Locked in limbo

'They're all close calls now'

  • Article by: LARRY OAKES , Star Tribune
  • Updated: June 9, 2008 - 4:36 PM

The professionals in sex offender civil commitment cases follow established laws and criteria. But the law is broad, the science is fallible and many are uncomfortably aware that no one is being freed.

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James Poole was committed in 1999 as a sexually psychopathic personality and sexually dangerous person.

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PINE CITY, MINN -- Isaiah Swedeen's future hung in the balance as deputies escorted him into the courtroom. ¶ The 20-year-old already had been through a series of treatment and detention centers after disclosing that he had raped his two sisters. Now officials were asking Judge James Reuter to confine Swedeen indefinitely, to prevent him from victimizing someone again. ¶ Swedeen's history of mental disorders, difficulties controlling himself and resistance to treatment meant that he fit the legal definition of a sexually dangerous person, prosecutors from Pine County and the Minnesota attorney general's office argued.

They asked Reuter to commit Swedeen to the Minnesota Sex Offender Program (MSOP). Created in 1994 to treat offenders until they are no longer dangerous, the MSOP has never released anyone committed to it.

Swedeen's case illustrates the difficulty judges face in deciding sex-offender civil commitments in Minnesota. They are being asked to commit an ever greater variety of offenders to indefinite, prison-like confinement, based on the educated guesses of a small group of psychologists paid to employ the fallible science of risk assessment. Even some judges say the applicable law is so broad that it can be used to send almost anyone with a sex-crime conviction to the MSOP.

"I can't remember the last time I had a slam-dunk" sex-offender commitment, said Minneapolis psychologist Roger Sweet, a 30-year veteran of various kinds of commitment cases. "They're all close calls now."

'The net is wider," agreed psychologist Gerald Henkel-Johnson of Esko, who has done violence risk assessments for the courts for 13 years.

Judges' decisions are made even more difficult by the MSOP's track record.

"Nobody involved at our level wants this to be a system where we are actually locking people up for life under the pretext of treating them," said Hennepin County District Judge PeterAlbrecht.

The stakes are highest for young offenders like Swedeen. He is one of about 60 men in the MSOP - about 11 percent of the total - sent there based solely on their records as juveniles, according to the Department of Human Services.

A 'slippery slope'

Like many offenders, Swedeen was sexually abused as a child, at the hands of his drug-addicted birth parents, their friends, and child pornographers in Washington state. He was found to have genital herpes at age 4, when authorities took custody of him and his sisters, who were similarly abused.

Keefe and Holly Swedeen eventually adopted the children and raised them in Hinckley, Minn. By the time Isaiah was 14, the Swedeens had trouble controlling him, and they sent him to a series of treatment centers for troubled adolescents.

At one center he revealed to counselors that he'd been raping his sisters, who are one and three years younger. In 2002, a judge sentenced him to sex offender treatment in prison. But he kept getting kicked out of treatment because of angry outbursts or sexual misconduct with other inmates.

In 2005, Pine County started proceedings to commit him to the MSOP but gave him another chance to complete treatment, this time at an inpatient program in Minneapolis called Alpha House. Again he failed, and authorities returned him to Reuter's courtroom in the summer of 2006 for a civil commitment trial.

Swedeen's adoptive parents dreaded the outcome as they took seats in the front row of the Pine City courtroom.

"What he did to his sisters stemmed from his own abuse," Keefe Swedeen said. "He wanted help, and he admitted what he did. Now he's being thrown to the wolves."

Reuter invited three court-appointed psychologists from the Twin Cities to sit in the empty jury box. (Minnesota is one of only three states that don't allow jury trials for such commitments.) The prosecution and defense had picked the psychologists from lists kept by the attorney general's office and many counties. The lists have names of psychologists with experience in evaluating and assigning risk levels to defendants, prisoners and people rendered potentially dangerous by mental illness.

About two dozen of these psychologists, who are called forensic examiners by the courts, have supplied the foundation for most of Minnesota's sex offender commitments.

For taxpayer-funded fees now approaching $10,000 per case per examiner, they administer tests devised by behavioral scientists, diagnose personality disorders, consult actuarial tables and predict whether an offender is likely to re-offend.

Their participation is controversial within the mental health profession.

The American Psychiatric Association, National Association of State Mental Health Program Directors and other groups have objected to civil commitment of criminals. They argue that most aren't mentally ill and that using mental health systems in this way discredits both psychiatry and the justice system.

The problem, critics say, is that disorders such as antisocial or narcissistic personality, which have been used under the Sexually Dangerous Persons Act to justify commitments of offenders, are prevalent in any group of criminals and not unheard-of in non-criminals.

"Using that standard, you could commit a lot of bank robbers," said Dr. Fred Berlin, founder of the Sexual Disorders Clinic at Johns Hopkins University and a critic of civilly committing sex offenders. "It can be a slippery slope."

Critics also question whether mental health professionals should render opinions on whether a criminal qualifies for unscientific legal designations such as "sexual psychopathic personality" or "sexually dangerous person," which are needed in order to be committed in Minnesota.

"Those terms are not in the diagnostic manual," said Dr. Jeffrey Hardwig, president of the Minnesota Psychiatric Society. "What psychiatry objects to is the use of civil commitment to prolong somebody's sentence. Defining mental illness purely based on criminal behavior is not a place we want to go."

Tools are fallible

In predicting risk, examiners rely on established actuarial tools -- worksheets developed by social scientists -- to compile facts such as the offender's age, number of victims, degree of violence used and other characteristics.

The offender's "score" is compared with databases of offenders to see whether he (almost all are men) falls into a group that re-offended - a statistical approach much like the one insurance companies use to assign risk.

Some examiners readily acknowledge the fallibility of their tools.

"In general, these instruments are about 70 percent accurate; thus they're wrong 30 percent of the time," said psychologist John Austin of St. Paul, who has testified in commitment cases since 1979.

Scientists who examined the validity of two popular risk-assessment tools reported last year in the British Journal of Psychiatry that at best "professionals should be extremely cautious," and at worst "should avoid using [such tools] altogether, as the predictive accuracy of these tests may be too low [for] high-stakes decisions about individuals."

Dr. Michael Farnsworth, the state's former forensic psychiatrist, designed the MSOP and still evaluates offenders for the courts. But he doesn't place much confidence in actuarial tools.

"They still have a high rate of false positives and a pretty good rate of false negatives," Farnsworth said. "With the false negatives, there will still be people who offend against the community, and the public will feel betrayed. Conversely, with the false positives, we lock up the wrong people,'' at a cost of $134,000 each a year.

In contrast, Austin, Minn., psychologist Rosemary Linderman, an evaluator in commitment cases since 1992, has few qualms about the civil commitment process and her role in it.

While acknowledging that "all [risk assessment] tools have some limitations," she said examiners weigh the results against their professional judgment, based on their experience and extensive reviews of the offender's history.

Linderman said she's not concerned about the dramatic rise in commitment petitions that followed the 2003 rape and killing of Dru Sjodin by paroled rapist Alfonso Rodriguez Jr., who was sentenced to death.

"I think our world is a different world than it used to be, and that we need to pay attention to high-risk sex offenders to protect our communities," Linderman said.

But Austin said the spike is troubling. "I am unaware of any data that indicates that sex offenders released since 2003 are at a greater risk to re-offend sexually," said Austin, adding that a 2007 Minnesota Department of Corrections study "seems to indicate the opposite, in fact."

The study checked for new criminal activity among 3,166 sex offenders released from Minnesota prisons between 1990 and 2002. After an average of 8.4 years, 10 percent had been convicted of a new sex offense. Significantly, those released earlier were much more likely to be reconvicted within three years than those released later -- 17 percent in 1990 vs. 3 percent by 2002.

"The reduction in sexual recidivism since 1990 is likely due, in part, to the longer and more intense post-release supervision of sex offenders," the study concluded.

A 'deeply troubled' judge

No one knows whether Isaiah Swedeen will molest or rape again. The court system paid the psychologists to make their best guesses. Those guesses carried the weight of verdicts.

When first retained by the state to review Swedeen's history in 2005, psychologist James Gilbertson said that Swedeen arguably met the legal criteria for commitment as both a sexual psychopathic personality and a sexually dangerous person.

Psychologist Mary Kenning, testifying at the same hearing, said Swedeen didn't seem to fit those criteria but may have been committable as mentally ill and dangerous, a separate legal designation under another law.

After interviewing and testing Swedeen, both Kenning and a third psychologist, James Alsdurf, said Swedeen needed treatment but not indefinite confinement.

But after Swedeen washed out of the program at Alpha House, all three experts supported committing him when they reconvened in June 2006.

"Since November 2005, what's changed?" asked Dan Bina, Swedeen's attorney.

"I gave him the benefit of the doubt in 2005, and I probably shouldn't have," Alsdurf answered, adding that Swedeen "completely bombed" in his chance to avoid commitment.

Alsdurf and Kenning testified that they also were persuaded by Swedeen's additional disclosure during treatment that he had inappropriately touched a neighbor boy when they wrestled as children. Statistically, offenses against both sexes increase the risk of re-offending.

During a break in the hearing, Bina, Swedeen's attorney, paced the hallway. "I'd rather have a murder case than one of these," he said. "With murder, there's a set period of time."

Three months later, on Sept. 15, 2006, Judge Reuter preliminarily committed Swedeen to the MSOP as a sexually dangerous person.

In early 2007, deputies returned him to Pine City for a required hearing to decide whether that commitment should be "indeterminate."

Bina leaned toward his client and asked: "Do you understand that it may be a year, and it may be 50 years?"

With youthful bravado Swedeen replied, "I'll be out in 10 years, guaranteed."

Bina asked that the commitment be reconsidered because Swedeen's behavior in the MSOP improved after he refused to take psychiatric medications. Bina noted that an MSOP psychiatrist had filed a report saying that Swedeen didn't appear to need the drugs and that his behavior was more consistent with a personality disorder than a major mental illness.

Noah Cashman, the assistant attorney general arguing the state's case, countered that Swedeen had had angry outbursts and at least eight rule violations. His condition remained much the same, Cashman argued.

Judge Reuter said he was disappointed with the MSOP's 60-day report. "It was perfunctory, redundant," he said.

Cashman replied: "With the 60-day review, the information will be limited," adding that "it takes years" to effectively treat someone with Swedeen's problems.

Reuter said he'd decide within a few weeks, then adjourned. "Mr. Swedeen, take care of yourself now, OK?" the judge said. Swedeen nodded toward the judge as he was led away.

Seventeen days later, Reuter signed an order for "indeterminate commitment." The order said there was no appropriate place for Swedeen in Minnesota besides the MSOP.

But Reuter also wrote that he was "deeply troubled" that Swedeen apparently hadn't received any treatment while his final commitment was pending.

"He has just reached 21 years of age," Reuter wrote. Given the MSOP's history, he added, an indefinite commitment "is analogous to a life sentence without the chance of parole."

Larry Oakes • 612-269-0504

  • about this series

  • Inside the Minnesota Sex Offender Program

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