One of the foundations of a civilized society is the concept that people who do wrong need to be held accountable and pay for their crimes. Once a person has successfully paid society back by serving their prison sentence, they have earned the right to be set free and return home. 

But what if there was a way that allows states to keep people incarcerated for longer? It’s called “civil commitment,” and it’s still legally applied to people convicted of crimes of a sexual nature in at least 20 states, including Minnesota where I live. 

After a man convicted of a crime of a sexual nature has completed his entire prison sentence — usually the maximum allowed by law — this inmate is given a second trial to determine if he should be released. The state claims this avoids the double jeopardy rule because the second trial is held in a civil court. 

This civil court hears the same evidence as the original criminal trial but now the state can also present additional allegations and testimony from state-paid experts, who opine about the individual’s potential to commit future crimes (à la the movie “Minority Report.”) 

Because Minnesota’s civil commitment law is vague, the state’s civil commitment prosecutors boast success rates as high as 67% — though this rate varies significantly by county and judicial district. 

Once committed, individuals are now detained for “indeterminate” — de facto life — sentences that exceed the statutory maximum prison sentences allowed by law for their original offense. The state gets around that law by calling us “clients” and detaining us in a prison-like secured facility with razor wire, guards, room searches, wet cells, and monitored calls and mail. 

Because they are required to provide treatment, the Minnesota Sex Offender Program (MSOP) appears to invent new class material, including “Cinema Therapy,” during which clients watched “Tom & Jerry” cartoons. They call prison yard and recreational time “therapeutic hours” and toilet scrubbing “vocational training.”

In Minnesota alone, the Moose Lake facility houses up to 550 people, and St. Peter houses up to 89 clients. It costs taxpayers at least $120,000 per person each year — triple what it costs to incarcerate someone in a prison — to house a person at one of these facilities, according to a 2011 legislative auditor report. 

There is a pending federal class action case titled Karsjens v. Harpstead, where in Feb. 2014 the presiding Judge Donovan Frank wrote in his decision that MSOP was “draconian” and “unconstitutional.” 

Unfortunately, he was overruled by the 8th Circuit Court of Appeals. Judge Frank’s second ruling is expected in fall 2021. The decision will have ramifications for the158 other individual lawsuits currently pending against MSOP that have been frozen for years pending a decision in the Karsjens case. 

Other countries have explicitly condemned MSOP for violating human rights. In 2012, one of Britain’s highest courts blocked the United States’ extradition request for Shawn Sullivan, ruling that the state’s civil commitment law was a “flagrant denial of his right” under the European Convention on Human Rights (ECHR). 

Closer to home, an American Psychiatric Association (APA) task force opposed civil commitment of sex offenders in 1998. Dr. Paul Applebaum, the chairman of the task force, said, “We were concerned that psychiatry was being used to preventively detain a class of people for whom confinement rather than treatment was the real goal … This struck many people as a misuse of psychiatry.” 

Just as minorities are over-represented in prison populations, disproportionate numbers of minorities in civil commitment is even more grossly pronounced. A given incarcerated member of the LGBTQ community is more than twice as likely as a given person in the  general prison population to be civilly committed. 

People who commit sex offenses are most often referred to by the media as “sex offenders,” “pedophiles” and “serial rapists.” We are the most vilified and hated group of people in the world. These words fan the fires of hatred. 

I am deeply distraught every time I hear any story from a sexual abuse survivor. Even though I wasn’t the one who abused them, I am still filled with toxic shame and guilt for causing similar pain and suffering to people in my own life. That’s a terrible burden to live with, and it becomes a difficult balancing act to be able to acknowledge the horrific acts I committed while still daring to ask for my own basic civil rights. 

But it’s time to turn the tables on shame and silence and to stand up for basic human rights, especially for those dealing with mental health issues. 

The most accurate evaluation of a civilized society isn’t how we treat our heroes, but how we treat our lowliest prisoners. 

Civil commitment is an archaic symbol of our society’s darker days, and the time has come to tear it down.