¶ 47. The law provides remedies for these victims other than the disorderly conduct statute. These remedies are available and effective. In the circuit court, the State analyzed the available remedies in a document entitled "Dispositional Brief." The available remedies included obtaining a harassment restraining order and injunction;1 charging Mr. Schwebke with *33harassment;2 or charging Mr. Schwebke with stalking.3 Instead, the State chose to prosecute Mr. Schwebke under the disorderly conduct statute.
¶ 48. The State decided to prosecute under the disorderly conduct statute "because of the broad language of the law and the ability to charge each and every incident as a separate act. The State also surmised, since the instruction contemplates the actions being disorderly under the circumstances as they then and there existed, the door to the prior offense evidence would be open to show why the conduct here tended to create a disturbance."4
*34¶ 49. The question before us, however, is whether the State and this court can stretch the disorderly conduct statute, Wis. Stat. § 947.01,5 to cover the facts of this case. The majority opinion says yes. I think not. Therefore, I dissent.
¶ 50. The majority opinion recognizes it is extending the reach of the disorderly conduct statute beyond where it has gone before. According to the majority opinion, a mailing that may be personally disturbing to the recipient but that is not "violent, abusive, indecent, profane, boisterous, or unreasonably loud"6 can constitute "otherwise disorderly conduct" under Wis. Stat. § 947.01. Furthermore, this "otherwise disorderly conduct" constitutes a crime under the disorderly con*35duct statute because there is "the real possibility that this disturbance will spill over and cause a threat to the surrounding community as well." Majority op. at ¶ 31.
¶ 51. I agree with the defendant that the language of the statute, its legislative history, and the case law support the notion that disorderly conduct requires a threat to public order and does not apply to the kind of private harassment-type conduct involved in the present case. The majority opinion's interpretation of Wis. Stat. § 947.01 encompasses far too much conduct that the legislature could not have intended to include in the statute.
¶ 52. Virtually any antisocial or offensive conduct, including a mailing from one person to another, is now included within the parameters of the criminal disorderly conduct statute. Under the majority opinion, any disturbing private mailing, even though it is not "violent, abusive, indecent, profane, boisterous, or unreasonably loud,"7 can be viewed as spilling over and causing a threat to the surrounding community, because it may be disturbing to those who are told of the private mailing. The majority opinion errs because "disturbing" does not a "disturbance" make! "Disturbing" has been conflated in the majority opinion with "disturbance."
¶ 53. The court seems to be moving the disorderly conduct statute back to the laws of the 1950s and 1960s that gave law enforcement officers and prosecutors broad discretion to arrest and prosecute people. Those laws are characterized as "so broad that they 'legally' authorize the police to arrest virtually anyone."8
*36¶ 54. The legislature has wisely recognized that society requires laws to govern conduct related to the strains and stresses of people living in close proximity. The disorderly conduct statute is one such law. The majority opinion goes too far, however, by reading the disorderly conduct statute to cover the defendant's behavior in the present case.
¶ 55. The majority opinion's interpretation of the disorderly conduct statute will allow the disorderly conduct statute to be used to place in Wisconsin's already overburdened jails and prisons those, including the mentally ill, who privately disturb others while failing to provide those persons with appropriate treatment.
¶ 56. The record is clear that the defendant is suffering from a chronic mental illness. He lives at home with his elderly parents and receives social security disability benefits. He receives psychiatric care and medications, which at times abate his aberrant behavior. Nonetheless, the defendant's condition remains chronic and requires ongoing treatment. The defendant's conduct evinces the symptoms of his disease.
¶ 57. According to the National Association for the Mentally Ill, prisons and jails have become the mental hospitals of the 1990s.9 A 1999 U.S. Department *37of Justice report revealed that 16% of the persons in state and local prisons and jails have a serious mental illness.10 The result is crowded jails and inappropriate interventions for seriously mentally ill individuals who become subject to penal incarceration for conduct related to their mental illness. Indeed, the problem of overcrowding in Wisconsin's prisons and jails and the number of mentally ill people already in them is of concern to the people of the state of Wisconsin.11 Using the "otherwise disorderly conduct" provision of Wis. Stat. § 947.01 with the majority opinion's expanded view of what conduct "tends to cause or provoke a disturbance" will merely exacerbate this problem.
¶ 58. Because the majority opinion has gone too far in its interpretation and application of the disorderly conduct statute, I dissent.
¶ 59. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion. .
A harassment restraining order and injunction were available under Wis. Stat. § 813.125 (1999-2000). (All subsequent references to the Wisconsin Statutes are to the 1999-2000 version, unless otherwise indicated.) If Mr. Schwebke had violated the injunction, he then would have been liable for criminal penalties under § 947.013(1r)(b).
The State recognized that the failure to get such an order in the present case weakened the State's case against the defen*33dant. An advantage to this order, according to the State, was that the defendant had in the past "conformed his conduct to the requirements of the law and not had any charges filed against him." The prior record demonstrates "there is no one who can tell this Court they know how to stop Mr. Schwebke from engaging in this conduct, except to say that when a court order is in effect, he has complied with it." At the time of his sentencing, the defendant had been out on bail for over two years and had made no attempt to contact any of the three recipients of his mailings.
The State could have sought a civil forfeiture for harassment under Wis. Stat. § 947.013. A harassment conviction would have subjected the defendant under the circumstances of this case to a maximum forfeiture of $1000. The State concluded that a more severe penalty was needed.
The State could have charged the defendant with stalking in violation of § 940.32. The problem with a stalking charge, according to the State, was that the mailings were juvenile and definitely annoying, but also complimentary in nature, thereby casting doubt on whether there could be a reasonable fear of bodily injury of great magnitude or death.
Although a deferred prosecution agreement was considered, the defendant refused to go forward with it.
See the State's "Dispositional Brief at unnumbered p. 6.
*34According to the State, the defendant could face a maximum of $6,000 in fines plus court costs, four years' probation, and 540 days in county jail if convicted of six counts of disorderly conduct. The circuit court sentenced the defendant for each of the first three counts to 90 days in jail each, to run consecutively. On each of the last three counts, the circuit court sentenced the defendant to four-year probation terms, to be served consecutively.
Advocates across the country are urging the creation of state mental health courts modeled after drug courts. A mental health court would be more than an adjudicator of charges; it would take an active role in the mental health treatment of people coming before it. See LeRoy L. Kondo, Advocacy of the Establishment of Mental Health Specialty Courts in the Provision of Therapeutic Justice for Mentally III Offenders, 24 Seattle U. L. Rev. 373 (2000).
Section 947.01 provides: "Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor."
Wis. Stat. § 947.01.
Id.
Robert Force, Decriminalization of Breach of the Peace Statutes: A Nonpenal Approach to Order Maintenance, 46 Tul. *36L. Rev. 367, 399 (1972), quoted in Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum. L. Rev. 551, 596 (1997). For a discussion of these laws, see, for example, Debra Livingston, Police Discretion, 97 Colum. L. Rev at 595-600.
See, e.g., LeRoy L. Kondo, Advocacy of the Establishment of Mental Health Specialty Courts in the Provision of Therapeutic Justice for Mentally III Offenders, 24 Seattle U. L. Rev 373 (2000); Paul F. Stavis, Why Prisons Are Brim-Full of the *37Mentally Ill: Is Their Incarceration a Solution or a Sign of Failure?, 11 Geo. Mason U. Civ. Rts. L.J. 157 (2000).
Paul F. Stavis, Why Prisons Are Brim-Full of the Mentally Ill: Is Their Incarceration a Solution or a Sign of Failure?, 11 Geo. Mason U. Civ. Rts. L.J. 157, 159 (2000).
See, e.g., Who Holds the Key to the Jail Problem?, Wis. State Journal, December 26, 2000, at 8A.