Sex Crimes

Federal Appeals Court Upholds Minnesota's Indefinite Detention of Sex Offenders

The program purports to treat people with statutorily defined mental illnesses but has not cured any.


Tom Evanstad / Google Maps

Yesterday a federal appeals court upheld a Minnesota program that indefinitely detains sex offenders after they have completed their prison sentences under the guise of treating them for mental illnesses invented by the state legislature. The U.S. Court of Appeals for the 8th Circuit overturned a 2015 decision in which U.S. District Judge Donovan Frank concluded that the Minnesota Sex Offender Program (MSOP) violates the due process rights of the people it imprisons. The appeals court said Frank wrongly applied "strict scrutiny" to the MSOP when he should have taken a much more deferential approach.

Frank correctly perceived that the "treatment" provided by the MSOP, which has never cured anyone in the program's 23-year history, is a sham used to conceal a punitive purpose and justify preventive detention based on unsubstantiated fears of future crimes. He found that the Minnesota Commitment and Treatment Act (MCTA), which allows post-prison detention of "sexually dangerous persons" and offenders with "sexual psychopathic personalities," was unconstitutional on its face and as applied to the plaintiffs because it was not narrowly tailored to advance a compelling state interest. Among other problems with the program, Frank noted that it has admitted more than 700 people but has not fully discharged anyone, does not conduct periodic assessments to verify that offenders still meet the criteria for civil confinement, does not give detainees an opportunity for timely judicial review, does not provide the "less restrictive alternatives" mentioned in the MCTA, and imposes a heavier burden on people trying to win release than it does on local prosecutors seeking to commit them.

According to the 8th Circuit, none of that matters, because all the state had to do was avow good intentions. In considering the facial challenge to Minnesota's law, Frank thought strict scrutiny was appropriate because the MCTA impinges on a fundamental liberty interest—i.e., the right not to be locked in a cage for the rest of your life. Frank was wrong about that, the appeals court says, because the Supreme Court "has never declared that persons who pose a significant danger to themselves or others possess a fundamental liberty interest in freedom from physical restraint."

That way of framing the issue begs the question of whether the people confined by the MSOP do in fact pose a significant danger to others. Without periodic assessments, how can the state know? Unless someone petitions for release (which requires him to show he is "no longer dangerous"), the state apparently can just assume its treatment is not accomplishing anything. As Frank observed, "there is no meaningful relationship between the treatment program and an end to indefinite detention."

Instead of applying strict scrutiny, the appeals court says, Frank should have asked whether the MCTA passes the "rational basis" test—a highly deferential standard that all but guarantees a challenged law will be upheld. "The appropriate standard is whether MCTA bears a reasonable relationship to a legitimate government purpose," the court says. "MCTA is facially constitutional because it is rationally related to Minnesota's legitimate interests."

The 8th Circuit says strict scrutiny was also inappropriate in assessing whether the MCTA is unconstitutional as applied to the plaintiffs. To prevail on that claim, the court says, the plaintiffs had to show that their confinement not only violates a fundamental right but "shocks the conscience," which is pretty hard to do for any kind of imprisonment this side of a Nazi concentration camp. "To meet this high standard," the 8th Circuit explains, "the alleged substantive due process violations must involve conduct 'so severe…so disproportionate to the need presented, and…so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.'" Since Minnesota officials mean well (or say they do), the plaintiffs cannot possibly meet this standard.

The appeals court was unimpressed by the fact that the MSOP manifestly fails to accomplish what it purports to be doing: rendering sex offenders "no longer dangerous" by treating their statutorily defined conditions. Although "the Supreme Court has recognized a substantive due process right to reasonably safe custodial conditions," the 8th Circuit says, it has never recognized "a broader due process right to appropriate or effective or reasonable treatment of the illness or disability that triggered the patient's involuntary confinement."

Twenty states and the federal government have laws allowing indefinite civil commitment of certain sex offenders, and Minnesota's program is one of the most farcical. Criticizing Frank's decision in 2015, Minnesota Gov. Mark Dayton exposed the fallacy at the core of the MSOP. "It's really impossible to predict whether or not [sex offenders] are at risk to reoffend," Dayton said. "So the more protection you can give to the public, as far as I'm concerned, given their history, is entirely warranted, and that's what this program does right now." Yet the MCTA requires predictions about whether or not sex offenders "are at risk to reoffend"; if such predictions are "impossible," the whole law is a crock.

It gets worse. "I don't think any parent in Minnesota wants to subject their daughter or their son to a probability," Dayton said. "They want to make sure their government is doing absolutely everything conceivably possible to make it 100 percent safe to walk in the park or to or from school." So even if recidivism were predictable, Dayton would say that someone who is 99 percent guaranteed not to reoffend should nevertheless be locked up for the rest of his life. Just in case.

In light of the 8th Circuit's decision, it looks like reform of the MSOP will have to be accomplished by legislators acting on their own initiative. But as Minneapolis Star Tribune notes, the decision relieves the pressure imposed by Frank's ruling, "potentially derailing long-awaited reforms."

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    1. It’s nice to see that the squirrelz hate the staff as much as the commentators.

    2. If you have no conscience how can it be shocked?

  1. One generation of sex offenders is enough.

  2. D-d-double gulp!

  3. You know who else purported to treat the mentally ill but didn’t have any success…

    1. The Lord Protector?

    2. Nick Gillespie’s psychiatrist?

    3. The American Psychiatric Association ?

    4. Hitler? Oh wait, he just incarcerated without trial and murdered them

    5. L. Ron Hubbard? No, wait, he had spectacular success.

  4. Double your pleasure, double your fun.

  5. It gets worse. “I don’t think any parent in Minnesota wants to subject their daughter or their son to a probability,” Dayton said. “They want to make sure their government is doing absolutely everything conceivably possible to make it 100 percent safe to walk in the park or to or from school.” So even if recidivism were predictable, Dayton would say that someone who is 99 percent guaranteed not to reoffend should nevertheless be locked up for the rest of his life. Just in case.

    If you outlawed walking in the park or to or from school and hired thousands of armed patrolmen with orders to shoot to kill anybody caught doing so, you still couldn’t 100% guarantee anybody’s safety. So obviously, his statement is retarded – a troubling sign of a mental disorder I think we should definitely examine more closely. Even if it means taking Dayton into preventive custodial confinement. Just until he’s demonstrated a documented 100% certainty of not being a danger to the community.

    1. In some towns it’s now a crime to walk your child to school.

      1. WTF? Linky?

      2. And it’s also a crime to let your children walk to school alone.

  6. I am stunned that the court ruled this program constitutional. Then I think about it a bit more and am not surprised at all. this law is a complete CYA law that is used by pols and cops to avoid any chance that someone they let go re-offends.

    Once again, this travesty can be blamed on white women. Cute blonde Norwegian gal gets kidnapped, raped and killed by a recently released sex offender and the state flipped out.

    1. This type of stuff should outrage everyone concerned with the rule of law and the Constitution. People just loathe to defend sex offenders and these non-judicial incarcerations.

      The sex registry is punitive in nature and unconstitutional no matter what these judges say.

      These forced mental health incarcerations are punitive and unconstitutional no matter what these judges say.

      First they come for the sex-offenders, then they come for the ________ .

      1. You’re right, loveconstitution, but what can be done? Nobody gives a dang about sex offenders’ rights; not even the courts as evidenced by this mockery of justice. It’s scary that courts can close their eyes to rock-solid evidence and deny they see any malicious intent on the part of the state. Earlier articles on this issue right after Franks issued his ruling stated that every time offenders at these facilities met the set criteria for release, the criteria were “revised” so that the offender no longer was eligible for release to a less restrictive environment. If dangling the carrot and then pulling it further out of reach every time an offender gets within reach of it is not proof of a sadistic, malicious intent, then nothing is. I wonder how many of the judges that ruled this law constitutional are women. They seem to love these laws.

    2. Oh yeah! Women love this law!!

  7. The program purports to treat people with statutorily defined mental illnesses but has not cured any.

    So, you think “treat” might imply “cure”?

  8. No one convicted of any crime should ever be released back into society, because there is a greater than zero chance that they might reoffend.

    1. It’s just common sense.

    2. We ought to lock everybody up. Just to be safe.

    3. Bring back the Bloody Code!

  9. Hey shop lifting is a mental illness. Perhaps they should be locked up forever too….

  10. Is society safer with sex offenders wandering free, or detained – it is just that simple.

  11. “Rational basis” should not even be a choice when it comes to any law that restricts a person’s liberty beyond the person’s original term of confinement. Only the strictest of scrutiny should be applied to any law such as the MN law under discussion here.

    This ruling is most disheartening and proves the courts, for the most part, are a shoe-in for politicians to preserve laws that even non-lawyers know are patently unconstitutional. Rational basis puts the bar on the ground for the state while the burden to prove malicious, sadistic intent places the bar so high for the disenfranchised offenders that it’s impossible to meet. Basically the court said, “You’re rapists and child molesters, so screw you and your loved ones. Rot for all we care!!”

    I’d like to know just how much back room politics between politicians and the judges on this panel played in this travesty of justice. We all know politicians have ex-parte access to judges no matter how pious both pretend to be.

    I now have no hope that the 6th Circuit ruling against Michigan retroactively applying new sex offender registry restrictions retroactively will have a chance to survive the appeal to the SCOTUS. If rational basis is used, the law will stand and the great ruling from the 6th Circuit will be slapped down just as this federal judges ruling against MN was.

    I’d also like to know if any of the judges who ruled in favor of MN are women. They love these laws.

  12. The fact is that sex offender issues are so emotionally charged that not even judges are willing to set aside personal bias and rule by the constitution.

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