¶ 89. (dissenting). I respectfully disagree with the majority's conclusion that the present Wis. Stat. ch. 980 is constitutional. After this court in 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), declared ch. 980 constitutional, the legislature passed several key amendments to ch. 980 that fundamentally altered the purpose of the statute from treatment and protection to punishment. This the legislature cannot constitutionally do. Accordingly, I respectfully dissent.
¶ 90. Wisconsin's sexual predator law allows the government to do something quite contrary to all of our notions of individual freedom and the government's right to deprive its citizens of that freedom. It allows *255the government to continue to deprive a person of his freedom after he has served his sentence. The government can do that, but only under very narrowly prescribed circumstances. A majority of this court, including this writer, upheld the constitutionality of that law in Post and Carpenter, concluding that treatment and protection of the public, not punishment, were its primary purposes. See Post, 197 Wis. 2d at 313; Carpenter, 197 Wis. 2d at 266.
¶ 91. The majority based its conclusion that the primary purpose of the law was not punitive on two aspects of that law. First, the court's initial order must specify either supervised release or institutional care. Id. The statute set forth the considerations in determining if the commitment would be to a secured facility or to supervised release. Second, it also provided that a committed person could petition the court for supervised release six months after the initial commitment order. Id. at 268.
¶ 92. Both of these provisions have been fundamentally altered and accordingly have changed the very nature of the law from treatment and protection to punishment.
¶ 93. First, the amended statutes eliminate the option of supervised release and now require mandatory involuntary commitment when a person is found.to be a sexually violent person. Involuntary commitment is required without consideration as to the most appropriate and effective treatment while providing public safety. The court no longer has discretion to order supervised release if warranted by an individual's condition. Commitment is mandatory regardless of the particulars.
¶ 94. Second, a person committed for institutional care must now wait three times longer (18 *256months instead of six months) to petition the committing court for supervised release. A committed person can no longer request a timely review of his or her own condition, thereby ensuring departmental accountability. These changes significantly alter the prior law and collectively amount to punishment of, rather than treatment for, the mentally ill.
¶ 95. The majority points out that there are several avenues for petitioning the court for discharge or supervised release. These are illusory. One of the options is that the petition can be initiated by the committing court, the secretary of health and family services, or .the director of the facility where the person is institutionalized. See majority op. at ¶ 47. The reality, plain and simple, is that pigs will fly before any of these options are exercised.
¶ 96. The second option is for the committed person to petition the court for discharge. This too is illusory. Why would a court allow an individual to be discharged without any supervision within that 18 months when the legislature will not even allow supervised release within that 18 months? The reality is, this just won't happen.
¶ 97. The majority also notes that Kansas's sexually violent person statutes reviewed by the U.S. Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997), do not provide for immediate supervised release upon commitment. See majority op. at ¶ 49. However, unlike Wisconsin's amended Wis. Stat. ch. 980, the Kansas statutes do allow committed individuals to petition for transitional release at any time. See Kan. Stat. § 59-29all; see also Hendricks, 521 U.S. at 353.
¶ 98. In essence, Wis. Stat. ch. 980 as amended involuntarily commits individuals found to be sexually violent persons regardless of what would be the most *257effective and appropriate treatment. Involuntary civil commitment, without even the opportunity to petition for supervised release for 18 months, cannot be described in any way except punitive. If treatment and public safety were in fact the primary purposes of ch. 980, then the nature and duration of commitment would be based on a person's particular condition rather than a requirement of a minimum term of confinement. In fact, mandatory commitment may actually detract from the purported purposes of treatment and public safety. It is possible that keeping an individual committed who is ready for supervised release could actually impede his or her successful reintegration into society.
¶ 99. The majority claims that the amended Wis. Stat. ch. 980 is not punitive under the 2-prong intent-effects test of Hudson v. United States, 522 U.S. 93 (1997). See majority op. at ¶ 60. I disagree. First, the legislature's amendments to ch. 980 demonstrate a marked shift from treatment and public safety to punishment. In Carpenter, this court reasoned that ch. 980 emphasized treatment, which was evident from its plain language:
Under Wis. Stat. § 980.06(1), a person found to be sexually violent is committed to the custody of DHSS for control, care, and treatment, as opposed to the DOC for imprisonment. Further, DHSS is required to "arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person .. .
Carpenter, 197 Wis. 2d at 266 (emphases added).
¶ 100. Wisconsin Stat. § 980.06 was fundamentally altered by requiring commitment to institutional care and eliminating the language that treatment and control are to be provided in the least restrictive man*258ner. The amended § 980.06 now states: "A commitment order under this section shall specify that the person be placed in institutional care." Thus, this court's conclusion in Carpenter that the legislature's primary aim under Wis. Stat. ch. 980 is to treat sexually violent persons, rather than punish them, rests on statutory language that has been eliminated. Contrary to this court's assessment of the prior law in Carpenter, ch. 980 as amended does not "provide specific treatment to those committed . . . [but rather] simply warehouse^] them" by foreclosing the option of supervised release regardless of an individual's condition. Carpenter, 197 Wis. 2d at 267.
¶ 101. Second, in determining whether Congress, despite its intentions to the contrary, enacted a statutory scheme that was so punitive in purpose and effect to negate that intention, the U.S. Supreme Court in United States v. Ward, 448 U.S. 242, 250-51 (1980), used the seven considerations listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 166-68 (1963). These factors included:
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned....
Id. at 168-69 (footnotes omitted). Here, applying those same guidelines leads to the following determinations: (1) Wis. Stat. ch. 980, as amended, requires affirmative restraint of an individual upon being found *259a sexually violent person; (2) institutional confinement has historically been regarded as a form of punishment; (3) individuals committed as sexually violent persons usually have knowledge of their offenses that constitutes scienter; (4) as amended, ch. 980 promotes the aims of punishment - retribution and deterrence - by imposing a mandatory term of involuntary confinement; (5) the behavior to which ch. 980 applies, namely sexually violent offenses, is criminal; and (6-7) the mandatory commitment under ch. 980, without regard to an individual's particular condition, is excessive in relation to the alternative purposes of treatment and protection of the public. Given these factors, the conclusion is inevitable: the statute is punitive.
¶ 102. I concurred in Carpenter because under the prior law there was a "rational connection between the affirmative restraint and treatment required by the statute and its purpose of protecting the public." Carpenter, 197 Wis. 2d at 278 (Bablitch, J., concurring). I cannot reach the same conclusion due to these two fundamental changes to Wis. Stat. ch. 980: (1) the elimination of the option of supervised release at the time of commitment and (2) the tripling of the length of time an individual must wait to petition for supervised release. These amendments transform the former civil statutory scheme of ch. 980 to a punitive one and thereby violate the constitutional requirements of due process, double jeopardy, and in Rachel's case, ex post facto. Accordingly, I respectfully dissent.