Graham L. Stowe v. Gregory Van Rybroek, No. 23-3345, 8/21/24
This habeas appeal is limited to a facial challenge to the NGI conditional release statute, Wis. Stat. § 971.17(4)(d). The Seventh Circuit rejects Stowe’s argument, concluding that he cannot show that there are no circumstances under which the law’s application would be valid.
After being charged in 2004 with “violent offenses,” Stowe was found NGI and committed for 39.5 years. In 2016, Stowe petitioned for conditional release, and the circuit court denied his petition. Although there was testimony from experts as to Stowe’s diagnoses and mental state, the court relied on the risk of violence alone in its denial. The Wisconsin COA affirmed. State v. Stowe, No. 2016AP2367, unpublished slip op. (Wis. Ct. App. Dec. 27, 2017). (p.2).
Stowe then sought collateral review in federal court, arguing that § 971.17(4)(d) violates the Due Process Clause of the Fourteenth Amendment, as understood in Foucha v. Louisiana, 504 U.S. 71 (1992), because it allows the state to keep in custody someone who is a danger to self or others without finding that this person also has a mental disease or defect. The district court rejected Stowe’s argument because under §971.17(4)(d), state judges are permitted to consider the person’s mental history and present mental condition and “frequently will consider, and act on,” such evidence. (p.3). The court also rejected what it interpreted as an as-applied challenge, concluding Stowe had not preserved this argument.
The 7th Circuit explains that because the Wisconsin courts held that § 971.17(4)(d) is constitutional, Stowe must show that this decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”. (pp.3-4). As Stowe relies on Foucha, a five-four decision with a separate opinion limiting the scope of the holding, the Court concludes that he cannot meet his burden. (p.4).
Citing State v. Randall, 192 Wis. 2d 800 (1995), the opinion notes that Wisconsin courts have read the concurrence as allowing the detention of dangerous insanity acquittees who have regained their mental health if the state offers treatment to improve their chances of release. (p.4). The Court also highlights that Wisconsin does not authorize indefinite detention, as Louisiana did, and that in Wisconsin, unlike Louisiana, the burden to justify detention rests on the state. (p.5). However, the Court holds that any potential error with the Wisconsin court’s interpretation in Randall is irrelevant, as § 971.17(4)(d) allows courts to consider evidence of a detainee’s “present mental condition.” (p.5).
Because courts may, and the 7th Circuit believes, often will make all findings required to support detention on anyone’s understanding of the Due Process Clause, it is not confident that “a substantial number of [the law’s] applications are unconstitutional” or that “no set of circumstances exists under which the [law] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). (p.5).
This opinion shows the importance of preserving an as-applied challenge under similar circumstances (where the circuit court does not make a determination on mental illness, since it’s not required by the statute). A habeas petition with a preserved as-applied challenge is currently pending in the Western District of Wisconsin. See Alvin Taylor v. Gregory Van Rybroek, 3:21-cv-0040-wmc (click here for PACER, or here to view docket without an account).
