In a landmark 1997 decision, Kansas v. Hendricks, the U.S. Supreme Court upheld civil commitment for those convicted of sexual offenses while allowing lower commitment standards used in the past.
In his concurring opinion, then-Justice Anthony Kennedy stated:
We should bear in mind that while incapacitation is a goal common to both the criminal and civil systems of confinement, retribution and general deterrence are reserved for the criminal system alone…If, however, civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.
In the years following Hendricks, states have turned civil commitment centers into expansions of state prisons, detaining people long beyond the end of their court-issued sentences and detaining them indefinitely.
Many stay incarcerated until death. Nowhere is this more evident than in the state of Minnesota.
The Minnesota Sex Offender Program (MSOP) was initially established in the early 1990s as a civil detention program for anyone convicted of a crime diagnosed with a “psychopathic personality,” but the program shifted focus specifically to those convicted of sexual offenses within a couple of years.
Following the high-profile murder of Dru Sjodin in 2003, the program was expanded from 100 beds to roughly 700 across two facilities in Moose Lake and Saint Peter. Governor Tim Pawlenty symbolically passed a moratorium in 2006, but for the first 20 years of the program, no prisoners had ever “graduated” and earned a conditional release from the MSOP.
A class action lawsuit against the MSOP struck an early victory in the 2015 Minnesota District Court ruling Karsjens v. Jesson, Judge Donovan Frank declared the program unconstitutional in an as-applied challenge and ordered many changes to the program, including providing a clear pathway to release.
This ruling was overturned on appeal to the Eighth Circuit, but it opened the door for a handful of releases from the MSOP. Between 2012 and 2021, Minnesota has granted only 14 full discharges and allowed 28 former MSOP prisoners to live outside the walls of the program on conditional release.
At least 88 prisoners “graduated” by death.
Minnesota has the highest per-capita civil commitment population. California, a state with seven times the population of Minnesota and the largest civil commitment program in America, only detains about 200 more prisoners than Minnesota does.
Not content with the trickle of releases and an unclear path for release, the civil detainees at the Minnesota Sex Offender Program and their loved ones have tried many innovative ways to raise awareness of their plight. A coalition of MSOP prisoners and their loved ones formed “Voices of OCEAN” (Overcoming Corruption Encouraging All Nations) to coordinate protests and awareness campaigns both inside the and outside the confines of the MSOP.
In 2021, MSOP conducted two hunger strikes while their loved ones organized a series of “Honk-Ins” in front of the Moose Lake and St. Peter facilities in a show of solidarity, and protesting at the residence of Department of Human Services (DHS) Commissioner Jodi Harpstead.
OCEAN members have derided the program as “Minnesota’s Shadow Prison” or “M$OP.”
On July 18, OCEAN hosted a conference and rally at the State Capitol building.
While the event attracted legal reformist groups like Women Against Registry and Once Fallen and representatives from five Midwestern states, the message of reform was largely ignored by lawmakers and the Minneapolis/St. Paul news media.
The Voices of OCEAN and other legal reformists were also largely excluded from the August 2, 2021 legislative hearing on the direction of the MSOP; victim advocates and civil commitment advocates were invited to the event while OCEAN was relegated to pre-submitted written testimony.
The mainstream media seems only interested in the shock value of the protests, and the Minnesota legislature only seem interested in treating the plight of the OCEAN members as a political football.
The price of speaking out against the injustices of the MSOP has come at a price for those still detained within the MSOP. As noted on the #EndMSOP and Voices of OCEAN Facebook pages, the detainees have been punished in many ways in efforts to deter the prisoners from participating in peaceful demonstrations.
The MSOP staff would only consider those rejecting water as well as food to be “hunger strikers,” which led to a faster decline in the health of the hunger strikers. Staff members have labeled engagements in protest activities or possession of protest materials as “counter-therapeutic,” leading to disciplinary hearings, banishment to the punitive “Omega Unit,” and implying protesting conditions of confinement will lead to a revocation of treatment progress. Often, these actions come without warning and without explanation.
A 2011 evaluation from the Minnesota Office of the Legislative Auditor concluded that the program was costly, lacked reasonable alternatives to civil commitment at a high-security facility, unnecessarily detains people who are actually not considered a risk to society, experienced frequent disruptions in staff and leadership, and lacks a clear pathway for progression in the program.
The Auditor recommended exploring lower cost alternatives, changes in commitment standards and sentencing policies, and providing actual treatment. Ten years later, little has changed.
There has not been an endgame to the embattled “Minnesota Sex Offender Program.”
Minnesota will spend $96 million on the MSOP in 2021, or $393 per day per inmate ($143,445 per prisoner in 2021). The COVID-19 pandemic and the subsequent economic crisis should make the legislature reconsider its unwavering support of this controversial program.
The MSOP is not sustainable as it exists today. There is no better time to take the message of MSOP reform seriously than right now.
Derek W. Logue is a Nebraska registrant and activist for the rights of returning citizens, and founder of the sex offense education and reform website OnceFallen.com.