July 2015 Illinois:In re Commitment of Alger: State of Wisconsin -v- Michael Alger
Michael Alger appeals an order denying his 2014 petition for discharge from his WIS. STAT. ch. 980 commitment.[1] The circuit court concluded Alger's petition was insufficient to set the matter for trial because Alger had refused to participate in treatment following his previous discharge trial in 2012, wherein a jury found Alger remained dangerous within the meaning of WIS. STAT. § 980.01(7).
¶2 However, the basis for Alger's petition was not that his condition had improved as a result of treatment. Rather, Alger's petition was supported with an expert report applying new research regarding the proper use of one of the actuarial instruments utilized by the experts at Alger's prior discharge trial.
Applying this new research, the report concluded Alger no longer met the criteria for commitment under WIS. STAT. ch. 980. This expert's report was not prepared at Alger's behest, but rather was submitted pursuant to WIS. STAT. § 980.07(2), as a component of the Department of Health Service's (DHS) statutorily mandated, annual reexamination of Alger.
¶3 Based upon this shift in the relevant professional understanding regarding the evaluation of a person's dangerousness, a fact finder "would likely conclude [Alger's] condition has changed since the most recent order denying a petition for discharge" such that Alger "no longer meets the criteria for commitment as a sexually violent person." See WIS. STAT. § 980.09(1).
Accordingly, we reverse and remand with directions for the circuit court to conduct a discharge trial.
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Dr. Subramanian opined that recent research indicated that static and dynamic factors, considered in combination, "offer unique variance in assessing sexual recidivism risk." Specifically, Subramanian cited a 2011 research presentation that "assessed sexual recidivism using the Static-99R as a static instrument and Violence Risk Scale — Sex Offender Version (VRS-SO), Structured Risk Assessment — Forensic Version (SRA-FV), and Stable — 2007 as instruments to assess dynamic risk factors and presented results graphically." Subramanian also cited 2012 research presented at the Association of Treatment of Sexual Abusers that showed "[s]exual recidivism probabilities differed for nineteen samples based on dynamic factors external to Static-99R assessed by any one of the three instruments described above. Like the study in 2011, this research also concluded that dynamic factors accounted for the sample base rates."
Based on Alger's dynamic risk factors, which included substance abuse and intimacy deficits as the two main relevant factors, Dr. Subramanian concluded the recidivism probability estimates of the "Nonroutine" group best applied to Alger.[8] Subramanian scored Alger a "5" on the Static-99R. Individuals in the "Nonroutine" sample with a score of "5" had sexual recidivism rates of 20% in five years and 28% in ten years. Subramanian therefore concluded Alger's "lifetime probability [of] sexual offending does not exceed the legal threshold of fifty-one percent."
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