"It was my understanding that I was to do the treatment, then be released," says Mike Whipple, who recently participated in a 14-day hunger strike at the Minnesota Sex Offender Program's facility in Moose Lake. "Twelve years later, I'm still here, doing the same thing, over and over and over."
So far the civil commitment program has incarcerated Whipple three times longer than the prison sentence he served. The hunger strike, which involved a dozen of the program's 737 "clients," ended last week after state officials promised meetings where protesters could air their complaint that there is no "clear pathway" to release from their indefinite confinement. But those meetings surely will not resolve the fundamental problem with programs like this, which evade constitutional constraints by pretending that prisoners are patients.
Twenty states, the District of Columbia, and the federal government have laws that authorize the civil commitment of sex offenders who would otherwise be released after serving their prison terms. The Supreme Court upheld the practice in 1997, saying it was appropriate for people who "suffer from a volitional impairment rendering them dangerous beyond their control."
That logic is puzzling. The state punishes people who commit sex crimes based on the assumption that they could and should have controlled themselves. But when it is time for them to be released after completing the punishment prescribed by law, the state says that was not actually true; now they must be locked up precisely because they cannot control themselves.
If the government decided to retroactively increase an offender's penalty, it would be clearly unconstitutional, amounting to double jeopardy or an ex post facto law. The trick is to cast continued confinement as treatment rather than punishment.
But what if treatment almost never produces a cure that allows a detainee's release? In Minnesota, only 13 detainees have been unconditionally released since the program was established in 1994; more than six times as many have died in custody.
Back in 2015, when not a single "client" had been certified as fully cured, U.S. District Judge Donovan Frank concluded that Minnesota's "treatment" was a sham designed to conceal "a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system." In the United States, he said, "we do not imprison citizens because we fear that they might commit a crime in the future."
Yet, that is manifestly what laws like Minnesota's do, confining some 5,000 people not for what they did but for what they might do. Even if that rationale were constitutionally valid, studies from across the country indicate that recidivism among sex offenders, including those who qualify for civil commitment, is far less common than the Supreme Court assumed.
While condemning Frank's ruling, then-Gov. Mark Dayton conceded that civil commitment decisions are no better than guesswork, because "it's really impossible to predict whether or not [sex offenders] are at risk to reoffend." That did not faze the U.S. Court of Appeals for the 8th Circuit, which overturned Frank's decision on the ground that people "who pose a significant danger" do not have "a fundamental liberty interest in freedom from physical restraint."
Virginia, which began civilly committing sex offenders in 2003, has a much better track record than Minnesota. While Minnesota has conditionally released less than 4 percent of its detainees, meaning they are no longer imprisoned but are still subject to supervision, Virginia has granted that status to 60 percent of its detainees.
Democratic State Sen. Joe Morrissey nevertheless argues that Virginia's program is "abhorrent to everything that our democracy and our criminal justice system believes in." Morrissey recently introduced a bill that would have abolished the program.
Last month the Senate Judiciary Committee derailed Morrissey's bill, referring it to the Virginia State Crime Commission for a study. "We don't sentence people because of what they might do," Morrissey says. For now, that remains an aspiration rather than a reality.
Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum.