Throwing Away the Key
Nobody cares what happens to Jerome Daniels. The 68-year-old's life is on trial in Judge Kevin Burke's sixth-floor courtroom at the Hennepin County Courthouse and no one has shown up for the show. No one, that is, who isn't required to be here: two bailiffs, two attorneys, two psychologists, a court reporter, a clerk, and the judge.
Daniels sits impassively as psychologist Paul Reitman reduces his life to a handful of clinical terms: impulsivity, anti-social personality disorder, paraphilia, narcissism, volitional impairment, and psychopathy. Daniels's attorney, Marilyn Knudsen, repeatedly raises objections to Reitman's testimony, but to no avail.
What it all boils down to is that Daniels is a career pedophile with a 40-year history of molesting children, typically girls under the age of 12. During the course of that career, the Korean War veteran and three-time divorcé has undergone repeated intensive sex-offender treatment, received praise for his progress, then started all over again. He has spent most of his adult life either in prison or on probation. And the civil proceeding taking place on this Friday will determine whether he should be classified as a "sexually dangerous person," a "sexual psychopathic personality," or both--any of which could lead to his involuntary, indefinite commitment for treatment.
The differences between sexually dangerous person and sexual psychopathic personality, as defined by state law, may seem minimal--but they're legally significant. To commit someone as a sexual psychopathic personality, the state must show that the person has "an utter lack of power to control" his sexual impulses, a standard not required to prove that someone is a sexually dangerous person. Prosecutors almost always seek to commit people who fall in either category.
Reitman, who specializes in working with sex offenders and their victims, is one of two psychologists who have been appointed by the court to evaluate Daniels. During several hours on the stand, Reitman paints a dark portrait, labeling Daniels an "untreatable pedophile." "No treatment we know of to date will change him," he says.
In Reitman's opinion, even Daniels's previous therapy lessens the odds that he could ever be rehabilitated. "Comparatively speaking, if he had never had treatment, that might lower the likelihood of failure," he argues. Even Daniels's advanced age fails to alleviate the psychologist's assessment of the threat he poses to society: "There's nothing that suggests that at age 70 he will stop."
As the hearing drags on, it becomes obvious that if Daniels were committed he would essentially be losing his freedom for life. "How does a person like Mr. Daniels ever get out?" Judge Burke asks Reitman at one point.
"In my professional opinion, do I think he'll ever get out, no matter what he does?" Reitman responds. "No, I don't."
Judge Burke pushes the issue, quizzing the psychologist about the apparent futility of treatment. In response Reitman tries to come up with a scenario in which the career pedophile could one day complete treatment. "Frankly, with a history like his," Reitman concludes, "he'd have to walk on water."
On October 11 Daniels completed an 11-year prison term stemming from four counts of criminal sexual conduct. He hoped to live out his retirement years in a Blaine townhouse. But since being released, he has been in state custody. Later this month Judge Burke will decide whether or not he should be set free or institutionalized.
At present, there are 179 men in Minnesota who have been involuntarily detained as sexual psychopathic personalities, sexually dangerous persons, or both. Their crimes are heinous. Some, like the infamous Dennis Linehan, have raped and murdered. Others, like Daniels, have routinely molested young boys or girls. Most of the men have already served prison sentences. They are being detained not for crimes they have committed, but because it has been determined that they are likely to do something illegal in the future. They are not alone--other civil commitment statutes allow the state to detain people who are mentally ill and dangerous or who have chemical dependency problems that pose a public safety threat.
Most of these recidivist sex offenders are housed at the Minnesota Sexual Psychopathic Personality Treatment Center, a secure facility in Moose Lake that was opened in 1995. The remainder spend their days at the Minnesota Security Hospital in St. Peter. According to a 2000 report by the Minnesota Department of Corrections, the state spends $20 million annually on the Minnesota Sex Offender Program; that number is expected to double in five years and quadruple within a decade. And the number of people detained under such laws was projected to reach almost 350 by 2010. According to the Minnesota Department of Human Services, which administers the treatment program, under optimal conditions the offenders could complete their therapy and be integrated back into society in four years.
But as testimony in the Daniels trial illustrates, no one is quite sure how or even if habitual sex offenders can be rehabilitated; in fact, over the past decade civil commitment has proven to be a de facto life sentence. Since the law pertaining to sexually dangerous persons was passed in 1994, broadening the state's ability to detain offenders, only one patient has earned his freedom. And, as the system's critics point out, this success story resulted not from the therapy program currently in place, but its precursor. According to the Department of Human Services, four other men are currently in the final "transition stage" of treatment, during which they are to be gradually reintegrated into the community. Some 20 percent of the patients refuse to participate in therapy at all.
"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."
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.
"It is well accepted in the literature that one size does not fit all," argues Eric Janus, a professor at William Mitchell College of Law. "Sex offenders are not homogenous. There are some radically different types of sex offenders."
Still, the daunting question remains: What should the state do with an individual who will more than likely commit another sex crime? Hennepin County District Court Judge Michael DeCourcy recounts committing a serial rapist who was HIV-positive and mentally retarded. The man repeatedly assaulted women even while undergoing treatment. After he was sent to Moose Lake, the Department of Human Services requested that Judge DeCourcy have him transferred offsite to a program that specializes in working with people who have significant cognitive impairments. The Judge refused for fear that the man would continue assaulting women.
"How do you develop a program when you have somebody with all of these obvious mental health issues and mental retardation?" asks DeCourcy. "My approach was, I don't know how you do it, but they have to make the effort to put the program together."
The fundamental problem is that no one really understands how to work with such people. In large part that's because the field of sex-offender treatment is still relatively new, and few scientists have examined the difficulties of treating people with low IQs. "While there's been a movement towards dealing more with cognitive deficits, I don't think anyone has backed off and taken a specialized view of this," says the U of M's Michael Miner.
In recent months the Department of Human Services, working with the Minnesota Department of Corrections, has taken steps to better serve people with developmental problems. In the summer of 2001, according to Michael Tessneer, director of strategic planning and development for a division of the state Department of Health and Human Services, a program was started at the Minnesota Security Hospital in St. Peter geared specifically toward people with cognitive impairments. "What we think we're going to get is a better set of treatment options for those patients," Tessneer says of the fledgling program.
The state has also made other changes in recent months in an attempt to expedite the treatment process for all offenders. More than a year ago the Department of Corrections began screening every sex offender who enters the prison system to determine whether he might eventually be a candidate for civil commitment. The hope is to get dangerous offenders involved in intensive treatment at the beginning of their prison sentences rather than at the end.
Since July, 30 beds at the Moose Lake correctional facility have been reserved for prisoners undergoing sex offender treatment. The state intends to add 20 more slots in coming months. These prisoners are provided with the same rigorous therapy as the men who have been civilly committed. "Our reasoning is, if we can get them engaged in treatment earlier in that incarceration, then it's likely that they will either be through that treatment or substantially through it" when their prison sentences expire, Tessneer explains. "For this population, treatment is a very long, intensive process of changing the way people think. It isn't gonna be two years and you're done."
It remains an open question whether any of these changes will result in rehabilitating sex offenders. Ultimately, if the 179 men committed as sexually dangerous persons or sexual psychopathic personalities are ever to be released, state officials will have to declare that they are no longer a threat to society. The truth is, nobody can say for certain.
"The only way they can do it in this case is to set up these hoops for people to jump through, and if they jump through them, you loosen the controls," says Janus. "But obviously it's total guesswork, because nobody understands the science."
As mental health officials struggle to get a better understanding of what causes people to be sexually violent, and how they might be treated, the 179 men civilly committed in Minnesota bide their time. "I would guess there is a huge well of anger there because of the hopelessness and the arbitrariness of the whole institution," says Janus. "We have truly created a Pandora's box that I don't think we know how to close."
Michael Meyer has been institutionalized for most of his adult life. In 1990, at age 20, he pleaded guilty to one count each of third- and fourth-degree criminal sexual conduct in McLeod County, as well as another fourth-degree charge in Polk County. Prosecution of other alleged criminal acts was dropped as part of Meyer's plea agreement.
His victims were mostly male teenagers and preteens. According to court documents, over the years he engaged in "inappropriate sexual contact" with 36 children. By Meyer's own admission there was "significant abuse" of 14 kids, which included fondling, masturbation, digital penetration, and oral sex.
On October 4 of last year, Meyer was in the laundry room of the Moose Lake facility dyeing another patient's hair when he got into a dispute. A third patient, who Meyer says had been harassing him for weeks, demanded that he be given any leftover dye. When Meyer refused, words were exchanged, then punches. Security personnel arrived on the scene in time to witness Meyer call his adversary a "fat fuck."
Meyer maintains that he was only acting in self-defense: "If somebody hits me, and they keep hitting me, and they keep coming after me, I'm sorry--I am going to hit them back. I am going to defend myself."
About an hour after the incident, Meyer was informed that he would be spending the next three months in "protective isolation." From that point forward Meyer was locked down for more than 23 hours a day. As he describes it, the cell was roughly 9 feet by 13 feet, with a concrete slab for a bed and a one-piece stainless-steel toilet/sink unit; during his daily stints of freedom (between 15 and 30 minutes) Meyer was handcuffed except when showering. As for treatment, he was directed to write in his journal about how his behavior had resulted in seclusion.
Meyer immediately began firing off grievances to the Moose Lake administration. He contacted Michael Woods, who monitors the facility for the state's Office of the Ombudsman for Mental Health and Mental Retardation, as well as the Minnesota Department of Health's Office of Health Facility Complaints. He even filed a civil lawsuit in Carlton County against the administrators responsible for his confinement.
Despite these protestations, Meyer was a model citizen throughout his stint in protective isolation. According to notes kept by the guards assigned to monitor him, he slept an average of seven hours a night, ate his meals without incident, and generally acted "appropriately." Only once did Meyer draw reprimand, when he informed a staff member: "You are all like the Nazis, you may just be following your orders, but that doesn't mean it's right."
On October 26 Prof. Peter Erlinder, Ombudsman Woods, and psychologist Margretta Dwyer sent a letter to Rick Harry, director of the Minnesota Sex Offender Program, protesting Meyer's confinement.
They pointed out that Meyer had no previous history of violence during the seven years that he'd been committed as a sex offender and that no staff member had witnessed the physical altercation in question. "To impose such harsh conditions for 90 days on an individual, for what amounted to a simple scuffle, is, in our opinion, unwarranted and psychologically damaging," the missive read.
Five days after it was faxed to Moose Lake, and 27 days after the scuffle, Meyer was moved out of protective seclusion. "I felt like I was going nuts," he says of the time spent in seclusion. "I felt like I was about to have an emotional breakdown. It was just so hopeless and helpless back there."
The ramifications of Meyer's punishment go beyond just his mental state. Because of the disciplinary infraction, his security rating was dropped, limiting the number of hours he can work, and further restricting his movements within the facility. More significant, his treatment came to a standstill. Because of the period in protective isolation, Meyer was unable to complete the fall therapy session. After six years of civil commitment, he is less than halfway through the program.
In the wake of Meyer's detention, the Hospital Review Board--an outside panel established in January by the Department of Human Services to monitor the Minnesota Sex Offender Program--is reviewing the use of protective isolation. Although the board has no authority to implement changes, its recommendations could pressure administrators at Moose Lake into reevaluating the policy.
Harry says that the Moose Lake staff is already considering shortening the length of time that patients spend in protective isolation. He defends the need for such a disciplinary tool, however, noting that the men being held can be extremely dangerous: "We believe that in order to safeguard other patients and staff, there are times that a patient has to be removed from the general population."
Margretta Dwyer, former head of the sex offender treatment program at the University of Minnesota, doesn't dispute the need for a means to subdue dangerous patients, but she argues that such measures should be employed sparingly. "It should be used like a timeout for a kid: You're in there until you're in control," Dwyer says. "The more cruel you become, the more cruel they become."
The use of protective isolation to discipline patients is just one piece of the ongoing battle over what rights the committed men should have. In January the Department of Human Services decided that a vast majority of patients should be required to get rid of their personal computers.
According to Harry, patients are using their computers to store prohibited sexual images, including child pornography. "We have a population that is very adroit at getting contraband into the facility," the program director notes. "The monitoring of the computer system to determine whether this contraband is in the facility and on the computers takes a tremendous amount of staff time." Harry says that charges have been filed against at least one individual for possessing child pornography, but he declines to elaborate.
On February 25 three patients-- Bert Daby, Joseph Givens, and Rodger Robb--filed suit in Ramsey County District Court charging that the proposed computer policy is overly broad and punishes them for the transgressions of others. "The point about this computer thing that is so angering to so many people is that they painted with this real broad brush," says Robb. "I have never been accused of misusing my computer for anything. I have never misused my computer for anything."
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.
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.
Professor Janus points out that the resources currently being used to treat these 179 men could be spread out throughout the criminal justice system, for prison treatment programs, post-release monitoring, and other measures. Janus estimates that 90 percent of the government funds available for sex offender treatment are now being lavished on the residents of Moose Lake and St. Peter. The tiny piece that remains is all that's left to deal with all of the other perpetrators in the state. "It's just totally backwards," he says.
The U of M's Michael Miner, a less avid critic of civil commitment laws, concurs: "It's very hard to get funding for sex offender treatment. And frankly, I think there are better ways to spend the money than on this small group of people."
The 179 sex offenders who have been involuntarily committed are locked behind steel doors, fenced in by barbed wire, monitored by armed guards, and sometimes kept in seclusion for months at a time. This stringent control undoubtedly provides their victims and the general public peace of mind--and politicians something tangible to point to as proof that they're tough on sex offenders. But while it might make everyone feel better to permanently lock up the likes of Timothy Sarne, Michael Meyer, and Rodger Robb, until we fully understand both what causes sex crimes and how to treat sex criminals, this perception of safety is largely an illusion.
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