In 1939, Minnesota enacted a "psychopathic personality" (PP) law that provides for indefinite civil commitment of dangerous sex offenders to the Department of Human Services for treatment. The law has been used infrequently over the past several decades. However, since 1991, county attorneys and the Attorney General's Office have increasingly used the law to commit high-risk sex offenders to the Minnesota Security Hospital at St. Peter upon their release from prison. To accommodate the increase in psychopathic personality commitments, the 1993 Legislature authorized construction of a new $20.05 million treatment facility at Moose Lake. In addition, the Legislature has appropriated $8.5 million to improve security and expand capacity for psychopathic personalities at the Minnesota Security Hospital.
Also, the constitutionality of the psychopathic personality law has been challenged recently in court. In January 1994, the Minnesota Supreme Court issued an opinion in the first of several Appeals Court cases it has accepted for review. In a 4 to 3 decision, the Court upheld the constitutionality of the psychopathic personality statute, stating that the public's right to be protected from people with an "uncontrollable impulse to sexually assault" outweighs individuals' liberty interests. In re Blodgett, 490 N.W.2d 638 (Minn. App. 1992), affirmed. ___ N.W.2d ___ (Minn. 1994).
In this study we ask:
To answer these questions, we interviewed staff from the Department of Corrections, Department of Human Services, and Attorney General's Office, assistant county attorneys and judges who handle civil commitment cases, and other knowledgeable persons. We also visited the sex offender treatment program at the Minnesota Security Hospital, collected and analyzed data on costs and number of commitments, and reviewed court cases and sentencing data. Finally, we conducted a literature review and contacted other states to learn about how they deal with high-risk sex offenders.
Laws that used civil procedures to commit sex offenders to treatment programs instead of sending them to prison were popular when Minnesota enacted its psychopathic personality statute in 1939. These laws offered community protection while stressing treatment and rehabilitation of offenders. Under Minnesota's law, a person who is emotionally unstable, impulsive, lacks good judgment, or fails to appreciate the consequences of actions, and who therefore is sexually irresponsible and dangerous to others, may be committed indefinitely to a treatment facility. Minn. Stat. §526.09. A 1939 Minnesota Supreme Court case (State ex rel. Pearson v. Probate Court, 205 Minn. 545, 287 N.W.297, 302) narrowed the definition to persons who "by habitual course of misconduct in sexual matters, evidence an utter lack of power to control their sexual impulses," and as a result are likely to inflict injury. The definition of a psychopathic personality has remained unchanged since 1939.
Since the mid-1970s, most states have repealed their sexual psychopath laws because of skepticism about treatment effectiveness, an inability to predict dangerousness or diagnose sexual psychopathologies according to accepted medical standards, and public opinion that increasingly prefers punishment for sex offenders over treatment. Carol Veneziano and Louis Veneziano, "An Analysis of Legal Trends in the Disposition of Sex Crimes: Implications for Theory, Research, and Policy," The Journal of Psychiatry and Laws (Summer 1987), 205-225. Also, these laws raise serious legal questions, illustrated in the Minnesota Supreme Court's January 1994 decision. The dissenting opinion contended that the law violates the Constitution because it deprives an individual of liberty without a criminal conviction or a medically defined mental illness. The majority opinion held that the state has a "compelling interest" in protecting the public from dangerous persons and confining them for purposes of treatment. In re Blodgett, 490 N.W.2d 638 (Minn. App. 1992), affirmed. ___ N.W.2d ___ (Minn. 1994).
Commitment decisions are made in district courts, based on petitions brought by county attorneys. 1992 legislation directed the Attorney General's Office to represent counties at their request in PP commitment cases (outside of Hennepin and Ramsey Counties). Minn. Laws (1992), Ch. 571. While the Departments of Corrections and Human Services are also involved, no single agency routinely monitors all PP commitment cases. Based on data we collected, we found that:
We also found that:
As illustrated in the figure, the number of psychopathic personality commitments per year was low during the 1970s and 1980s, but increased rapidly beginning in 1991. Sixty-five percent of all finalized commitments (46 of 71) occurred between January 1, 1991 and September 30, 1993.
In response to public outcry against several violent crimes committed by offenders who had recently been released from prison, the Department of Corrections modified its supervised release policies in July 1991. As part of its revised release policies, the department began systematically screening sex offenders for possible psychopathic personality commitment and referring these cases to county attorneys. The department took this action because, under sentencing guidelines, the state cannot hold prisoners beyond their scheduled release date, even though they may pose a high risk to reoffend. The Department of Corrections also believed that judges were not identifying potential psychopathic personality commitment cases at initial sentencing as directed by the 1989 Legislature. Also, the department thinks that sentencing judges should have been using the PP statute more consistently prior to 1989 and views its screening and referral system as a "fail-safe mechanism" designed to catch referrals missed by the courts at sentencing.
The Department of Corrections and Attorney General's Office supported changes enacted by the Legislature in 1992 that mandated the department's screening and referral process and authorized the Attorney General's Office to act on behalf of county attorneys, upon request, without charging its usual fees. Currently, the psychopathic personality law is the only means available to hold a sex offender for an indeterminate length of time.
We also found that:
Approximately 90 percent of those committed under the psychopathic personality statute since January 1991 had just completed a prison sentence (averaging 6.8 years) and were scheduled to be released when commitment proceedings were initiated. Over 80 percent of recent commitment cases involved individuals sentenced before 1989.
We were unable to determine the extent to which district court judges identify individuals appropriate for PP commitments at the time of criminal sentencing- referred to as a "dual commitment--as directed by 1989 legislation, since this provision is not monitored. However, we found that:
We also found that:
The majority of those committed since 1990 are recidivist sex offenders, most of whom have been offered treatment previously and either refused to participate or failed to complete it.
On average, individuals recently committed under the psychopathic personality law have three prior convictions, multiple victims, and a history of prior treatment failures. According to treatment professionals, many of them do not suffer from a medically diagnosable mental illness that is likely to respond to therapy (based on standardized criteria currently in use).
Psychopathic personality commitments are required to follow the procedures specified in Minn. Stat. §253B, the "civil commitment act," which also applies to mentally ill, mentally ill and dangerous, mentally retarded, and chemically dependent commitments. However, only mentally ill and dangerous and psychopathic personality commitments are for an indefinite time period.
We found that:
When the psychopathic personality statute was enacted in 1939 and later revised in 1969 to make its procedures the same as for civil commitment of mentally ill and dangerous persons, it was used mainly by judges at the time of sentencing. Its main purpose was to divert sex offenders for fairly brief periods of time (usually less than one year) into treatment instead of sending them to prison. Civil commitment procedures were not designed to accommodate systematic referrals from the Department of Corrections of serious, repeat sex offenders scheduled for release from prison. Now that the law is used to confine more dangerous offenders after they have been in prison, an "indefinite" commitment could become lifetime confinement. Also, since most of the individuals petitioned for PP commitment are in prison, the behaviors for which they are committed usually happened before they entered prison and much of the evidence presented at recent commitment hearings comes from inmates' prison files.
Civil commitment procedures are different from criminal procedures. As in criminal cases, individuals considered for civil commitment are entitled to counsel, but, unlike criminal cases, there is no jury trial. Also, the level of proof required ("clear and convincing evidence") is lower than in criminal cases ("beyond a reasonable doubt"). Furthermore, judges may not admit certain types of evidence in criminal cases (e.g., hearsay evidence) that they might in psychopathic personality commitment cases.
We also found that:
Pre-petition screening is a process that includes a team, such as social workers, psychologists, psychiatrists, and other mental health or medical professionals, who interview the proposed patient and others, review the evidence, and recommend in writing to the county attorney whether a petition for commitment is appropriate. Although it is required for all other civil commitments, according to the Attorney General's Office, pre-petition screening is not required by statute in psychopathic personality commitments. Among the prosecutors we contacted, only the Ramsey County Attorney's Office routinely does pre-petition screening.
In addition, we found that:
The Department of Corrections' screening and referral process is not part of the formal commitment process, although the department has been legally required to screen and make referrals since 1992. Two-thirds of all PP commitment cases initiated since January 1991 originated with a Department of Corrections referral. The department's referral process is newly developed, and the department continues to refine its procedures. However, at the time of our study, we found that the five "civil commitment coordinators" at adult correctional facilities used different procedures, relied on somewhat different information, and weighed various factors differently. The Department of Corrections has developed a "sex offender screening tool," which is supposed to measure future risk to reoffend, but the civil commitment coordinators use and interpret it differently. The accuracy of the sex offender screening tool has not been established, although the department is in the process of refining it and testing its validity. Finally, information in inmates' medical and treatment files, which constitutes much of the evidence presented at commitment hearings, varies by individual and institution.
The 1993 Legislature approved construction of a new $20.05 million, 100-bed treatment facility exclusively for psychopathic personality commitments. The new facility is scheduled to open in Moose Lake in July 1995. The Legislature has also appropriated $8.5 million to increase security and expand capacity at the Minnesota Security Hospital at St. Peter by 50 beds. The Security Hospital will house psychopathic personalities until the new facility opens and may be used as a back-up when the Moose Lake facility is full. We think that:
We found that approximately 7 percent of the sex offenders released from prison since 1991 were committed as psychopathic personalities. The Department of Corrections estimates that 449 sex offenders will be released between July 1993 and June 1995. Since most of these offenders were not sentenced under new laws, it is reasonable to expect that between 6 and 8 percent will be referred and committed. Our projections are slightly lower than the Department of Human Services', but both projections suggest that the Moose Lake facility is likely to be near capacity when it opens (assuming all current PPs at the Minnesota Security Hospital are transferred there). Minnesota Security Hospital staff estimate that most psychopathic personalities will remain in custody at least eight to ten years, with some remaining for life.
The use of the psychopathic personality statute may decline in the future because the Legislature has enacted longer sentences for sex offenses, a "patterned sex offender" statute that directs the courts to double the sentence for sex offenders who represent a danger, and mandatory 30-year and life sentences for "three-time losers." We found that:
For example, the average prison sentence for individuals convicted of criminal sexual conduct in the first degree that involves force or coercion with sexual penetration increased from 6.5 years in 1986 to 10.6 years in 1992. In 1990, the first full year the "patterned sex offender" law was in effect, five individuals were sentenced under it. This number increased to 11 in 1991 and to 19 in 1992.
We also found that:
Department of Human Services staff estimate that operating costs at the new Moose Lake facility will be $10,310,000 in fiscal year 1996 when the facility opens. For purposes of comparison, we standardized costs for fiscal year 1995. The 1994-95 Biennial Budget is the source of cost data for MCF-Oak Park Heights; Minnesota Security Hospital staff provided per diem costs for its psychopathic personality unit as of October 1993. We adjusted these data by 3 percent for inflation. We estimate that in fiscal year 1995, it will cost approximately $41,700 per year to keep a sex offender at the Oak Park Heights correctional facility, the state's most secure prison, which also operates a sex offender treatment program. This compares to approximately $79,000 in fiscal year 1995 at Minnesota Security Hospital and $101,100 at Moose Lake (if it were open). These cost differences are largely accounted for by differences in staff-to-patient/inmate ratios and different licensing and accreditation standards.
We contacted staff from prosecuting attorneys' offices and mental health and corrections departments in 18 states and the District of Columbia, which includes all jurisdictions with special civil commitment laws for sex offenders. There is considerable variation in how states deal with repeat sex offenders, including whether and where treatment for sex offenders is provided. However: Minnesota and Washington are the only states we could identify that actively use their civil commitment statutes to confine sex offenders in treatment facilities after they have served their prison sentences.
We found only seven jurisdictions that retain special commitment statutes for sex offenders: Colorado, District of Columbia, Illinois, Minnesota, Tennessee, Virginia, and Washington. Staff in all jurisdictions except Minnesota and Washington told us these laws are rarely used because they were designed to divert sex offenders into treatment in lieu of prison. Washington enacted a "sexually violent predator" law in 1990 that is specifically designed to commit sex offenders indefinitely after they have served their prison sentence. Like Minnesota, Washington has sentencing guidelines that specify a prison sentence based on the severity of the crime and the offender's prior criminal record.
However, Minnesota's psychopathic personality law differs from Washington's violent sexual predator law in several respects. Washington's statute is more narrowly defined than Minnesota's and uses contemporary language. It also provides due process protections that are similar to those found in criminal procedures, and treatment is provided in mental health facilities located within correctional facilities. Fewer individuals have been committed under Washington's new law than under Minnesota's law.
The Minnesota Supreme Court's January 1994 opinion In re Blodgett, upholding the constitutionality of the psychopathic personality statute, may be appealed to the U.S. Supreme Court. But for now, the uncertainty surrounding the constitutionality of the law has been resolved.
However, there are still reasons why the Legislature may want to consider changes in the way the state deals with high-risk sex offenders. In contrast to the way the statute was used initially, the psychopathic personality law is being used today primarily to commit offenders after they have served their prison sentences. The civil commitment process was not designed to accommodate significant referrals from the Department of Corrections. We also found that using the psychopathic personality statute to confine dangerous sex offenders in mental health facilities is more expensive than confinement in prison.
Since the focus of our study was the existing PP commitment process and how it works, our specific recommendations are aimed at improving that process. However, for legislators who want to consider other approaches, we propose two alternatives to retaining the current law. In total, we present three options:
Option 1: Continue to rely--with procedural improvements--on the current psychopathic personality statute.
If the Legislature decides to rely on the existing psychopathic personality statute, we recommend that:
The Conference of Chief Judges should study the appropriateness of the procedures currently applied to psychopathic personality commitments and recommend changes to the 1995 Legislature.
We think the Conference of Chief Judges should seek input from individuals and agencies actively involved in the PP commitment process. The specific issues that we think should be addressed include: whether pre-petition screening should be required in psychopathic personality commitments; whether changes in evidentiary standards applied to PP commitment cases may be needed; whether district court judges are identifying individuals for possible PP commitment at initial criminal sentencing and if not, why; and any additional procedural changes that may be needed.
In order to improve monitoring of psychopathic personality commitment cases and projections of future facility needs, we recommend that:
In addition, we recommend that:
Option 2: Replace the psychopathic personality statute with a law that is more consistent with contemporary psychiatric knowledge and the way the statute is being used to confine persons indefinitely after they have served their prison sentences.
Even though the Minnesota Supreme Court upheld the constitutionality of the psychopathic personality statute, the Court's close decision and the dissenting opinion suggest there may be future problems with the existing law. Also, the statute remains the subject of court scrutiny. Hence, the Legislature may want to consider changing the law in more fundamental ways to make it more consistent with contemporary psychiatric and psychological theory, to provide for more due process protections, or to provide for treatment in less costly facilities. Washington's violent sexual predator law is a useful guide since it was designed to be used for offenders scheduled for release from prison.
Option 3: Revise existing sentencing statutes to remove sex offenses from Sentencing Guidelines and permit indeterminate prison sentences for high-risk sex offenders.
Finally, the current need for a civil commitment law to confine sex offenders scheduled for release from prison results from the inability of Sentencing Guidelines to achieve, simultaneously, the goals of equal punishment and public protection from high-risk sex offenders at a reasonable cost. Hence, another option the Legislature may want to consider is removing this class of offenses from the guidelines. Under this option, judges could sentence sex offenders to a mandatory minimum sentence within a high maximum sentence range. Once the minimum sentence has been served, a release panel would review the records of sex offenders to determine whether they remain a danger and require continued confinement within the prisons. Sex offender treatment would continue to be available in prison. However, since this would be prospective legislation, it would not apply to sex offenders currently in prison, who were sentenced under existing statutes.