Don't Throw Away the Key

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

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.

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.


CP: The vast majority of sex offenses are committed by people known to their victims—often relatives. And you report that in 1998-99 sex crime-related killings made up less than half a percent of homicide arrests throughout the country. So how did the sexual psychopath come to be such a huge bogeyman?

Janus: There's a simple answer and a complex answer. The simple answer is that acquaintance rapes don't make headlines. Understandably, the news media focus on rare and horrible events—not common and horrible events. But there is a deeper reason. This suggests that sexual violence flourishes because of widespread societal attitudes and practices [involving] gender relations. This is, in large part, the message of some feminist reformers, and it has not been welcome news in many politically conservative circles. The creation of the "sexual predator" as a bogeyman counteracts the feminist message. It suggests that we don't have to make any fundamental changes as a society to prevent sexual violence—all we have to do is find the bogeyman and exile him. It's not us; it's "them."


CP: Just how large is the disparity between sex crimes committed by these bogeymen and sexual violence committed in families and by acquaintances and other intimates?

Janus: A solid estimate is that there are at least 10,000 sexual assaults committed each year in Minnesota. As of December 2002, there were 329 sex offenders given the designation "Level 3" (most dangerous) in Minnesota. In the 16 years that the sex-predator commitment program has been active, about 250 men have been civilly committed as the "worst of the worst."


CP: Have the courts ever addressed what seems to be a paradox underlying the laws: that sexual predators can't be returned to the community once their criminal sentences are served, and yet theoretically we're treating them?

Janus: These laws are full of paradoxes. All of the men who are committed to these "treatment centers" have already served sentences for their crimes. One of the key elements of a criminal conviction is the notion of free will—that the criminal behavior was chosen by the perpetrator, and therefore punishment is appropriate. But a key requirement for civil commitment is some sort of mental disorder that diminishes the person's ability to control their behavior. This is a paradox that undermines the legitimacy of our whole effort to fight sexual violence.


CP: Do we know how to prevent the more common types of sexual violence? If we could shift our focus, and our resources, are there things we could be doing that would make a difference?

Janus: We have some promising approaches. We know, for example, that intensive, long-term, but flexible supervision in the community can help reduce recidivism among sex offenders released from prison. Many groups also urge us to devote more resources to prevention further upstream. "Social norming" (the kinds of campaigns that have led to radical changes in smoking and seat belt behavior), making early treatment and intervention more available and attractive, removing even more of the barriers that victims face in the system—all of these are ideas that have promise to really make a difference. They are not flashy, but they are aimed at addressing the root causes of sexual violence, and at the known and common risks.


CP: That notion of risk—to which we're so averse—is central to your argument that civil commitment could give rise to a "preventive state." Many people aren't inclined to feel much sympathy for the Dennis Linehans and Alfonso Rodriguezes of the world. What's at stake for the rest of us who are law-abiding?

Janus: These laws provide a legal template for locking people up based on their risk of committing a crime in the future. Right now, we limit this kind of preventive detention to folks whom we predict will commit a sexual offense. But there is nothing inherently different about people who pose a risk of terrorism, or political insurrection, or any other kind of harmful behavior. Once we've approved preventive detention as a principle of law, there will be little in the way of expanding it to others who pose a "risk." In fact, experience has shown that political pressure will build to expand available legal techniques to protect us from highly salient risks.


Failure to Protect: America's Sexual Predator Laws and the Rise of the Preventive State

Cornell University Press

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