It is every parent’s nightmare. Your daughter or son is missing and you fear the worst. After days, weeks, or years hope fades. If a body is found and identified you learn that your child was sexually assaulted. Barbara Iverson, Katie Pourier, Dru Sjodin. These names and many more cause profound sadness and anger. As a society our desire is to put an end to these horrors and many of our leaders have promised to do just that. Unsuccessfully.
Violence has been a part of human existence from the first humans, and sexual violence seems to carry a particular horror for us. Kidnap and rape is a common theme in documentaries and fiction and triggers primal instincts of fear and rage when we hear about it. In the late 1980s a series of rape/murders committed by men on parole following their release from prison for having committed sexual assaults1 led to the formation of a task force that proposed, among other things, the use of an old (1939) statute to commit men with "psychopathic personalities" to psychiatric institutions.
County attorneys and the Minnesota attorney general used this statute to invoke commitment at the end of the sentences for selected sex offenders.2 Attorneys for the proposed patients argued that the commitment proceedings were a transparent attempt to extend the confinement of sex offenders who would otherwise be eligible for parole.3
In 1994, a second law called the Sexually Dangerous Person (SDP) Statute was passed (to close what was
perceived as a loophole). The Hennepin County Bar Association has played an integral role in this story through one of its programs, the Hennepin County Commitment Defense Project. This article will explore the history of this controversial intervention and describe the process of the commitment.
SPP and SDP
Minnesota has two different laws for committing sex offenders. The first statute, the "psychopathic personality" statute,4 was originally used to civilly commit individuals who were deemed to have sexual disorders rendering them incapable of control over their behavior. Shortly after its passage in 1939, the Sexual Psychopathic Personality (SPP) statute was challenged in the appellate courts on the grounds that it was too vague. The case was reviewed by the Minnesota Supreme Court,5 which narrowed the SPP statute, allowing civil commitment only on specific grounds. The U.S. Supreme Court in Pearson v. Probate Court6 adopted the Minnesota Supreme Court’s construction of the statute when it stated:
[The statute] intended to include those persons who, by a habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses and who, as a result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire.7
A second statute, the Sexually Dangerous Person statute,8 came into being due to an infamous case from 1965. In 1965, Dennis Linehan kidnapped, raped, and killed a Minnesota teenager. He pled guilty to kidnapping and was sentenced to 40 years in prison. In 1975, he escaped and was captured after sexually molesting a 12-year-old in Michigan. He was imprisoned in Michigan for five years and returned to Minnesota for 12 additional years before his scheduled supervised release in December 1992. A petition for commitment as a psychopathic personality was filed before his release and the Ramsey County District Court committed Linehan, who then appealed. His commitment was affirmed by the Minnesota Court of Appeals but overturned by the Minnesota Supreme Court9 on the grounds that Linehan did not exhibit an "utter lack of power to control his sexual impulses."
Following a public outcry, Gov. Arne Carlson ordered Linehan detained and called a special session of the Legislature in the summer of 1994 to find a way to continue Linehan’s confinement. The Legislature responded by enacting the SDP statute.
The process for commitment of a sex offender (in theory) begins more than a year before the supervised release date (commonly referred to as parole). The Minnesota Department of Corrections (DOC) is expected to review the files of every sex offender in custody and make referrals to either the county attorney of the resident county or to the attorney general.10 Unlike other commitments such as for mental illness, the county pre-petition screening department does not necessarily screen these cases for appropriateness. If the county attorney or the attorney general files a petition for SPP/SDP, a preliminary hearing is to take place within 72 hours to determine if the respondent is to be held at the St. Peter location of the Minnesota Sex Offender Program (MSOP). A trial is (again in theory) to take place within 44 days after which, if the petition is proved, the judge will commit the respondent to MSOP for a two-month evaluation period. At the end of the evaluation period another hearing is held to determine if the respondent continues to meet the criteria for commitment. If the elements of the commitment are found at this point, the respondent is committed "indeterminately" to MSOP.
At this point the district court loses jurisdiction and the ultimate discharge is in the hands of a stat-utorily created board called the Special Review Board and the commissioner of the Department of Human Services.
MSOP is a division of the Department of Human Services (DHS) and has two locations, St. Peter and Moose Lake. During the initial 60-day evaluation period, persons committed as SPP or SDP are held at St. Peter. The main treatment program is at Moose Lake and consists of four phases. Each phase is designed to last about one year so that ideally a person should be ready for transition back to the community in about four years. Upon completion of the four phases, the process becomes murky. Only one person has ever been provisionally discharged from confinement11 and was returned after a technical violation. He remains in confinement more than a year and a half later without ever having re-offended. Though the statute calls for persons who are in "transition" to be placed on passes into the community, none of the nearly 20 men who have completed treatment have ever been granted passes despite being in "transition" for more than a year.
The Department of Human Services has indicated that it plans an alternative method of preparing men for reintegration into the community. This proposed DHS process calls for retrofitting a unit at the St. Peter Regional Treatment Center to a residence from which residents would be allowed to carry on community-based activities such as working at a job. Due to adverse press, the project has been halted, and a year and a half after DHS announced this proposal, the status is unclear.
The task of defending respondents in these commitments falls to the Hennepin County Commitment Defense Project. This organization came into existence in 1982 as part of the settlement of a lawsuit against the probate court and Hennepin County Board of Commissioners.12 The Hennepin County Bar Association was called upon to oversee this panel of attorneys representing respondents to petitions for civil commitment.
Of the 36 attorneys on the general panel, 14 provide representation in SPP/SDP cases in Hennepin County.13 Two other attorneys assist with post-commitment and appellate litigation. One attorney is also on the Ramsey County panel of commitment defense attorneys. In addition to Hennepin County, attorneys from this panel were asked to represent SPP/SDP cases in Anoka County this year and several have been appointed in counties throughout the state. Altogether, attorneys from the Commitment Defense Project represent about half of the SPP/SDP committees in Minnesota.
In addition to defending the petitions, there have been suits against the Department of Human Services and other state officials pertaining to treatment conditions at MSOP. Thanks to litigation on the part of members of the Commitment Defense Project, an independent hospital review board was established at MSOP14 and the wholesale removal of personal computers (regardless of responsible use on the owner’s part) was stopped.15
On average there are about fifteen petitions for SPP or SDP statewide every year. However, following the kidnapping of Dru Sjodin, there was a dramatic increase in the referrals for commitment and petitions for commitment in 2004. Joan Fabian, commissioner of the Minnesota Department of Corrections, announced in December 2003 that all Level 3 offenders would be referred for commitment. As a result, more that 200 referrals were made to county attorneys and the attorney general for consideration for commitment. In Hennepin County, more than 100 referrals were made and from that 27 petitions were filed (a 350 percent increase from 2003).
Utter Lack of Power to Control Sexual Impulses
This area of law has evolved rather quickly. The original statute was held to be constitutional but only when the U.S. Supreme Court narrowed the definition to include the phrase "utter lack of power to control sexual impulses." This phrase became the central issue when, in the late 1980s, the statute was used to confine men completing their sentences for criminal sexual conduct. The first case to test the use of the sexual psychopathic personality statute was Matter of Blodgett.16 This case affirmed the use of the SPP statute providing that the state demonstrate an "utter lack of power to control sexual impulses."
Blodgett is also important because it began a series of cases that changed the definition of "utter lack of power to control sexual impulses." In Blodgett, the Minnesota Supreme Court laid out a number of factors by which a trial court may determine if an "utter lack" exists. This case was followed by several cases17 that added factors that are frequently used by petitioners’ attorneys and examiners to determine if a subject meets the criteria of "utter lack."
The SPP statute retains the original high threshold of utter lack of power to control sexual impulses for commitment, while the SDP statute has a considerably lower threshold for commitment, requiring only a pattern of harmful sexual conduct, the presence of a mental illness, character disorder or dysfunction, and the likelihood of re-offending. The language of the statute itself relieves the state of the need to prove lack of power to control sexual impulses. That removal was challenged18 on substantive due process grounds. Defense attorneys argued that the SPP statute and SDP statute lead to identical sanctions (indeterminate commitment to MSOP) and should have the same constitutional protections. At the same time Linehan II was being heard in Minnesota, a Kansas case was being heard by the U.S. Supreme Court. In Kansas v. Hendrichs19 the Court determined that a similar statute to Minnesota’s SPP statute was constitutional. Since Hendricks relied heavily on Pearson,20 Eric Janus and Lisbeth Nudell, Dennis Linehan’s attorneys, reasoned that the SDP statute was void because it lacked a finding of utter lack of power to control sexual impulses. The U.S. Supreme Court appeared to agree and vacated Linehan II, but on remand, the Minnesota Supreme Court affirmed the commitment stating that the statute required a showing that the subjects of SDP petitions lack "adequate control" over their sexual impulses. The U.S. Supreme Court denied certiorari on Linehan IV.21 The SDP statute has survived subsequent challenges on substantive due process grounds.
Another finding by the Minnesota Supreme Court in Linehan IV was that the subject of an SDP commitment must be "highly likely" to re-offend. That issue (whether one is highly likely to re-offend) is an important aspect in the glut of cases following Commissioner Fabian’s directive. A number of actuarial instruments (improperly termed "psychological tests") have been developed to estimate the level of risk for re-offending by sex offenders. These instruments tally the number of factors that the subject has and compares the result to a known population of persons with similar factors. The use of these instruments is, in itself, a controversial subject but the level at which a court is satisfied that a person is "highly" likely to re-offend is at the heart of many of the current cases.
The Hon. Patricia L. Belois, a Hennepin County District Court judge who has heard many of these cases, states, "The Court obviously weighs public safety issues [with] constitutional freedom. Actuarial assessments are only one factor in that decision." However, some psychologists rely heavily on these instruments and the decision by the Department of Corrections is heavily dependent on one such instrument, the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R). From a defense standpoint, the problem is that a score on any of the actuarial instruments does not describe the subject of that instrument but the population of persons receiving similar scores. For example, a person with a score of 13 on the MnSOST-R is in a population of which one expects 70 percent will re-offend. But that score does not distinguish between the members of that population who re-offend and those who do not. To further complicate the matter, at least one scientist suggests that any attempt to "fine tune" the prediction with a clinical evaluation of the subject lowers the predictive value of the actuarial instrument. Civil libertarians would argue that only those with very high actuarial scores should be confined as to do otherwise is blatant preventive detention. But the pressure on a probate judge to release someone with "only" a 50 percent chance (or less) of re-offending is still quite daunting.
With the glut of commitments this past year Commitment Defense attorneys have had a high rate of either securing settlements or winning favorable decisions from the courts due in part to low actuarial scores of some Level 3 offenders who were referred for commitment. Courts and examiners seem to be willing to question these commitments more than in the past and many subjects of petitions have been living in the community for up to five years or have had fewer victims than past subjects.
Whether commitment of sex offenders helps toward making the state safer is a matter of conjecture. State Senator Wes Skoglund has stated on a number of occasions that the number of violent sex crimes have gone down because 200 of the state’s worst offenders are confined at MSOP. Eric Janus, who is professor at William Mitchell College of Law, states that the concentration on confining a few offenders is less effective than spending the same money on treating the greatest number of offenders. Unless MSOP develops a program to reintegrate SPP/SDP committees into the community, commitment is a de facto life sentence without parole—this from what is nominally a civil proceeding.
The controversy, legislative debate, and litigation in this area are not likely to abate anytime soon.
1 Julie A. Hoffman, Humphrey Asks [for] Tougher Sentences for Rapists, Saint Paul Pioneer Press Dispatch, June 27, 1988.
2 State of Minn., Program Evaluation Div., Office of the Legislative Auditor, Psychopathic Personality Commitment Law 11 (1994). See also Johnson, supra note 1, at 1150-51.
3 See, e.g., C. Peter Erlinder, Minnesota’s Gulag: Involuntary Treatment for the "Politically Ill," 19 Wm. Mitchell L. Rev. 99, 124-25 (1993).
4 Minn. Stat. § 253B.02, subd. 18(b).
5 State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297 (1939).
6 309 U.S. 270 (1940).
7 Id. at 273 (emphasis added).
8 Minn. Stat. § 253B.02, subd. 18(c).
9 Matter of Linehan, 518 N.W.2d 609 (Minn. 1994).
10 Anoka, Dakota, Hennepin, Olmsted, Ramsey, St. Louis, Stearns, and Washington counties prosecute petitions from the DOC. In other counties the Minnesota attorney general prosecutes the petitions.
11 That person did not go through the MSOP program but at the time of commitment had finished a program that is no longer in existence.
13 Michael Biglow, James Dahlquist, Michael Hager, Roderick Hale, Marilyn Knudsen, David Kraker, William Lubov, Warren Maas, Douglas McGuire, Lisbeth Nudell, Brian Southwell, Stephen Radtke, and Raymond Wood.
14 Hince v. O’Keefe, 613 N.W.2d 784, 785 (Minn. Ct. App. 2000).
15 Robb v. O’Keefe, Ramsey County File No. C2-02-1763.
16 510 N.W.2d 910, 915 (Minn. 1994).
17 In re Pirkl, 531 N.W.2d 902, In re Irwin, 529 N.W.2d 366, In re Bieganowski, 520 N.W.2d 525.
18 In re Linehan, 557 N.W.2d 171, 188 (Minn. 1996).
19 521 U.S. 346 (1996).
20 Supra, note 5.
21 594 N.W.2d 867 (Minn. 1999), cert. denied, 528 U.S. 1049.