Graham L. Stowe v. GREGORY VAN RYBROEK, Director, Mendota Mental Health In- stitute

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-3345
GRAHAM L. S TOWE,
Petitioner-Appellant,
v.
GREGORY VAN R YBROEK, Director, Mendota Mental Health In-
stitute,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 18-cv-400-wmc — William M. Conley, Judge.
____________________
A RGUED A UGUST 6, 2024 — DECIDED A UGUST 21, 2024
____________________
Before EASTERBROOK, S T. EVE, and K OLAR , Circuit Judges.
EASTERBROOK, Circuit Judge. Charged in 2004 with violent
offenses against his former girlfriend and her family, Graham
Stowe pleaded no contest but contended that he had been in-
sane when he committed the crimes. A state judge agreed
with Stowe but ordered him committed for 39.5 years (the ap-
propriate sentence in the absence of an insanity finding) un-
less recovery entitled him to earlier release.

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2 No. 23-3345
He was released in 2007 but soon returned to custody after
violating the conditions of release. (He tried to locate his for-
mer girlfriend at her workplace; he also used alcohol and per-
haps other drugs.) He escaped in 2013 and was not caught for
three months; while free he used marijuana and perhaps other
drugs. He was charged with escape and convicted; he did not
present an insanity defense.
In 2016, once his sentence for the escape had ended, Stowe
asked for release under the terms of Wis. Stat. §971.17(4)(d):
The court shall grant the petition [for release] unless it finds by
clear and convincing evidence that the person would pose a sig-
nificant risk of bodily harm to himself or herself or to others or of
serious property damage if conditionally released. In making this
determination, the court may consider, without limitation be-
cause of enumeration, the nature and circumstances of the crime,
the person’s mental history and present mental condition, where
the person will live, how the person will support himself or her-
self, what arrangements are available to ensure that the person
has access to and will take necessary medication, and what ar-
rangements are possible for treatment beyond medication.
A psychologist and a psychiatrist testified at a hearing that
Stowe met the diagnostic criteria for “Other Specific Person-
ality Disorder with Narcissistic and Antisocial Features”. An-
other psychologist, who applied a different label to Stowe’s
mental state, concluded that he presents an enhanced risk of
violence against other persons, especially when using drugs.
The state’s circuit court denied his petition for release, relying
on the elevated risk of violence, and the court of appeals af-
firmed. State v. Stowe, 2018 WI App 8. (This decision also sup-
plies some details about Stowe’s crimes, which are not rele-
vant for current purposes.)

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No. 23-3345 3
Stowe then sought collateral review in federal court under
28 U.S.C. §2254. He argued that Wis. Stat. §971.17(4)(d) vio-
lates the Due Process Clause of the Fourteenth Amendment,
as understood in Foucha v. Louisiana, 504 U.S. 71 (1992), be-
cause it allows the state to keep in custody someone who is a
danger to self or others without finding that this person also
has a mental disease or defect. Stowe observes that the circuit
court found that he remains dangerous but did not decide
whether the psychologists were right in concluding that he
still has a mental disorder. The district judge understood this
as a contention that §971.17(4)(d) had been applied to him un-
constitutionally but concluded that Stowe had not preserved
an as-applied argument in the state courts. 2023 U.S. Dist.
LEXIS 199971 (W.D. Wis. Nov. 6, 2023), at *17.
The only contention preserved through all levels of the
state judiciary, the district judge found, is that §971.17(4)(d) is
invalid on its face—that is, invalid with respect to all persons
within its scope, no matter what the evidence shows and no
matter what findings the state judge makes. The federal judge
thought that contention untenable, because §971.17(4)(d) per-
mits the court to consider “the person’s mental history and
present mental condition”. This means that state judges fre-
quently will consider, and act on, evidence about a detainee’s
mental condition and not just the detainee’s dangerousness.
The district judge issued a certificate of appealability lim-
ited to the question whether §971.17(4)(d) is invalid on its
face. Stowe did not ask us to expand the certificate to include
an as-applied challenge. Our review is confined accordingly.
Wisconsin’s judiciary held that §971.17(4)(d) is constitu-
tional, so under 28 U.S.C. §2254(d)(1) Stowe needs to show
that this decision “was contrary to, or involved an

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4 No. 23-3345
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States”.
Stowe locates the “clearly established” law in Foucha. That ar-
gument encounters an insuperable hurdle: Justice O’Connor,
who supplied the controlling vote in a five-to-four decision,
filed a separate opinion limiting the scope of the holding. 504
U.S. at 86–90. She stressed features of Louisiana’s system that
§971.17 does not share. A decision that turns on elements spe-
cific to one state’s system does not “clearly establish” the in-
validity of another state’s system. Three years after Foucha, the
Supreme Court of Wisconsin unanimously held a statute
functionally the same as §971.17 to be valid, relying on some
of these distinctions. State v. Randall, 192 Wis. 2d 800 (1995).
Like the district court, we do not see a stark incompatibility
between Randall and Justice O’Connor’s views.
Section 2254(d)(1) is not Stowe’s only obstacle. To get an-
ywhere with a facial challenge (even in litigation under the
First Amendment, which this is not) a litigant must show that
“a substantial number of [the law’s] applications are uncon-
stitutional, judged in relation to the statute’s plainly legiti-
mate sweep.” Americans for Prosperity Foundation v. Bonta, 594
U.S. 595, 615 (2021). See also Moody v. NetChoice, LLC, 144 S.
Ct. 2383 (2024). Randall read Justice O’Connor’s opinion to
permit the detention of dangerous insanity acquittees who
have regained their mental health, if the state offers treatment
to improve their chances of release. Justice O’Connor wrote:
“I do not understand the Court to hold that Louisiana may
never confine dangerous insanity acquittees after they regain
mental health.” 504 U.S. at 87. She added that a “medical jus-
tification” for detention is important and that detention could
be justified if “tailored to reflect pressing public safety con-
cerns related to the acquittee’s continuing dangerousness.” Id.

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No. 23-3345 5
at 87–88. Randall held that the benefits of mental-health treat-
ment, coupled with a detainee’s dangerousness and the other
criteria listed in the state‘s statute, could supply any necessary
justification. It added that Wisconsin does not authorize “in-
definite” detention, as Louisiana did, but limits detention to
the time justified by the appropriate sentence for the criminal
conduct (here 39.5 years). 192 Wis. 2d at 808. Randall also
thought it significant that in Wisconsin the burden to justify
detention rests on the state, while in Louisiana the burden of
showing entitlement to release was on the detainee. Ibid.
Even if we suppose that Randall’s reading of Justice
O’Connor’s views is problematic (though any error is not
“clearly established”), the fact remains that §971.17(4)(d) per-
mits courts to consider evidence of a detainee’s “present men-
tal condition”. For many people that evidence will entail
proof of ongoing mental disease. Because state courts imple-
menting §971.17(4)(d) often will make all findings required to
support detention on anyone’s understanding of the Due Pro-
cess Clause, a federal court cannot be confident that “a sub-
stantial number of [the law’s] applications are unconstitu-
tional, judged in relation to the statute’s plainly legitimate
sweep.” And it assuredly cannot be confident that “no set of
circumstances exists under which the [law] would be valid”
(United States v. Salerno, 481 U.S. 739, 745 (1987)), the standard
for facial challenges that do not rest on the First Amendment.
Stowe’s observation that the state’s circuit court did not
make findings, one way or the other, about whether he contin-
ues to suffer from a mental disease, is an as-applied challenge,
which has not been preserved for resolution in federal court.
The circuit court found that Stowe remains at an elevated risk
of committing violent crimes—and the only evidence offered

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6 No. 23-3345
to support that finding was the psychologists’ conclusion that
Stowe has an ongoing mental disorder. If Stowe had pressed
his as-applied contest in the circuit court (which he did not),
the judge may well have made express the conclusion that is
implicit in the finding that Stowe poses an ongoing risk of vi-
olence: that the cause of this risk is a mental problem. The Due
Process Clause does not entitle Stowe to immediate release.
AFFIRMED

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