Twenty states authorize civil commitment of sex offenders who have completed their criminal sentences but are deemed too dangerous for release. Minnesota, which deploys that option against a larger share of its population than any other state, spends $100 million a year to detain about 750 individuals who are deemed "likely" to commit sex offenses. Although those detainees are notionally eligible for release when they no longer pose a threat, that rarely happens: As of last September, just 21 of 946 people committed to the Minnesota Sex Offender Program (MSOP) had been fully discharged, while 94—more than four times as many—had died in custody.
In effect, the MSOP, which is overseen by the Minnesota Department of Human Services (DHS), imposes life sentences on its "clients," not as punishment for crimes they have committed but in anticipation of crimes they might commit in the future. That system, researchers at Mitchell Hamline School of Law in St. Paul argue in a new report, is not only unjust but also highly inefficient, squandering public resources on a preventive detention scheme that delivers little, if any, public safety benefit. The program is so riddled with conceptual and practical problems, they conclude, that it should be abolished.
"Civil commitment's reduction of sexual violence is vanishingly small compared to its expense," says the report from Mitchell Hamline's Sex Offense Litigation and Policy Resource Center, which notes that it costs about $175,000 a year to keep each detainee in the program. Because civil commitment "focuses on preventing a small fraction of recidivist offenses," law professor Eric Janus and his co-authors argue, it "neither addresses nor repairs the vast majority of sexual harm in Minnesota."
Civil commitment "has failed to serve the purported purpose of treating individuals to facilitate safe community reentry," Janus et al. write. "The state commits too many, and keeps them too long, compounding [the program's] ineffectiveness with civil and human rights violations." At bottom, they say, civil commitment of sex offenders "embodies a dangerous principle: that impassioned majorities may indefinitely detain a reviled and degraded 'other' in the name of preventing some future harm."
Officially, the MSOP's locked facilities in Moose Lake and St. Peter, both of which "have secure perimeters fenced in by razor wire," are treatment centers, not prisons. Although it defies reality, that distinction is legally crucial: The U.S. Supreme Court has approved indefinite detention of sex offenders "who suffer from a volitional impairment rendering them dangerous beyond their control," which it deems remedial rather than punitive. In that situation, the safeguards that are constitutionally required for criminal cases, such as trial by jury, proof beyond a reasonable doubt, and the bans on double jeopardy and ex post facto punishment, do not apply.
As Janus et al. note, civil commitment nevertheless is subject to several constitutional requirements. To be committed, an individual must have a "mental disorder" that makes him dangerous to himself or others. In the case of sex offenders, that "mental disorder" must distinguish people subject to commitment from others convicted of similar crimes. The program must provide treatment when it is feasible, and "the nature and duration of commitment must bear a reasonable relationship to the purpose of the commitment." The MSOP falls short on all counts.
Minnesota's Sexually Dangerous Person Act, enacted in 1994, authorizes civil commitment of anyone who "has engaged in a course of harmful sexual conduct"; "has manifested a sexual, personality, or other mental disorder or dysfunction"; and "as a result, is likely to engage in acts of harmful sexual conduct." Anyone convicted of a sex offense meets the first criterion, while many, if not most, convicted criminals would meet the second. According to a study that Janus et al. cite, for example, "estimates suggest that between 40% and 80% of all imprisoned males would meet the criteria for Antisocial Personality Disorder." Finally, assessments of how "likely" someone is to "engage in acts of harmful sexual conduct" are highly contentious and prone to error.
"The Minnesota Supreme Court held that a trial court must find that future sexual crime is 'highly likely,' but neither the legislature nor the courts have further defined the term," Janus et al. explain. "The result is an amorphous and highly subjective standard." They cite examples of sex offenders who were committed even though they were deemed to pose a "moderate risk," along with evidence that commitment decisions are driven by political factors, such as public outrage at specific crimes and the "philosophies of local prosecutors."
Despite the notional requirement that commitment end when it no longer serves its ostensible purpose, Janus et al. note, "Minnesota does not regularly review detainee risk levels to assess the feasibility of safe reentry into the community." And while the MSOP's executive director can independently recommend a detainee's transfer or release at any time, "this prerogative is rarely, if ever, exercised."
That abdication of responsibility jibes with the attitude of Minnesota's political leaders. Even while defending the MSOP in 2015, then-Gov. Mark Dayton conceded that civil commitment decisions are no better than guesswork, because "it's really impossible to predict whether or not [sex offenders] are at risk to reoffend." As Dayton saw it, the solution was to err on the side of keeping everyone locked up. That was consistent with the position that Dayton's predecessor, Tim Pawlenty, took in 2003, when he issued an executive order barring the release of MSOP detainees "unless required by law or ordered by a court." Pawlenty's chief of staff explained that "the governor doesn't want these guys to get out, and he's made that clear ever since he was running for office."
In practice, each detainee has the burden of petitioning for transfer or release, and that process is plagued by bottlenecks, redundant reviews, and backlogs. "MSOP detainees wait an average of 625 days"—nearly two years—"for a final decision to be made on their petitions for transfer to a less restrictive environment or discharge," Janus et al. note.
Until 2015, when a federal judge deemed the MSOP unconstitutional, no detainee had ever been fully discharged, even though the program at that point had been operating for two decades. "Since that time," Janus et al. note, "a slow trickle has begun, but releases are still outpaced by deaths in custody." As of September, nearly three-quarters of MSOP "clients" had been detained for more than a decade, nearly half for more than 15 years, and about a fifth for more than two decades.
Even when a petition is approved by the Commitment Appeal Panel (CAP), that does not necessarily mean transfer is imminent. "In December 2021, the CAP held the DHS Commissioner in contempt for failing to transfer an MSOP detainee to [Community Preparation Services] after CAP had granted his petition for transfer," Janus et al. note. "In CAP's findings of contempt, the Court noted that '55+' MSOP detainees have had their progression similarly delayed by a failure to transfer for two years or more."
The opacity, unpredictability, and painfully slow pace of this process have fostered an "overall culture of hopelessness and frustration" that deters detainees from even filing petitions, Janus et al. report. That frustration has provoked hunger strikes by detainees who complain that the standards for measuring treatment progress and eligibility for transfer or release are utterly mysterious. "The level of hopelessness…around here has reached…almost crippling levels," one detainee said in an email that Janus et al. quote, "to the point where people don't even try, people don't attempt anything, and people don't have any motivation. People are willing to do nothing, to try nothing, to get out of here because nothing we do works."
The MSOP originally was presented as a stopgap measure aimed at compensating for insufficiently long prison sentences. That rationale was inherently problematic, since it implicitly admitted that legislators were retroactively increasing the punishment imposed on people who had already served the sentences prescribed by law. In any event, that explanation was contradicted by subsequent trends.
"Running parallel to civil commitment's expansion over the last three decades, Minnesota has also increased criminal sentences and post-confinement supervision for those convicted of sex offenses," Janus et al. note. For example, "the average prison sentence for First Degree Criminal Sexual Conduct increased from 75 months in 1988 to 190 months in 2017," and in 2005 the legislature authorized a life sentence for "a single 'heinous' sex crime." But "despite the material lengthening of criminal penalties, Minnesota's program of civil commitment continues to grow, contradicting the solemn promises of legislators that this form of extraordinary confinement would soon disappear, restoring the criminal justice system to its primary role in holding harm-doers accountable."
Politicians and their constituents, of course, are unlikely to care much about the civil liberties of convicted sex offenders, even when they supposedly have paid their debt to society. They nevertheless should care about the waste of taxpayer money that the MSOP entails.
The hope that civil commitment would have a significant impact on public safety stemmed partly from widespread misconceptions about recidivism. "Contrary to the often quoted and erroneous claim that sex offense recidivism rates are 'frightening and high'" —an assessment endorsed by the Supreme Court—"those convicted of sex offenses have one of the lowest same-crime recidivism rates across all offender categories," Janus et al. note. A 2019 Department of Justice study, for example, found that less than 8 percent of people who were released after serving sentences for rape or sexual assault were arrested for a new sex offense within nine years of release, and "other studies have found similarly low rates for both 'low risk' and 'high risk' offenders."
A 2013 study of 105 people committed to the MSOP estimated that the upshot was a small reduction in the four-year sex offense recidivism rate (as measured by new convictions), from 3.2 percent to 2.8 percent. A study published the same year, based on interstate comparisons, found that civil commitment programs "have had no discernible impact on the incidence of sex crimes." Either "there are no preventive benefits associated with these laws," the authors concluded, or "the benefits are too small to measure with these methods."
These results are not surprising, Janus et al. say, since civil commitment programs address "only a sliver of a sliver of sex offense convictions," and people arrested for sex crimes typically do not have prior convictions for that sort of offense. From 2001 through 2015, according to data from the Minnesota Sentencing Guidelines Commission, "93% of criminal sexual conduct convictions in Minnesota involved defendants with no such prior convictions."
Given that reality, Janus et al. argue, the money that Minnesota devotes to civil commitment of sex offenders would be better spent on community programs that aim to "prevent sexual violence before it occurs." Minnesota's current budget, they note, devotes about $2.3 million a year to such programs, while spending 50 times as much on the MSOP.
The MSOP has been subject to much criticism over the years, including a 2011 report from the Office of the Legislative Auditor, 2012 and 2013 reports from the Sex Offender Civil Commitment Advisory Task Force, and the aforementioned 2015 decision in which U.S. District Judge Donovan Frank concluded that the program was unconstitutional (a decision that was later overturned by the U.S. Court of Appeals for the 8th Circuit).
"It is undisputed that there are civilly committed individuals at the MSOP who could be safely placed in the community or less restrictive facilities," Frank wrote. He noted that adjudication of detainees' petitions "can take years" and described the MSOP as a "treatment system with 'chutes-and-ladders'-type mechanisms for impeding progression, without periodic review of progress, which has the effect of confinement to the MSOP facilities for life."
Janus et al. recommend specific procedural reforms, several of which could be implemented without new legislation. But judging from the history of proposed changes that went nowhere, they say, "future efforts to progressively reform MSOP will be unsuccessful, not because they are unneeded, but because legislators are unwilling to engage with what is perceived to be a political third rail."
Instead of a piecemeal approach, the report says, legislators should scrap the entire system and "reinvest MSOP's $100 million annual budget into community and victim support, holding harm-doers accountable through restorative practices, and
sexual violence primary prevention efforts." Even if the MSOP's manifest defects could be ameliorated through less ambitious changes, it says, the program would still entail "a misallocation of prevention resources and a dangerous endorsement of unequal justice."
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