In August 1994, Gov. Arne Carlson called the Minnesota Legislature into special session to rewrite a 1939 law that allowed civil commitments of “psychopathic personalities.” The special session was called in response to a Minnesota Supreme Court ruling that decided that Dennis Linehan should not have been civilly committed as a sex offender. I was designated to present the bill to the Minnesota Senate because of my background as a defense attorney in commitment cases.

Since then, that law has been challenged, unsuccessfully, in hundreds of court cases. Then that law and the sex offender treatment program came before U.S. District Judge Donovan Frank. He decided that the law, as written and as applied, is unconstitutional. I was not surprised by his decision.

The day I presented the bill to the Senate, I stressed that civil commitment was for treatment, not incarceration. I repeated that statement in subsequent years as other legislators tried to make it stronger by claiming that “the worst of the worst need to be locked up!” Gov. Tim Pawlenty once said he’d push for the death penalty for sex offenses. (Never mind that a sex offense, by itself, would not qualify for capital punishment.)

As Judge Frank observed, some sex offenders are very dangerous, and society should be protected from them. But a number of those committed as sex offenders are not now dangerous at all. Some of them are old men in wheelchairs or on walkers.

The state doesn’t know who is really dangerous and who isn’t. As a result, almost everyone remains locked up.

Legislative committees and the courts were told that a person could complete sex offender treatment and be released in about three years. No one predicted that over 700 men would be committed to the program over the next 20 years at a cost of over $124,000 per person. No one predicted that not one person would ever be fully discharged. No one knew that the treatment program would change four or five times, and each time everyone would have to start over. A patient can go backward for disciplinary reasons completely unrelated to any sex offense. A client of mine was disciplined because he was sick and arrived at the medication window three minutes early so he could be first in line and then go back to bed. Some treatment.

The sex offender treatment program is like a prison — only worse, because there’s no “out” date. The Moose Lake building was designed as a maximum-security prison. The treatment program has been led by some state employees who came from corrections backgrounds. Is it any wonder that the “treatment” program has turned into indefinite preventive detention?

In this country, we are allowed to imprison people who have committed crimes for as long as they have been sentenced by a judge. We can detain people in treatment centers who are a danger to themselves or others, but only as long as they are treated for the condition that got them there. However, our U.S. Constitution does not allow us to lock up people, no matter what they did in the past, based on the speculation that they might do bad things in the future.

Judge Frank could have made sweeping changes to the program, and he could have shut it down. But he didn’t do that. He gave Minnesota officials one last chance to work with him to change the law and the program, so that we can keep the really dangerous offenders in a realistic treatment program. Those who don’t need high security can be moved to less-secure facilities. And, yes, some persons could even be released if they don’t pose a clear danger to society.

Some state officials have vowed to fight to uphold the constitutionality of the program. Anyone who reads the findings will conclude that something is wrong with how this whole program has been run. But it can be fixed.

The problems can be corrected, but it’s going to come with a hefty price tag. But there’s a bigger cost, and risk, if we pretend that the program is really working.

It’s about treatment, not incarceration.

 

Don Betzold was a member of the Minnesota Senate from 1993 to 2010. He has been a defense lawyer in civil commitment cases since 1980.