Mimesis Law
24 January 2017

Minnesota’s Rational Indefinite Commitment of Sex Offenders

January 5, 2017 (Fault Lines) — Minnesotans who receive the label “sex offender,” and are determined either a “sexually dangerous person” or “a person with a sexual psychopathic tendency,” now face the potential for life incarceration in a civil commitment facility. The Eighth Circuit Court of Appeals recently held the North Star State’s policy of locking up allegedly dangerous persons for an indeterminate period of time is completely rational and rooted in legitimate government interests.

In 1994, legislators enacted the Minnesota Civil Commitment and Treatment Act (MCTA). This law allowed prosecutors to petition state district courts to civilly commit someone who was a “sexually dangerous person” or displayed a “sexual psychopathic personality.” If the prosecutor proves either definition applies to a party by clear and convincing evidence, the unlucky person is ordered into a treatment facility until either treatment regimens are completed or an offender successfully petitions for a reduction in custody.

Civil commitment is big business for Minnesota. Since 1994, the Minnesota Sex Offender Program (MSOP) has admitted 714 people. That’s four percent of the state’s registered sex offenders, and the highest per-capita population of civilly committed sex offenders in the United States. None of the 714 “patients” has been fully discharged. One is “provisionally discharged.”

If the thought of people remaining confined for over two decades sounds shady to you, you’ll understand why over fifteen of the committed brought a section 1983 suit against the MSOP and challenged the constitutionality of the MCAT’s civil commitment process in 2011. This class-action lawsuit theorized the statutory discharge standards were more stringent than commitment  standards. It sought an automatic, independent, periodic review of each individual in civil commitment. Essentially, these civil prisoners wanted some means of getting out since no one’ has ever fully left the program.

After the six week bench trial, U.S. District Judge Donovan Frank declared MCAT unconstitutional, facially and as applied. He found the civil commitment scheme punitive and lacking the safeguards of the criminal justice system. Without periodic, independent review of each committed person’s risk to the community, the plaintiffs’ “fundamental right to life free of physical restraint” was “constrained by the curtailment of their liberty.”

This repudiation of the system wasn’t enough. Judge Frank issued a second order directing MSOP to “conduct independent risk and phase placement reevaluation of all current patients at MSOP.” He was extremely specific in his orders, and directed a special master oversee MSOP’s compliance and enforce his ruling should the program decide his directives were simply polite suggestions. It was a heavy-handed win for the plaintiffs.

Before you start cheering Judge Frank’s ruling, realize he had no place mandating specific compliance politics for MSOP. He’d been asked to evaluate the constitutionality of the civil commitment program and overstepped his boundaries in what was likely a good-faith effort to show a group of very wronged people some semblance of justice. Telling an organization how to do its job is about as close to “legislating from the bench” as one can get.

Judge Frank’s decision to tell MSOP how and when to release its civilly committed sex offenders likely spawned the State’s appeal to the Eighth Circuit. At this level, the MSOP argued judicial bias, stating some of Judge Frank’s language in his opinion and rulings violated their right to an impartial trier of fact. The MSOP pushed for an automatic reversal of Judge Frank’s ruling because, in their words, he’d coached the pro se plaintiffs into getting a favorable verdict.

The Eighth Circuit rejected the bias claims, stating Judge Frank’s actions and statements were “arguably done in an effort to streamline the complicated case and attempt to reach an amicable settlement between the parties.” Judge Bobby Shepherd remarked that on remand the lower court would be “sensitive to [avoid] even the appearance of bias or prejudgment of the merits.” This case would go back to the lower court not because of bias. It would be remanded because Judge Frank applied the wrong standard of review.

When Judge Frank issued his ruling, he applied a “strict scrutiny” standard of review when examining MCAT’s constitutionality. That means he found the law wasn’t narrowly tailored to achieve a compelling government interest, and that the law was not the least restrictive means possible to achieve that interest. The Eighth Circuit corrected him and found the proper standard was “rational basis,” or “whether MCTA bears a rational relationship to a legitimate government purpose.”

Applying a rational basis review to MCTA allowed the Eighth Circuit to shrug off indefinite detention of civilly committed sex offenders by saying Minnesota had a “real, legitimate interest in protecting its citizens from harm caused by sexually dangerous persons or persons who have a sexually psychotic personality.” Keeping the civilly committed locked up was therefore rational because lots of states had provisions for the involuntary commitment of people who couldn’t control their behavior and as a result “pose a threat to public health and safety.”

Yes, the Eighth Circuit admitted civil commitment was a “significant deprivation of liberty.” However, citing Supreme Court opinions over similar cases from the Fifth and Tenth Circuits, Judge Shepherd noted the Supreme Court never applied a standard of review for civil commitments and that freedom from physical restraint was “not absolute.” As long as the legislature could show a valid reason for keeping someone civilly committed indefinitely, the jurists were just fine. The case would return to the District Court with the explicit mandate the MCAT was good law.

This is a bad ruling for Minnesota, and a bad ruling by the Eighth Circuit. Allowing the indefinite detention of individuals with arbitrary labels because they allegedly committed a criminal sexual offense should shock the conscience of anyone who understands the horrors of confinement. Yet, this is business as usual in Minnesota, where confined sex offenders are a “limited subclass of dangerous persons.” The MSOP confinement facilities are a dark manifestation of a classic line from the song “Hotel California.”

You can check out anytime you like, but you can never leave.

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