Throwing Away the Key

There is no cure and no way out. So why does the state spend more than $20 million a year to treat 179 former sex offenders?

"What we have created, essentially, is life imprisonment without a possibility of parole," says Peter Erlinder, a professor at the William Mitchell College of Law. "How do you ever show that you're not going to do something in the future?"

"The program as designed has failed," declares Brian Southwell, an attorney who has represented several men facing civil commitment for sex offenses. "By its own criteria, it's failed.

"There could be a much worse failure if one of these people graduates and then re-offends. I think people are afraid. It's a scary business."

Shawn Barber

Michael Miner, coordinator of the sex-offender treatment program at the University of Minnesota, says that he doesn't envy the therapists at Moose Lake or St. Peter who must decide when someone should be set free. "I think the treatment staff are in quite a bind, given what the current state of our knowledge is," he says. "How many people are going to fly by the seat of their pants knowing what we know about the guys that are in there?"

Ramsey County Attorney Susan Gaertner views this supposed lack of success as proof that the legal process works. "The fact that only one person has been released tells me that, number one, the process is very rigorous; two, the standards are very high that we have to meet; and three, that we have very carefully selected who we have committed as sexually dangerous."

State and federal courts have repeatedly upheld the constitutionality of civil commitments, despite objections that sex offenders are, in essence, victims of double jeopardy. (Nineteen states now have post-incarceration commitment statutes aimed at sex offenders, and more than 1,200 people have been detained nationwide.) That said, the question of how to apply the statutes concerning sex offenders is currently a subject of debate. In January the U.S. Supreme Court upheld a Kansas statute aimed at sex offenders, but redefined how broadly the law can be applied. The ruling provides a potential legal recourse for at least a quarter of the men being detained in Minnesota.

Courts are also wrestling over what rights people held under such statutes should have. "Are they in a prison or are they in a hospital?" asks Erlinder. "No one knows what it is. No one knows what rules to apply."

 

The sexual psychopathic personality classification, which first allowed for the involuntary commitment of sexual deviants, has been on the books since 1939. As the field of psychiatry made advances over the years, however, it largely fell out of use, deemed a failure because so little was understood about how to predict which sex offenders would commit future crimes. During the 1970s only 13 people were detained under the law. The Minnesota statute was never repealed, however. So, in 1989, as public outrage over recidivism escalated, the courts again began committing people in increasing numbers.

In 1992 Timothy Sarne pleaded guilty to one count of second-degree criminal sexual conduct, along with two counts of fourth-degree criminal sexual conduct. The felonies stemmed from one afternoon during which the 17-year-old physically and verbally harassed three women at a medical complex in St. Paul. (According to Ramsey County District Court records, Sarne's sexual misconduct dates back at least to 1987, when he assaulted an intern at a treatment facility.) Sarne's sentence was stayed, on the condition that he voluntarily commit himself as a sexual psychopathic personality.

According to court records, Sarne has been in and out of institutions since he was ten years old. He has an IQ of 80, just ten points above the level at which individuals are deemed mentally retarded. Sarne has Klinefelter syndrome, a genetic disorder that is marked by the presence of an extra X chromosome and often results in infertility, a feminine appearance, learning disabilities, behavioral problems, and abnormal physical growth. He is roughly seven feet tall and weighs more than 300 pounds.

Thomas Alberg, a psychologist who is frequently appointed by courts to assess recidivist sex offenders, recently evaluated Sarne. Alberg concluded that the patient has "cognitive and psychological impairments due to his Klinefelter syndrome that prevent him from participating" in therapy.

According to court records, after spending ten years in state custody, Sarne has yet to complete the first phase of therapy--despite 30 attempts. In November Sarne's most recent petition for discharge was denied by the Department of Human Services. The three-member panel that rendered the decision noted that "he has engaged in repeated aggressive sexual behavior, but has appeared to make no progress in treatment."

Sarne's attorney, Kathleen Rauenhorst, is now in the process of seeking relief from the federal courts. She argues that her client should be released on the grounds that there is no acceptable treatment program available to him. Rauenhorst is also preparing a lawsuit charging the state with neglect, because of the lack of suitable therapy.

Sarne's is not an isolated case. According to attorneys and mental health professionals familiar with Minnesota's Sex Offender Program, a significant number of individuals who have been committed suffer from either cognitive disabilities or mental illnesses that render them incapable of therapeutic advancement. Yet no matter what the person's crime or mental state, everyone detained under the laws is thrown into essentially the same treatment program.

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