The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Minnesota's Civil Commitment and Treatment Act provides for "psychological screening" of persons convicted and sentenced for certain "high risk" sexual offenses , prior to their release from prison. Upon a finding that the individual was either a "sexually dangerous person" [defined as someone who "is dangerous to other persons" because of "a habitual course of misconduct in sexual matters"], or a "sexual psychopathic personality" ["manifesting a sexual, personality, or other mental disorder or dysfunction, and, as a result, likely to engage in acts of harmful sexual conduct"], they would be ordered into a civil confinement facility run by the Minnesota Sex Offender Program—a combination mental hospital and prison. Almost 1000 individuals over the last 20 years have been involuntarily committed to the MSOP facility under this program, and not one has ever been discharged —in effect, indefinite and lifetime detention.
It's an appalling piece of legislative malfeasance, and Minnesotans should be ashamed of themselves for having enacted it into law. The individuals subject to indefinite and lifetime confinement under this statute are, please notice, people who have already served the prison sentences duly and lawfully imposed on them for their crimes. The Minnesota program is part of a particularly nasty and mean-spirited campaign in our various state legislatures to pile disabilities upon disabilities onto those convicted of sex offenses, a category of people that is probably the most widely-reviled in our society today; "Let's see how much more miserable we can make their lives after they have done their prison time" seems to be the movement's governing credo.
I've had occasion in the past to talk about this campaign [here, here, and here] as part of work I've done on behalf of parties challenging those statutory disabilities in California, Kentucky, Nebraska, and New Hampshire—though in those cases, the statutes imposed (merely) registration requirements on the convicted sex offenders as opposed to the far more serious confinement provisions of the Minnesota program.
The Minnesota scheme is the most outrageous one of which I'm aware, and it was almost impossible for me to imagine that it could survive constitutional scrutiny. If the due process clause ("No person shall … be deprived of life, liberty, or property without due process of law") means anything, surely it means that you can't throw people into the equivalent of prison without a trial, and a jury, and a lawyer arguing on their behalf, and the rules of evidence, and all of the other trappings of the criminal law and criminal procedure that are "due."
And yesterday, in a scathing decision, Judge Donovan Frank of the federal district court (D-Minn.) agreed, declaring virtually the entire scheme unconstitutional. The decision is a wonderful combination of rather stirring and powerful words about the meaning of due process, and a careful combing through the evidence presented in the case to apply the necessary constitutional scrutiny.
One reason why we must be so careful about civil commitment is that it can be used by the state to segregate undesirables from society by labeling them with a mental abnormality or personality disorder. For example, civil commitment might improperly be used to indefinitely extend the prison terms of individuals who have been criminally convicted of a crime and who have finished serving their defined terms of imprisonment. As the Court has observed previously, the fact that those committed to and confined at the Minnesota Sex Offender Program are sex offenders, who may indeed be subject to society's opprobrium, does not insulate the criminal and civil justice systems from a fair and probing constitutional inquiry.
It is fundamental to our notions of a free society that we do not imprison citizens because we fear that they might commit a crime in the future. Although the public might be safer if the government, using the latest "scientific" methods of predicting human behavior, locked up potential murderers, rapists, robbers, and, of course, sex offenders, our system of justice, enshrined in rights guaranteed by our Constitution, prohibits the imposition of preventive detention except in very limited circumstances. This strikes at the very heart of what it means to be a free society where liberty is a primary value of our heritage. Significantly, when the criminal justice system and the civil commitment system carry out their responsibilities, the constitutional rights of all citizens, including sex offenders, can be upheld without compromising public safety or disrespecting the rights, concerns, and fears of victims.
Great stuff, in the grand tradition of federal judges standing up to a vindictive and vengeful mob, and a shout-out to Judge Frank is most definitely in order.
[UPDATE: A reader (Jared Morton) wrote to ask how the result in this Minnesota case can be squared with Kansas v Hendricks, 521 US 346 (1997), which upheld a Kansas statute providing for involuntary commitment of sex offenders . It's a good question. Judge Frank's opinion deals with it this way, distinguishing the two statutes:
This case is distinguishable from other challenges to the involuntary confinement of sex offenders where it was represented to the court that the program's anticipated duration of completion was a few years or only potentially indefinite; here, not one offender has been released from the MSOP program after over twenty years. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 364, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (stating that "commitment under the Act is only potentially indefinite" because "[t]he maximum amount of time an individual can be incapacitated pursuant to a single judicial proceeding is one year" and "[i]f Kansas seeks to continue the detention beyond that year, a court must once again determine beyond a reasonable doubt that the detainee satisfies the same standards as required for the initial confinement"); In re Linehan, 557 N.W.2d 171, 188 (Minn. 1996) (finding that "model patients" were expected to complete the program in approximately thirty-two months and finding that, in light of this finding, the program was remedial and not punitive in nature); Call, 535 N.W.2d at 318 n.5 (noting the state's representation that "[a]n average patient is expected to complete the program in a minimum of 24 months").
One other point: Hendricks was a 4-1-4 decision, upholding the confinement with Kennedy's concurring opinion providing the swing vote. So his opinion becomes the authoritative one (under the general theory that the "narrowest" rule supporting a court's judgment is controlling in these sorts of circumstances), and his opinion quite clearly shows a path that subsequent courts can strikes a cautionary note, "caution is in order where a civil confinement law is used in conjunction with the criminal process, and that, "while the statute at issue in the case at hand conformed to the Supreme Court's precedents, if civil confinement were to become a mechanism for retribution or general deterrence, which are reserved for the criminal system alone, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, the court's precedents would not support such detention."
So that leaves open the possibility (as in the Minn. case) that if the statute IS a "mechanism for retribution," it can be overturned, which is what the court found here.]