¶ 36. (concurring). I understand and share the reticence of Justice Sykes' lead opinion for the remedy of release. Marberry continues to suffer from a mental illness which makes it substantially probable that he will engage in acts of sexual violence if not continued in institutional care. Release at this time would unduly endanger the public.
¶ 37. Nevertheless, I disagree with the proffered remedies of the lead opinion!1 They are inadequate and unworkable. Perhaps most problematic, however, is that the lead opinion's remedies are misdirected. Rather than put the onus of ensuring compliance with the law on a mentally ill, institutionalized patient, I *740would put it where it belongs: on the Department of Health and Family Services (DHFS).
¶ 38. The judges of the court of appeals and the justices of this court have concluded that DHFS has violated the law in failing to conduct a timely initial reexamination. An initial reexamination is mandatory. As the lead opinion recognizes, the constitutionality of a Chapter 980 commitment hinges on treatment and the initial reexamination is an essential part of that treatment. It is important to the safety of the citizens of our state, to the mentally ill committees, and to our system of justice to make sure that Chapter 980 continues to be applied constitutionally.
¶ 39. Unlike the lead opinion, I would not rely on a mentally ill, institutionalized patient, likely without resources and representation, to ensure compliance. Instead, I would direct the effort to ensure compliance towards those who are violating the law. Because I believe that the remedies offered by the lead opinion are illusory and will ultimately lead to Chapter 980 being unconstitutionally applied, I cannot join it. Let me explain.
¶ 40. The essence of the lead opinion rests on the premise that its proffered remedies are adequate. It suggests that a writ of mandamus or order followed by contempt charges will satisfactorily protect the constitutional rights at stake. Even a cursory examination of these remedies demonstrates that they are both inadequate and unworkable.
¶ 41. I need not look to the facts of some hypothetical case to illustrate the inadequacy. Marberry was held for over 23 months before he received his initial post-commitment reexamination. Such an examination was required to occur within six months after commit*741ment, and subsequent reexaminations are required to occur at least once every 12 months thereafter.
¶ 42. Here, eight months after the State missed the statutorily mandated deadline, the circuit court ordered DHFS to "promptly" conduct the reexamination. Instead, apparently disregarding the court order that it be done promptly, DHFS finally conducted the reexamination nearly two years after Marberry's initial commitment and nine months after receiving the court order. The facts of this case, alone, demonstrate the inadequacy of the lead opinion's remedy of getting a mandamus or order from the court to obtain prompt compliance with the mandatory time frames imposed by the statute.
¶ 43. Undoubtedly realizing the dilemma that the facts of this case present to the validity of its approach, the lead opinion incorporates into its proffered remedy a second step: a committed individual should bring contempt proceedings to enforce the court's order. It is unclear from the lead opinion what type of contempt it is suggesting.
¶ 44. If it is a punitive contempt proceeding, as the dissent in the court of appeals seems to suggest, the proffered remedies border on the impossible.2 If it is a *742remedial contempt proceeding, it approaches the improbable. Neither constitutes an adequate or workable remedy.
¶ 45. It borders on the impossible because punitive sanctions for contempt of court may not be initiated by a committed person like Marberry. Wis. Stat. § 785.03(l)(b). Only a district attorney, the attorney general, or a special prosecutor appointed by a court may seek imposition of such sanctions. It is unlikely that the same individuals who are filing Chapter 980 petitions on behalf of the State will change hats and initiate proceedings on behalf of a committed person to impose punitive sanctions against state officials who fail to conduct a timely reexamination.
¶ 46. Obtaining relief through a remedial contempt proceeding is at best improbable. To seek remedial sanctions for contempt of court, the committed person must first obtain the initial court order and wait for a period of time for DHFS to comply with the order. Next, the committed person would have to identify the person to be held accountable for not complying with the order.
¶ 47. Identifying the person who is responsible for the delay is typically not readily accomplished in this type of case. Is it the secretary of DHFS or the superintendent of the particular facility who is responsible for performing this task? Perhaps the culprit is the head of the treatment unit or a particular staff psychologist, if any, assigned to conduct the exam. Significantly, to this day, there has been no indication of the identity of who should have been held accountable in this case.
¶ 48. Additional delays will inevitably occur as the court determines who should be the subject of a contempt order and grants those individuals time to *743comply with the order. This is a cumbersome process, particularly for a committed person who is suffering from a mental illness and who is often unrepresented. It is likely that, if relief is obtained at all, such relief will occur long after the time when the reexamination should have taken place.
¶ 49. Particularly troublesome is the fact that this remedy does not provide the relief to which the committed person is legally entitled: a timely reexamination. Additionally, it fails to create any incentive for the State to comply with the law. At the end of the day, assuming that the mentally ill, institutionalized person is able to successfully navigate through the mandamus and contempt process, all the State likely will have to do to avoid remedial sanctions is provide the reexamination — which is what it should have done in the first place, months or even years ago.
¶ 50. Finally, almost parenthetically, the lead opinion references petitioning for supervised release pursuant to Wis. Stat. § 980.08 as an adequate remedy. Lead op., ¶¶ 26, 27. Its summary discussion of this remedy belies its assertion that it is adequate. The lead opinion dedicates only three sentences to its discussion of this remedy and in the third sentence ultimately concedes that it would not be available as a remedy for some committed persons. Lead op., ¶ 27.
¶ 51. The constitutionality of Chapter 980 has repeatedly been said to rest upon the treatment measures provided for the committed individual. See State v. Rachel, 2002 WI 81, ¶ 59, 254 Wis. 2d 215, 647 N.W.2d 762; State v. Carpenter, 197 Wis. 2d 252, 271-72, 541 N.W.2d 105 (1995). In Carpenter and Post, we found Chapter 980 to be constitutional because we concluded that treatment and protection of the public, not additional punishment, were the primary purposes *744of Chapter 980. See Carpenter, 197 Wis. 2d at 266; State v. Post, 197 Wis. 2d 279, 313, 541 N.W.2d 115 (1995).
¶ 52. In Marberry's case, having received his initial reexamination after nearly two years of commitment, only the public protection function can be said to have been accomplished. Without viable treatment, Chapter 980 becomes a mechanism for general deterrence and retribution, a hidden criminal punishment and not a civil involuntary commitment for the betterment of the individual' committed and the community at large.
¶ 53. In State v. Rachel, 2002 WI 81, 254 Wis. 2d 215, 647 N.W.2d 762, the majority predicated the constitutionality of Chapter 980 on the various procedures available to the committed individual to secure review of his commitment. It is apparent that the procedures, as implemented here, have failed.
¶ 54. In Rachel, I wrote a separate concurring opinion to clearly delineate the emerging dilemma with Chapter 980:
In State v. Carpenter, 197 Wis. 2d 252, 267, 541 N.W.2d 105 (1995), which I authored, the court assumed that the State was "prepared to provide specific treatment to those committed under ch. 980 and not simply warehouse them."
In State v. Post, 197 Wis. 2d 279, 308, 541 N.W.2d 115 (1995), where I joined the majority, the court assumed that "the legislature will proceed in good faith and fund the treatment programs necessary for those committed under chapter 980."
The court's assumptions and the State's good faith are wearing thin.
*745Rachel, 254 Wis. 2d 215, ¶¶ 72, 73, 75 (Bradley, J., concurring).
¶ 55. In the dissenting opinion in Rachel, Justice Bablitch also expressed his concern regarding the development of Chapter 980. Most notably, he points to the lack of institutional accountability and the illusory nature of the options given to the involuntarily committed individual. See id., ¶¶ 94, 95 (Bablitch, J., dissenting). Both the lack of institutional accountability and the illusory nature of the remedies remain present in our system, as evidenced by this case.
¶ 56. The accountability to ensure that there is compliance with the mandates of Chapter 980 and the constitution should rest with the institution responsible for compliance. To jettison the responsibility for compliance and place it on the back of a mentally ill, institutionalized person makes neither good law nor good sense. As noted above, if there remains continued noncompliance, the constitutional viability is in jeopardy.
¶ 57. The legislators who wrote the law and the public who are protected by the law depend on DHFS complying with the law. We should insist upon no less.
¶ 58. To preserve the constitutional viability of Chapter 980, which is of great import to the public, and to ensure compliance, I would hold this case open for two years so that DHFS can report to the legislature and the public every six months on the status of its compliance. The report should include: (1) the names of the Chapter 980 committed persons who are legally required to have an initial reexamination; (2) the dates of the scheduled reexaminations; and (3) the dates on which the reexaminations actually were conducted.
¶ 59. The lead opinion's remedies provide no incentive to DHFS to conduct its statutorily mandated *746duties in a timely manner. Its approach creates no deterrence for the egregious behavior of the State that occurred in this case. Instead, it informs committed persons that they must pursue inadequate and unworkable remedies. Because I believe that the remedy to ensure compliance lies not in some mandamus or contempt proceeding brought by a mentally ill, institutionalized person, but in holding DHFS accountable for complying with the law, I respectfully concur.
¶ 60. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON and JUSTICE WILLIAM A. BABLITCH join this opinion.
Because the court is evenly divided on the issue of remedy, neither the lead opinion nor the concurring opinion establishes precedent on this issue. Nevertheless, the court is unanimous in the conclusion that release is not a proper remedy at this time.
In suggesting that contempt is an alternative remedy, the partial dissent in the court of appeals states: "If an individual's actions are shown to be in flagrant disregard of the court's order, a jail term would be more than appropriate." Such an assertion implies that the contempt is imposed as a sanction for past "flagrant disregard of the court's order." State ex rel. Marberry v. Macht, 2002 WI App 133, ¶ 54, 254 Wis. 2d 690, 648 N.W.2d 522 (Brown, J., concurring in part, dissenting in part). Thus, the partial dissent apparently is referring to punitive contempt.