Minnesota’s Indefinite Detention of Sex Offenders Is Ineffective As Well As Unjust
Twenty states authorize civil commitment of sex offenders who have completed their criminal sentences but are deemed too dangerous for release. Minnesota, which deploys that option against a larger share of its population than any other state, spends $100 million a year to detain about 750 individuals who are deemed “likely” to commit sex offenses. Although those detainees are notionally eligible for release when they no longer pose a threat, that rarely happens: As of last September, just 21 of 946 people committed to the Minnesota Sex Offender Program (MSOP) had been fully discharged, while 94—more than four times as many—had died in custody.
In effect, the MSOP, which is overseen by the Minnesota Department of Human Services (DHS), imposes life sentences on its “clients,” not as punishment for crimes they have committed but in anticipation of crimes they might commit in the future. That system, researchers at Mitchell Hamline School of Law in St. Paul argue in a new report, is not only unjust but also highly inefficient, squandering public resources on a preventive detention scheme that delivers little, if any, public safety benefit. The program is so riddled with conceptual and practical problems, they conclude, that it should be abolished.
“Civil commitment’s reduction of sexual violence is vanishingly small compared to its expense,” says the report from Mitchell Hamline’s Sex Offense Litigation and Policy Resource Center, which notes that it costs about $175,000 a year to keep each detainee in the program. Because civil commitment “focuses on preventing a small fraction of recidivist offenses,” law professor Eric Janus and his co-authors argue, it “neither addresses nor repairs the vast majority of sexual harm in Minnesota.”
Civil commitment “has failed to serve the purported purpose of treating individuals to facilitate safe community reentry,” Janus et al. write. “The state commits too many, and keeps them too long, compounding [the program’s] ineffectiveness with civil and human rights violations.” At bottom, they say, civil commitment of sex offenders “embodies a dangerous principle: that impassioned majorities may indefinitely detain a reviled and degraded ‘other’ in the name of preventing some future harm.”
Officially, the MSOP’s locked facilities in Moose Lake and St. Peter, both of which “have secure perimeters fenced in by razor wire,” are treatment centers, not prisons. Although it defies reality, that distinction is legally crucial: The U.S. Supreme Court has approved indefinite detention of sex offenders “who suffer from a volitional impairment rendering them dangerous beyond their control,” which it deems remedial rather than punitive. In that situation, the safeguards that are constitutionally required for criminal cases, such as trial by jury, proof beyond a reasonable doubt, and the bans on double jeopardy and ex post facto punishment, do not apply.
As Janus et al. note, civil commitment nevertheless is subject to several constitutional requirements. To be committed, an individual must have a “mental disorder” that makes him dangerous to himself or others. In the case of sex offenders, that “mental disorder” must distinguish people subject to commitment from others convicted of similar crimes. The program must provide treatment when it is feasible, and “the nature and duration of commitment must bear a reasonable relationship to the purpose of the commitment.” The MSOP falls short on all counts.
Minnesota’s Sexually Dangerous Person Act, enacted in 1994, authorizes civil commitment of anyone who “has engaged in a course of harmful sexual conduct”; “has manifested a sexual, personality, or other mental disorder or dysfunction”; and “as a result, is likely to engage in acts of harmful sexual conduct.” Anyone convicted of a sex offense meets the first criterion, while many, if not most, convicted criminals would meet the second. According to a study that Janus et al. cite, for example, “estimates suggest that between 40% and 80% of all imprisoned males would meet the criteria for Antisocial Personality Disorder.” Finally, assessments of how “likely” someone is to “engage in acts of harmful sexual conduct” are highly contentious and prone to error.
“The Minnesota Supreme Court held that a trial court must find that future sexual crime is ‘highly likely,’ but neither the legislature nor the courts have further defined the term,” Janus et al. exp
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