care, § 971.17(3)(a) – Sufficiency of Evidence

State v. Paul A. Wilinski, 2008 WI App 170

For Wilinski: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: NGI commitment to institutional care supported by the evidence, in that

The nature of the offense itself (violent assault coupled with threat to kill) supported a finding of significant risk of harm if Wilinski were released (¶13);Wilinski failed to comply with conditional release under prior NGI commitment, thereby suggesting poor prospect for treatment compliance (¶14);Wilinski was dangerous when off medication and/or drinking alcohol (¶15);Conditional-release services available to Wilinski within the community would be adequate for only up to one year, while there was evidence Wilinski would require daily monitoring for 27 years (¶¶6, 17);

In sum:

¶18 The level of certainty required by Wis. Stat. § 971.17(3)(a) is clear and convincing evidence. Although this requires certitude greater than preponderance of the evidence, absolute certainty is not required. Kuehn v. Kuehn, 11 Wis. 2d 15, 26, 29-30, 104 N.W.2d 138 (1960). As directed by § 971.17(3)(a), the court considered the nature and circumstances of Wilinski’s crime; his mental history and present mental condition; where he would live if released; and what arrangements would be available to ensure he has access to and will take necessary medication. We conclude the court could reasonably be convinced by clear and convincing evidence that Wilinski would pose a significant risk of bodily harm to himself or others if released. The court’s order is therefore supported by sufficient evidence.

Wilinski apparently had a track record of treatment non-compliance to go along with demonstrable dangerousness, so the temptation to lock him up notwithstanding (more accurately: because of) his mental illness must have been strong. (He not only violently assaulted a female acquaintance he also attacked police when they showed up.) Still, judges are in effect required to pay lip service to least restrictive alternative placement, conditional release, when feasible. (That is, if the judge can’t affirmatively find significant risk by clear and convincing evidence, then conditional release must be ordered instead of institutional care, § 971.17(3)(a).) The kicker here is support for Wilinski’s conditional release with adequate monitoring, which one doctor thought had to be in place for 27 years (¶6), along with evidence the local community didn’t have the resources for such long-term monitoring (¶8). Not hard, then, to see why the judge would be wary of ordering release. The legal question for the court of appeals was, in effect, whether placement could be cost-driven. The court certainly didn’t phrase the problem precisely that way, but the net effect of the holding is to throw costs into the placement calculus (“what arrangements would be available to ensure he has access to and will take necessary medication”). Would have been nice, then, if the court of appeals had dealt with this problem a bit more forthrightly. For example, there is authority for the idea that where the legislature hasn’t so specified, ch. 55 protective placement may not be driven by fiscal concerns D.E.R. v. La Crosse County, 155 Wis. 2d 240, 248, 455 N.W.2d 239 (1990) (with respect to [since-amended] § 55.06(9)(a) (1987-88): “The legislature has not expressly limited the county’s responsibility in ch. 55 to make placements to the least restrictive environment to funds available from state or federal sources and county matching funds,” id., at 252). This isn’t to say that the court of appeals’ analysis was wrong. To the contrary, City of Milwaukee v. Ruby Washington, 2007 WI 104, ¶¶49-53, pretty clearly suggests that costs can be factored into placement (TB commitment in that instance). It’s just that the opinion cries out for a more refined analysis on this point. It’s one thing to say, in so many words (none, really when you get down to it), that a small, strapped county can’t reasonably be expected to pour resources into decades’ worth of monitoring. Sort of a self-evident, isn’t it? But what happens when the county doesn’t want to pay for someone facing maximum exposure of, say, 5 years (or less). Then what? Would have been nice for the court to provide some sort of analytical framework, but that will apparently have to await future litigation.