Important New Wisconsin Supreme Court Case

On April 24, 2020, the Wisconsin Supreme Court issued an important decision interpreting Chapter 51, which is the Wisconsin statute governing involuntary civil commitment. The case is Langlade County v. D.J.W., 2020 WI 41. You can read the full decision here: If you want to skip the blog post and just get to the conclusion, here it is. For more than twenty years, Wisconsin counties seeking a recommitment did not need to prove that a person was dangerous under one of the five standards of dangerousness set forth in Wis. Stat. §51.20(1)(a)(2). Instead, they just called a doctor to testify that if treatment were withdrawn, the person would likely need to be recommitted. Boom, twelve more months of involuntary commitment. Not any more. Now, counties are to specify how the person is currently dangerous, and circuit courts “are to make specific factual findings with reference to the subdivision paragraph of §51.20(1)(a)2 on which the recommitment is based.” This is a big deal! Read on to learn more.

Let’s start with this: Wisconsin’s involuntary commitment rate is higher than any other state in the nation–BY A LOT. According to a report for the Substance Abuse and Mental Health Services (SAMHSA), the annual commitment rate among states ranges from 0.23 to 43.8 per 1,000 adults diagnosed with serious mental illness. The average is 9.4 per 1,000, with Wisconsin the highest at 43.8. Here is a link to the study: The SAMHSA study cites to the NRI state surveys survey, available at That study shows that Wisconsin has, by far, the highest number of civil commitments in the nation. The data is from 2015, which is the most recent available. But it shows Wisconsin reporting 10,563 involuntary civil commitments! The next highest number is 5,090 in Kentucky. Most states report a few thousand, a few hundred, or less. Are we really the craziest state in the nation? Or is something else going on?

We have seen evolving–or perhaps, more accurately, devolving–standards for dangerousness as a criterion for involuntary civil commitment over the past 20 years. In 1972, Wisconsin led the nation with the Lessard v. Schmidt case and its requirement of imminent dangerousness for involuntary civil commitment. By the end of the 1970’s, nearly every state had revised its commitment statutes to conform to the civil liberty principles articulated in Lessard.

Enter Wisconsin psychiatrist Darryl Treffert. Treffert famously authored a letter, “Dying with Their Rights On,” which was published in 1973 by the American Journal of Psychiatry. Catchy, right? Catch on it did. Treffert offered anecdotal evidence that respecting civil liberties of people diagnosed with mental illness would have bad results.

Treffert’s arguments started to take hold about 20-30 years ago, when groups like the Treatment Advocacy Center began advocating for what is euphemistically called “Assisted Outpatient Treatment (“AOT”). It sounds so helpful, doesn’t it? But what that really means is involuntary treatment and forced drugging. Robert Whittaker and Michael Simonson authored an excellent article on this topic which featured Andrew’s story on the Mad in America website. You can read it here:

Wisconsin fell in line with other states that bought into the idea that we had to close the “revolving door” for people who had a long history of diagnosed mental illness and who cycled in and out of treatment. In 1983, Wisconsin adopted its version of the AOT law. You can find it at Wis. Stat. §51.20(1)(am). The law allowed the government to work around establishing that a person it sought to recommit was dangerous: it had only to show that, if treatment were withdrawn, the person would become the proper subject of commitment. What most Wisconsin counties would do is put on a doctor to testify about past incidents–sometimes years before the recommitment hearing–and then conclude that if treatment were withdrawn, the person would stop medication and /or decompensate.

That’s what happened to Andrew at his recommitment hearings. How could he prove a negative? Doesn’t that impermissibly shift the County’s burden of proof to the respondent? And by the way, Andrew was not a “revolving door” mental patient. He had no history of mental illness, and before the single incident that caused all the excitement, he had never had what is labeled a psychotic episode or any kind of mental health hospitalization. At Andrew’s hearing, we testified that, two and one-half years after the initial commitment, he was steadily employed, getting raises and promotions. He was living independently and taking good care of his duplex and yard. He was engaged with family, enjoying family Sunday dinners, and interacting with friends. He had his own health insurance, and his family would provide help and support as needed. Yet the County would not let go of him. Why not? We may never know the answer. (But I am looking. Following the money is usually a good place to start. Excessive deference to medical experts, and how the doctors are compensated for their role in all of this is a topic for another blog post.)

Back to D.J.W. When testifying at his recommitment hearing, he said he was the Messiah and had been sent to find a way to stop global warming. (Hardly a dangerous goal.) Two doctors testified that he had schizophrenia and was delusional. (Might be true; not enough to show dangerousness.) Records that one of the doctors reviewed indicated that once in the past, D.J.W. had held a knife and stood in the doorway to his mother’s room. (Not imminent; not enough to show dangerousness.) The doctors agreed that he had not exhibited harmful or threatening behavior to himself or others while under his commitment. They also agreed, however, that there was a substantial likelihood that he would become a proper subject for treatment if treatment were withdrawn.

On appeal, D.J.W. argued that the County had failed to prove that he was dangerous. But according to the court of appeals, the County is not required to offer evidence of threatening or violent behavior. Nor is it required to offer proof of recent overt threats or violent behavior to support a recommitment order. It just has to show that if treatment were withdrawn, there is a substantial likelihood, based upon the individual’s treatment record, that he would become “a proper subject for treatment.” This is a correct summary of Wisconsin’s recommitment statute, but like the statute itself, this reasoning is circular. After an initial commitment, a person can undergo endless recommitments based solely on the fact scenario that led to the initial commitment. It ignores the possibility that a person might recover from diagnosed mental illness, or that he might enter remission and be able to return to the community without forced treatment.

That’s exactly what happened to Andrew. He had two recommitment hearings. Both times, the doctor simply parroted what had been the basis for the initial commitment. There was absolutely no evidence that Andrew was dangerous to himself or others in the years since. He lost hope that he’d ever be free again. And he had good reason for his fear. Endless recommitments are the rule, rather than the exception, in Wisconsin. In one case, a woman was recommitted for the 26th time! Or this case, where a man has been recommitted more than 35 times.

Did you notice the infinity symbol in the image at the top of this post? The infinite loop is the perfect symbol for Wisconsin’s system of endless recommitments. Such a system undermines the purpose of a Chapter 51 commitment, which is supposed to provide treatment that will help someone diagnosed with mental illness improve. Someone who will never improve–such as a person who is cognitively disabled, or someone with dementia–is not a proper subject of a Chapter 51 commitment. Chapter 51 is designed to rehabilitate a person through short-term commitments with the goal of returning the person to society, whereas Chapter 55 is designed for long term commitments. Fond du Lac County v. Helen E.F., 2012 WI 50, ¶¶13, 25, 340 Wis. 2d 500, 814 N.W.2d 179. Wisconsin’s infinite loop approach to Chapter 51 commitments–committing a person annually for 25 or 35 years–clearly violates the letter and the spirit of this rule of law.

The D.J.W. case is important in that going forward, the government must identify precisely which of the five standards of dangerousness apply to the person it is seeking to recommit. That is an improvement over past practice, which ran roughshod over civil liberties and led to Wisconsin’s dubious distinction of having far more people on involuntary commitments than any other state in the nation. But it does not go far enough. Wisconsin’s recommitment statute is unconstitutional. The United States Supreme Court has held that the government cannot commit a person just because he is mentally ill. He has to be dangerous and incapable of living in the community with the support of family or friends. Even if a person’s commitment was initially permissible, it cannot constitutionally continue if its basis no longer exists. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975). We will keep coming at the Legislature to amend this unfair statute, and at the courts to hold it unconstitutional.

New Bill Promotes Forced Treatment as Panacea for Mass Shootings

On October 23, 2019, Senator John Cornyn (R-TX) announced the introduction of the Restoring, Enhancing, Strengthening and Promoting Our Nation’s Safety Efforts (RESPONSE) Act. His efforts come in the wake of two Texas mass shootings in El Paso and Midland-Odessa. When horrible tragedies happen, it’s human nature to want to do something–anything–to prevent future harm. After 9-11, for example, we got the Patriot Act. Like the Patriot Act, however, the RESPONSE Act will not accomplish its intended goal. And also like the Patriot Act, the RESPONSE Act will impose severe and unnecessary restrictions on the civil liberties of people alleged to be mentally ill.

The RESPONSE Act is based upon tired, soundly debunked theories that there is a link between mass violence and psychiatric disability. See this article, in which the American Psychiatric Association says blaming mental illness for gun violence is “simplistic” and inaccurate.” As noted in the article, countless studies have found that there is no conclusive evidence that marks the mentally ill with having a greater predisposition for gun violence. Nonetheless, based on the erroneous assumption to the contrary, the Act would expand involuntary mental health treatment, including long-acting injectable antipsychotic drugs.

As noted by the author of this article,, we need to think carefully about what we label as “mental illness.” The Act does not define mental illness. Should we take guns away from veterans with PTSD? From dentists with depression? From people with OCD who pick at their skin? Even if we limit the definition to “serious” mental illnesses, conventionally used as a term for people diagnosed with schizophrenia and bipolar disorder, only 3-4% of violent acts are committed by people with that label.

It’s no surprise that the proposed legislation is largely silent on the issue of gun control. Sen. Cornyn is highly ranked by the National Rifle Association (NRA) for his long-standing opposition to gun control legislation (such as expanding background checks for gun buyers). The NRA is a significant contributor to Sen. Cornyn’s campaign funds, to the tune of about $200,000 in donations. And he is up for reelection next year.

Politically motivated legislation such as this will do nothing to address gun violence in the U.S. Instead, it will fuel prejudice, fear, and marginalization of people with mental health issues. We know that gun violence is not a mental health issue. This bill is not the answer to gun violence.

Handcuffs for People in Mental Health Crisis are Just Plain Wrong

I’ve linked to an article below about how a now-fired police officer hand-cuffed two six-year-olds, in separate incidents, and hauled them off to jail to be booked, complete with mug shots and fingerprinting. Um, what??? This treatment of first graders acting out at school in the form of temper tantrums is astoundingly inappropriate–yet not uncommon.

We have come to a place where law enforcement, in the interest of “public safety,” is handcuffing and otherwise restraining and traumatizing vast numbers of our vulnerable and marginalized populations: children, the homeless, the emotionally sensitive, and those diagnosed with mental illness. This must stop.

When I go to court to represent a person subject to involuntary civil commitment proceedings, they are often restrained not just with handcuffs, but belly chains and ankle shackles. They are treated not only as criminals, but as the most dangerous sort of lawbreakers–someone who might savagely attack anyone in the courtroom if they were not nearly immobilized by chains.

This, to me, shocks the conscience in its ignorance and cruelty. In any courtroom, there is at least one fully-armed bailiff; usually more than one. In addition, the individual who is the subject of the involuntary commitment is escorted from the lockdown inpatient or other facility by at least one armed “transport” official. So, at a minimum, there are two fully armed officers ready and able to control any unexpected dangerous outburst. But those outbursts, in my experience, don’t happen. The unsubstantiated notion that people diagnosed with mental illness are somehow dangerous lunatics is based in fear, not in well-documented science. Fear-based control is never rational, and always a threat to civil liberties.

Being handcuffed and restrained is an affront to human dignity. It is a humiliating, painful, degrading experience. It is especially damaging to sensitive, emotional people, who are most likely to be diagnosed with mental illness. Police and sheriff’s departments who mandate this treatment on a routine basis, with no CIT or other assessment of whether it is necessary, need to re-evaluate their unnecessary, inhumane and, in some states, unlawful policies.

We understand the quandary of law enforcement in dealing with people in emotional crisis. Officers responding to a mental health call have to balance criminal law, patient rights, patient safety, their own safety, the safety of the patient’s family members. Obviously, police usually aren’t the best people for the job. We need to stop sending law enforcement, especially officers untrained in how to deal with people in emotional crisis, to handle these situations.

This should be seen as an evolving cultural decency standard regarding coercion and punishment, similar to what has happened across the country regarding the practice of shackling pregnant women who are giving birth while incarcerated. See Hall et al., “Pregnant Women and the Use of Corrections Restraints and Substance Use Commitment,” Journal of the American Academy of Psychiatry and the Law, September, 2015, 43 (3) 359-368.

And we should stop it. #wecanandmustdobetter

Our First Conference Exhibit

We are exhibiting at the NARPA (National Association for Rights Protection and Advocacy) Conference this weekend in Hartford, CT. Lots of great seminars here, including William Brooks, J.D. on “Enforcing Rights Against Forced Treatment Through Damages Actions;” Susan Stefan, J.D., “Everything You Ever Wanted to Know about EMTLA;” Lee Coleman, M.D., “Better Education of Attorneys and Investigators Resisting Psychiatric Oppression;” Julie Zito, Ph.D., “Combating Five Myths on Psychotropic Medication Treatments;” Aaryce Hayes, M.S.W., “How to Review Investigations of Seclusions and Restraints;” Ron Bassman et al., “Building Community to Combat Forced Treatment and Rights Violations.” Lots to learn here. And it’s a great opportunity to build our network of attorneys, experts, volunteers and other contributors.

A Taste of Their Own Medicine

Here’s a fascinating read from January 2018. A psychiatrist writes that one of his patients threatened to jump off a bridge if the doctor prescribed a particular psychotropic medication to him. At first, the doctor took the same patronizing attitude that I’ve observed many adopt with my clients. The doctor asked the patient which side effects were bothering him. The patient gave a typical list. The listed side effects aren’t enumerated in the article, but I am guessing they were similar to what my son Andrew complained of: lethargy, difficulty concentrating, inability to read a book, occasional slurred speech. The doctor gave the stock response: What has a greater negative impact on your life–those side effects, or another manic episode?

But then, the doctor did something I’ve never heard of. He took the meds himself. He journaled, every 30 minutes, about the effects he was experiencing for the next 24 hours. It’s a must-read, especially for anyone who believes forced drugging of people is OK because “it’s for their own good.” Maybe every doctor should be required to take a dose of these meds. Only then can they make a reasonable determination that these known side effects are no big deal.

Stop Using Police As Mental Health “Paramedics”

This article tells of how the Cedar Rapids police are starting to use crisis intervention instead of traditional escalation of force in mental health cases. That’s…better than nothing. But really, law enforcement has no place in dealing with a person in a psychotic state. They don’t have the training to de-escalate the situation, and too often it ends with the death of the person in crisis. Using non-violent de-escalation techniques is more time-consuming. It’s also more humane, and there really is no excuse for not doing it. It’s like corporal punishment for children. It’s certainly easier, and more efficient, to beat them into submission. But it’s inhumane and barbaric to do so.

Here’s a recent story from Madison, Wisconsin, where police used traditional brute force to subdue a non-violent, black 17-year-old. The teenager was on an involuntary civil commitment. Such commitments have “treatment conditions” that require the individual to keep appointments with doctors, submit to regular urine screens (to confirm that prescribed medications are being taken and that non-prescribed drugs are not), and other restrictions. If treatment providers allege that the conditions are not being complied with, the standard response is not to pick up the phone and ask the person to reschedule the missed appointment or otherwise address the concern. Rather, the police are called. They show up with flashing red lights. They bang on the door, then handcuff the person (who has not committed a crime), throw them into the squad car and haul them to a locked inpatient facility. In the Madison case, the police took the extra steps of throwing the child against a wall and punching him before they hauled him off. I’m also attaching video footage taken from the home security system showing this brutality. This shameful mistreatment must stop.

Fighting Involuntary Outpatient Treatment: Next Steps for Change

Robert Nikkel has written a good article about concrete steps we need to take to effect meaningful change in our broken mental health system. He mentions “the tragedy of Andrew Rich,” noting that the only reason given for extending Andrew’s involuntary commitment was his disagreement with a psychiatrist’s opinion that he was “mentally ill.” This is not a valid or lawful basis for extending an involuntary commitment, but as an attorney who has represented many Wisconsin clients in these proceedings, I can tell you that it is done routinely. Nikkel outlines eight problems with the current system and provides specific suggestions for solutions we can implement.

AOT: A Failed Paradigm of Care

This article uses Andrew’s story to illustrate how miserably the mental health treatment and legal system failed him. It’s an analysis of the failed paradigm that is euphemistically called “Assisted Outpatient Treatment.” It sounds so helpful, doesn’t it? We’re providing assistance to people who need it because, the theory goes, their brains are too broken to allow them to make their own treatment decisions. What it really means is forced drugging of people alleged to be mentally ill. Forced injections of psychotropic medications known to have debilitating, permanent side effects. People are placed on involuntary civil commitments that get renewed year after year with no meaningful judicial review and no end in sight for the person subjected to the commitment. The authors take on the myths surrounding mental illness (such as the supposed danger unmedicated people pose to society) and debunk them with strong scientific evidence.

How would Jesus be assessed using currently accepted criteria for mental illness diagnosis?

Depressed Jesus

How would Jesus be assessed using currently accepted criteria for mental illness diagnosis?

Suppose that Jesus of Nazareth walked the earth, not 2000 years ago, but today. Suppose he showed up in Wisconsin. He had formerly been gainfully employed as a carpenter, but he had not worked in many months, indicating a reduced capacity to care for himself. Moreover, he would not be seeking work, because he believed the judgment day—the end of the world—was imminent. He told his followers that he was the Son of Man, sent by God to spread a message of hope and salvation to the world. He said he was a prophet. He believed that God gave him the power to perform miracles: changing water into wine (John 2:1-11), walking on water (John 6:15-21 and Matthew 14:22), feeding multitudes with only two fish and five loaves of bread (Matthew 14:31). He believed he had the power to raise Lazarus from the dead, and he did so (John 11:1-44). He was quoted as saying, “I am the resurrection and the life. He who believes in me will live, even though he dies.” (John 11:25). He challenged the prevailing religious and governmental authorities, saying that he did not need to abide by their rules because he answered to a higher power: God the Father. Whoa. We have a problem here.

The primary psychiatric diagnostic tool used in the United States today is the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, known as the DSM-5. This book is endorsed by the American Psychiatric Association, and is a hymnal from which almost every psychiatrist involved in mental illness sings. The DSM-5 is basically a cookbook, designed to allow the psychiatrist to come to a diagnosis and medication decision based on 5-15 minutes with a patient. By identifying 4-5 “diagnostic criteria,” the treating psychiatrist can quickly and efficiently label the patient with a diagnosis, prescribe medication, and move on to the next patient, all in the space of a few minutes. For subjects of involuntary commitment, this practice can impose drastic restrictions on their civil liberty.

So, how would our system handle this problem of Jesus of Nazareth? He would in all likelihood be detained by the police, and incarcerated in the detention center or a lock-down psychiatric ward. Within 72 hours, he would be brought before a court commissioner for a probable cause hearing. These hearings tend to be rubber-stamped, because the burden on the County (seeking to obtain an involuntary commitment) is so low. I have advocated for the subjects of these hearings, and have faced annoyance from judges and prosecutors because I actually cross-examine the doctors and law enforcement officers. This is not the norm; a typical probable cause hearing lasts about five minutes. Mine last 30 minutes or more, much to the exasperation of the courts.

Back to Jesus. Here is how I believe he would be assessed using the DSM-5:

Diagnostic Criteria (295.90 [F20.9])

Two (or more) of the following, each present “for a significant portion of time during a one-month period (or less if successfully treated). At least one of these must be (1), (2), or (3):
1. Delusions
2. Hallucinations
3. Disorganized speech
4. Grossly disorganized or catatonic behavior
5. Negative symptoms (i.e., diminished emotional expression or avolition)
B. For a significant portion of the time since the onset of the disturbance, level of functioning in one or more major areas, such as work, interpersonal relations, or self-care, is markedly below the level achieved prior to the onset…

Some individuals with psychosis may lack insight or awareness of their disorder (i.e., anosognosia). This lack of ‘insight’ includes unawareness of symptoms of schizophrenia and may be present throughout the entire course of the illness. Unawareness of illness is typically a symptom of schizophrenia itself rather than a coping strategy…This symptom is the most common predictor of non-adherence to treatment, and it predicts higher relapse rates, increased number of involuntary treatments, poorer psycho-social functioning, aggression, and a poorer course of illness.”

To find that Jesus is schizophrenic, we need only find that two of the symptoms listed in the DSM-5 “cookbook” apply. Clearly, he has exhibited delusions: these are fixed beliefs that are not amenable to change in light of conflicting evidence (DSM-5, p. 87). Delusions are deemed bizarre if they are clearly implausible and not understandable to same-culture peers and do not derive from ordinary life experiences.

Hallucinations are perception-like experiences that occur without an external stimulus. They are viivd and clear, with the full force and impact of normal perceptions, and not under voluntary control. (DSM-5, p. 87-88).

Delusional disorder, grandiose type: “This subtype applies when the central theme of the delusion is the conviction of having some great (but unrecognized) talent or insight or having made some important discovery.”

Based on the foregoing, we would diagnose Jesus as follows:

Schizotypal (Personality) Disorder
The patient presents with delusions and hallucinations, with grandiose type applications.
The patient believes that he is a prophet, and is the son of God or the Son of Man. He has said that he was sent to earth by God to take on the sins of all people, and in doing so, to save all of mankind. Such thinking is clearly delusional, of the grandiose type.

Further, the patient has multiple hallucinations. He hears voices that others do not; he claims the voice is that of his father, God. The patient believes that he has the power to cure the incurable; to raise people from the dead; to change water into wine; and to walk on water. All of these perceived “powers” or experiences fall within the DSM’s definition of hallucinations, and are further evidence of the patient’s schizophrenia.

There are also issues with the fifth criterion, lack of self-care. Jesus is unemployed and homeless. The patient has, on numerous occasions, expressed his belief that the end of the world is near. For that reason, the patient does not believe he should seek employment, housing, or take reasonable measures for self-care. For this reason, as well as the mental illness findings set forth above the County believes the subject is properly a person in need of mental health commitment.

But wait: Jesus has done nothing to indicate that he is a danger to himself or others. Doesn’t the government have the burden of proving dangerousness before involuntary commitment can be ordered? According to the seminal Wisconsin case, Lessard v. Schmidt, the answer to that question is a clear “yes.” In recent years, however, we have moved away from that standard and toward a more paternalistic view that significantly lowers the bar for a finding of dangerousness. In Wisconsin, this is known as the “fifth standard.” It has withstood several constitutional challenges, despite the fact that it allows someone to be involuntarily committed with no showing of dangerousness. More on that in another blog post.

Of course, there was that incident in the temple. Jesus violently expelled merchants and money changers from the temple which stood on the Temple Mount in Jerusalem. He reportedly used a whip on humans and animals alike, and forcibly overturned their tables. Matthew 21:12-17; Mark 11:15-19; and Luke 19:45-48. Clearly, this is someone who presents a danger to others.

The result? After the probable cause hearing, a final hearing will be held. The examining doctor will present the evidence above to show that Jesus has a mental illness and is dangerous to himself or others. He will recommend inpatient treatment (i.e., incarceration in a lock-down psych ward), as well as involuntary medication (meaning, if the patient refuses to take the medication, he will be placed in a four-point restraint and forcibly injected by a team wearing helmets, body shields and gloves). The judge will find in favor of the County, and will check the boxes on two pre-printed forms: mentally ill, check; dangerous, check. Involuntary medication (with no specific medication listed), check. We are not talking about incarceration for a few days. The statute allows the judge to order inpatient lock-down for up to six months. Then, typically, the County will petition for re-commitment for 12 months. For many people, the recommitment starts an infinite cycle from which there is no escape.

As Timon said in the Lion King, is everyone OK with this??? It is our position that they should not be.

Please, we can and must do better than this.

Sheboygan Press Front Page Article About Andrew’s Story

Marina Affo did a great job with this story about Andrew. We are especially pleased with her incorporation of some of Andrew’s writings in the story. Writing a great story, and having it published, was one of Andrew’s greatest dreams. This article is a start. I’m working on a book which will include legal analysis of system defects, and also Andrew’s perspective as one forced to live within that defective system.