¶ 39. (concurring in part; dissenting in part). I agree with the majority's careful distinction between Wis. Stat. ch. 980, Wis. Stat. ch. 51 and Wis. Stat. § 971.17. The discussion is excellent and, in my view, the conclusions reached are unassailable. I also join in the majority's conclusion that the six-month time period for a reexamination is mandatory. I disagree, however, that the only remedy available for failure to meet the statutory time frame is release of the committed person to the streets. Release of a ch. 980 patient whose dangerousness or mental disorder has not abated serves neither to protect the public nor provide care and treatment for the patient. Therefore, I dissent on this issue and write separately to detail what I believe are the appropriate remedies when government officials fail to satisfy the six-month time period for reexamination.
¶ 40. The majority pins its remedy to its interpretation of State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), and State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995). The majority interprets these cases as recognizing a liberty right to a reexamination. See Majority at ¶ 26 ("[t]he reexamination is a safeguard against arbitrary confinement") and Majority at ¶ 27 ("[a] Wis. Stat. ch. 980 committed person's liberty hinges upon this initial reexamination"). According to this reasoning, if a committed person is not timely reexamined, his or her liberty interests mandate release as the only appropriate remedy.
¶ 41. I do not agree that Post and Carpenter view periodic reexaminations as procedural due process safeguards. In Carpenter, the defendant argued that the primary purpose of Wis. Stat. ch. 980 is punishment. Carpenter, 197 Wis. 2d at 268. The supreme court rejected this contention, holding that the purposes of *711the statute are to protect the public and provide treatment to convicted sex offenders who are at high risk to reoffend. Id. at 271. In Post, the court made the following comments about periodic testing:
Periodic mental examinations are conducted "for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge." Wis. Stat. § 980.07(1). Thus, the duration of an individual's commitment is intimately linked to treatment of his mental condition. Commitment ends when the committed person no longer suffers from a mental disorder or when that condition no longer predisposes him to commit acts of sexual violence. Protection of the community is also well-served by this statutory scheme because the danger to the public has necessarily dissipated when treatment has progressed sufficiently to warrant an individual's release.
Post, 197 Wis. 2d at 314. In other words, the periodic testing is evidence of the legislative purpose to control, care and treat committed persons with the goal of returning them to society with minimal risk to the public, rather than warehousing such persons indefinitely.
¶ 42. Failure to hold the reexamination within six months does not transmogrify the statute into a penal one. Nor does it result in curtailment of a patient's liberty interests beyond that which is already encompassed by the patient's initial commitment. See id. at 317 (Wis. Stat. ch. 980 balances individual liberties with the public's right to protection). The failure to accomplish the reexamination within six months, therefore, is not a due process failure, but a failure to monitor the patient's treatment and progress. Under this view, release is not only inappropriate, it is not justifiable *712under the dual purposes of the statute: protection of the public from sexually violent persons likely to reof-fend and care and treatment of the patient.
¶ 43. This is not to say that there should not be consequences that flow from the governmental misconduct in this case. But I simply do not believe that it is fair or just to visit the consequences upon the innocent public. In addition, Marberry is not truly served by release either, given that his mental illness has not yet abated to a point where he may be safely reintroduced to the community. According to the most recent reexamination of Marberry, his health status requires that he receive treatment, not release. See State v. Seibert, 220 Wis. 2d 308, 320, 582 N.W.2d 745 (Ct. App. 1998) (refusing to allow release for committee's claim that facility failed to develop appropriate treatment program, stating that release would be "absurd" and his remedy was to litigate the issue and if successful, obtain correct treatment).
¶ 44. I prefer to take an economic approach to identify the consequences of the government's misconduct and to impose a remedy.-An economic analysis is guided by cost efficiency; it identifies the costs of a transaction and then applies sanctions to arrive at the most economically efficient outcome. See generally Richard A. Posner, An Economic Theory of the Criminal Law, 85 Colum. L. Rev. 1193 (1985). According to Posner, concerns about economic efficiency have guided courts in devising remedies for governmental misconduct in criminal cases, even though such concerns may not always be articulated. Richard A. Posner, Excessive . Sanctions for Governmental Misconduct in Criminal Cases, 57 Wash. L. Rev. 635, 646 (1982). He maintains, for example, that the harmless error rule is a remedy that can be explained in terms of efficiency:
*713If a person is guilty beyond a reasonable doubt on the basis of evidence both reliable and just, then a retrial will impose either a deadweight loss in the form of litigation expenses that will not change the outcome of the first trial, or an equally or (probably) more serious social cost resulting from the acquittal of a guilty person and consequent reduction in the deterrent and incapacitative effects of criminal punishment. These costs are excessive relative to the governmental misconduct, which by definition is slight since the defendant would in all probability have been convicted anyway.
What the harmless-error rule does, then, is to identify a type of governmental misconduct whose social costs are much lower than the social costs of attempting to deter the misconduct by overturning the conviction and forcing a retrial.
Id. at 645.1
*714¶ 45. Posner's cost efficiency approach resonates in this case as well. What are the costs if Marberry is granted his request for release? Marberry has previously been convicted of sexually assaulting an adult female by use of force and an adolescent female, also by use of force. He has been examined by WRC personnel and found to be a dangerous sexual predator. He has been reexamined and his illness has not subsided. Release of such a person, whom experts predict will reoffend, is a costly remedy triggering expenditures of police and community resources in the form of heightened security and other safety precautions in the community in which he plans to live. We cannot ignore these very real costs. Significantly, these costs will accrue if we grant Marberry's request for release regardless of whether he actually reoffends or not.
¶ 46. These costs must be compared to the cost of governmental misconduct involved in this case. Officials failed to hold a reexamination that was necessary to monitor Marberry's treatment and progress. From an economic perspective, the cost of this failure is only noticeable when patients who are eligible for release continue to reside at WRC, a drain on the state's resources. It is obviously more cost efficient to discharge persons no longer in need of treatment than to keep them in the system. There is also the cost associated with preventing a person from being a contributing and fully-functioning member of society when that person's mental health no longer requires confinement. In this case, however, Marberry is not a person who would have been eligible for release had the reexamination been timely conducted. Therefore, there is no *715societal cost associated with his absence from the community and the state did not unnecessarily expend resources on Marberry's treatment and care. Consequently, the costs associated with the DHFS's failure to timely hold the reexamination are negligible.
¶ 47. My conclusion, therefore, is that release is not the appropriate remedy because it inefficiently allocates costs. The social costs associated with the misconduct are much lower than the social costs of attempting to deter the misconduct by releasing a potentially sexually violent person onto the streets.2 Instead, I would impose the sanctions set forth below. These sanctions would constitute detriments imposed directly on the responsible government officials in order to induce conformity with the requirements of Wis. Stat. ch. 980.
¶ 48. The first appropriate remedy is the issuance of a writ of mandamus to compel the public officials to perform a duty required by law. See Pasko v. City of Milwaukee, 2002 WI 33, ¶ 24, 252 Wis. 2d 1, 643 N.W.2d 72. In order for a writ of mandamus to be issued, there must be a clear legal right, a positive and plain duty, substantial damages, and no other adequate remedy at law. Id.
*716¶ 49. Under Wis. Stat. ch. 980, a committed person has a clear right to the six-month reexamination of his or her mental condition and it is the State's obligation to timely initiate that process. The State doubts, however, that most ch. 980 patients would suffer substantial damages or injuries should they not be afforded a periodic reexamination of their mental commitment within the legislatively prescribed time periods because history shows that it is unlikely that the reexamination will result in supervised release or discharge. In other words, the State argues that patients will rarely be able to show substantial damage for WRC's failure to follow the law.
¶ 50. The State misses the point altogether by assuming that substantial damages are incurred only when a patient achieves mental health and his or her supervised release or discharge is delayed by official inaction. In essence, the State falls into the "liberty interest" argument put forth by Marberry and which I have rejected in its entirety. Wisconsin Stat. ch. 980 patients have the right to treatment for their mental disorders. Part and parcel of the right to treatment is periodic monitoring of the progress of treatment. Adherence to the reexamination schedule serves to both facilitate the patient's treatment and provide the impetus to the patient to achieve mental wellness. This is true whether or not the patient has actually made sufficient progress to justify supervised release or discharge.3 Simply stated, all patients have a substantial *717interest in the correct implementation of ch. 980 procedures because it facilitates their statutory right to treatment.
¶ 51. It follows that when the patient's progress is not adequately monitored, he or she sustains substantial damage to the right to treatment, and has the right to insist that the legislature's goal of reexamination be correctly implemented. Therefore, in cases where the State fails to meet the statutorily prescribed time periods, a writ of mandamus should be issued to direct the responsible officials to undertake all necessary action to ensure that the mental reexamination is initiated and promptly completed. See Jackson v. State of Florida, 802 So. 2d 1213, 1218 (Fla. Dist. Ct. App. 2002) (issuing writ of mandamus as remedy, rather than release, when state failed to conduct mandatory annual reexamination under Florida's sexually violent predators law).4
*718¶ 52. Where a writ or court order has been issued and the mental reexamination still has not been performed, as is the case in this instance, the public officials may be held in contempt for their failure to comply with the order. See, e.g., Schroeder, Gedlen, Riester & Moerke v. Schoessow, 108 Wis. 2d 49, 50, 321 N.W.2d 131 (1982) (reviewing contempt proceedings resulting from aldermen's failure to comply with a peremptory writ of mandamus). The State argues that contempt would be a cumbersome remedy due to the difficulty in identifying the parties responsible for the failure to conduct a prompt periodic exam. I am not convinced that this is a significant hurdle at all. Indeed, this remedy would be an effective tool precisely because it focuses on the particular persons who have the authority to ensure that procedures are established to carry out the requirements of the statute.
¶ 53. Therefore, I would approach the issue in the following manner. Upon request, the trial court may order the State to disclose all information that will identify the person or persons responsible for not providing the reexamination. Upon disclosure, the court may order these persons held in contempt and fine them or jail them. I am not persuaded by the State's position that there is no evidence of willful misconduct at WRC and that officials there are doing the best they can with limited resources. Whether officials have been acting in good faith or in an egregious manner are facts that would bé adduced, to the benefit of the public and the legislature, during contempt proceedings.
¶ 54. If any individual's actions Eire shown to be in flagrant disregard of the court's order, a jail term would be more them appropriate. Jail is a real cost to an egregious offender of the mandamus. A fine is a very reed economic cost. If the purpose is to provide a *719sanction that will force state officials to follow the law, contempt is the better sanction than release of the offender. Release is an excessive sanction because the costs are way too high. Contempt is workable and gets the message out to the people who are really and finally responsible for violating the legislature's mandatory time periods for reexamination. The cost is visited upon these flagrant violators and not the public. If someone at WRC knew he or she could go to jail for ignoring a mandamus, he or she would take extra care to make sure the individual received his or her reexamination.
¶ 55. Finally, if the mental reexamination ultimately discloses that the committed person had made sufficient progress to justify supervised release or discharge, a damages remedy may be available in an action under 42 U.S.C. § 1983 (2002). The State does not believe that § 1983 is available to Marberry because he has not suffered the violation of any federal constitutional right as a result of its noncompliance with Wis. Stat. ch. 980. Section 1983 does not cover conduct that violates only state laws. See Baker v. McCollan, 443 U.S. 137, 140 (1979) (stating that the first inquiry in a § 1983 suit is whether the plaintiff has been deprived of a right secured by the Constitution). I agree with this assessment of the law vis-a-vis Marberry. However, it is not applicable to a person who achieves mental health but who nonetheless languishes at WRC because of the State's failure to hold the reexamination in a timely fashion. That person would have a cause of action under § 1983 because the length of his or her commitment would not bear a reasonable relationship to the underlying purpose of the commitment. See Seling v. Young, 531 U.S. 250, 265 (2001).
*720¶ 56. The above described sanctions are the most efficient mechanisms for inducing public officials to implement the statute as written. They allocate the costs of governmental misconduct in the most efficient manner, ensuring that the consequences of official inaction are borne by the officials rather than upon the innocent citizens of our state.
Our supreme court echoed these sentiments in State v. Ruiz, 118 Wis. 2d 177, 201-02, 347 N.W.2d 352 (1984), when it considered whether to overturn a conviction as a disciplinary measure directed at the district attorney who had displayed a continuing pattern of nondisclosure of exculpatory evidence. The court carefully evaluated the many interests at stake, including the defendant's interest in a fair trial, the public's interest in having the guilty punished, the public's interest in preserving precious judicial resources and the interests of the witnesses and family of the victim. Id. at 202. Ultimately, the court ruled against reversal, determining that exclusion of the evidence in controversy would not have affected the result and "[rjetrying this defendant would be expensive and further congest an already crowded court system. Furthermore, there are obvious practical difficulties in trying the defendant for a murder that occurred nearly four years ago. Finally . .. retrial of this case would be traumatic for those innocently affected by this heinous crime." Id. at 202-03. Notably, the court stated it was not condoning the district attorney's conduct, but that the *714balancing of interests weighed against reversal. Id. at 203. Clearly, the court did not want to impose significant social costs on the public as a means to induce the district attorney to comply with the law.
Another way to state this principle is that "remedies should be tailored to the injury suffered" so as not to "unnecessarily infringe on competing interests." See United States v. Morrison, 449 U.S. 361, 364 (1981). In Morrison, federal agents contacted the defendant without her counsel's presence even though they knew she had an attorney. Id. at 362. She moved for dismissal of the indictment based on a violation of her Sixth Amendment right to counsel. Because she made no showing of prejudice, the Court concluded that the "drastic relief' of dismissal was unwarranted, but suggested that a remedy might he available in other proceedings. Id. at 366-67.
In addition, periodic monitoring also enables WRC to determine whether the patient has progressed sufficiently so that the state no longer has to expend resources on his or her care and treatment.
Marberry complains that mandamus is an impractical remedy because the committee usually has no attorney representing him or her at the time the periodic testing is supposed to take place. He submits that requiring a committee to bring a writ of mandamus before the circuit court asks too much of those untrained in the law. I am not convinced. An ad hoc review of the court's statistics in 2001 revealed the following: There were 364 criminal pro se appeals. This represented eleven percent of all appeals and twenty-three percent of the criminal appeals. In addition, six pro se appeals came from Wis. Stat. ch. 980 committees. I conclude that many of the people detained in our institutions are knowledgeable about the legal procedures pertaining to them. When they feel aggrieved, they have no qualms about prosecuting their claims without an attorney. I have no doubt that, if it were the law in this state that failure to hold a reexamination in the prescribed time is rejnedied by filing a writ of mandamus, ch. 980 committees would act pursuant to that law, with or without an attorney.