¶ 103. {dissenting). The problems posed by chapter 980 commitments are difficult for both the legislature and the court alike. This case, however, presents a fairly straightforward question of statutory interpretation. Rather than adhering to the statutory text, the majority interprets legislative silence as unambiguous intent to place the burden of persuasion on the committed person. It then exacerbates any constitutional infirmities such an interpretation may create by contending that, based on public policy, the burden on the committed person is clear and convincing evidence.
¶ 104. I agree with the majority that if chapter 980 "were to become a mechanism for retribution or general deterrence[,] our precedents would not suffice to validate it." Majority op., ¶ 101. I conclude that the majority's unnecessary interpretation pushes chapter 980 one step closer to a punitive scheme. Accordingly, I respectfully dissent.
I
¶ 105. As the majority acknowledges, prior to the 2005 amendments to chapter 980, the State had the burden to prove by clear and convincing evidence that supervised release was inappropriate. Majority op., ¶ 52. The 2005 amendments removed the language placing the burden on the State, but did not expressly assign any burden to any party. Id., ¶ 50.
¶ 106. The majority interprets the 2005 amendments to constitute a total reversal of prior law. Despite the legislature's silence on the issue of burden, the majority determines that the legislature unambiguously intended to shift the burden to the committed *623person to meet all the criteria for supervised release.1 Id., ¶ 55.
¶ 107. Having concluded that the burden falls on the committed person, the majority takes its analysis one step further. The words "clear and convincing" do not appear within the text of the supervised release provisions of chapter 980. The majority tacitly acknowledges that the normal burden in a civil case is preponderance of the evidence, in the absence of statutory language to the contrary. Id., ¶ 77. Nevertheless, the majority asserts that it is "unwilling to set the standard so low." Id., ¶ 80. It makes the determination that "public policy" compels a conclusion that the burden should be clear and convincing evidence. Id., ¶ 77.
¶ 108. As the majority contends, legislative amendments "have served to limit the ability of a person committed pursuant to ch. 980 to obtain supervised release." Id., ¶ 42. In determining that placing the burden on the committed person does not run afoul of the constitution, the majority appears to rely on the initial determination that the committed person is a sexually violent person. Id., ¶ 86. It also appears to rely on the availability of discharge and the procedural safeguards that attend petitions for discharge under Wis. Stat. § 980.09. Id., ¶ 87. It concludes that super*624vised release is analogous to parole in criminal cases, and that a committed person has no liberty interest in supervised release. Id., ¶ 85.
II
¶ 109. I agree with the majority that the legislature unambiguously removed the burden of persuasion from the State. The statute formerly provided that a petition for supervised release would be granted "unless the state proves by clear and convincing evidence" that certain criteria were met. Wis. Stat. § 980.08(4) (1993-94). The legislature removed that language from the statute, evincing an intent to relieve the State of the burden.
¶ 110. I cannot agree, however, that the legislature unambiguously intended to place the burden on the committed person. The majority sets forth several arguments in support of this conclusion, see majority op., ¶¶ 56-59, and at first blush, they appear persuasive. Nevertheless, at the end of the day, language placing the burden of persuasion on the committed person is simply absent from the statute.
¶ 111. The legislature routinely assigns burdens, and it does so by including express language. In the former statute, the legislature expressly placed the burden on the State. Likewise, the legislature has affirmatively assigned burdens of proof in the surrounding subsections of chapter 980 2 It is inconceivable to imagine that the legislature intended to assign the burden of persuasion to the committed person and simply forgot to include language doing so. The majority does what the legislature was unwilling to do — it inserts a burden into the statutory text.
*625¶ 112. The better interpretation is that the statute now provides no affirmative burden of persuasion on either party. Rather, it requires the circuit court to make a discretionary determination based on the statutory criteria and all the available evidence.
¶ 113. The majority rejects this interpretation in a footnote. See majority op., ¶ 73 n.20. It advances that the interpretation is not workable because neither party "would be required to bring forth any evidence." Id. However, such a scheme is common in other statutes where the circuit court is called upon to balance competing interests. For instance, in the dispositional phase of a termination of parental rights proceeding, the court must consider various statutory criteria and make a determination of what is in the best interest of the child. No party — neither the parent, nor the State, nor the guardian ad litem — is assigned a burden of persuasion.
¶ 114. Not only is this interpretation consistent with the language of the statute, but it also helps protect the statute from constitutional infirmities. Rather than interpreting chapter 980 to protect it from constitutional infirmities, however, the majority interprets legislative silence as unambiguous intent. It further exacerbates the possibility of constitutional infirmities by declaring that "public policy" requires a higher burden than the preponderance of evidence, and it sets the burden at clear and convincing evidence.
¶ 115. Normally, when the level of the burden of persuasion is unspecified, it is the preponderance of evidence. On what statutory language or legislative history does the majority rely to discard the normal standard and set the burden at clear and convincing evidence? None whatsoever. The majority relies instead on its own assessment of what would be good public *626policy. It rejects the normal preponderance burden, reasoning: "[W]e are unwilling to set the standard so low." Majority op., ¶ 81.
¶ 116. In setting the burden at clear and convincing evidence, the majority relies on a rationale that is the basis of a criminal conviction. A focus of a chapter 980 commitment is the committed person's current level of dangerousness. This focus sets a chapter 980 commitment apart from a criminal conviction, which focuses on an initial determination of guilt.
¶ 117. Yet, in setting the burden at clear and convincing evidence, the majority relies not on any current assessment of dangerousness, but rather upon the initial finding that, at the time of commitment, the person was more likely than not to reoffend. The majority's reliance on the initial determination rather than a current assessment blurs the distinction between civil and criminal commitments.
Ill
¶ 118. The majority's interpretation chips away at the constitutional underpinnings of chapter 980. Chapter 980 was first enacted in 1993. This court addressed various challenges to its constitutionality in 1995. State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995); State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995).
¶ 119. This court's initial pronouncements that chapter 980 was constitutional relied heavily on the then-existing supervised release provisions, which ensured that a committed person was placed in the least restrictive environment necessary to meet therapeutic and public safety needs. These provisions supplied sufficient evidence that the legislature's intent and effect was not to punish or indefinitely incarcerate *627sexually violent persons, but rather, to treat them. Such legislative intent and effect was necessary to meet constitutional standards.
¶ 120. I authored the Carpenter majority opinion, in which we addressed double jeopardy and ex post facto challenges. We concluded that chapter 980 survived those challenges because the "plain language" of the statute demonstrated the legislature's intent to "create[] a civil commitment procedure primarily intended to protect the public and to provide concentrated treatment to convicted sexually violent person, not to punish the sexual offender." 197 Wis. 2d at 258.
¶ 121. The legislature's non-punitive intent was evinced, in part, by the then-existing supervised release provisions. Sexually violent persons were "committed to the [DHSS] for control, care, and treatment." Id. at 259-60. Institutionalization at a secure mental health facility was not automatic. Rather, the DHSS was required to provide placement "in the least restrictive manner consistent with the requirements of the person." Id. at 266. Supervised release was available from day one depending on the person's therapeutic needs. We explained: "These provisions lead us to conclude that the statute is aimed primarily at treating the sexually violent person, not punishing the individual." Id. at 267.
¶ 122. I joined the majority opinion of this court in Post. To survive a due process challenge, we explained, the nature and duration of commitment must "bear some reasonable relation to the purpose for which the individual is committed." 197 Wis. 2d at 313. We concluded that "[t]he language of the statute provides the best evidence of this reasonable relationship." Id. The nature of the commitment was "control, care and treatment in the least restrictive manner." Id. Further, *628the duration of institutionalization and commitment were intimately linked to treatment of the mental condition. Id. at 314.
¶ 123. Over the last 15 years, the legislature has steadily chipped away at those aspects of chapter 980 upon which we relied in determining that the statute was constitutional. As it now exists, chapter 980 is largely unrecognizable from the scheme that was deemed constitutional in Carpenter and Post:
• The proof necessary to initially commit an individual has been significantly lowered. When ch. 980 was first enacted, a jury was required to find beyond a reasonable doubt that it was "substantially probable that the person will engage in acts of sexual violence." Wis. Stat. § 980.01(7) (1993-94). Now, the jury must conclude only that it is "likely." Wis. Stat. § 980.01(7) (2009-10).
• The nature of the commitment is significantly more restrictive. When the statute was first enacted, a commitment order could specify "institutional care in a secure mental health unit or facility ... or other facility or supervised release." Wis. Stat. § 980.06(2)(b) (1993-94). The DHSS was required to place the person in the "least restrictive manner consistent with the requirements of the person." Id. Now, this discretion has been removed. A commitment order "shall specify that the person be placed in institutional care," and the DHSS "shall place a person committed under s. 980.06 at the secure mental health facility." Wis. Stat. §§ 980.06, 980.065(lm) (2009-10).
• The duration of institutionalization is necessarily longer. When the statute was first enacted, the DHSS was required to reexamine committed persons "within 6 months after an initial commitment." Wis. Stat. § 980.07(1) (1993-94). Now, the reexamination need not occur until twelve months after initial confinement. Wis. Stat. § 980.07(1) (2009-10).
*629• When the statute was first enacted, a committed person could petition for supervised release when 6 months had elapsed since the original commitment. Wis. Stat. § 980.08(1) (1993-94). Now, the committed person must be institutionalized for twelve months prior to petitioning for supervised release. Wis. Stat. § 980.08(1) (2009-10).
• As discussed in this opinion, the availability of supervised release has been drastically undermined.
¶ 124. In State v. Rachel (Rachel I), 2002 WI 81, ¶ 14, 254 Wis. 2d 215, 647 N.W.2d 762, this court evaluated the 1999 amendments to chapter 980, which "[a]s a whole . . . limit[ed] the ch. 980 respondent's ability to obtain supervised release[.]" We concluded that despite these limitations, the statute remained constitutional.
¶ 125. I wrote separately, concurring in the mandate. I concurred because of the presumption that a statute is constitutional and the rule that a statute must be proven unconstitutional beyond a reasonable doubt. Id., ¶ 86 (Bradley, J., concurring). Yet, I concluded that the supervised release provisions, as amended in 1999, were "on the brink of running afoul of the constitution." Id., ¶ 71. Given the many changes in the law since its inception, most of them chipping away at the edges of this court's rationale in Carpenter and Post, I said that the presumption of constitutionality was "wearing thin." Id., ¶ 75.
¶ 126. With the most recent amendments, as they have been interpreted by the majority, I conclude that the arguments in favor of constitutionality have just about worn out.
¶ 127. In my view, a key component of the original statute's constitutionality is that the burden continually fell on the State to justify the placement of a *630sexually violent person in the most restrictive environment — institutionalization at a secure mental health facility. As amended in 1999, however, a committed person must be institutionalized at a secure mental health facility upon commitment. Now, under the most recent amendments, the presumptions embodied by the statute appear to favor continued institutionalization.
¶ 128. Not only must the committed person prove that he poses a low risk of danger to others, he also must prove elements that are unrelated to his level of dangerousness. He must prove that placement, supervision, and treatment are "reasonably available" and can be provided with a "reasonable level of resources." As a result, the nature and duration of commitment may no longer be related to the person's legitimate treatment needs and the actual danger they would pose under the conditions of supervised release.
¶ 129. When I examine how this statute has evolved over the last 15 years, I have increasing doubts that the "plain language" of the statute evinces that the legislature's choices are "primarily intended to protect the public and to provide concentrated treatment to convicted sexually violent persons, not to punish the sexual offender." Carpenter, 197 Wis. 2d at 258. Rather, chapter 980 increasingly resembles a punitive scheme.3
*631¶ 130. This shifting focus away from treatment and toward punishment is reflected in the majority's analysis. To justify what it perceives to be the legislature's choice, the majority relies more and more on the procedural safeguards that attended the initial commitment and the fact that a jury once found that the committed person was a sexually violent person.
¶ 131. The majority explains that "the original determination of being a sexually violent person, like a conviction before parole, carries procedural safeguards that serve to protect the individual's due process rights." Majority op., ¶ 86. It further contends that it is "unusual" that a person "who was properly committed under ch. 980, may now be placed in the community on supervised release without a probability of committing another sexually violent offense." Majority op., ¶ 71, see also id., ¶ 73.
¶ 132. These justifications resonate with a criminal commitment scheme, in which an accused defendant is afforded procedural safeguards at trial, and the finality of judgment carries great weight after conviction. They do not belong in a civil commitment scheme, where the nature and duration of commitment are *632supposed to be "intimately linked to treatment of [the] mental condition." Post, 197 Wis. 2d at 314. The majority makes clear that it considers placement in the community under supervision — which was once a cornerstone of the statute's constitutionality — to be an "unusual event."
¶ 133. Ultimately, the majority's interpretation invites an absurd result contrary to the legitimate purposes of chapter 980. It appears that it may be easier for a person who was once determined to be sexually violent to obtain discharge than supervised release.
¶ 134. When a person is placed on supervised release, he lives in the community but at the same time is strictly monitored by the DHSS. Supervised release often includes stringent conditions.4 If the person violates any rule or condition, supervised release can be readily revoked. By contrast, when a person is discharged from a chapter 980 commitment, that person is released into the community and free to go about his business with no constraints. There are no conditions or monitoring because he is no longer in the care, custody, and control of the DHSS.
*633¶ 135. As set forth above, chapter 980 was originally found to be constitutional because it served the legitimate purposes of protection of the public and treatment of sexually violent persons. I conclude that the absurd result countenanced by the majority undercuts both purposes. It favors the release of sexually violent persons into the community without control, and it disfavors the therapy for sexually violent persons that can be best achieved in the community.
¶ 136. Accordingly, I respectfully dissent.
¶ 137. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.
Under the majority's analysis, the committed person must prove that he has made significant progress in treatment which can be sustained, that it is substantially probable that he will not engage in an act of sexual violence while on supervised release, and that he can be reasonably expected to comply with treatment requirements and conditions and rules of supervised release. Additionally, the committed person must prove that appropriate treatment is reasonably available and that a reasonable level of resources can provide for the required placement, supervision, and treatment needs.
Wis. Stat. § 980.05(3)(a); Wis. Stat. § 980.09(3) (2009-10).
I agree with the majority that the procedural safeguards attending initial commitment proceedings as well as the availability of discharge and the procedural safeguards that attend discharge proceedings are essential aspects of maintaining chapter 980's constitutionality. Without these safeguards, a committed person could be indefinitely institutionalized even if he no longer met the criteria for commitment as a sexually violent person. Such a scheme would surely run afoul of numerous constitutional provisions. Foucha v. Louisiana, 504 U.S. 71, 82 (1992).
*631The majority relies on Hendricks for the stark proposition that a civil commitment statute need not contain any supervised release provision at all to pass constitutional muster. See majority op., ¶ 41.1 do not find this argument to be persuasive. It overlooks that each civil commitment scheme is its own package and must be evaluated as a whole based on all of its characteristics. See State v. Rachel (Rachel 1), 2002 WI 81, ¶ 44, 254 Wis. 2d 215, 647 N.W.2d 762 ("[W]e think it is necessary to look beyond the mere amendments in our analysis to the statute as a whole.") It also overlooks the fact that, as discussed in detail below, this court heavily relied on the supervised release provisions when it first pronounced chapter 980 constitutional.
See, e.g., Wis. Stat. § 908.08(9)(a) ("As a condition of supervised release . .. , for the first year of supervised release, the court shall restrict the person on supervised release to the person's home except for outings that are under the direct supervision of a department of corrections escort and that are for employment purposes, for religious purposes, or for caring for the person's basic living needs."); see also Wis. Admin. Code DHS § 98.07(3); Dep't. Health Services, Conditional Release Rules and Conditions, available at www.dhs.wisconsin.gov/ formsl/f2/f25614.doc.
The conditions and monitoring placed on a person on supervised release are much more stringent than the conditions and monitoring placed on someone who is on extended supervision after serving a conviction for a criminal offense.