Oct. 14, 2025 – The statute setting requirements for recommitting an individual that the circuit court had conditionally released after a verdict of not guilty by reason of mental disease or defect the Wisconsin Court of Appeals found unconstitutional in State v. Wilhite, No. 2024AP2177-CR (Sept. 25, 2025) (recommended for publication).

Due process requires a finding of dangerousness, explained Presiding Judge JoAnn F. Kloppenburg for the unanimous panel, including Judges Brian W. Blanchard and Jennifer E. Nashold.

The Court of Appeals severed the three unconstitutional portions of Wis. Stat. section 971.17(3)(e) that permit revocation of conditional release if the individual “has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked.”

“[T]o avoid violating due process, a circuit court may not commit to institutional care a conditionally released … acquittee without making a new finding of dangerousness,” Kloppenburg wrote.

The decision vacates the Dane County Circuit Court’s order revoking the conditional release of Desmond J. Wilhite, who was discharged from commitment last June.

‘Significant Trepidation’

In September 2022, Wilhite pleaded not guilty by reason of mental disease or defect to a charge of threatening a law enforcement officer in August 2019. The circuit court ordered him committed to the Wisconsin Department of Health Services (DHS) for three years.

Two months after Wilhite’s plea, the state stipulated to a conditional release because “Wilhite did not ‘currently pose a significant risk of harm to self, others, or property,’” and the circuit court granted release in February 2023.

In the same month the circuit court granted release, the state petitioned to revoke conditional release. It withdrew its petition after changes to Wilhite’s treatment plan.

The state petitioned again in October 2023. At a hearing, it withdrew the request in place of additional conditions the circuit court added to the terms of conditional release.

Both petitions alleged Wilhite violated DHS rules.

A recent incident of a rule violation justified the state’s third petition to revoke conditional release in January 2024.

“[T]he circuit court determined that the [s]tate ‘has met its burden by clear and convincing evidence that [Wilhite] has violated his rules, and this is not a situation where I have to find dangerousness.”

The decision, however, raised in the circuit court “some significant trepidation and some serious concerns” about recommitment.

Wilhite had testified that he had improved using coping strategies – and a return to institutionalization “would destabilize his mental state.”

The circuit court would have preferred the parties agree to a different community residential facility. It “also expressed concern that Wilhite’s behavior was ‘escalating.’”

U.S. Supreme Court Precedent

Because Wilhite failed to raise his constitutional claim in the circuit court or in a motion for post-disposition relief, the state argued that the Court of Appeals could not hear the case.

A facial constitutional challenge to a statute, the Court of Appeals explained, cannot be forfeited according to State v. Bush, 2005 WI 103 ¶ 17.

The core of Wilhite’s argument comes from Foucha v. Louisiana, 504 U.S. 71 (1992), claiming that “without proof that a civil committee is currently ‘both mentally ill and dangerous,’ confinement stemming from the commitment violates due process.”

Wisconsin’s recommittal statute requires the state to prove by clear and convincing evidence either a violation of a rule or dangerousness.

The foundational case, Jones v. United States, 463 U.S. 354 (1983), the Court of Appeals quoted, “clarified that ‘[t]he committed acquittee is entitled to release when [the acquittee] has recovered [the acquittee’s] sanity or is no longer dangerous.’”

“The import of this statement was that due process requires that an … acquittee be entitled to release when either mental illness or dangerousness is no longer shown,” the Court of Appeals summarized.

Drawing support from Jones, in Foucha the U.S. Supreme Court “emphasized that an … acquittee ‘could be held’ only ‘until [the acquittee] was no longer mentally ill or no longer dangerous,’” the Court of Appeals said.

Because Foucha was found not guilty by reason of mental disease or defect, the defendant was not convicted, eliminating the government’s interest in punishment, the Foucha court explained, raising due process concerns of “[f]reedom from bodily restraint … from arbitrary government action.”

In Wisconsin, the Court of Appeals said, commitment in such a verdict is, likewise, civil.

Relying on Foucha to interpret a statute significantly different from the one governing here, the Supreme Court in State v. Randall, 192 Wis. 2d. 800 (1995), nonetheless held that an “acquittee may continue to be committed ‘based on dangerousness alone,’” the Court of Appeals emphasized.

‘Not Required to Ignore’

Recommitment places a defendant in a different situation than from the initial commitment, the Court of Appeals outlined.

Institutional care is appropriate after a not guilty by reason of mental disease or defect verdict because the “verdict establishes that: (1) ‘the defendant committed an act that constitutes a criminal offense’; and (2) the defendant ‘committed the act because of mental illness.’”

“[T]hese are sufficiently probative, across cases, of continuing mental illness and dangerousness so as to satisfy the Due Process Clause’s requirement of a finding of dangerousness for commitment,” the Court of Appeals explained, citing Jones.

“However, as pertinent here, if a court finds that an … acquittee is no longer dangerous, the court must release the acquittee because the constitution prohibits continued commitment,” the Court of Appeals continued, citing both Foucha and Randall.

“In other words, after the initial period of commitment and following conditional release, the inference of dangerousness from [a not guilty by reason of mental disease or defect] verdict is no longer sufficient to justify commitment.”

The circuit court in ordering commitment for a conditionally released individual must support it with a new finding of dangerousness, the Court of Appeals instructed.

Precedent supporting that conclusion, the Court of Appeals explained, “did not purport to establish a degree of required dangerousness or to limit the appropriate methods of showing dangerousness.”

“[A] circuit court is ‘not required to ignore indications that a … person has disregarded the rules ... in the past and will do so in the future,’” the Court of Appeals said, citing State v. Burris, 2004 WI 91 ¶ 72.

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.