Don't Throw Away the Key

Do you want to know a secret about sexual psychopaths? They're not the ones committing most of the sex crimes.

Dennis Linehan was the Alfonso Rodriguez of his day. In 1965, he raped and murdered a 14-year-old girl and hid her body. He was 24 at the time and had already committed or attempted at least seven rapes, "disrupting and destroying the lives of his young victims, their families, friends, and others who grieved and feared at a distance," according to a legal scholar who would take his case to the nation's highest court. Sentenced to serve up to 40 years in prison, he escaped after 10 years and, in the days before he was apprehended, likely attempted another rape.

In 1992, when Linehan completed his prison sentence, no one wanted him released, never mind that when a criminal has served his sentence, courts lose their power over him. So prosecutors took the uncommon step of seeking to have Linehan locked up as a psychopath. Because psychiatric commitments are a civil matter and not a criminal one, people confined to state hospitals can be held until they're no longer a threat—if that day ever comes. Technically, Linehan could graduate from the sex-offender treatment program and be released, but in the time he's been committed, no one in the state of Minnesota ever has.

Linehan's court-appointed attorney, Lisbeth Nudell, turned for help to William Mitchell College of Law professor Eric Janus, who knew something about the peculiar set of laws in play. After a civil trial, Linehan was committed, and Janus spent the next 10 years pushing the case all the way to the U.S. Supreme Court. The end result: the creation of a new process to lock up people because they might commit a crime in the future—a black-letter no-no in other parts of the law. In the four years since Janus closed Linehan's file, the number of sex offenders confined in state hospitals has more than doubled.

Eric Janus has succeeded in writing the book that's least likely to turn up  on anyone's Christmas wish list
David Kern
Eric Janus has succeeded in writing the book that's least likely to turn up on anyone's Christmas wish list

Which makes Janus's recently released book, Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State (Cornell University Press), especially timely. Linehan makes a better super-villain than poster boy for injustice. But Janus makes a persuasive case that by throwing vast resources at a few offenders while hiding the true scope of sexual violence, sexual predator laws do more harm than good. Not only is the public not much safer than it was before civil commitment became widespread, he writes, but we've unleashed a political monster.

"No one is opposed to punishing people who engage in terrorism or commit rape, or to arresting people who are conspiring to commit terrorist acts or attempting to lure children over the Internet," Janus writes. "Our sense of justice, our fear for our own rights, are soothed by the mental disorder label, the assurance that these folks are somehow different from us. But the only real difference is risk; and as the science of risk assessment improves and expands, the temptation to intervene earlier and earlier, with a broader and broader segment of the population, may be proving too hard for our political process to resist. We should stop the process now, before we create a legal monster we truly regret."

City Pages: Minnesota is widely believed to be one of the first two states to create sexual psychopath civil commitment laws, but the tactic was tried and more or less abandoned 20 years ago. What was different about the early laws and why did we stop using them?

Eric Janus: Minnesota passed one of the first "sex psychopath" laws in the late 1930s. At the beginning, these laws were seen as enlightened and progressive measures based on a new psychiatric understanding of sexual offending. These laws were supposed to provide treatment to offenders who were "too sick to deserve punishment." At the beginning, the people committed for treatment were those who had committed crimes that were viewed as relatively minor—including some forms of child molestation—and most people were released after a short stay at the treatment facility.

But after several decades the law's use shifted to more dangerous offenders. By the 1980s it was clear to most observers that the experiment was a failure. There was no good way to tell who was really dangerous, and no effective treatment was being offered. Many states repealed the laws, but Minnesota kept the law on the books, even though it was hardly used.

CP: If it was clear by the 1980s that the experiment wasn't working, why, when Linehan was to be released in 1992, did the state fall back on a failed policy?

Janus: In the late '80s and early '90s, there were several terrible rape-murders committed by recently paroled sex offenders. A task force called to address the problem suggested using the old psychopathic personality law as a means to incarcerate offenders who were "too dangerous" to release from prison. Linehan wasn't the first target, but he was among the first.

His case was notorious in the 1960s. Despite the fact that he had a relatively good record as he progressed through prison (he successfully completed sex-offender treatment and chemical-dependency treatment in prison), there was significant pressure to keep him locked up at the end of his prison term.

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