Locked Up For Good—Or Forgotten?

Minnesota has the highest per-capita commitment rate of sex offenders nationwide, and one of the lowest release rates

Minnesota Monthly: John Rosengren; April 19, 2022

The Minnesota Sex Offender Program housed at Moose Lake is tucked away in the woods, off State Highway 73, about 120 miles north of Minneapolis. The high-security facility surrounded by fences topped with razor wire is out of sight and out of mind for most Minnesotans, which leads those locked inside—some who already have served time and others who haven’t even been charged of a crime—to call it a shadow prison.

“This place is a secret—in a remote location, cut off from others,” says Duncan Brainard, 34, who was committed to the program in 2010 at age 21. “People don’t know this is happening in America.”

So when a group of about 15 people gathered outside the facility one day last summer and honked their car horns repeatedly to show support, the detainees inside found the action especially gratifying.

“The smiles on the guys’ faces spoke volumes,” says Daniel Wilson, 35, who was committed after serving almost three and a half years in prison for fourth-degree criminal sex conduct. “We are so used to not having contact with the public. [The honk-in] sends a message you’re not forgotten. We’re willing to give you another chance out here.”

The Minnesota Sex Offender Program and similar programs elsewhere resulted from a rash of state laws passed in the 1990s in the emotional aftermath of several heinous sex crimes. Yet it has become a problematic model. With 741 men in the sex offender program (most of them at Moose Lake, the rest at a facility in St. Peter), Minnesota has the highest per-capita commitment rate of sex offenders in the country and one of the lowest release rates.

Most inmates, like Wilson, have been civilly committed after already serving time in prison for their crimes. Others—a little more than 6%—have never been charged with a sexual offense, yet have been locked up anyway. And all without a clear path of release. Those committed are about six times more likely to die inside than to be released, making their commitment basically a life sentence.

Minnesota is one of 20 states that allows civil commitments for sex offenders. While the decision to release someone from a civil commitment is made by a judge—just as the decision to commit is—the court relies on the recommendation of a special review board. That board is an independent advisory panel made up of an attorney, a psychiatrist, and another mental health professional. The panel considers treatment records and reports, sexual violence risk assessments, and recommendations from the client’s treatment team. It also weighs presentations made by county social services, MSOP staff, the client, the client’s attorney, and the county attorney who initially requested the civil commitment.

“Our job is to provide individuals with treatment and put them in a position where they’re able to control and manage their behavior and go safely back into society,” says Chuck Johnson, who oversees direct care and treatment at MSOP as deputy commissioner of the Minnesota Department of Human Services.

But Johnson’s statement rings hollow with those detained in the program, who view the high-security facility more as a prison than a treatment center.

For two decades after its inception in 1994, no one got out. In the last five years, the courts have released only 15 people outright from MSOP. In February 2021, a group of detainees staged a hunger strike, presenting the administration with 17 barriers to their releases and suggested remedies.

Johnson says the administration agreed to address five of the issues, including to speed up the transition process to less restrictive settings, to explore restorative justice opportunities, and to better recognize progress made in individual treatment programs, but the activists inside were not satisfied.

Detainees staged another hunger strike that summer, with 10 residents going nearly two weeks without food. They also conducted silent protests, held rallies in the yard, and wore armbands that said “End MSOP.”

“We are not here for sex crimes,” Wilson says. “We are here for mental health issues. Our goal is to shut down Moose Lake and replace it with a mental health treatment facility.”

Civil Commitment

One demand is to remove the term “sex offenders” from the program’s name because of the stigma it carries. “Be careful of thinking of them as a homogenous group of people,” says Eric Janus, former dean of William Mitchell law school and author of the book Failure to Protect: America’s Sexual Predator Laws and the Rise of the Preventive State. “A fair number had abusive childhoods, were sexually abused themselves. They have been convicted of a broad range of crimes—from violent rape to adolescent experimentation.”

The stereotype that casts sex offenders as monsters and not fully human seems to justify their indefinite incarceration. “The only way you can make the argument it’s OK to lock up nine to prevent one from committing a crime is that these people’s lives don’t matter, that they’re not really human citizens, that their liberties and freedoms are expendable,” Janus says. “It is kind of un-American to say, ‘We’re going to lock you up before the crime.’ There are a number of people there [at Moose Lake] who never posed a threat.”

Minnesota state law allows a county attorney to request a civil commitment if an individual is deemed likely to engage in harmful acts of sexual conduct or is considered dangerous to others because of an inability to control sexual impulses.

“Clear and convincing evidence” is the standard for a civil commitment rather than being presumed innocent until proven guilty beyond a reasonable doubt, as in a criminal case. “Anyone can file a petition for commitment,” Wilson says. “You could make up something about your neighbor and file a petition, and there’s a chance they’d be committed.”

The law is rooted in the fear that violent sex offenders are likely to repeat their crimes. Yet several studies show the recidivism rate for sex offenders released from a program like MSOP is below 5%. Of the more than 150 individuals who have been moved to less secure facilities or outright released from MSOP since 2016, state authorities are not aware of any having committed another sexual offense.

Some Program Changes

In 2015, U.S. District Judge Donovan Frank, in St. Paul, ruled on a lawsuit filed by 14 civilly committed sex offenders, declaring MSOP unconstitutional and concluding that the program had become punitive rather than therapeutic. He cited the low rate of release and the lack of regular evaluations to review the basis of the detainees’ civil commitments. The Eighth Circuit Court of Appeals in St. Louis subsequently reversed his ruling on the unconstitutional status and sent the case back to district court to consider a finer point. In February of this year, Judge Frank ruled that the residents in MSOP could continue to be detained but added, “The Court continues to believe that politics or political pressures should not compromise Class Members’ rights to treatment and eventual reintegration into society.”

Yet politics have polluted the policy. Understandably, lawmakers don’t want to risk another situation where a convicted sex offender reoffends after his release, the way Alfonso Rodriguez Jr. did when he sexually assaulted and murdered Dru Sjodin in 2003 after serving a 23-year prison sentence for rape. They warehouse them at Moose Lake to play it safe.

“The MSOP resulted from political pressure to civilly commit these sex offenders,” says Dan Gustafson, the attorney who represents the plaintiffs. “Because of that political pressure, the system has never functioned very well as a treatment program.”

While the plaintiffs are expected to appeal Frank’s latest ruling, the Minnesota Department of Human Services, which oversees MSOP, has made improvements. At the urging of a 2010 legislative audit, it has increased group therapy from six to 10 hours a week. Fifteen men have been released outright and another 57 provisionally discharged to housing under MSOP supervision. A total of 204 have been referred to Community Preparation Services, a less restrictive setting where therapy continues.

The DHS has been trying to increase its capacity at CPS for years, but the state legislature has repeatedly turned down its funding requests. In 2020, the legislature finally approved $1.8 million to add 20 beds, expanding space to accommodate 109 residents. Meanwhile, 31 MSOP clients remain on the waiting list for CPS, but that wait can last two years or longer. That delay prompted two more lawsuits by a pair of MSOP detainees claiming the wait is excessive. Their cases are pending before the Minnesota Supreme Court.

Meanwhile, those like Brainard, who has been locked up for more than a decade under the diagnosis of a “sexually psychotic personality,” are slowly losing hope of ever being free again. In recent months, Brainard has attempted suicide twice and has “tried everything I can to go home—being servile, too crazy.” But, he says, “This is such a broken environment.”

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