by Casey J. Bastian

Implementing legal mechanisms to prevent “future crime” is a common theme of science fiction involving dark, dystopian future societies. But it is happening here in America today. Twenty states allow the indefinite detention of certain offenders after completion of their sentences. Minnesota commits a greater percentage of such offenders than any other state. It spends $100 million per year on approximately 750 offenders. All in an effort to prevent crimes that it alleges might occur in the future. So, is it effective?

In both Moose Lake and St. Peter, one finds locked facilities surrounded by razor wire fences. But these aren’t called prisons; they’re euphemistically referred to as “treatment centers.” This brings to mind the so-called “duck test,” which states that if it looks like a duck, swims like a duck, and quacks like a duck, then it’s probably a duck. These treatment centers house “clients,” not prisoners. Although that is an obviously absurd distinction, it is a crucial legal one. These treatment centers house clients serving de facto life sentences at a cost of $175,000 per person as part of the Minnesota Sex Offender Program (“MSOP”).

Since its inception, only 21 of 946 total “clients” has ever been “treated” and fully discharged. Deemed “likely” to commit future sexual offenses, these individuals are told they are eligible for release when they “no longer pose a threat.” But this eligibility is nearly impossible to secure. In fact, 94 people have died in “treatment,” and until 2015, not a single “client” had ever been fully discharged in more than two full decades.

Law professor Eric Janus and his colleagues at the Mitchell Hamline School of Law’s Sex Offense Litigation and Policy Resource Center in St. Paul published a report that found MSOP’s “reduction of sexual violence is vanishingly small compared to its expense.”

The current situation arose out of Minnesota’s Sexually Dangerous Person Act (“SDPA”) of 1994. The SDPA authorized the civil commitment and “treatment” of “clients” meeting three criteria: (1) the offender has “engaged in a course of harmful conduct,” (2) “has manifested a sexual, personality, or other mental health or dysfunction,” (3) and “as a result, is likely to engage in acts of harmful sexual conduct.”

All such offenders meet criteria one. Nearly all offenders of every type meet criteria two. Janus reported findings that reveal “estimates that between 40% and 80% of all imprisoned males would meet the criteria for Antisocial Personality Disorder.” The Minnesota Supreme Court (“MSC”) ruled that a potential for future sexual offending must be found to be “highly likely.” Neither the MSC nor the Minnesota legislature has ever defined the term more specifically. As Janus notes, “The result is an amorphous and highly subjective standard.”

The average MSOP “client” waits approximately 625 days “for a final decision to be made on their petitions for transfer to a less restrictive environment or discharge.” As of September 2023, nearly 500 of these offenders had been “detained for more than a decade.” And “nearly half for more than 15 years,” while “about a fifth for more than two decades.” As former Governor Tim Pawlenty’s chief-of-staff explained, “[T]he governor doesn’t want these guys to get out, he’s made that clear ever since he was running for office.”

The Supreme Court of the United States (“SCOTUS”) has ruled that the indefinite detention of sex offenders to be “remedial,” not “punitive.” Kansas v. Hendricks, 521 U.S. 346 (1997). This is because the offender ostensibly suffers from a “volitional impairment rendering them dangerous beyond their control.” Though highly diminished, constitutional protections do still exist for such individuals. There must be a diagnosed “mental disorder” distinguishing the offender from others similarly situated. Treatments must be provided if “feasible,” and “the nature and duration of the commitment must bear a reasonable relationship to the purpose of the commitment.” It appears that “MSOP falls short on all counts.”

According to Janus, “Minnesota does not regularly review detainee risk levels to assess feasibility of the safe reentry into the community.” Many of those committed describe feeling “crippling levels” of hopelessness. One described the environment to Janus by saying, “People are willing to do nothing, to try nothing, to get out of here because nothing we do works.” And neither does MSOP.

A 2013 study analyzed 105 MSOP clients and found a reduction from 3.2 to 2.8 percent over a four-year period in sex offense recidivism rates. Another study in 2013 found such programs have “no discernable impact on the incidence of sex crimes.” It was further noted that there are either “no preventative benefits” in SDPA-like laws or are “too small to measure.”

Minnesota legislators claimed that the MSOP was to compensate for insufficient criminal penalties related to sexual offenses. But while MSOP has expanded, so too have the penalties increased. In 1988, the penalty for First-Degree Criminal Sexual Conduct was on average 75 months; by 2017, it was 190 months. These civil commitment laws are also grounded in misconceptions of actual recidivism rates. SCOTUS exacerbated this by finding that rates are “frightening and high.” The claim has since been thoroughly debunked but still persists in judicial opinions and among the general public.

The reality is that “those convicted of sex offenses have one of the lowest same-crime recidivism rates across all offender categories.” A 2019 Department of Justice study found that, whether assessed to be a “low risk” or “high risk” offender, fewer than 8% were rearrested in nine years for another sex offense. Civil commitment programs address “only a sliver of a sliver of sex offense convictions.” In fact, between 2001-2015, Minnesota Sentencing Guideline Commission data found that “93% of criminal sexual conduct convictions in Minnesota involved defendants with no such prior convictions.”

Just like the alleged witches in Salem, most people have zero concern for the civil liberties of convicted and committed sex offenders, even after these individuals have repaid their debt to society. But they should. Programs like MSOP represent the “misallocation of prevention resources and a dangerous endorsement of unequal justice.” The MSOP “neither addresses nor repairs the vast majority of sexual harm” and does nothing to “prevent sexual violence before it occurs” in Minnesota. If taxpayers care not for the offenders themselves, they should care about scarce financial resource allocations or misallocations. Minnesota spends $2.3 million per year on other pre-offense sexual violence presentation programs but 50 times that much on the post-offense MSOP.

Calls for reforms to MSOP will likely be protracted and unsuccessful. Supporters of the MSOP will respond with fear-inducing propaganda driven by political factors. Even though reforms are needed, public outrage and the “philosophies of local prosecutors” will make change difficult. Not because change isn’t warranted but because “legislators are unwilling to engage with what is perceived to be a political third rail.” After years of using scare tactics and misrepresented data, they have the wolf by the ear.

As Janus concluded, “The state commits too many, and keeps them too long, compounding [MSOP’s] ineffectiveness with civil and human rights violations.” It was further observed that such a civil commitment law “embodies a dangerous principle: that impassioned majorities may indefinitely detain a reviled and degraded ‘other’ in the name of preventing some future harm.” If you don’t stand up for the “others,” when they come for you, there may be no one left to stand up.  

Sources: reason.com; Mitchell Hamline Sex Offense and Policy Resource Center, “Sex Offense Civil Commitment: Minnesota’s Failed Investment and the $100 Million Opportunity to Stop Sexual Violence”

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