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?

In response to the lawsuit the Department of Human Services has decided to postpone implementing the policy. Despite the delay, Harry maintains that the administration should have the right to decide if patients are entitled to computers. "We are not unlike similar civil commitment programs throughout the country which have a similar stance," he argues.

The computer issue was the final straw for Michael Meyer. He's become convinced that no matter what he does the staff will find a way to keep him from advancing in the program. "In order to get a true discharge from here, you have to be dead," he declares.

There is some evidence that Meyer's assessment is not simply cynicism. Last week one patient finally took permanent leave of the Moose Lake facility. He died.

Shawn Barber

 

In 1997 the United States Supreme Court upheld the constitutionality of a Kansas civil commitment statute aimed at sex offenders. That decision, Kansas v. Hendricks, set a precedent that has emboldened other states to indefinitely detain such criminals who are deemed likely to re-offend.

A second Supreme Court ruling on the Kansas statute, Kansas v. Crane, was issued in January, however, and opened a legal window for some men who have been civilly committed in Minnesota. While the high court again affirmed the legality of such laws, the justices determined that before committing sex offenders, states must show that they have "serious difficulty" controlling their behavior.

In the past the Minnesota Supreme Court has ruled that, under the law governing sexually dangerous persons, the standard is a person's lack of "adequate control" over his behavior. To be classified as a sexual psychopathic personality, a person must be shown to have an "utter lack of power to control" his sexual impulses. The legal parsing is arcane but potentially significant.

Prof. Janus represents Dennis Linehan, whose criminal acts inspired the creation of the sexually dangerous persons category. He argues that there is a significant difference between the two criteria. "The problem is that the Minnesota standard provides no way of distinguishing between people who are just plain old recidivists [and] those who ought to be in the mental health system," he says.

In the coming months many of the men who have been committed as sexually dangerous persons will be seeking reprieves in state and federal court based on the Crane decision. Janus currently has a writ of habeas corpus pending in federal court seeking Linehan's release. Earlier this week Janus filed a motion arguing that, in light of the Supreme Court's Crane decision, Minnesota's statute should be declared unconstitutional. There are currently 46 other men in Minnesota who, like Linehan, were committed solely as sexually dangerous persons and could potentially be released if Janus's argument is accepted by the courts.

Other attorneys are less enthusiastic about the impact of Crane. Warren Maas, who oversees the Hennepin County Commitment Defense Project, which provides attorneys to people facing civil commitment, says that his organization will be reviewing all cases to determine whether new court filings are warranted. "However, I'm not optimistic that we're going to be all that successful," Maas allows. "The courts have plugged the leaks in the system on their own in the past and my guess is they probably will do the same now."

Not surprisingly, prosecutors also say the Supreme Court decision is nothing more than a matter of semantics. "Our argument is that it's really different words for the same thing," says John Kirwin, who oversees civil commitment cases for Hennepin County. Susan Gaertner, the Ramsey County attorney, concurs: "As I read the Crane decision, it shouldn't have an impact on Minnesota law."

Even so, both Kirwin and Gaertner concede that, at the very least, the Supreme Court's recent determination of which sex offenders are eligible for civil commitment opens an avenue for patients to contest the validity of their trials. "For some period of time, maybe as much as a period of years, there will be some cases going on raising this issue," says Kirwin.

The picayune nature of the legal debate over civil commitment of sex offenders is emblematic of what Professor Janus calls the "Alice in Wonderland quality" of the entire process. Because these statutes are not premised on a medically recognized illness, such as schizophrenia or tuberculosis, the courts have repeatedly stumbled and backtracked in determining the appropriate standard for commitment.

"This whole unfolding of events really shines a light on the civil commitment process, a very unflattering light," argues Janus. "It really shows the courts floundering around, using these terms like volition and control, that have dubious meanings. They're drawing these seemingly fine points about these terms, like inadequate versus serious, and they're all over the map on it. Nobody even knows what any of these things mean."

 

There is no doubt that the men being detained at Moose Lake and St. Peter have committed egregious crimes. Police reports, victim statements, psychological profiles, and trial transcripts attest to their sins. It is also reasonable to conclude that if many of these men were simply set free more innocents would be victimized.

Still, a larger issue looms in the background: How do you most effectively prevent sexual violence? It's estimated that 12,000 sex crimes are committed each year in Minnesota, even though only half that many are reported. The men who have been civilly committed can only account for a tiny fraction of these assaults.

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