A Prison by any Other Name
*Editor's note: William Wyatt and Joe Bagnold are pseudonyms.
THERE ARE FEW things William Wyatt* seems to relish more these days than the simple act of stepping outside his front door and inhaling the evening air. He has his reasons. If officials from Le Sueur County and the Minnesota Attorney General's office had their way, he would not be living with his wife on a suburban Twin Cities cul-de-sac. He would be sequestered away in a long, low, flat building deep in the woods of Moose Lake, some 110 miles north of Minneapolis.
The facility, known as the Minnesota Sexual Psychopathic Personality Treatment Center, is the most tightly secured complex ever built in the state. It is where Minnesota sends sexual offenders who have completed their prison sentences yet have been judged by the state to be suffering from mental disorders that make it highly likely they will repeat their crimes. Wyatt, a convicted rapist who finished doing his time in 1995, was tabbed by officials as one of those people. As a result he spent more than 18 months at Moose Lake and a similar facility in St. Peter under a 1994 sexually-dangerous-persons statute. But in March of this year, he became one of only two--out of dozens tried--ever to triumph over the civil-commitment process, and was released.
Over the past decade, public fears about sex crimes have been exacerbated by sensational media stories, emotional victims' rights groups, and grandstanding politicians. One result has been to step up the pace at which Minnesota and numerous other states are using noncriminal commitment procedures to lock up sex offenders who have already done their time. Facilities like Moose Lake are expensive, intensely supervised, and legally dubious. Many of their flaws are readily acknowledged by the people whose job it is to run them. If you have been convicted of a sex offense, it isn't hard to land in Moose Lake after your sentence expires; the standards of proof in such a civil proceeding are considerably lower than in a criminal court. But for nearly all the men sent there in the past decade, it has proven impossible to get out.
THE ROAD TO "sexual psychopath" laws and civil-confinement facilities began in 1938 with a missing girl. In the St. Paul neighborhood where it happened, the rumors built to a hysterical pitch, coalescing around the theory that the girl had been kidnapped by a sexual pervert who molested and killed her. No trace of the girl was ever found. But Harold Stassen, a candidate for governor that year, declared that if he were elected, there would be a law protecting communities from those unfortunate but dangerous wretches who were unable to control themselves. Minnesota's first sexual-psychopathic-personality law was passed by unanimous vote in the 1939 state Legislature.
The law was almost immediately challenged, and the challenge made its way to the U.S. Supreme Court, which had struck down a similar Michigan statute in 1936. But in 1940 the court ruled that, although badly written, the Minnesota law was constitutional (even renowned civil libertarian William O. Douglas assented), creating a model that many other states soon copied when enacting their own statutes. Despite its national influence, the Minnesota law was enforced in a motley fashion. It tended not to be a means of dealing with proven violent offenders so much as with window peepers, consenting homosexuals, rural teens who fucked sheep, and husbands or wives who wanted to have sex more often than did their spouses.
The fervor to lock up deviants gradually moved down the public agenda, and the law fell into disuse during the mid-to-late '50s. For the next three decades, only about two people a year were confined under its terms. Its resurgence was kindled primarily by two factors: In 1978, Minnesota shifted from indeterminate sentencing of criminals to specific and fairly rigid guidelines later deemed by the public to be too lenient. And beginning in the late '80s, a spurt of particularly grisly violent sexual crimes galvanized the mood of the citizenry toward more protective, and vengeful, laws against sexual predators. In 1989, an attorney general's task force on sexual violence recommended that the 1939 law be utilized more often. Two years later, the Department of Corrections began screening sex offenders coming up on the end of their sentences. As a result, the number of commitments quickly rose, from one in 1990 to nine in 1991 and 20 in 1992.
In 1993, convicted rapist and murderer Dennis Linehan challenged the 1939 statute in an appeal to the Minnesota Supreme Court. In its July 1994 ruling, the court noted that there are three requirements to satisfy commitment under the '39 law: First, the offender must have established a "habitual course of misconduct in sexual matters." Second, it must be likely that he will "attack or otherwise inflict injury, loss, pain or other evil" on members of society through that misconduct. And third, he must have "an utter lack of power to control sexual impulses." While Linehan certainly satisfied the first two requirements, the court ruled that, far from being powerless to control his impulses, he was a cunning predator who knew exactly what he was doing, and thus was not eligible for commitment under the statute.
The ruling set off a media circus and a political feeding frenzy. Lurid accounts of the crimes committed by a man about to be legally released into society--along with perhaps as many as 68 other "sexual psychopaths" recently committed under the '39 law--incensed the public and prompted politicians to joust for position at the head of the mob. The climate was such that the state Legislature convened a one-day special session in the summer of '94 to unanimously pass a new "sexually dangerous persons" law that closed the "utter lack of power" loophole. Meanwhile, Linehan was given the full Hannibal Lecter treatment, with a personalized unit to himself on the Stillwater prison grounds that included round-the-clock surveillance by six guards and hidden video cameras, and a bed situated in the middle of the room in front of a monitor window.
AMONG THE HUNDREDS of sex offenders with prison records in Minnesota, William Wyatt's rap sheet does not seem particularly onerous. In 1983, he pleaded no contest to a charge of third-degree sexual conduct stemming from an incident with his ex-wife. He retained legal custody of the couple's two children before and after the plea. And in 1991, he was convicted of rape, kidnapping, and terroristic threats involving his live-in girlfriend and sentenced to 86 months in prison.
Wyatt's behavior during his five-year prison stint did not fit the stereotype of a violent, remorseless criminal. True, he refused to take full responsibility for his rape conviction, claiming that it involved chemical dependency, consensual sex, and a mutual domestic assault. But there were no fights or other stains on his record, and plenty of exemplary conduct. With the help of acupuncture, he got sober and has stayed that way ever since. He enrolled in a number of college courses and won a president's award for his scholastic achievement and ability to work with others. And he became a prominent member of Stop the Revolving Door, an inmate-run program designed to help prevent prisoners from repeating their crimes. To that end, he organized the first jobs and transportation mentorship fair at Lino Lakes prison, enabling inmates to interview with potential employers. Near the end of his sentence, Wyatt was one of the few among the more than 600 inmates at Lino Lakes to be accorded relatively free run of the prison grounds. A probation officer had signed off on a supervised release program that would let him stay at a halfway house, where the administrators had reviewed his record and determined him acceptable for residency. Wyatt also had a job already lined up on the outside.
But even as some members of the Department of Corrections were arranging the terms of Wyatt's release, other DOC employees were working with the Le Sueur County prosecutor and the state attorney general's office to have him committed to Moose Lake. Ten days before the end of his sentence, in late August 1995, he was given the news. "I was stunned, and in a panic; my family was in a panic. I had had everything all lined up, and was on a mission to succeed. Then, a sexually dangerous person. That's like a life sentence."
The attorney appointed to handle his defense was Anthony Nerud, who operates a small practice in Arlington. In the 48 hours before Wyatt's first commitment hearing, Nerud estimates that he was faxed, mailed, and hand-delivered 1,000 pages of documents. By law, the state had up to a year to prepare its case; Nerud had a couple of days to get his together.
In Wyatt's case, the most damning argument for commitment seemed to come from his ex-wife and another long-term girlfriend. In phone interviews conducted as part of Wyatt's presentence investigation after his rape conviction, the two women both claimed that he had subjected them to a long history of repeated sexual assault. These interviews became a part of Wyatt's prison file. After reading them, and conducting what Wyatt describes as a five-minute interview, one prison intake psychologist wrote that Wyatt was a "power rapist"; that, too, became a part of his file. "People can say what they want, and without your even knowing about it, it goes into your file as fact," Wyatt says.
But Nerud had also represented him on the 1991 rape charge and was familiar with his client's history. Nerud noted that, aside from the 1983 charge that was plea-bargained, Wyatt's ex-wife had no physical evidence or police reports to substantiate her claims. During and after this alleged period of abuse, in fact, his ex-wife had allowed Wyatt custody of their children.
The allegations by the ex-girlfriend were also difficult to substantiate. In one part of the presentence investigation interview, she claimed Wyatt's sexual violence had resulted in a call to 911 for emergency assistance. But according to police records, it was Wyatt himself who had called 911, asking that the woman be forced to leave his house. The police report states that there were no injuries at the scene.
Less than a week after Nerud was appointed to defend Wyatt during the commitment proceedings, the ex-girlfriend was deposed at the request of the attorney general's office. For more than an hour, she answered a prosecutor's questions about the details of her abuse at the hands of Wyatt. But shortly after Nerud began his cross-examination, the ex-girlfriend stated she would not continue without her attorney present and abruptly ended the deposition. Nerud sought to have it continued at a later date, but the attorney general's office said they did not know her whereabouts. The abortive deposition was nonetheless admitted as evidence against Wyatt during the commitment hearings. "That wasn't a deposition, that was an ambush," Nerud says ruefully.
Then again, it doesn't take a high standard of proof to lock away people indefinitely under the Minnesota law. "You've got criminal-level sanctions--they are locking these people up--and a civil-level process," says Warren Maas, a lawyer and licensed psychologist who is coordinator of the Hennepin County Commitment Defense Project, a group of attorneys who share information on commitment defense strategies. "The criminal standard of proof is beyond a reasonable doubt; in a civil case it just has to be clear and convincing evidence. And because it is a civil-commitment process, the defendant has no right to a jury trial and no right to remain silent--he can be called as a witness and psychologically examined on the stand. There isn't even an automatic right to an appeal."
Despite these disadvantages, Wyatt's first set of commitment hearings ended inconclusively in May 1996, with the judge ordering a 60-day interim commitment and a further review of Wyatt's status. He also suggested both sides consider a less restrictive available alternative than the maximum-security facilities at St. Peter and Moose Lake. But the attorney general's office argued that there was no less restrictive alternative. Meanwhile, the staff at Moose Lake attempted to give Wyatt a battery of tests as part of the review process. Two of the six tests they proposed to give him were for pedophiles, which no one had ever accused Wyatt of being. "At no time in any of the trials did anyone say my client was a pedophile, so giving him those tests would have been totally inappropriate. In fact, there has been unanimous agreement that when my client has harmed anyone, it has been an adult female with whom he had a long relationship, so he is not a predator either. So what you had was a muscle effort to misapply a bad law."
In March of this year, after a second round of commitment hearings and more than a year and half after Wyatt's release date from prison, the judge essentially agreed, dismissing the petition without even ordering Wyatt to enter a halfway house or seek inpatient treatment. They were helped by the testimony of a psychologist named John Austin, who went through all the paperwork and trial transcripts and found instances where reports on Wyatt had been condensed and distorted in the official record. But Wyatt was an exception who proved the rule: By all accounts, almost no one successfully declines an invitation to Moose Lake.
THE EMOTIONAL FUROR over the Minnesota Supreme Court's 1994 decision and the iconic figure of Linehan--who kidnapped and murdered a 14-year-old girl, and 10 years later sexually assaulted a 12-year-old girl just days after escaping from prison--have skewed public perceptions of the sexually-dangerous-persons law. At the height of the Linehan controversy, Gov. Arne Carlson's then-chief of staff, Curt Johnson, told the Star Tribune that Carlson favored "changing the basis of commitment, moving it more toward penalty and away from the presumption of rehabilitation." It was certainly a politically popular sentiment for a governor in an election year; it was also unconstitutional on its face. Using the commitment process to penalize offenders for crimes they have already been convicted of and done time for is known as double jeopardy; using commitments to penalize them for crimes you think they may attempt in the future is called preventive detention. Either is a gross violation of the core principles of the Bill of Rights.
Yet many if not most Minnesotans view the sex-offender commitment process almost exclusively through the lens of public safety. Do what you want with the Constitution, they might say, but make doubly sure that the people you already have behind bars don't harm me or my family.
Still, facilities like Moose Lake have no choice but to emphasize treatment--or risk failing to satisfy the courts. Consequently it's unclear how seriously the state takes its mission to rehabilitate. In any case, it pays a lot for the appearance: It costs more than $120,000 a year to keep each of the 91 offenders who are currently committed at Moose Lake. The lion's share of the costs go toward meeting the payroll of its large, highly trained staff, each of whom has completed a core program involving roughly 255 hours of classroom work, plus some on-the-job mentoring. Potential "patients," likewise, have to fit some clinical diagnosis. The one most frequently cited under the 1994 law is "anti-social personality disorder," a clinically vague term that can be applied to the conduct and attitudes of a great many prisoners.
Who really ends up in places like Moose Lake? After a series of tests, interviews, and prison-file reviews, about 13 percent of the sex offenders serving the last year of their sentences are typically handed over to county prosecutors by DOC officials for further review and possible commitment. The prosecutors (or, in smaller counties, lawyers from the attorney general's office) generally bring commitment petitions against slightly more than half of these offenders, and, Wyatt notwithstanding, are almost always successful. The result is that approximately 7 percent of the sex offenders scheduled for release instead become residents of Moose Lake.
The public assumption is that these people are Linehan's kindred spirits, the most incorrigibly violent offenders the system has to offer. "There are hundreds of sex offenders in the corrections system at any one time," says Rick Harris, the chief operating officer at Moose Lake. "And at any one time there are probably a number of them who walk right out the front door and back to society. There are times when some of those people are not that much different from some of the guys here. It depends upon the crime, the politics of the issue, the time, whatever it might be; some guys may get a recommendation [for commitment] that is followed up on and someone may not. It's not random. We've had some people here who have done some pretty bad things. But I'm saying that our population is not really significantly different than a sex-offender population in a DOC facility."
In fact, added the center's clinical director, Dr. Anita Schlank, "There is one patient in here who has never touched any of his victims. He is an exhibitionist." And, apparently, a person sexually dangerous enough to be costing taxpayers $120,000 annually while living--often in the segregation unit--at Moose Lake.
In any argument about places like Moose Lake, recidivism rates are usually a trump card. It's a fairly common belief that sex offenders are much more likely than most criminals to repeat their crimes. But that premise is beginning to look questionable at best. According to a 1997 Minnesota Legislative Auditor's program evaluation report titled "Recidivism of Adult Felons," only murderers had a lower rate of repeat offenses than sex offenders among Minnesota felons in the three-year period after their release from prison in 1992.
"The public has been sold a bill of goods on the recidivism of sex offenders," says Steve Huot, the director of the Sex Offender/Chemical Dependency Services Unit for the DOC. "When I give talks out in public, I often ask people what they think the recidivism rate is for sex offenders. Very rarely does anyone answer less than 50 percent. But our literature and the national literature both indicate that a much more realistic number is 30 percent, over a five-year period, and it has been trending downward."
Huot adds that one of the factors in lowering recidivism has been the evolution of more sophisticated and effective sex-offender treatment programs. The relapse-prevention model used at Moose Lake and another state hospital, located in St. Peter, is considered one of nation's most effective programs. But in a classic Catch 22 situation, more than 40 percent of the patients at Moose Lake refuse to participate because they believe--with more than a little empirical evidence to support them--that they won't be released back into society even if they successfully complete treatment. Since 1970, twice as many committed sex offenders in Minnesota have been transferred to nursing homes to die of old age than have been awarded their freedom for finishing treatment. There is currently one patient in the final "transition" phase of treatment at St. Peter. Schlank says he has only a few more steps to complete before he's eligible for release, but the common lament among patients at Moose Lake is that he has been finished with treatment for more than two years and is having his release blocked by officials in Ramsey County.
The way the current system works, if Schlank and her staff support a patient's release, the matter goes to a special review board comprised of a lawyer, a psychiatrist, and a lay person. Their approval in turn must be seconded by the state commissioner of human services. Whatever the verdict at this stage, the county and the patient both have the right to appeal the decision to a panel of three district-court judges specifically appointed to hear the case by the chief justice of the Supreme Court. It sounds fair. But consider the risk/reward factor for the district-court judges: Each time they release a patient into society, they put up their own reputations--not to mention their political aspirations--as collateral. "It's political suicide," reckons Warren Maas, "for judges to take a chance and stand up for these [patients] against this law."
Which raises an ironic bind for the Minnesota system: The durability of the 1994 law against court challenges may depend on the efficacy of its treatment program--and if you're not releasing anyone who's received treatment, it's hard to say you're running a rehab operation. Already the Kansas Supreme Court has struck down that state's law because it was administered by corrections officials, not a human-services department, and because it had no treatment component.
The experience of Joe Bagnold* vividly illustrates why many people inside and outside the system think rehabilitation is not a real part of the government's agenda. Bagnold is an acknowledged pederast who in June 1993 was convicted of seven counts of second-, third-, and fourth-degree criminal sexual conduct. He voluntarily enrolled in a treatment program and was told that he must keep a journal as part of treatment. The counselors asked him to write down any sexual thoughts or fantasies that came to him, and to devise appropriate intervention strategies that would forestall his taking action on those fantasies. It would all be absolutely confidential, they assured him. And it was--until his sentence was about to expire and it was time for his civil-commitment hearing. Then the fantasies from his journals were exposed in lurid detail, without any mention of the intervention strategies.
Huot says that prisoners are now told that their treatment histories and materials may be used against them in a civil commitment process, a seemingly overwhelming disincentive that he claims has not prevented many inmates from embracing therapy. As for Bagnold, he had always agreed on the need for court-supervised postsentencing treatment. He had received clearance from two psychologists (one appointed by the court) and an intake counselor to transfer to a private halfway house known as Alpha House, with the understanding that any legal transgression whatsoever--down to writing a bad check--would land him back in Moose Lake. But the district court ruled that Ramsey County wasn't obligated to pay the commitment costs at the $29,000-per-year facility. Instead, Bagnold remains at Moose Lake at a taxpayer cost of $120,000, almost all of it borne by the state.
SOMETIME SOON, the U.S. Supreme Court will hand down its ruling on the constitutionality of Kansas's civil-commitment law, struck down by state courts because it was deemed punitive rather than rehabilitative. Even if the Supreme Court upholds the decision, officials in Minnesota think the pronounced emphasis on treatment in their statute is enough to safeguard it. And if the Kansas law is reinstated, the constitutionality of the Minnesota statute is essentially guaranteed.
"What will happen in here if the Supreme Court rules against us?" Dennis Linehan repeats my question without breaking eye contact. Cramped with me in a 6-by-9-foot visitation room, the state's poster boy for sexual violence considers the ramifications of a legal setback. "Well, very few guys walk out. It would be a war in here. You would gradually have to keep everybody--well, almost everybody--locked up. People would rather go down like a trooper than sit back and take it. I know how [the treatment-center authorities] would handle it--slide food through the door to us like we were animals in a cage. Our only hope is the [U.S.] Supreme Court. Without that hope, people here would feel they have nothing to lose. And they don't. What are they going to do, send us back to prison?
"I've never met a person who was not potentially dangerous. The difference is whether you act on that danger or not. That has to be the difference. If the U.S. Supreme Court allows people to lock up other people without a crime happening, then this country's going down the tubes. Because every state--every state--will adopt this law, and then pick and choose who they want to commit. Right now we have a criminal system and a mental-health system. A system that locks people up for something they might do is a political system.
"Here's what I want to know," Linehan says, and there is a glint in his eyes that could be anger or fear. "I'm either part of our Constitution or I'm not. And if I'm not, why don't they just say so?"
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