The MSOP...

The MSOP...
FEAR BASED STRESS BOX Click on pic of MSOP!

Sunday, October 28, 2012

MSOP: Disturbing Recent Developments

I initially had high hopes that dialogue could begin between myself and the Commissioner's office to address a number of issues relating to MSOP, to MSOP's licensure under the rubric of the State DHS, and myriad other issues relating to MSOP and to the SOCCTF. Unfortunately, after writing a letter, sending a few emails, and calling a few times, my efforts to offer an "Olive Branch" to the Department that was/is Responsible for my horric illegal & unconstitutional abuse, "care" and "treatment" at all "Levels of Care" at the MSOP was ignored.

Here is what 
Anne Barry Media_Kit-Anne-Barry.jpg (Pictured) said publicly about Nancy Johnston(Pictured here):

"She has been instrumental in shaping the organization during a time of rapid growth and change," Barry said.


"I am confident that Nancy’s professional expertise and strong leadership will successfully guide MSOP into the future, helping us meet the challenges and opportunities ahead," Barry said.

Having said that, please read on...


There have been some disturbing and concerning developments to Report re: The MSOP:

1) After I informed the Current DHS Commissioner (Lucinda Jesson) a few weeks ago (after I was shocked to learn of Nancy Johnston's PROMOTION to MSOP Director) that then-MSOP St. Peter Site Director Nancy Johnston was  DIRECTLY RESPONSIBLE for my abuse suffered there (Including Prohibited Use of (Intentionally Fabricated "Clinical Charting" I wasn't subject to (or DHS 1035 Progress Notes); Use of Treatment Plans I wasn't subject to; Refusal to allow me (LEGAL) legal calls--Nancy made it clear to me I would never have a private, confidential phone calls with my civil commitment attorneys--My Constitutional Right; Extreme Abuse, Maltreatment and Neglect by the Staff she was responsible for, Constant illegal, unconstitutional Summary Punishment, Use of Protective Isolation, 4 STAFF PHYSICAL AND/OR SEXUAL ASSAULTS, ILLEGAL, UNCONSTITUTIONAL SEIZURE OF ALL OF MY LEGAL MATERIALS--MY ENTIRE DEFENSE, IN VIOLATION OF THE LAW AND THE CONSTITUTION) during my Illegal and Unconstitutional tenure at the MSOP, and respectfully suggesting that Nancy Johnston be transferred to a different position OUTSIDE OF MSOP, WHERE SHE HAS NO AUTHORITY TO SUPERVISE ANYONE), the Commissioner apparently has Authorized and/or Approved Ms. Johnston to PRESENT to the Task Force about MSOP "Re-Integration" and;

2) A DHS Legal Staff member at the initial Task Force Meeting indicated to me that the current Deputy DHS Commissioner, Anne Barry, had no involvement with MSOP/DHS Chain-of-Command from 2006-2008. I don't believe that representation (if I heard it accurately, which may not be the case) is accurate in that Deputy Barry was Chief Compliance Officer (or similar) during the relevant timeframes of my illegal/unconstitutional captivity in the MSOP. She was apparently Responsible for Legal, Ethics, Licensing, etc.  if I understand her previous role with DHS correctly.

If I am correct in my understanding, and Deputy Barry was in the MSOP/DHS Chain-of-Command, then it would seem reasonable to conclude that Ms. Barry was well aware of my complaints and pleas for help that I made to Jerry Kerber, Julie Reger, Jack Erskine, Cal Ludeman and numerous others including likely Deputy Barry herself personally.

This is disappointing, as this suggests very strongly to me that despite the pressure on MSOP/DHS from the Federal Judiciary, that it is business as usual within the Senior Administration at the MSOP, and that DHS is failing to take Corrective Action as a State Agency to remove employees who have violated MSOP Procedure, State & Federal Law, the Minnesota Constitution and the US Constitution. daily for years intentionally--not to mention the CLEAR MESSAGE SENT AND RECEIVED BY THE PATIENTS MS. JOHNSTON HAS TORMENTED FOR YEARS. BUSINESS AS USUAL. Failure to adequately train and supervise at MSOP. When and where have we heard this before???

 I was hoping real change and true leadership was coming to DHS or already here. These developments are going to go down hard with the hostages. It would help if DHS would cheerfully and voluntarily provide me the DHS Chain-of Command for 2006-2008. It will magically appear in Discovery. DHS claims, in writing, even now to have NO hard copy, NO electronic copy...NO COPY ANYWHERE of their own EMPLOYEES FOR THE YEARS 2006-2008. This blatant fib leads me to conclude that DHS is "hiding" their employee directories from me because they do not want me to "discover"

1) Staff witnesses (Current and/or Ex-MSOP/DHS staff/officials) to my abuse/Whistleblowers;

2) More potential Defendants, especially names and titles of DHS staff/officials.

Commissioner Jesson's office states they have no disposition yet on one of my Complaints/Reports to DHS over 5 years after I made the Complaint/Report. It is crystal clear to me that the MSOP, the use of CC on sex offenders here in MN, and the prosecutors, "experts", and the State and Federal Judiciary need to be investigated around these issues. Hopefully the federal and state benches have huddled and are remedying.

It might take the President of The United States to send the message to MN the Law matters and the Constitution matters--to the actual sex offenders, like Grimm, and the innocent men in this State, like me, a falsely labeled "sex offender" within a legal system in which there is absolutely no corroboration (Read: EVIDENCE) required BY STATUTE beyond the alleged "victim's" WORDS. FALSE ACCUSATION, He-said, She-said, Wrongful Conviction, then the MSOP.

SPEAKING OF THE FEDERAL JUDICIARY, WHY WASN'T THE ISSUE  OF CONDITIONS OF CONFINEMENT ORDERED INVESTIGATED AND REMEDIED BY THE FEDERAL JUDGE OVERSEEING THE KARSJENS CASE? It was Briefed below and is the single most CENTRAL ISSUE AT MSOP and CENTRAL TO GETTING "Clients" SUFFICIENTLY "Treated" for discharge.

UNTIL CONDITIONS OF CONFINEMENT AT MSOP IMPROVE, IT WILL CONTINUE TO BE VERY DIFFICULT, IF NOT IMPOSSIBLE FOR ANYONE TO SUCCESSFULLY COMPLETE THIS EVER CHANGING, NON-COMPLETABLE "TREATMENT" PROGRAM. As long as DHS allows Gary Grimm and Nancy Johnston to remain in power at MSOP, DHS will never have credibility with the "patients", and until the hostages believe there is real change happening and true leadership in place, the problems will persist. What a shame.








MSOP LAWSUIT HELP REQUEST

UPDATE: 12/3/2012 I have raised $2,500 of the retainer I need. I am close now. PLEASE HELP!
Donation Button Below. THANK YOU FOR ANY HELP PROVIDED FOR THIS LAWSUIT!


I have a Civil Rights attorney interested in litigating my case vs the Governor (T-Paw) MSOP/DHS/STATE. As you can see from the very limited information I have been able to post over the past 10 days or so I have a very strong case in every legal and constitutional argument and ground that will be brought. This is the case that proves, among several other things, that the true Mission and Purpose of the MSOP is Punishment and Preventive Detention and not the tired facade of Treatment and Reintegration. It is beyond high time time to prove this up in Court.

The State of Minnesota and its Actors therein have eviscerated any ability for me to obtain a job, begin a career, etc. MN has illegally stolen 15 years of my most productive earnings years, from Age 32-47. I even have two Brands/Products I cannot get off of the ground due to the stigma of my wrongful conviction. Many Twin Cities businessmen and businesswomen wanted to join my company and work with me. I voluntarily told all of them of my wrongful conviction, and they all went running for the hills. I need to clear my name for JUSTICE, and to allow me to move forward with the rest of society, where I have always belonged:

www.SportsBoxers.com

www.SupportBoxers.com

I'm interested in working with people on my new venture(s) here that are willing to work with an innocent, framed Minnesotan.

If you would like to make a donation to assist me in RAISING THE RETAINER FOR MY CIVIL RIGHTS ATTORNEY TO SUE THE MSOP/DHS/STATE, please donate to the MSOP LAWSUIT RETAINER FUND:

UPDATE: I WAS ABLE TO OBTAIN THE RETAINER AND MY LAWSUIT. HAS COMMENCED! IF YOU WOULD LIKE TO CONTRIBUTE TO MY MSOP LAWSUIT FUND:





Thank you very much for your assistance and help!

Tom Evenstad

tom.evenstad@gmail.com











Update: I have raised the retainer and Evenstad v HERBERG et al has been filed!
Thank you for your generous donations!

Saturday, October 27, 2012

A REAL VICTIM DIES DUE To Double Standard

PLEASE REVIEW MY OCTOBER 16, 2012 BLOG POST BELOW IN WHICH I AGAIN PUBLICLY RENEWED MY CALLS AS A STATE WRONGLY LABELED RAPIST, SEX OFFENDER, ALLEGED PREDATOR, ALLEGED DANGEROUS PERSON, ALLEGED SEXUALLY DANGEROUS PERSON, ETC. TO:

PROTECT MINNESOTA WOMEN'S LIVES VIA INVOLUNTARY CIVIL COMMITMENT OF KNOWN,  DOMESTIC ABUSE  RECIDIVISTS WHEN THE EVIDENCE IS CLEAR THAT DOMESTIC VIOLENCE/HOMICIDE IS IMMINENT. THE VICTIMS MUST HAVE STATE PROTECTION IN THESE FAIRLY ROUTINE INSTANCES IN WHICH THE VULNERABLE, DOMESTICALLY ABUSED WOMEN IN MINNESOTA KNOW THEY ARE GOING TO BE MURDERED YET THE WELL INTENTIONED POLICE (AS IN THIS AVOIDABLE TRAGEDY IN COTTAGE GROVE) have no POLICE POWER FOR EMERGENCY INTERVENTION TO INCAPACITATE (READ: LOCK UP) these PILLARS OF SOCIETY WHO ARE POSING EXTRAORDINARY, CLEAR HIGH RISK.

Here is an excellent new website:

http://reducingviolence.com/

IF YOU ARE COMMITTED (PARDON PUN) to LEGALLY CLOSING MSOP OR REFORMING MSOP PLEASE CONSIDER MAKING A DONATION TO ASSIST ME.

MINNESOTA SEEMS TO HAVE AN EQUAL PROTECTION VIOLATION GOING ON WHEN THEY TARGET ALLEGED DANGEROUS SEX OFFENDERS FOR COMMITMENT WITH THEIR NON-EXISTENT MENTAL PRONG CRITERIA, AND YET GIVE ALL THE DOMESTIC ABUSERS A PASS FROM THIS CONSEQUENCE. WHY?

Now, the ONE HAS BEEN MURDERED, Tensia Richard, 22WHICH WAS PREVENTABLE AS THE STATE OF MINNESOTA AND NUMEROUS ORGANIZATIONS THAT PURPORT TO "PROTECT" WOMEN IN MINNESOTA HAVE IGNORED. WILL IT TAKE 99 MORE?

http://www.startribune.com/local/east/175976141.html

This is how out-of-touch the Person responding for the Organization National Parents of Murdered Childern says via email to my pleas to help me PROTECT WOMEN:
















Sjodin. Please read what I sent you when you time.

Thanks
Tom

10/15/12
 
Could you give me more information, what is Dru's last name. Bev
To tom.evenstad@live.com
From:natlpomc@aol.com (natlpomc@aol.com)
Sent:Mon 10/15/12 2:39 PM
To: tom.evenstad@live.com
































Could you give me more information, what is Dru's last name. Bev


10/15/12
 


















This is likely to be painful information for the family, loved ones, and friends of Dru, but they deserve to know it, as does the whole world. I hope you post it. Please share this info w/Sgt. Hedlund,
To info@drusvoice.com, pomc@pomcmn.com, natlpomc@aol.com, mbierwerth@hotmail.com
From:Tom Evenstad (tom.evenstad@live.com)
Sent:Mon 10/15/12 12:38 AM
To: info@drusvoice.com; pomc@pomcmn.com; natlpomc@aol.com; mbierwerth@hotmail.com

This is likely to be painful information for the family, loved ones, and friends of Dru, but they deserve to know it, as does the whole world. I hope you post it.

Please share this info w/Sgt. Hedlund, Dru's family and loved ones, Chris Lang, and anyone one else you think needs to know.

http://msoptaskforceinfo.blogspot.com/2012/10/introduction-to-msop-task-force-info.html#!/2012/10/introduction-to-msop-task-force-info.html

Please feel free to email or call me with any questions or concerns.

Cordially,
Tom Evenstad
 
THE MINNESOTA CHAPTER DID NOT EVEN BOTHER TO RESPOND TO MY PLEAS.
For the first time in its storied history, MSOP is going on Trial in the Courtroom of Public (Read Taxpayer) Opinion. Never before has there been an opportunity for those looking at MSOP from the outside in to get a glimpse of the INSIDE of MSOP. What is daily life there for these so-called "Worst of the Worst"

http://tomevenstadswrongfulconviction.blogspot.com/

My experience in our State Prisons prepared me well for the experience I had at MSOPrison. My documentation is the most scathing Indictment of this "Program" yet to date. There is an old saying in the legal community: You can Indict a Ham Sandwich, and I'm Indicting the Minnesota Sex Offender Program (MSOP).

The abuse is so horrific at MSOP that even a former MSOP Team Member came forward as a whistle blower, and said, among other things that if he were on the other side of the cell bars at MSOP he would kill himself rather than try to cope with the FEAR BASED STRESS BOX:

https://dl.dropbox.com/u/24465959/babcock%20letter.msop.pdf

Regardless of what personal views you have about sex offenders, it is important to understand that under our Criminal "Justice" System, that every man at MSOP has served his time, and paid his debt to society via the Criminal Justice System as society has set the rules. I'm not remotely suggesting that the System got it right in many of these cases, but I'm simply pointing out a fact and one that many men at MSOP struggle with to understand. Should we care as the General Public? You better believe we should care.

This Failed Program is costing taxpayers $70 Million dollars a year and that number is rising by the day. We should also care not only because it is an unconstitutional waste of money and resources, but also because this Program PREVENTS MN from protecting its constituents via Best Practices utilization of the massive resources. Protect the many from the many--not the few from the few. We should care also because this is a slippery slope. America did this same thing to Japanese Americans in WWII. What group next? Well, what about Domestic Abusers or murderers. WHY just SO's?

For years I have posited that if MN is to have Civil Commitment as an option for Sex Offenders, then why not for Domestic Abusers? I have contacted numerous Organizations that purport to protect domestically abused women, and just like my GPS Proposal to T-Paw 10 years ago, my visionary thinking re Domestic Abusers has fallen on deaf ears, with predictable results--just like the preventable Dru Sjodin tragedy. How many more women need to be murdered before Minnesota explores this option? One? One hundred? Just how many???

Every year in this State, the number of women murdered by Domestic Abusers (Herein DA's) is much higher than by sex offenders, yet no Involuntary Civil Commitment Intervention has been legislated in MN. Why not? I'll tell you why Minnesota won't enact my Proposals in this area. It's because the State can portray sex offenders as "Them" and we, in the community as law abiding citizens are "Us".

Look at what Dean Janus wrote in 2004:

https://dl.dropbox.com/u/24465959/Janus%202004.pdf

The DA's are part of the "Us" segment of society. They are not the vilified, feared, lowly sex offenders, but are likely some of the people tasked with putting sex offenders behind bars. In other words, the DA's are everywhere in this society of ours, and another reason is that while its easy to get on board and hate all sex offenders, its hard to hate who we don't know, isn't it?

Often the public knows nothing about the numerous prior arrests for DA's with clear escalations of threats and increasing physical violence. That is not sexy enough (pardon the pun) for the media. No, we only hear about the DA's of Minnesota when yet another woman is murdered in this State. One domestic homicide is one too many. I'm way ahead of the curve on this issue...again.

The Domestic Abusers are often our respected community leaders and pillars of the Community. Is MN going to bring Petitions for CC against its police officers, lawyers, judges, teachers, and other mainstream members of society? No. Not even when the Risk to a vulnerable woman is so high that the women know they are going to be murdered yet the State does nothing to protect them in that terrifying situation.

I am Publicly renewing my calls to have as an Emergency Intervention Involuntary Civil Commitment for those men (or women in extremely rare cases) who have demonstrated a clear pattern of Domestic Violence, and I would generally limit it's use to Emergency Intervention in which the danger is excessive and violence highly likely without such emergency, and temporary State Intervention.

Use DA CC to intervene to LOCK UP temporarily and COUNSEL/TREAT men who are out of control, violent, and threatening whoever these cowards threaten. Many more lives would be saved with this use of DA CC vs SO CC. I am only aware of a few men at MSOP who have ever killed anyone. Those men are the exceptions, rather than the rule and the public must be safeguarded from them at all costs.

I am documenting the Witch Hunt which was the Pawlenty Administration's Response to the Dru Sjodin tragedy, which would have been easily prevented had Gov. Pawlenty and others in power in this State implemented this "sex offender"'s proposal early in 2003.

https://dl.dropbox.com/u/24465959/1.30.03%20GPS%20Letter0001.pdf

Now I will show you daily life in MSOP as an innocent Minnesota citizen caught up in the most terrifying and traumatizing situation humanly imaginable: The Nightmare of a State's most extreme abuse of its Police Power/Parens Patriae--Sentencing me to DEATH despite the fact that I had never committed a sex crime in my entire life. High Stakes and a Big Fight.


WHEN IS THE STATE GOING TO WAGE A WAR AGAINST THE DOMESTIC ABUSERS LIKE THEY HAVE WITH THE LOW, MEDIUM AND HIGH RISK SEX OFFENDERS? NOT LIKELY ANYTIME SOON UNTIL WE AS THE GENERAL PUBLIC DEMAND THAT OUR LEGISLATORS PASS LEGISLATION (THAT I CAN CRAFT IF NECESSARY) to EMPOWER VICTIMS AND POLICE TO STOP COLD THESE VERY REAL AND VERY DANGEROUS THREATS VIA NARROWLY TAILORED LEGAL AND CONSTITUTIONAL STATUTES THAT WILL RESTORE THE VICTIM'S RIGHTS:






































For the first time in its storied history, MSOP is going on Trial in the Courtroom of Public (Read Taxpayer) Opinion. Never before has there been an opportunity for those looking at MSOP from the outside in to get a glimpse of the INSIDE of MSOP. What is daily life there for these so-called "Worst of the Worst".

Eight years of a Wrongful Conviction:

http://tomevenstadswrongfulconviction.blogspot.com/


in our State Prisons prepared me well for the experience I had at MSOP. My documentation is the most scathing Indictment of this "Program" yet to date. There is an old saying in the legal community: You can Indict a Ham Sandwich, and I'm Indicting the Minnesota Sex Offender Program (MSOP).

The abuse is so horrific at MSOP that even a former MSOP Team Member came forward as a whistle blower, and said, among other things that if he were on the other side of the cell bars at MSOP he would kill himself rather than try to cope with the FEAR BASED STRESS BOX:

https://dl.dropbox.com/u/24465959/babcock%20letter.msop.pdf

Regardless of what personal views you have about sex offenders, it is important to understand that under our Criminal "Justice" System, that every man at MSOP has served his time, and paid his debt to society via the Criminal Justice System as society has set the rules. I'm not remotely suggesting that the System got it right in many of these cases, but I'm simply pointing out a fact and one that many men at MSOP struggle with to understand. Should we care as the General Public? You better believe we should care.

This Failed Program is costing taxpayers $70 Million dollars a year and that number is rising by the day. We should also care not only because it is an unconstitutional waste of money and resources, but also because this Program PREVENTS MN from protecting its constituents via Best Practices utilization of the massive resources. Protect the many from the many--not the few from the few. We should care also because this is a slippery slope. America did this same thing to Japanese Americans in WWII. What group next? Well, what about Domestic Abusers or murderers. WHY just SO's?

For years I have posited that if MN is to have Civil Commitment as an option for Sex Offenders, then why not for Domestic Abusers? I have contacted numerous Organizations that purport to protect domestically abused women, and just like my GPS Proposal to T-Paw 10 years ago, my visionary thinking re Domestic Abusers has fallen on deaf ears, with predictable results--just like the preventable Dru Sjodin tragedy. How many more women need to be murdered before Minnesota explores this option? One? One hundred? Just how many???

Every year in this State, the number of women murdered by Domestic Abusers (Herein DA's) is much higher than by sex offenders, yet no Involuntary Civil Commitment Intervention has been legislated in MN. Why not? I'll tell you why Minnesota won't enact my Proposals in this area. It's because the State can portray sex offenders as "Them" and we, in the community as law abiding citizens are "Us".

Look at what Dean Janus wrote in 2004:

https://dl.dropbox.com/u/24465959/Janus%202004.pdf

The DA's are part of the "Us" segment of society. They are not the vilified, feared, lowly sex offenders, but are likely some of the people tasked with putting sex offenders behind bars. In other words, the DA's are everywhere in this society of ours, and another reason is that while its easy to get on board and hate all sex offenders, its hard to hate who we don't know, isn't it?

Often the public knows nothing about the numerous prior arrests for DA's with clear escalations of threats and increasing physical violence. That is not sexy enough (pardon the pun) for the media. No, we only hear about the DA's of Minnesota when yet another woman is murdered in this State. One domestic homicide is one too many. I'm way ahead of the curve on this issue...again.

The Domestic Abusers are often our respected community leaders and pillars of the Community. Is MN going to bring Petitions for CC against its police officers, lawyers, judges, teachers, and other mainstream members of society? No. Not even when the Risk to a vulnerable woman is so high that the women know they are going to be murdered yet the State does nothing to protect them in that terrifying situation.

I am Publicly renewing my calls to have as an Emergency Intervention Involuntary Civil Commitment for those men (or women in extremely rare cases) who have demonstrated a clear pattern of Domestic Violence, and I would generally limit it's use to Emergency Intervention in which the danger is excessive and violence highly likely without such emergency, and temporary State Intervention.

Use DA CC to intervene to LOCK UP temporarily and COUNSEL/TREAT men who are out of control, violent, and threatening whoever these cowards threaten. Many more lives would be saved with this use of DA CC vs SO CC. I am only aware of a few men at MSOP who have ever killed anyone. Those men are the exceptions, rather than the rule and the public must be safeguarded from them at all costs.

I am documenting the Witch Hunt which was the Pawlenty Administration's Response to the Dru Sjodin tragedy, which would have been easily prevented had Gov. Pawlenty and others in power in this State implemented this "sex offender"'s proposal early in 2003.

https://dl.dropbox.com/u/24465959/1.30.03%20GPS%20Letter0001.pdf

Now I will show you daily life in MSOP as an innocent Minnesota citizen caught up in the most terrifying and traumatizing situation humanly imaginable: The Nightmare of a State's most extreme abuse of its Police Power/Parens Patriae--Sentencing me to DEATH despite the fact that I had never committed a sex crime in my entire life. High Stakes and a Big Fight.


Tuesday, October 23, 2012

MSOP: UNCONSTITUTIONAL

WHY WASN'T THE SDP ACT CHALLENGED AS UNCONSTITUTIONAL ON ITS FACE IN THE KARSJENS CASE?

THE MINNESOTA SEX OFFENDER PROGRAM (MSOP)--A "PRE-CRIME PROGRAM" THAT PLACES ALL OF US AT RISK...NOT FROM THE ALLEGED SEXUALLY DANGEROUS AND "SEXUAL PSYCHOPATHIC PERSONALITIES" (a LEGAL CONSTRUCT/DOESN'T ACTUALLY EXIST), but rather FROM THE GOVERNMENT/STATE, "SEX OFFENDER" OR NOT:

IF YOU ARE COMMITTED TO LEGALLY CLOSING MSOP OR REFORMING MSOP PLEASE CONSIDER A DONATION TO ASSIST WITH THAT ONGOING EFFORT:


http://tomevenstadswrongfulconviction.blogspot.com/

JUST LOOK AT WHAT THE GOVERNMENT/STATE DID TO THIS EX-"PATIENT". THIS IS NOT DEMOCRACY, LIBERTY, LAND OF THE FREE OR THE HOME OF THE BRAVE. THIS IS NOT MOM, APPLE PIE OR THE WHITE PICKET FENCE. THIS IS NOT EVEN THE SAME COUNTRY THAT I GREW UP IN IN THE 1970's.

THAT STATE, THAT NATION I GREW UP IN WOULD NEVER ALLOW THIS. ABSOLUTE POWER HAS ABSOLUTELY CORRUPTED THE CORRIDORS OF POWER IN THIS STATE AND THE RESULTS HAVE BEEN CATASTROPHIC. THE CONSTITUTION HAS BEEN TRAMPLED ON, AND THE FOUNDING FATHERS ARE ROLLING IN THEIR GRAVES. THIS IS UNACCEPTABLE, AND IT MUST CHANGE.

THIS IS NOT THE AMERICA WITH MY WIFE (if I could have had a wife), MY KIDS (if I could have have children rather than FALSE IMPRISONMENT THANKS TO FRED GOETZ, BETH ROBERTS, STU SHAPIRO GARY CAYO, BRET PERTLER & FRANCIS J. CONNOLLY) MY JOB, MY CAREER. MY NAME, MY REPUTATION & MY FRIENDS.

MY FREEDOM, MY FUTURE, MY LIFE. NO.

THE STATE OF MINNESOTA STOLE ALL OF THAT FROM ME 15 YEARS AGO AND I'M HERE TO TELL THE WORLD WHY THEY DID IT, HOW THEY DID IT, HOW THEY GOT AWAY WITH IT FOR 15 YEARS, AND WHAT WE NEED TO DO AS A COMMUNITY, AS A STATE, AND AS A NATION TO HELP PREVENT WHAT HAPPENED TO ME FROM EVER HAPPENING TO ANOTHER INNOCENT MINNESOTA CITIZEN AGAIN, OR ANY OTHER UNITED STATES CITIZEN PERIOD.

THE MSOP IS A "PRE-CRIME PROGRAM" as Dean Janus informed the MN Sex Offender Task Force Committee as its initial meeting in mid-November. This fact is very important.

Ask yourself this question please:

Do you REALLY WANT THE GOVERNMENT/STATE OF MINNESOTA (THE PEOPLE CONTROLLING THESE OUT OF CONTROL AGENCIES) to have the AUTHORITY to CREATE AND IMPLEMENT AGAINST YOU, AN ORWELLIAN WORLD REPLETE WITH BIG BROTHER AND THE THOUGHT POLICE? MINORITY REPORT?...AND YOU'RE TRAPPED IN IT? I'VE LIVED IT. IT CAN HAPPEN TO YOU.


[15]During oral argument, Justice Anderson stated: We're all familiar with the Soviet Union gulag and Nazi Germany. * * * Let's say people had antisocial conduct, dysfunctional in that particular society, and the state wanted to put them away for indeterminate confinement. * * * What are the safeguards here that would prevent that from happening in our society under a statute such as this?

In response, assistant attorney general John Kirwin said: You, your honor. I think it is the function of the courts to draw those lines. * * * Asking, 'At what level does the harm become so great that it's constitutional to have a civil commitment statute like this?' * * * By its nature that standard is going to require the court to make some difficult decisions sometimes.

THE HARM HAS BECOME SO GREAT THAT IT IS UNCONSTITUTIONAL TO HAVE A CIVIL COMMITMENT STATUTE LIKE THIS. TRUST ME. I KNOW.

ONE "ARROW" NEEDS TO BE REMOVED FROM THE STATE'S "QUIVER": SDP/SPP INVOLUNTARY "CIVIL" COMMITMENT

I am living proof that the SDP/SPP Laws are Unconstitutional. This insane system targeted an INNOCENT man, and thrust him into the Living Hell and WAR ZONE that is the MSOP. This Nightmare Scenario was envisioned by the THREE JUSTICES of the Minnesota Supreme Court who applied two pesky little concepts: The Law and The Constitution and Refused, unlike the other FOUR COWARDLY JUSTICES to two bow and pander to two other pesky little concepts: Politics and Public Pressure.

LOOK AT WHAT THE MINNESOTA SUPREME COURT SAID IN 1996, when it was a CLOSE VOTE AT 4-3 that MSOP was "Treatment" vs "Punitive"/"Punishment" and when three years had passed without discharge since the "average" patient was predicted to complete this uncompletable "Program" in a minimum of 2 years.

What would that vote be after Reviewing the Evidence in my Indictment of the MSOP?

Please look at what a Minnesota Supreme Court Justice said on December 12, 1996:

IT IS HIGH TIME THAT WE AS A STATE HOLD THE COURTS TO THIS PROMISE:

"Despite the legislature's motivation, the statute does include enough treatment provisions to conclude that its stated purpose is remedial. But we note that the Supreme Court has upheld as remedial only those civil commitment statutes that provide for both mandatory treatment at a psychiatric care facility and full discharge once the patient demonstrates that he or she no longer is in need of treatment. See Allen v. Illinois, 478 U.S. 364, 369-75 (1986). The majority correctly states that "Linehan has not offered evidence that the treatment regime at MSH or MPPTC is a sham, or even that such treatment is ineffective." Ante, at 28. But given the legislature's real motivation behind the SDP Act, we are concerned that such evidence will become readily available in the near future. When "that occurs", we will not hesitate to find that the SDP Act, in addition to violating substantive due process, also violates ex post facto and double jeopardy."

MINNESOTA SUPREME COURT/FEDERAL COURTS:

THAT HAS OCCURREDPLEASE ACT

D I S S E N T

TOMLJANOVICH, Justice (dissenting)

The case before us illustrates better than most that the judicial power is often difficult in its exercise . * * * The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.

Texas v. Johnson, 491 U.S. 397, 420, 421 (1989) (Kennedy, J., concurring).

By affirming the trial court's civil commitment of Dennis Derol Linehan under the Sexually Dangerous Person's Act ("SDP Act"), this court today chooses to make the easy decision. Not because it is right, not because it is compelled by the constitutions of either the United States or Minnesota, but because it is convenient. The United States Supreme Court in its affirmation of Pearson asserted that it was this court's duty to "protect appellant in every constitutional right he possesses." State ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 277 (1940), aff'g 205 Minn. 545, 287 N.W. 297 (Minn. 1939). Likewise, the state admitted during oral argument in the case at bar that "it is the function of the courts" to provide safeguards against the state's improper use of civil commitment as a constitutionally invalid form of preventive detention. [15] Yet today this court not only shirks its duty to uphold appellant's right to substantive due process as mandated by the Supreme Court, it fails to provide a constitutionally necessary check upon the state's restriction of appellant's liberty. Even worse, the majority reaches this conclusion by relying almost entirely upon In re Blodgett, 510 N.W.2d 910 (Minn. 1994), cert. denied, __ U.S. __, 115 S. Ct. 146 (1994), a case decided eight months before passage of the SDP Act, and six months before this court found that the appellant did not fit within the statute upheld in Blodgett. In re Linehan, 518 N.W.2d 609 (Minn. 1994), reh'g denied, (Aug. 15, 1994) (Linehan I). And what is the basis upon what which the majority reaches this conclusion? It is the fear of Dennis Derol Linehan and what he might do upon his release.

Before reaching the constitutional issue of substantive due process, which by itself invalidates the application of the SDP Act to the appellant, it is important to clarify that this court's prior decisions regarding the Psychopathic Personality Commitment Act ("PP Act") do not mandate, as the majority would have us believe, today's holding regarding the SDP Act. If anything, this court's holdings in Pearson and Blodgett require us to conclude that the SDP Act is unconstitutional as applied to the appellant.

I. Precedent

It all started in 1939 when the legislature passed the PP Act after recognizing a "need for legislation to deal with sex offenders and a belief, shared in by the medical authorities and others, that sex crimes are committed because of a weakness of the will as well as of the intellect." State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 545, 287 N.W. 297, 298 (1939), aff'd, 309 U.S. 270 (1940). The statute effectively allowed the state to civilly commit those persons found to have a "psychopathic personality," which the statute defined as:

[T]he existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of his acts, or a combination of any such conditions, as to render such person irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons.

Psychopathic Personality Act, 1939 Minn. Laws, ch. 369 (codified as amended at Minn. Stat. § 526.09-526.10 (1992)). Upon a constitutional challenge for vagueness, this court stated that the statute "was imperfectly drawn," and therefore redefined "psychopathic personality" as including only those persons who:

by a habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses and who, as a result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire.

Pearson, 205 Minn. at 555, 287 N.W. at 302 (emphasis added). [16] Since that time, courts have considered the "utter lack of power to control their sexual impulses" to be a necessary criterion for civil commitment under the PP Act. E.g., Pearson, 309 U.S. at 273 ("[W]e must take the statute as though it read precisely as the highest court of the State has interpreted it."); Linehan I, 518 N.W.2d at 613 (stating that "testimony * * * fails to support the trial court's finding that appellant exhibits an utter lack of control over his sexual impulses"); see also Minn. Stat. § 253B.02, subd. 18a (1994) (incorporating the "utter lack of power to control sexual impulses" language into the PP Act).

The next significant case in which this court considered the constitutionality of the PP Act was In re Blodgett, only this time, the question was whether the statute as interpreted in Pearson remained valid in light of the Supreme Court's holding in Foucha v. Louisiana, 504 U.S. 71 (1992). Blodgett, 510 N.W.2d at 914. In Foucha, the Supreme Court held that Louisiana could not continue to hold a presently sane insanity acquittee without violating his fundamental right to liberty. Foucha, 504 U.S. at 78-83. More particularly, the Court ruled that a state could constitutionally deprive an individual of his or her fundamental right to liberty under only three circumstances: (a) imprisonment of convicted criminals for the purpose of deterrence and retribution; (b) confinement of persons shown to be mentally ill and dangerous by clear and convincing evidence; and (c) detention of persons who pose a danger to others or to the community, and then only in extremely limited circumstances such as pretrial detention. Id. at 80. The appellant in Blodgett argued that his commitment was unconstitutional under Foucha because it did not fit within the second of Foucha's three circumstances. [17] Although it was conceded that he fit within the statute's definition of psychopathic personality, [18] the appellant argued he was not mentally ill. [19] Blodgett, 510 N.W.2d at 914. This court did not agree, and held that Blodgett's commitment under the PP Act was constitutionally consistent with Foucha because "[w]hatever the explanation or label, the 'psychopathic personality' is an identifiable and documentable violent sexually deviant condition or disorder." Id. at 915. In other words, this court held that the criteria required by Pearson to prove a 'psychopathic personality' were sufficiently similar to those criteria required under Foucha to prove mental illness. Id. ("The problem is not what medical label best fits the statutory criteria, but whether these criteria may, constitutionally, warrant civil commitment.") What was essential to this court's holding in Blodgett, and what the majority today fails to recognize, is that the criteria used to prove that the appellant in Blodgett fit within the restraints of Foucha necessarily included the finding that Blodgett had an uncontrollable sexual impulse dangerous to others (in other words, a psychopathic personality). Id. at 915 ("[O]ur legislature has provided for commitment of the 'psychopathic personality' who, because of an uncontrollable sexual impulse, is dangerous to the public."). Although the majority today would have us believe that Blodgett stood for the proposition that appellant's diagnoses of APD would be enough to satisfy the mental-illness requirement of Foucha, the words of Blodgett negate this conclusion:

A person committed as a psychopathic personality may petition the Commissioner of Human Services at any time for a transfer to an open hospital or for a provisional discharge to a community or other residential treatment facility, or for a temporary pass. These relaxations of security hospital confinement provide an opportunity (and an incentive) for the committed person to demonstrate that he has mastered his sexual impulses and is ready to take his place in society.

Id. at 916 (emphasis added). In other words, a person committed as a psychopathic personality who learns to control his sexual impulses no longer requires civil commitment. In fact, this was the very situation in Linehan I, when this court held that Linehan did not fit within the statute's definition of 'psychopathic personality' precisely because the state failed to prove he was unable to control his sexual impulses. Linehan I, 518 N.W.2d at 614 ("Because we hold that the county did not prove the utter lack of control/uncontrollable element of the Pearson test, it is unnecessary to address whether there is clear and convincing evidence that appellant was likely to engage in future dangerous behavior."). Although Linehan, like Blodgett, was diagnosed with APD, this court found that the state failed to prove he was utterly unable to control his sexual desires. Id. Consequently this court held that Linehan was different from Blodgett and could not be committed as a psychopathic personality. [20] Id.

Of course that was not the end of In re Linehan. The legislature subsequently passed the SDP Act and provided civil commitment for those found to be sexually dangerous persons ("SDP"). See Sexually Dangerous Persons Act of August 31, 1994, ch. 1, art. 1, § 3-4, 1995 Minn. Laws 1st Spec. Sess. 5-7 (1994), codified at Minn. Stat. §§ 253B.02, 253B.185 (1994). Under the new law, the state needed to show that the person has engaged in a course of harmful sexual conduct, and that the person has manifested a "sexual, personality, or other mental disorder or dysfunction, and as a result, is likely to engage in acts of harmful sexual conduct." Minn. Stat. § 253B.02, subd. 18b(a) (1994). The law additionally provides that for the purposes of proving a SDP, the state need not show that the person has an inability to control his or her sexual impulses. Minn. Stat. § 253B.02, subd. 18b(b) (1994).

What the legislature in essence did was throw out the "utter lack of power to control their sexual impulses" requirement: a requirement this court created to uphold the PP Act against an attack for vagueness in Pearson; a requirement this court relied upon to uphold the PP Act against an attack for substantive due process, equal protection, ex post facto and double jeopardy violations in Blodgett; and a requirement this court cited to release the committee in Linehan I. Yet today this court says the "utterly unable to control" element is of "no principled and constitutionally significant distinction between Linehan's commitment under the SDP Act and the commitments of other sexual predators upheld under the PP Act." Ante, at 13. Furthermore, the majority states that Blodgett stands for the proposition that APD alone is "a valid mental health basis for commitment" and that substantive due process does not preclude "milder forms of APD as the mental health basis for civil commitment." Ante, at 16. Of course the majority fails to recognize that Blodgett involved a psychopathic personality and does not require this court to hold that APD alone is a sufficient mental-health basis for commitment.

That is why it is disingenuous, and perhaps a little too convenient, to assert, as the majority does, "that under Blodgett the SDP Act is sufficiently narrow to satisfy strict scrutiny as applied to Linehan." Ante, at 17. This court in Blodgett upheld the commitment of the appellant only because he had a psychopathic personality, in other words, because he had an utter lack of power to control his sexual impulses. Despite the majority's holding that Blodgett stands for the proposition that APD alone fits within the mental-illness requirement of Foucha, the fact remains that if Blodgett stood for such a proposition, it would have been contrary to rulings by the U.S. Supreme Court. Foucha, 504 U.S. at 82-83 (stating that substantive due process does not allow a state to civilly commit a person with "a personality disorder that may lead to criminal conduct" (emphasis added)). [21] This court merely asserted in Blodgett that it would not embroil itself in a semantic argument based upon labels, and that it would analyze the appellant against the criteria used to identify a mental illness in Foucha. But now this court is using the label "antisocial personality disorder" to conclude that Linehan fits within Foucha's definition of mental illness.

In the absence of evidence to the contrary, we accept the legislature's and the American Psychiatric Association's determination that APD is an identifiable mental disorder that helps explain behavior.

Ante, at 22 (emphasis added). Although the majority is wont to admit as much, such a holding necessarily negates Pearson and grossly expands Blodgett. Even more importantly, it erodes the protections of substantive due process as established by Foucha.

II. Substantive due process

Foucha stands for the proposition that a state cannot deprive a person of his or her liberty simply because that person is dangerous. Put another way, the Due Process Clause of the Constitution prohibits us as a society from locking up persons simply because we fear them. It matters not if our fear is based upon a rational assessment of the person's likelihood to commit future bad acts, the fact remains that the Supreme Court has said we cannot remove a person from society for the sole purpose of preventing the future bad acts, even if the future bad acts are almost certain to occur. That is the baseline from which this court is required to begin its analysis of the SDP Act.

To that end, the majority correctly admits that the SDP Act deprives an individual of the fundamental right to liberty and therefore is subject to strict scrutiny. The majority also correctly adopts the form of strict scrutiny that asks whether the action is narrowly tailored to serve a compelling state interest. The majority then recognizes that the state has two compelling interests in this case: 1) to ensure public safety from sexual assaults under the police powers and 2) to provide care and treatment of the mentally disordered. What the majority fails to recognize, however, is that the validity of the state's action will vary depending upon which compelling interest the state is trying to serve.

If the state is attempting to serve only the first compelling interest, in other words it is trying only to protect the public from future sexual assaults, it cannot deprive a person of his liberty without first obtaining a criminal conviction for past acts. Foucha, 504 U.S. at 77-78 (holding that dangerousness alone is not sufficient to civilly commit a person); Jackson v. Indiana, 406 U.S. 715 (1972) (holding that a state could not continue to hold a person incompetent to stand trial); Baxstrom v. Herold, 383 U.S. 107 (1966) (holding that a state cannot continue to deprive a convicted criminal nearing the end of his penal term of his liberty without first committing him civilly). If, however, the state is attempting to serve both the first and second compelling interests, in other words, it is attempting to provide care and treatment for a mentally ill person who poses a threat to himself and others, it can deprive a person of his liberty once it demonstrates by clear and convincing evidence that the person is both mentally ill and dangerous. Foucha, 504 U.S. at 77-78; Jones v. United States, 463 U.S. 354, 369 (1983); Addington v. Texas, 441 U.S. 418 (1979); see also Young v. Weston, 898 F. Supp. 744, 748-49 (W.D. Wash. 1995) (listing circumstances in which the Supreme Court has allowed incarceration for nonpunitive reasons); State v. Randall, 532 N.W.2d 94, 100-01 (Wis. 1995) (stating that Supreme Court has held that states can treat civil and criminal committees differently). The majority in Foucha put it this way:

A State, pursuant to its police power, may of course imprison convicted criminals for the purposes of deterrence and retribution. But there are constitutional limitations on the conduct that a State may criminalize. Here the State has no such punitive interests. As Foucha was not convicted, he may not be punished. * * *

The State may also confine a mentally ill person if it shows 'by clear and convincing evidence that the individual is mentally ill and dangerous.' Here, the state has not carried that burden; indeed, the state does not claim that Foucha is now mentally ill.

Foucha, 504 U.S. at 80 (citations omitted) (emphasis added). Although the Supreme Court was divided in Foucha, it was unanimous in concluding that strict scrutiny requires a state's action to be narrowly tailored to the particular compelling interest at stake. Justice O'Connor in her concurrence stated "that acquittees could not be confined as mental patients absent some medical justification for doing so; in such a case the necessary connection between the nature and purposes of confinement would be absent." Id. at 88 (O'Connor, J., concurring) (emphasis added). Justice Kennedy, in fact, based his entire dissent on the fact that the validity of a state's actions will differ depending upon whether it is acting in a criminal or civil context.

The criminal law defines a discrete category of conduct for which society has reserved its greatest opprobrium and strictest sanctions; past or future dangerousness, as ascertained or predicted in civil proceedings, is different in kind. * * * In the civil context, the State acts in large part on the basis of its parens patriae power to protect and provide for an ill individual, while in the criminal context, the State acts to ensure the public safety.

Id. at 95-96 (Kennedy, J., dissenting). And finally, Justice Thomas stated that "there is a real and legitimate distinction between insanity acquittees and civil committees that justifies procedural disparities." Id. at 108 (Thomas, J., dissenting). Although Justice Thomas maintained that "freedom from bodily restraint" did not constitute a fundamental interest that merited strict scrutiny, he did admit that under such a test "[c]ivil commitment as we know it would almost certainly be unconstitutional; only in the rarest of circumstances will a State be able to show a 'compelling interest,' and one that can be served in no other way, in involuntarily institutionalizing a person." Id. at 122 (Thomas, J., dissenting). In summary, the court concluded that civil commitment of a non-mentally ill but dangerous person would be:

only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law.

Id. at 83 (emphasis added).

Likewise, this court relied upon a compelling interest in Blodgett that encompassed more than mere protection.

Here the compelling government interest is the protection of members of the public from persons who have an uncontrollable impulse to sexually assault.

Blodgett, 510 N.W.2d at 914 (emphasis added). This court went on to say that "[s]o long as civil commitment is programmed to provide treatment and periodic review, due process is provided." Id. at 916 (emphasis added). The state in Blodgett asserted its compelling interest to be protection of society from those persons unable to control their impulses precisely because the Supreme Court in Foucha made clear that a civil commitment would not be narrowly tailored to the compelling government interest of protecting society alone.

Addington v. Texas, 441 U.S. 418 (1979), held that to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others.

Foucha, 504 U.S. at 75-76 (emphasis added).

The bottom line is that a state cannot incarcerate a person simply because it fears the person's future acts. It can, however, civilly commit a person whom it fears, so long as the commitment is narrowly tailored to the state's additional compelling interest in treating mentally ill people. See Addington, 441 U.S. at 429 (stating that the key question in civil commitment is "[w]hether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy" (emphasis added)). The difference, though subtle, is essential to the disposition of this case. Foucha allows a state to involuntarily deprive a dangerous person of his or her liberty only when it does so for the purpose of treating that person. And that is why the majority misses the mark in holding that the SDP Act is narrowly tailored to the only compelling government interest asserted by the state in this case -- protecting the public from sexual assault. As the majority stated:

[T]he SDP Act is an attempt to protect the public by treating sexual predators even more dangerous than those reached by the PP Act -- the mentally disordered who retain enough control to 'plan, wait, and delay the indulgence of their maladies until presented with a higher probability of success.' And as the court of appeals recognized, the mental disorder requirement in the SDP Act serves the state's interest in public safety by aiding the prediction of dangerousness.

Ante, at 17. We concede that the majority's reliance on public safety alone would be sufficient to incarcerate Linehan for past criminal acts. [22] Because the state already has punished Linehan for his past criminal acts, however, Foucha will not allow it to rely upon public safety alone to incarcerate him for predicted future acts. Instead, the state must show that his civil commitment is necessary to the additional compelling government interest of providing care and treatment of the mentally ill. [23]

Before going any further, it is revealing to note that the state did not even bother to argue that its compelling government interest in passing the SDP Act was to provide treatment for Dennis Linehan or any other subsequent committee. And for that, the state deserves credit for its honesty. Although the statute provides a treatment mechanism, it is clear given the following circumstances regarding the bill's passage that the actual government interest was to lock up sexually dangerous persons in general and Dennis Linehan in particular.

Less than one week after this court ruled that Linehan could not be committed under the PP Act, the speaker of the house called for a meeting and was quoted as saying, "The prospect of these predators being released is frightening, especially for the women of Minnesota." Donna Halvorsen, Sex Predators' Status Sparks Insecurity; Commitment Law Appears Frayed, Star Trib., July 9, 1994, at 1B. Approximately five weeks later, the attorney general proposed legislation that he said would keep sexual predators "locked up." Robert Whereatt, Laws Proposed to Keep Sex Predators off Streets, Star Trib., Aug. 12, 1994, at 1A. The Governor, who at the same news conference announced he would call for a special legislative session, said, "By all accounts, these two men [24] remain a danger to the public." Id.

After this court denied the state's petition for rehearing in Linehan I, the governor announced that the state would move Linehan to an old staff residence just outside the prison and keep him under constant surveillance. Paul Gustafson & Robert Whereatt, Rapist/Murderer Wins Release - and Tight Surveillance, Star Trib., Aug. 16, 1994, at 1A. When Linehan's attorney said the treatment was "appalling," the governor responded by saying, "I'd much rather make a mistake on the side of public safety than be overwhelmingly concerned with some attorney's perception of the civil rights of Mr. Linehan." Id. The Ramsey County prosecutor, meanwhile, was quoted by USA Today as saying, "These are dangerous people and we've got to protect the women and children in our communities." Mimi Hall, A Furor Brews over Release of Sex Offenders, USA Today, Aug. 17, 1994, at 3A.

Just eight days before statewide primary elections, the governor officially called for a one-day, one-bill special legislative session. Robert Whereatt, Legislators, Carlson Agree to Session; Ground Rules Set With Goal of Avoiding Partisanship, Star Trib., Aug. 24, 1994, at 1B. The legislature convened one week later and in just 1 hour, 37 minutes passed the SDP Act by a 65-0 margin in the senate and a 133-0 margin in the house. Donna Halvorsen & Robert Whereatt, Sexual Predator Bill OK'd, Signed, Star Trib., Sept. 1, 1994, at 1A. Immediately prior to the session, the bill's drafters had told their colleagues to avoid speaking about Linehan specifically because, "Whatever we say on the floor will be used against us. It's going to be used to challenge the bill." Id.

By themselves, these circumstances are enough to render this rather transparent effort at preventive detention unconstitutional. [25] But we assert in the alternative that the SDP Act is not sufficiently narrow to serve even the government's additional compelling interest in providing care and treatment of the mentally ill. Once again, the foundation for this conclusion is Foucha.

[T]he State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term.

Foucha, 504 U.S. at 82-83 (emphasis added). Although Justice O'Connor's concurrence intimates that something less than a bona fide mental illness would suffice, the plurality in Foucha could not be more clear: A state cannot civilly commit a person who is dangerous and has a "personality disorder." Foucha, 504 U.S. at 82-83 (explaining that a state cannot civilly commit a person who is dangerous and has either an "antisocial personality" or "a personality disorder"). The person must be both dangerous and mentally ill. It is debatable whether Blodgett's holding that a person who has a psychopathic personality fits within the definition of mental illness as asserted in Foucha, [26] but it could not be more clear that a person who has only an antisocial "personality disorder" does not fit within the definition of mental illness as asserted in Foucha.

This limitation is essential. Not because persons with "personality disorders" are any less dangerous than those who have recognized mental illnesses, [27] but because the very essence of the state's constitutionally required compelling interest in civilly committing a person is treatment of the mentally ill. When, in fact, the state's only articulated interest in passing a law is protection of society, it becomes apparent that the real purpose of the law, despite its platitudes to treatment, is preventive detention. We do not maintain that the SDP Act violates substantive due process only because those with APD currently cannot be treated. We maintain only that the legislature's reason for passing the SDP Act, once properly exposed under the spotlight of strict scrutiny, was not for the stated purpose of treatment, but for the actual purpose of detaining a person who frightens us. Cf. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (holding that facially neutral statute violated free exercise clause in part because of city council's discriminatory motivation); Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977) (concluding that the circumstances surrounding the passage or enactment of legislation can be used to determine if the statute is a purposeful device for discriminatory treatment). Yet the majority, after noting that Foucha presents "constitutional limits to state-created definitions of mental illness in the civil commitment context," somehow manages to dim the spotlight and instead "give[s] the legislature due regard in identifying medically recognized mental disorders, such as APD, that explain a person's dangerousness and that are appropriate for civil commitment and treatment." Ante, at 19-20. Never before has strict scrutiny been so lenient.

As the Kansas Supreme Court recently demonstrated, actual strict scrutiny necessarily leads to the opposite result. Matter of Care and Treatment of Hendricks, 912 P.2d 129 (Kan. 1996) (striking down a civil commitment statute nearly identical to the SDP Act), cert. granted, __ U.S. __, 116 S. Ct. 2522 (1996). The majority in the case at bar distinguishes Hendricks by stating it was based upon Kansas' own statutory definition of mental illness. Ante, at 22-23 n.11. Although the Kansas Supreme Court did look at its mental illness statutes during its substantive due process analysis, it actually based its holding on a strict reading of Foucha's mental-illness requirement:

Therefore, as applied to Hendricks, the constitutionality of the Act depends upon a showing of dangerousness without a finding of mental illness. Clearly, the due process standard of Addington and Foucha is not met by the Act as applied to Hendricks.

Hendricks, 912 P.2d at 138.

Likewise, a federal district court in a habeas corpus proceeding found that Washington's Sexually Violent Predator Statute, which had been upheld by the Washington Supreme Court, [28] also failed strict scrutiny. "Like the scheme rejected in Foucha, the Statute here permits indefinite incarceration based on little more than a showing of potential future dangerousness. * * * Predictions of dangerousness alone are an insufficient basis to continue indefinitely the incarceration of offenders who have completed their prison terms." Young v. Weston, 898 F. Supp. 744, 749, 751 (W.D. Wash. 1995). Unlike the majority in this case, these courts fulfilled their constitutional duties, made difficult decisions, and followed Foucha's mandate -- namely that involuntary civil commitment is narrowly tailored to the government's compelling interest in treatment only when the legislature's actual reason for passing the statute is to give a mentally ill person the help he or she needs. [29]

III. Equal protection, ex post facto and double jeopardy

Technically speaking, we do not disagree with the majority's equal protection analysis. Unlike substantive due process, which necessarily examines the statute's effect on a person's fundamental right of liberty, equal protection focuses on the distinction between those who fit within the statute's reach and those who do not. Unless such a distinction involves a suspect classification, this court will ask only if there is any rational basis for such a selection. Pearson, 309 U.S. at 274. When such a statute threatens a liberty interest, however, this court will apply heightened scrutiny and ask whether the statute delineates genuine and substantial distinctions. Blodgett, 510 N.W.2d at 917. The SDP Act distinguishes between those sexually dangerous persons who have a mental disorder and those who do not. Minn. Stat. § 253B.02, subd. 18b(a) (1994). The majority holds that the legislature's decision to civilly commit the first group but not the second is valid because mental disorders help to "isolate sexually dangerous persons most likely to harm others in the future," and because "the state's interest in treating sexual predators is served by confining the scope of the SDP Act to those with mental disorders." Ante, at 24-25. In short, this court is upholding the legislature's determination that sexually dangerous persons with a mental disorder are both more dangerous and more amenable to treatment than are those without a mental disorder.

Although we do not disagree with this conclusion, we point out that the first justification for the distinction (dangerousness), while sufficient to uphold the act under the equal protection clause, is not sufficient to uphold the act under due process analysis. Likewise, the second justification for the distinction (treatment), while mere surplusage under equal protection requirements, is a necessity for this court's conclusion that the SDP Act does not violate ex post facto or double jeopardy. Unlike substantive due process, which focuses on the government's interests, ex post facto and double jeopardy focus on the statute's purpose and whether it is "for treatment purposes and * * * not for purposes of preventive detention." Call v. Gomez, 535 N.W.2d 312, 320 (Minn. 1995) (emphasis added). Although it is apparent that the legislature's motivation in passing the SDP Act was to lock up dangerous persons such as Linehan, the majority noted that "[t]he purpose and effect of the SDP Act is * * * predominantly remedial, not punitive." Ante, at 27 (emphasis added).

As stated earlier, we elect not to quibble with this holding at this time. But see Young v. Weston, 898 F. Supp. 744, 751-54 (W.D. Wash. 1995) (holding that Washington's sexually violent predator statute violates ex post facto and double jeopardy). Despite the legislature's motivation, the statute does include enough treatment provisions to conclude that its stated purpose is remedial. But we note that the Supreme Court has upheld as remedial only those civil commitment statutes that provide for both mandatory treatment at a psychiatric care facility and full discharge once the patient demonstrates that he or she no longer is in need of treatment. See Allen v. Illinois, 478 U.S. 364, 369-75 (1986). The majority correctly states that "Linehan has not offered evidence that the treatment regime at MSH or MPPTC is a sham, or even that such treatment is ineffective." Ante, at 28. But given the legislature's real motivation behind the SDP Act, we are concerned that such evidence will become readily available in the near future. When that occurs, we will not hesitate to find that the SDP Act, in addition to violating substantive due process, also violates ex post facto and double jeopardy.






























D I S S E N T

PAGE, Justice (dissenting).

I join the dissent of Justice Tomljanovich. I write separately to note that there is no question that Dennis Linehan is an extremely dangerous person. There is also no question that he has been tried, convicted, and punished under our criminal law. Some might argue, myself included, that the sentence [30] he received was not severe enough and that it should have been longer. Certainly if constitutional limitations did not exist, I would have no qualms about Linehan remaining in preventive detention for the rest of his life. However, constitutional limitations do exist, and we must respect those limitations even if it means that the Dennis Linehans of the world must be set free after completing their criminal sentence. Thus, I respectfully dissent because I believe that the Sexually Dangerous Persons Act goes well beyond the limits imposed by our constitution and permits unrestrained preventive detention based solely on an individual_s dangerousness.

I also write separately to comment on the court_s treatment of Blodgett. Blodgett was a 4-3 decision of this court which I joined. In re Blodgett, 510 N.W.2d 910 (Minn. 1994). I joined that decision because I believed the court_s holding fit within constitutional limitations. While I did believe then, and still believe now, that our decision in Blodgett fit within constitutional limits, I also believe that with that decision we reached the extreme outer limits of constitutionally permitted preventive detention. The court now holds that Blodgett would have to be overturned if we were to find the Sexually Dangerous Persons Act unconstitutional. I disagree. My reading of Blodgett is that the "inability to control" sexual impulses has constitutional significance and represents a substantive due process threshold for preventive detention. That is the basis on which I joined the court_s opinion. Indeed, this requirement previously saved the Psychopathic Personality Commitment Act from a vagueness challenge in Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297 (1939), aff_d, 309 U.S. 270 (1940). In Pearson, this court stated:

Applying these principles to the case before us, it can reasonably be said that the language of Section 1 of the [Psychopathic Personality Commitment Act] is intended to include those persons who, by a habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses and who, as a result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire. It would not be reasonable to apply the provisions of the statute to every person guilty of sexual misconduct nor even to persons having strong sexual propensities. Such a definition would not only make the act impracticable of enforcement and, perhaps, unconstitutional in its application, but would also be an unwarranted departure from the accepted meaning of the words defined.

Id. at 555, 287 N.W. at 302-03 (emphasis added).

The court now holds that the instant case is indistinguishable from Blodgett despite the fact that the "inability to control" requirement articulated in Blodgett is not contained in the Sexually Dangerous Persons Act. In upholding the psychopathic personality statute, the Blodgett court made clear that there are constitutional limitations to the state's use of preventive detention. However, no such limitations are found in the Sexually Dangerous Persons Act. The only real criteria for commitment under the Sexually Dangerous Persons Act is dangerousness. Thus, the court's decision today goes well beyond Blodgett. The court has, in essence, concluded that there are no constitutional limitations on the state's use of preventive detention.

Today the target is people who are sexually dangerous. Which class of people, who are different from us and who we do not like, will it be tomorrow?

As Justice Simonett wrote in Blodgett, at issue is not only "the safety of the public on the one hand and, on the other, the liberty interests of the individual * * *. In the final analysis, it is the moral credibility of the criminal justice system that is at stake." 510 N.W.2d at 918. By the court's decision today, that credibility is placed in jeopardy.



Footnotes


[1] A significant portion of the hearing was also occupied by consideration of a videotape of Linehan twice masturbating in the upstairs bathroom of Residence 4 soon after physical play with his stepdaughter. The conduct took place during a time-limited visit on January 1, 1995. There was also testimony that the same behavior occurred the day before, but a videotape was not preserved.

[2] Testimony regarding statistical predictions focused on base rates from the United States Department of Justice. Those statistics indicated that among prisoners released in 1983 whose most serious offense at the time of release was rape, 7.7% were rearrested for rape within 3 years of their release. Bureau of Justice Statistics, U.S. Dep't of Justice, Recidivism of Prisoners Released in 1983, at 6 (1989) [hereinafter DOJ Recidivism Report] (table 9). Dr. Nelson testified that if the historical evidence of recidivism is low among a particular population (the "base rate"), and if one assumes that not all predictions are accurate ("accuracy" less than 100%), then the number of inaccurate predictions of future violent conduct for those who fit the characteristics of the population ("false positives") will be high when compared to all predictions of future violent conduct ("false positives" plus "true positives"). Dr. Nelson explained that if one predicts from a base rate of 8%, and if prediction accuracy is 75% -- a number he considered the mean for expert attempts at predicting violence -- then 79% of all predictions of future violence will be wrong.

[3] "Axis I" disorders generally include mental illnesses and sexual disorders, while "Axis II" lists personality disorders. Both personality disorders and sexual disorders are subsets of "mental disorders." See DSM-IV at xxi-xxii.

[4] APD also requires a "conduct disorder" before age 15. DSM-IV at 646. Otherwise, DSM-IV does not set time parameters for the behavior used in diagnosing APD. Present exhibition of behavior satisfying the APD criteria is apparently not necessary for the diagnosis to persist: Dr. Hulsing testified that if a person has APD, that person's thinking and personality condition endures, even if the person's behavior changes.

[5] The court found that Linehan masturbated in privacy after physical play with his stepdaughter during visits at Residence 4 on December 31, 1994 and January 1, 1995.

[6] The court also cited the masturbation incidents to conclude that Linehan appeared to suffer from "a degree of impulsivity and lack of control in connection with sexual impulses." On appeal to this court, Linehan inaccurately asserts that there was no evidence to support and the district court made no findings regarding "volitional impairment at this time."

[7] The civil commitment statute also allows commitment for the treatment and care of persons who are chemically dependent and dangerous to themselves or others, Minn. Stat. § 253B.02, subd. 2; mentally retarded and dangerous to themselves or others, id. § 253B.02, subd. 14; mentally ill or mentally ill and dangerous to the public, id. § 253B.02, subds. 13, 17; and sexual psychopathic personalities, id. § 253B.02, subd. 18a. In addition, the Commissioner of Health is authorized to confine persons who constitute a health threat to others. Minn. Stat. §§ 144.12, subd. 1(7), 144.4171, subd. 1, 144.4172, subd. 8 (1994 & Supp. 1995).

[8] "Sexual psychopathic personality" is equivalent to "psychopathic personality" under the 1994 amendments to the Civil Commitment Act. See Minn. Stat. § 253B.02, subd. 18a; Act of August 31, 1994, ch. 1, art. 1, sec. 5(a), 1995 Minn. Laws at 8.

[9] We doubt that the legislature would preserve the current bases for commitment if forced to create new and parallel criminal defenses. See, e.g., Minn. Stat. § 253B.02, subd. 2 (allowing commitment for persons chemically dependent and dangerous to themselves or others); id. § 253B.02, subd. 14 (allowing commitment for persons mentally retarded and dangerous to themselves or others). A theory of due process that threatens such civil commitments seems unsound. See Blodgett, 510 N.W.2d at 914 n.6 (interpreting Foucha in a limited fashion to avoid unintended threats to accepted bases for civil commitment).

[10] Other opinions indicate that idiosyncratic or "unusual" behavior is not a constitutionally sufficient basis for restricting liberty. See Addington, 441 U.S. at 426-27, 433 (emphasizing the risks of confinement for "isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior."); see also Post, 197 Wis. 2d at 303, 541 N.W.2d at 122 (upholding Wisconsin's sexual predator commitment statute, but acknowledging that substantive due process requires a "mental condition component"); In re Care & Treatment of Hendricks, 259 Kan. 246, 277, 279-81, 912 P.2d 129, 147, 148-49 (1996) (Larson, J., dissenting) (arguing for the constitutionality of Kansas's statute, but stating that "for constitutional purposes, 'mental illness' is * * * a legal determination to be made with reference to some standard that establishes that the person suffers a condition that is an ailment of the mind, rather than mere 'idiosyncratic behavior' within a range of conduct that is generally acceptable.").

[11] The district court did not conclude that Linehan has a "dysfunction" under the SDP Act. That language is not at issue here.

We draw support for our conclusion from other courts that have upheld commitments of dangerous persons who suffer from medically recognized mental disorders. Before Young v. Weston, the Washington Supreme Court upheld its sexual predator statute against a substantive due process challenge. In re Personal Restraint of Young, 122 Wash. 2d 1, 59-60, 857 P.2d 989, 1018 (1993). The majority conceded that Foucha bars civil commitment on the basis of antisocial behavior. However, the Washington statute applied to violent sexual predators with antisocial personality disorder, a "recognized mental disorder" under DSM-III-R. Id., 122 Wash. 2d at 37 n.12, 857 P.2d at 1006-07 n.12; see also id., 122 Wash. 2d at 63-64, 857 P.2d at 1020-21 (Johnson, J., dissenting).

The Wisconsin Supreme Court upheld a similar sexual predator statute as applied to a prisoner convicted of violent sexual offenses and diagnosed with APD under DSM-IV criteria. The Wisconsin statute required a violent offense, a mental disorder and a substantial probability that the offender will commit future acts of sexual violence because of the disorder. Wis. Stat. Ann. §§ 980.01-.02 (West Supp. 1995); see also id. § 980.01(2) (defining mental disorder as "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence"). The court acknowledged that substantive due process requires a "mental condition component" in civil commitment statutes applied to dangerous offenders, but held that this requirement was satisfied by a definition of mental disorder that targeted those predisposed to commit sexually violent acts. Post, 197 Wis. 2d at 303, 306, 541 N.W.2d at 122, 123-24.

Amicus curiae Minnesota Civil Liberties Union (MCLU) points out that the Kansas Supreme Court recently held that the application of that state's sexual predator statute to a person with a "mental abnormality" violated substantive due process. The court interpreted Foucha to require some form of "mental illness" before commitment for dangerousness is permissible. Hendricks, 259 Kan. at 255, 260-61, 912 P.2d at 135, 137-38. Because Hendricks was not mentally ill under the legislature's own definition, the court held that Hendricks's confinement violated substantive due process. See id., 259 Kan. at 261, 912 P.2d at 138. Hendricks is not persuasive in light of our precedent. Like Hendricks, Blodgett noted that mental illness combined with dangerousness is an alternative basis for civil commitment under state law. Blodgett, 510 N.W.2d at 914. Still, Blodgett upheld the PP Act commitment. Id. at 914-16. A legislative definition of mental illness in one part of the civil commitment statute does not preclude other mental health bases for commitment. The MCLU's reasoning is unavailing after Blodgett.

[12] MCLU also asserts that the Act might be overinclusive because many sex offenders with personality disorders are not dangerous. This argument is unconvincing because the SDP Act confines its application to those who are highly likely to sexually harm others. Minn. Stat. § 253B.02, subd. 18a(a)(3).

[13] The United States Supreme Court has not established a scrutiny level under the federal constitution in this context. See Foucha, 504 U.S. at 85-86 (plurality opinion) (demanding a "particularly convincing reason" for imposing a burden of proof on sane insanity acquittees seeking release that is not demanded of the merely dangerous); id. at 88 (O'Connor, J., concurring) (concluding that equal protection analysis was unnecessary); Jones, 463 U.S. at 365 n.13. Blodgett held that the standard of scrutiny under the state constitution is at least as searching as the standard under the federal constitution. See Blodgett, 510 N.W.2d at 917. Therefore, we follow Blodgett and apply heightened scrutiny under both the state and federal constitutions.

[14] According to testimony at the hearing, clinical predictions are based on the clinician's observations, experience, and knowledge about the subject of predictions or about individuals in particular classes, such as rapists or child molesters. Actuarial predictions are based on statistics that can be determined mathematically (e.g., age and the number of previous offenses), and on a formula for evaluating the significance of such variables.

[15]During oral argument, Justice Anderson stated: We're all familiar with the Soviet Union gulag and Nazi Germany. * * * Let's say people had antisocial conduct, dysfunctional in that particular society, and the state wanted to put them away for indeterminate confinement. * * * What are the safeguards here that would prevent that from happening in our society under a statute such as this?

In response, assistant attorney general John Kirwin said: You, your honor. I think it is the function of the courts to draw those lines. * * * Asking, 'At what level does the harm become so great that it's constitutional to have a civil commitment statute like this?' * * * By its nature that standard is going to require the court to make some difficult decisions sometimes.

[16]As a further limitation on the permissible reach of the statute, this court said "[i]t would not be reasonable to apply the provisions of the statute to every person guilty of sexual misconduct nor even to persons having strong sexual propensities." Pearson, 205 Minn. at 555, 287 N.W. at 302.

[17]Neither the appellant nor the state argued that a commitment under the PP Act would have fit under either of Foucha's other two categories.

[18]The trial court found that the appellant met the criteria for psychopathic personality under the standard imposed by Pearson. On appeal to this court, the appellant did not challenge the finding that he had "an uncontrollable sexual impulse dangerous to others." Blodgett, 510 N.W.2d at 912.

[19]Like Linehan, Blodgett suffered from an antisocial personality disorder.

[20]The majority concedes this point by stating that "[i]t may be true, in a certain philosophical sense, that Blodgett was less blameworthy than is Linehan because Blodgett could not control his sexual impulses."

[21]If it was clear that Foucha stood for the proposition that a mental disorder alone was a sufficient mental-illness justification for civil commitment, then there is no reason why the U.S. Supreme Court would have granted certiorari in Matter of Care and Treatment of Hendricks, 912 P.2d 129 (Kan. 1996) (striking down Kansas statute nearly identical to SDP Act), cert. granted, __ U.S. __, 116 S. Ct. 2522 (1996).

[22]Such a compelling government interest can, depending on a state's definition of an insanity acquittee, reach a person found to be not guilty by reason of insanity. See State v. Randall, 532 N.W.2d 94, 106-07 (Wis. 1995) (holding that because Wisconsin considers an insanity acquittee to be "guilty beyond a reasonable doubt," it can confine a presently sane insanity acquittee on dangerousness alone).

[23]The majority correctly rejected Linehan's argument that criminal conviction and civil commitment are mutually exclusive. As this court stated in Pearson, "an uncontrollable and insane impulse to commit crime, in the mind of one who is conscious of the nature and quality of the act, is not allowed to relieve a person of criminal liability." Pearson, 205 Minn. at 556, 287 N.W. at 303. However, this does not mean that the tests for a commitment's validity under substantive due process are the same. In fact, they are very different.

[24]In addition to Linehan, we concluded that the state could not commit Peter Rickmyer under the PP Act.

[25]The Kansas Supreme Court in holding a similar statute unconstitutional noted that: It is clear that the overriding concern of the legislature is to continue the segregation of sexually violent offenders from the public. Treatment with the goal of reintegrating them into society is incidental, at best. Matter of Care and Treatment of Hendricks, 912 P.2d 129, 136 (Kan. 1996), cert. granted, __ U.S. __, 116 S. Ct. 2522 (1996).

[26]The Supreme Court did not grant certiorari. In re Blodgett, 510 N.W.2d 910 (Minn. 1994), cert. denied, __ U.S. __, 115 S. Ct. 146 (1994).

[27]In fact, the court of appeals noted that "[p]ersons whose mental afflictions leave them with a measure of self-control present an especially insidious risk, for they retain the ability to plan, wait, and delay the indulgence of their maladies until presented with a higher probability of success." Matter of Linehan, 544 N.W.2d 308, 318 (Minn. App. 1996) (Linehan II).

[28]In re Young, 857 P.2d 989 (Wash. 1993).

[29]While it is true that the Wisconsin Supreme Court recently upheld a civil commitment statute similar to our SDP Act, it did so by relying entirely upon Justice O'Connor's concurrence in Foucha. State v. Post, 541 N.W.2d 115, 127 (Wis. 1995). Unlike the Foucha plurality, which required a state to find a committee both mentally ill and dangerous, Justice O'Connor required only that there be some medical justification for commitment. Foucha, 504 U.S. at 88 (O'Connor, J., concurring). Consequently, the Wisconsin Supreme Court, much like majority in the case at bar, found that APD is a sufficient medical basis for commitment. Post, 541 N.W.2d at 127-28. Such a conclusion is not valid under federal constitutional jurisprudence however. Not only does Justice O'Connor's concurrence lack the weight of law, it lacks any real guidance given the facts in both Post and Linehan II. The committee in Foucha had been found not guilty by reason of insanity. As Justice O'Connor put it, Foucha had "escape[d] punishment" by pleading insanity. Id. at 87 (O'Connor, J., concurring). Consequently, Justice O'Connor noted that "[a]lthough insanity acquittees may not be incarcerated as criminals or penalized for asserting the insanity defense, this finding of criminal conduct sets them apart from ordinary citizens." Id. (O'Connor, J., concurring). Linehan, like the committee in Post, did not escape criminal punishment for his prior bad acts. He was convicted and served his sentence. Accordingly, he is now outside the realm of the criminal justice system. To use Justice O'Connor's words, Dennis Linehan is now an "ordinary citizen," one whom the state can civilly commit only upon a finding of both dangerousness and mental illness.

[30] A sentence of life in prison without the possibility of release may well have been appropriate based on the criminal conduct for which Linehan was convicted. Indeed, it may have been better than he deserved. In any event, such a sentence would have certainly met constitutional muster. Unfortunately, for whatever reason, at the time Linehan_s crime was committed, the legislature did not see fit to provide for such a sentence.

ON MAY 27, 1999 JUSTICES OF THE MINNESOTA SUPREME COURT STATED:

D I S S E N T

PAGE, Justice (dissenting).

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates his duty he establishes a precedent that will reach to himself.

Thomas Paine, Dissertation on First Principles of Government, in The Complete Writings of Thomas Paine 588 (Philip S. Foner ed., The Citadel Press 1945) (1795).

The fundamental issue before the court is whether the Sexually Dangerous Person Act (SDP Act), Minn. Stat. § 253B.02, subd. 18c (1998), violates substantive due process by allowing the state to use civil commitment to indefinitely confine sexual predators who do not have a volitional impairment rendering them dangerous beyond their control. As I read the court's opinion, the court concludes that the only constitutional limit on the state's ability to confine such individuals indefinitely is a showing of the individual's future dangerousness. The court is wrong. The Constitution requires more. In upholding the SDP Act, the court is acting as nothing more than an arm of the legislature in violation of our duty “to provide safeguards against the state's improper use of civil commitment as a constitutionally invalid form of preventive detention.” In re Linehan, 557 N.W.2d 171, 192 (Minn. 1996) (Tomljanovich, J., dissenting) (footnote omitted) (hereinafter Linehan III).

In In re Linehan, 518 N.W.2d 609 (Minn. 1994) (hereinafter Linehan I), we vacated Linehan's commitment under the Psychopathic Personality Commitment Act (PP Act) because the state, while establishing Linehan's dangerousness, failed to establish by clear and convincing evidence, as required by our decision in State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939), aff'd, 309 U.S. 270, 273 (1940), that Linehan exhibited an utter lack of power to control his sexual impulses. See Linehan I, 518 N.W.2d at 614. In effect, we concluded that the state failed to prove that Linehan had a volitional impairment rendering him dangerous beyond his control. On the heels of and in direct response to Linehan I, the Minnesota Legislature passed the SDP Act under which the state immediately sought and quickly obtained Linehan's commitment. [9] The PP Act and the SDP Act are for all practical purposes the same except for one very important difference. The difference is that the PP Act requires an individual to have an “utter lack of ability to control” his or her sexual behavior before he or she may be committed whereas the SDP Act is explicit that the inability to control one's sexual behavior is not a factor to be considered. Compare Pearson, 205 Minn. at 545, 287 N.W.2d at 302, with Minn. Stat. § 253B.02, subd. 18c(b) (providing that “it is not necessary to prove that the person has an inability to control the person's sexual impulses”). In order to circumvent the PP Act's “utter lack of ability to control” requirement, which we deemed necessary to make the PP Act constitutional in Pearson, the legislature simply dispatched with that requirement. While the PP Act seeks to protect the public from sexually dangerous people who are unable to control their sexual behavior, the SDP Act is designed to permit the indefinite commitment of not only those individuals covered by the PP Act but all other sexually dangerous people. No sexually dangerous person is excluded from its reach.

In reviewing Linehan's commitment under the SDP Act, this court in Linehan III first concluded that there is no principled and constitutionally significant distinction between Linehan's commitment under the SDP Act and the commitments of other sexual predators upheld under the PP Act. See Linehan III, 557 N.W.2d at 179. The court went on to conclude, consistent with the SDP Act's express language, although somewhat inconsistent with the above conclusion and our holding in Pearson, that the “utter lack of ability to control” requirement of the PP Act was not necessary to narrowly tailor the SDP Act to meet substantive due process requirements. See Linehan III, 557 N.W.2d at 182. Linehan appealed that decision to the United States Supreme Court. The Court granted his writ of certiorari and then remanded for reconsideration in light of its recent decision in Kansas v. Hendricks, 521 U.S. 346 (1997).

In Hendricks, a pedophile with an admitted inability to control his dangerous sexual behavior challenged his commitment under a Kansas law, which the court says is similar to the SDP Act, [10] on substantive due process grounds. [11] See Hendricks, 521 U.S. at 350. In upholding the Kansas law, the Supreme Court noted that it had “sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a `mental illness' or `mental abnormality.'” Id. at 358 (listing cases in which the Court upheld state civil commitment statutes). The Court further noted that the Kansas law was “consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.” Id. In essence, the Court concluded that the individual's mental illness or mental abnormality has to render them unable to control their dangerousness before they may be civilly committed. In doing so, the Court treated “mental illness” and “mental abnormality” as synonymous with inability to control. At the same time, the Court implicitly reaffirmed its holding from Foucha v. Louisiana, 504 U.S. 71, 76 (1992), that “[an individual] is entitled to release when he has recovered his sanity or is no longer dangerous * * * [and] may be held as long as he is both mentally ill and dangerous, but no longer.” Hendricks, 521 U.S. at 356-57 (citing Foucha, 504 U.S. at 80). Thus, as I read Hendricks and Foucha, before a sexual predator may be civilly committed the state must establish two things: (1) the individual's dangerousness, and (2) the individual's inability to control his or her dangerous sexual behavior. [12] Failure to establish either means that the state may not use civil commitment to confine the individual.

In a brazen effort to save the SDP Act at any cost, the court, in both Linehan III and today's decision, ignores the teachings of the Supreme Court. Linehan III fails for the reasons stated in the dissents to that decision. See Linehan III, 557 N.W.2d at 191-201 (Tomljanovich, J., dissenting); id. at 201-02 (Page, J., dissenting). Today's decision fails because the court continues to contend that the state need only establish a sexual predator's dangerousness in order to commit them under the SDP Act. [13] Although the court's opinion says that the SDP Act requires the state to establish that the individual has a “lack of adequate control” [14] over his sexual behavior in addition to dangerousness, in reality this requirement is an illusion that amounts to nothing more than a euphemism for dangerousness. [15] Any and every individual who commits a sexual assault “lacks adequate control” over their sexual behavior. Moreover, in creating this standard, the court abandons its rationale for upholding the constitutionality of the SDP Act in Linehan III and willfully disregards the clear and unambiguous language of the SDP Act.

This new “lack of adequate control” standard is illusory in that the court provides no definition of what “lack of adequate control” means. As a result, the court's “lack of adequate control” standard provides no guidance as to which individuals with a mental illness or mental abnormality do not have enough control over their sexual behavior to make them dangerous beyond their control. The court provides no definition because “lack of adequate control” is not capable of definition. [16] Because this standard lacks definition, there is no limit on the state's ability to civilly commit all sex offenders, [17] and therefore, substantive due process protections are rendered meaningless.

More important, even if the “lack of adequate control” standard were capable of definition, it cannot meet constitutional muster because it completely eliminates the boundary between civil commitment and criminal liability. With respect to those who engage in sexual misconduct, the objectives of civil commitment are to prospectively protect the health and safety of the community and to provide treatment for the committee. See Hendricks, 521 U.S. at 357 (“Accordingly, States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety.”); Linehan III, 557 N.W.2d at 181 (stating that “the state has a compelling interest in protecting the public from sexual assault * * * [and] a compelling interest in the care and treatment of the mentally disordered”). See also Carol S. Steiker, Forward: The Limits of the Preventive State, 88 J. Crim. L. & Criminology 771, 785 (1998) (arguing that the state must “reserve indefinite civil commitment to those who are truly incapable of choosing to understand or to comply with the law”). The objectives of criminal liability are to punish offenders for their past wrongdoing and to deter those offenders and others from engaging in future misconduct. See Foucha, 504 U.S. at 80 (“A State, pursuant to its police power, may of course imprison convicted criminals for the purposes of deterrence and retribution.”); see also Steiker, supra, at 785. We allow preventive detention by way of civil commitment to confine individuals who cannot control their behavior in order to protect the public and to treat individuals for the malady causing their inability to control their behavior. If an individual regains the ability to control their behavior, then Foucha mandates the individual's release from detention, even if the individual continues to be dangerous. 504 U.S. at 76 (stating that “[an individual] may be held as long as he is both mentally ill and dangerous, but no longer”) (emphasis added). We do not allow preventive detention in the criminal setting because the state may not punish an individual for some potential future misconduct. See id. at 83 (permitting the state to indefinitely confine all dangerous persons “would also be only a step away from substituting confinements for dangerousness for our present system, which, with only narrow exceptions * * *, incarcerates only those who are proved beyond a reasonable doubt to have violated a criminal law”). Thus, in order to preserve the distinction between civil commitment and criminal liability, something more than a finding of dangerousness is required. What is required is a finding that the individual suffers from a mental illness or mental abnormality that causes a volitional impairment rendering them

dangerous beyond their control. [18] This requirement is consistent with the Supreme Court's statement that individuals such as Linehan, whose volitional impairment renders them only dangerous and not dangerous beyond their control are “more properly dealt with exclusively through criminal proceedings.” Hendricks, 521 U.S. at 360 (emphasis added). Therefore, Linehan, who the court concedes retains “enough control to `plan, wait, and delay the indulgence of [his malady] until presented with a higher probability of success,'” Linehan III, 557 N.W.2d at 182 (quoting In re Linehan, 544 N.W.2d 308, 318 (Minn. App. 1996)), is more properly dealt with exclusively through criminal proceedings.

Substantive due process requires that Linehan's civil commitment be based on a finding of a volitional impairment rendering him dangerous beyond his control. Absent such a finding, the Constitution, as explained in Hendricks and Foucha, precludes the state from civilly committing Linehan. Interestingly, at no place in its lengthy opinion does the court either say or suggest that Linehan suffers from a volitional impairment that renders him dangerous beyond his control. There is a simple reason for the omission: on the record before the court no such finding can be made.

Moreover, to withstand constitutional attack, the SDP Act must be narrowly tailored to meet the objectives of civil commitment. See Linehan III, 557 N.W.2d at 181 (citations omitted). Without a requirement that an individual be dangerous beyond their control, a civil commitment statute cannot be narrowly tailored because every individual who is dangerous, whether or not they are dangerous beyond their control, becomes subject to preventive detention. Yet, implicit in the court's discussion of the SDP Act is the unsupported assumption that every individual who suffers from a mental illness or mental abnormality that causes a volitional impairment rendering them dangerous is dangerous beyond their control. Thus, under the court's interpretation of the SDP Act, no one who is dangerous is “more properly dealt with exclusively through criminal proceedings,” and therefore, the state may civilly commit any and every sexual offender. This result cannot stand.

Even if we assume, for purposes of argument, that the court's “lack of adequate control” standard is constitutional, the state still cannot continue to confine Linehan without a finding that he currently has a “lack of adequate control” over his sexual behavior. See Foucha, 504 U.S. at 78 (stating that “keeping [a committed acquittee] against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness”) (emphasis added). No such factual finding has ever been made, unless we accept the facts found by this court to be sufficient. However, the last time I checked, this court's role on appeal is not that of a fact finder. See Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 779 (Minn. 1989) (holding that an appellate court “exceeds its proper scope of review” when it substitutes its own findings for those of the trial judge). Even if we accept the facts found by this court, there is nothing before the court which suggests that Linehan currently meets the court's undefined “lack of adequate control” standard because the court relies on a record that was created sometime before December of 1996. [19] At a minimum, Linehan is entitled to a hearing on whether he currently fits within this newly-created standard.

The court's transparent attempt to hold the SDP Act constitutional at all costs is made more obvious by the fact that the court, in violation of the most basic rules of statutory construction, ignores the plain language of the SDP Act. The court clearly misreads the SDP Act when, quoting Hendricks, it says that the Minnesota Act requires “a finding of future dangerousness, and then links that finding to the existence of a `mental abnormality' or `personality disorder' that makes it difficult, if not impossible, for the person to control his dangerous behavior'” when in fact the SDP Act explicitly states that “it is not necessary to prove that the person has an inability to control [their] sexual impulses.” See Hendricks, 521 U.S. at 358; Minn. Stat. § 253B.02, subd. 18c(b). The SDP Act's language is free from ambiguity and cannot be read to include an inability to control requirement.

In Linehan III, we gave effect to the language of subdivision 18c(b) by concluding that inability to control was not required to civilly commit an individual. See Linehan III, 557 N.W.2d at 183. While I believe the court's constitutional analysis was flawed in Linehan III, at least its holding was consistent with the unambiguous language of the SDP Act. Now, in response to Hendricks, the court has done an about face and created the illusory “lack of adequate control” standard in an effort to force the SDP Act to fit within the strictures of Hendricks. The problem with this new standard, which the court pretends does not exist, is that the language of the SDP Act specifically and unequivocally states that an individual's inability to control their sexual behavior need not be proven. Yet, according to the court, the state must prove that the individual “lacks adequate control” — whatever that means.

In reviewing the constitutionality of a statute, “we must, when confronted with a statute which is susceptible of different interpretations, accept that one which is in conformity with the purpose of the act and in harmony with the provisions of the constitution.” Pearson, 205 Minn. at 555, 287 N.W. at 302 (citations omitted). When the statute in question is free of ambiguity, we must give effect to the statutory language. See Tuma v. Comm'r of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986); see also Minn. Stat. § 645.16 (1998). When doubts arise as to a statute's constitutionality, “[those] doubts must be resolved in favor of the law.” Pearson, 205 Minn. at 555, 287 N.W. at 302 (citations omitted). In construing a statute, we may not substitute amendment for construction. See State v. Moseng, 254 Minn. 263, 269, 95 N.W.2d 6, 11-12 (1959). We may not read into the statute that which the legislature, for whatever reason, left out and conversely, we may not read out of the statute that which the legislature has explicitly included. We followed the above principles in upholding the PP Act in Pearson. There, the statute in question was ambiguous but capable of being read in a way that upheld its constitutionality, which is what we did. See Pearson, 205 Minn. at 554-55, 287 N.W. at 302. We stated that:

[c]onceding that [the PP Act] is imperfectly drawn, the statute is nevertheless valid if it contains a competent and official expression of the legislative will. * * *

* * * *
Applying these principles to the case before us, it can reasonably be said that the language of * * * the act is intended to include those persons who, by a habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses.

Id. While ultimately reaching what I believe to be the wrong result, the court also followed these principles in Linehan III when it held that inability to control was not a factor to be considered.

On remand from the Supreme Court, the court now fails to follow these principles. The language of subdivision 18c(b) of the SDP Act is clear and unambiguous and expressly precludes consideration of the individual's inability to control their sexual behavior. See Minn. Stat. § 253B.02, subd. 18c(b); see also Pearson, 205 Minn. at 555-56, 287 N.W. at 302-03 (explaining that the court could not endorse “an unwarranted departure from the accepted meaning of the words defined”). The court may not read language out of the statute in order to join the legislature's crusade to ensure Linehan's preventive detention. [20] When the court so blatantly disregards the legislature's intent as expressed in the statute's unambiguous language, it not only wears on the constitutional fabric of our law, it also tarnishes the credibility of this tribunal. The court's ongoing effort to keep Linehan confined through increasingly tortured interpretations of the Constitution and the SDP Act is shameless. As Thomas Paine said, “An avidity to punish is always dangerous to liberty.” Paine, supra, at 588. I would add that it is also dangerous to the moral credibility of our criminal justice system. See In re Blodgett, 510 N.W.2d 910, 918 (Minn. 1994).

As painful and as unpleasant as it may be, the SDP Act is unconstitutional and cannot be saved by construction. The language of the statute eliminates any requirement that the state prove that the person to be committed “has an inability to control [their] sexual impulses” and is applicable to all individuals irrespective of their ability to control their dangerous sexual behavior. See Pearson, 205 Minn. at 555, 287 N.W. at 302 (stating that “[i]t would not be reasonable to apply the provisions of the statute to every person guilty of sexual misconduct nor even to persons having strong sexual propensities. Such a definition would * * * make the act impracticable of enforcement”). Thus, the SDP Act can be distinguished from those statutes that “limit involuntary civil [commitment] to those who suffer from a volitional impairment rendering them dangerous beyond their control,” and which the Supreme Court has said pass constitutional muster. [21] Hendricks, 521 U.S. at 358.

In the final analysis, the court's decision to uphold the SDP Act symbolizes a process that is more concerned with short-term results than the long-term impact of a law that requires, based solely on a showing of future dangerousness, preventive detention of an individual who has served the sentence imposed by law for his past crimes. By its decision, the court has neither sought nor achieved justice. We are a nation of laws. If we base our constitutional jurisprudence on our desire to confine a particular individual, we have not only failed to protect that individual's rights, we have failed to protect the rights of all Minnesotans.

Therefore, I dissent.

CONCURRENCE AND DISSENT

LANCASTER, Justice (concurring in part and dissenting in part).

I concur in Part I of the majority opinion, holding that the SDP Act does not violate the Ex Post Facto or Double Jeopardy Clauses of the United States Constitution, and I agree with the majority's characterization of the United States Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346, 358 (1997) (holding that the Kansas Sexually Violent Predator Act does not violate substantive due process, as the law allows civil commitment only for people “who suffer from a volitional impairment rendering them dangerous beyond their control”). However, I cannot accept the majority's interpretation of Minn. Stat. § 253B.02, subd. 18c(b) (1998), and therefore I respectfully dissent.

Minnesota's Sexually Dangerous Person Act, as the majority correctly states, closely resembles the Kansas act at issue in Hendricks. Compare Minn. Stat. § 253B.02, subd. 18c(a) (1998), with Kan. Stat. Ann. § 59-29a02 (1994 & Supp. 1998). However, unlike the Kansas statute interpreted in Hendricks, the Minnesota SDP Act contains an additional provision that provides: “it is not necessary to prove that the person has an inability to control the person's sexual impulses.” Minn. Stat. § 253B.02, subd. 18c(b).

The majority interprets subdivision 18c(b) under what it terms “well-settled canons of statutory construction” to reach the conclusion that subdivision 18c(b) should be read “very narrowly” to “mean only that the state does not need to prove that a person meets Pearson's utter inability standard, thus differentiating the SDP Act from the PP Act or its successor statute, the SPP Act.” I cannot subscribe to the methods of construction employed or the reasons presented by the majority to justify its decision. What the majority has accomplished is not an interpretation of subdivision 18c(b) but rather an amendment to the statute's plain meaning.

Our duty when reviewing acts of the legislature “is to ascertain and effectuate legislative intent. We presume that plain and unambiguous statutory language manifests legislative intent. If statutory language is plain and unambiguous, the court must give it its plain meaning.” In re Welfare of J.M., 574 N.W.2d 717, 721 (Minn. 1998) (citations omitted). We have stated that if the legislature's intent is “clearly manifested by [the] plain and unambiguous language” of the statute, statutory construction is neither necessary nor permitted. Ed Herman & Sons v. Russell, 535 N.W.2d 803, 806 (Minn. 1995). In Commissioner of Revenue v. Richardson, we said: “No room for judicial construction exists when the statute speaks for itself.” 302 N.W.2d 23, 26 (Minn. 1981).

Here we are confronted with a straightforward provision enacted by a legislature fully aware of our decisions and the controversy surrounding this law. The legislature wrote: “it is not necessary to prove that the person has an inability to control the person's sexual impulses.” Minn. Stat. § 253B.02, subd. 18c(b). This language, on its face, can only be interpreted as having one meaning. The majority, through the use of statutory history and under the proviso of giving effect to all provisions of the SDP Act, abandons the plain meaning of the words enacted by the legislature and substitutes its own version, which in effect is an amendment – not an interpretation – of the SDP Act. Such amendments are impermissible and invade the province of the legislature. See State v. Moseng, 254 Minn. 263, 269, 95 N.W.2d 6, 11-12 (1959) (stating that statutes may not be construed so as to substitute amendment for statutory construction).

Perhaps the most persuasive argument demonstrating why the majority should refrain from doing (or redoing) the work of the legislature can be found in our statutes. The legislature in section 645.16 has promulgated rules to be used in the interpretation of statutes. “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn. Stat. § 645.16 (1998) (emphasis added). The legislature's own words preclude us from going beyond the plain language contained in the SDP Act to effectuate what may or may not have been the legislative purpose. In doing so, the majority has ignored well-settled canons of construction in favor of interjecting meaning into the SDP Act, specifically subdivision 18c(b), when the language of the statute is clear and unambiguous.

More than 50 years ago, Justice Peterson, dissenting from an opinion interpreting the Workmen's Compensation Act, wrote:

Where, as here, the words of the act are plain and the legislative purpose manifest, it is not permissible to seek a hidden meaning at variance with the language used and to engraft such meaning on the statute. Such construction leads to amendment of the statute rather than ascertainment of the legislative intent.

Gleason v. Geary, 214 Minn. 499, 516, 8 N.W.2d 808, 816 (1943) (Peterson, J., dissenting).

Because subdivision 18c(b) does not require the state to demonstrate that Linehan has an “inability to control [his] sexual impulses,” I would hold that the statute violates Linehan's substantive due process rights and declare it unconstitutional in light of the Supreme Court's decision in Hendricks.

ANDERSON, Paul H., J. (concurring in part and dissenting in part).

I join in the concurrence and dissent of Justice Lancaster.



Footnotes


[1] Harmful sexual conduct is defined as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” Minn. Stat. § 253B.02, subd. 7a(a) (1998).

[2] The Supreme Court did not discuss procedural due process in Hendricks. Accordingly we do not address appellant's procedural due process argument.

[3] The dissent contends that we read language into Hendricks to soften the volitional control requirement. However, it is the dissent that unreasonably narrows the Hendricks holding by inserting the word “totally” in front of the word “control” whenever it refers to the Supreme Court's analysis of a person's ability to control his or her sexual impulses. In doing so, the dissent overstates the Hendricks holding. Hendricks states that a person may be civilly committed if he suffers from a mental abnormality or personality disorder “that makes it difficult, if not impossible, for the person to control his dangerous behavior.” Hendricks, 521 U.S. at 358. Clearly this language does not require an utter lack of control over harmful behavior, but rather a lack of adequate control over harmful behavior.

[4] The dissent states that the SDP Act standing alone and as construed by the court is unconstitutional because it allows people to be civilly committed upon only a showing of future dangerousness. However, the dissent misconstrues both the SDP Act and our reasoning. In order to justify civil commitment, the SDP Act requires the state to prove that a person:
(1) has engaged in a course of harmful sexual conduct; (2) suffers from a current disorder or dysfunction; and (3) this current disorder or dysfunction does not allow the person to adequately control his or her behavior such that the person is highly likely to commit harmful sexual acts in the future.

[5] The district court's orders both incorporated their memoranda by reference. While the orders were sparse, the memoranda carefully detailed the court's reasoning.

[6] The district court also relied on appellant's willingness to lie about sexual matters when determining that he suffers from antisocial personality disorder. One of the diagnostic criteria for antisocial personality disorder is deceitfulness, as indicated by repeated lying. Initial Commitment Hearing at 10.

[7] The court also noted that appellant refused to participate in sex offender treatment during his initial commitment. 60-Day Hearing at 3.

[8] The district court also relied on appellant's aggressive behavior in determining that appellant suffers from antisocial personality disorder. Initial Commitment Hearing at 11.

[9] The Minnesota Legislature convened a special session specifically to prevent Linehan's release. “The reason we're here, one of the reasons we're here obviously is because Mr. Linehan is on the streets.” Hearing Before the Joint Meeting of H. and S. Jud. Comm. and S. Crime Prev. Comm., 78th Minn. Leg., Spec. Sess., Aug. 24, 1994 (audio tape) (statement of Senator Ember Reichgott Junge, Chair of S. Jud. Comm.).

[10] In fact, the Kansas law is more similar to our PP Act as interpreted by this court in Pearson. The SDP Act expressly provides that the individual's inability to control their sexual behavior is not a factor to be considered in making the commitment determination while the PP Act and the Kansas law have no such provision. Compare Minn. Stat. § 253B.02, subd. 18c(b), with Minn. Stat. §§ 526.09-.10 (1992), and Kan. Stat. Ann. § 59-29a02(a) (1994 & Supp. 1998).

[11] Hendricks also challenged his commitment on ex post facto and double jeopardy grounds. See Hendricks, 521 U.S. at 350.

[12] It is not enough for the state to prove that an individual has a mental illness or mental abnormality and is dangerous; the state must show that the individual's mental illness or abnormality causes the individual to be “unable to control their dangerousness.” See Hendricks, 521 U.S. at 358.

[13] The court states that the mental illness prong of the SDP Act limits the reach of indefinite preventive detention. However, the court fails to address the fact that the Supreme Court stated that the mental illness or mental abnormality must cause the individual's inability to control their harmful sexual conduct. See Hendricks, 521 U.S. at 358 (stating that “[w]e have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor such as `mental illness' or `mental abnormality'”). Minnesota Statutes section 253B.02, subd. 18c(b) eliminates a finding of inability to control, leaving only mental illness and dangerousness. The court's interpretation of the SDP Act allows the state to lock up anyone whose mental abnormality makes them dangerous, whether or not they are dangerous beyond their control. Thus, the court impermissibly expands “the class of persons eligible for confinement” by allowing preventive detention of individuals with a mental illness or mental abnormality who are not dangerous beyond their control.

[14] The court also uses the phrases “some lack of volitional control,” “some degree of volitional impairment,” “a degree of volitional impairment,” and “a lack of adequate control.” I will use the phrase “lack of adequate control” to refer to the court's inability to control requirement.In creating the “lack of adequate control” standard, the court relies on the Supreme Court's fleeting statement in Hendricks that the Kansas Act “requires a finding of future dangerousness, and then links that finding to the existence of a `mental abnormality' or `personality disorder' that makes it difficult, if not impossible, for the person to control his dangerous behavior.” Hendricks, 521 U.S. at 358 (emphasis added). What the court cites but ignores, however, is the fact that the Supreme Court went on to explain this language by stating that the Kansas Act “is consistent with the requirements of [the other civil commitment] statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.” Id. (emphasis added). Indeed, throughout its opinion in Hendricks, the Supreme Court refers to those who are “unable to control,” “who have a lack of volitional control,” or who “suffer from a volitional impairment rendering them dangerous beyond their control.” Thus, even though the Supreme Court used the phrase “difficult, if not impossible,” it clearly meant that the state must make a showing that the individual being committed is “unable to control [his or her] dangerousness.” This interpretation is also supported by the facts in Hendricks. During a jury trial, “Hendricks admitted that he had repeatedly abused children whenever he was not confined[,] * * * [that] he `can't control the urge' to molest children[, and] that the only sure way he could keep from sexually abusing children in the future was `to die.'” Id. at 355. Thus, the Supreme Court analyzed the inability to control issue in the context of an individual with an utter lack of control over his sexual behavior. Our case presents a far more difficult set of facts that forces us to draw some outer limit on the state's ability to civilly commit sexual predators. Accordingly, the court's reliance on select portions of Hendricks to justify Linehan's commitment is inappropriate.

[15] Reading the court's opinion is reminiscent of walking through a house of mirrors. As with walking through a maze of mirrors where every reflection in every direction, no matter how distorted, is a reflection of yourself, so too is reading today's opinion where no matter what words the court uses, dangerousness is reflected as the only limiting factor for commitment under the SDP Act.

[16] It is interesting to note that in the criminal setting, we have rejected the doctrine of diminished capacity because it “inevitably opens the door to variable or sliding scales of criminal responsibility[, but] [t]he law recognizes no degree of sanity * * *. For the purposes of conviction there is no twilight zone between abnormality and insanity. An offender is wholly sane or wholly insane.” State v. Bouwman, 328 N.W.2d 703, 706 (Minn. 1982) (internal citation omitted). Yet, while this court does not allow a defendant to use diminished capacity to avoid criminal responsibility, by its decision today it will allow the state to use diminished capacity's mirror opposite, “lack of adequate control,” to civilly commit an individual. If there is “no twilight zone between abnormality and insanity” and an “offender is wholly sane or wholly insane,” then what does “lack of adequate control” mean?

[17] In fact, taking the court's interpretation of the SDP Act to its logical extreme would allow the state to indefinitely commit any class of individuals who have a record of past harmful conduct, suffer from a mental illness or mental abnormality, and who will likely engage in harmful conduct in the future. For example, we can predict that certain children who suffer from severe childhood onset-type Conduct Disorder, manifested by “forced sex, physical cruelty, use of a weapon, stealing while confronting a victim, and breaking and entering,” will develop Antisocial Personality Disorder. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 87-89 (4th ed. 1994). As adults, these children will engage in a “pervasive pattern” of behavior that features the “disregard for, and violation of, the rights of others.” Id. at 645. Under today's decision, because these children have engaged in harmful and dangerous conduct in the past, have a mental abnormality, and can be predicted to engage in future dangerous conduct, there is nothing to prevent the state from enacting a statute permitting their preventive detention.

[18] The court justifies Linehan's continued confinement in part by stating that the district court had “great concern that [Linehan] will reoffend.” The court reasons that if Linehan is likely to reoffend, the state has met its burden. This reasoning illustrates how the court collapses the “lack of adequate control” requirement with the dangerousness requirement, making them indistinguishable from one another.

[19] The facts found by the court, which it contends justify Linehan's continued detention, do not in fact support that contention. What those facts support is the conclusion that whatever Linehan's volitional impairment may be, it does not render him dangerous beyond his control. If anything, the record establishes just how much control he has over his sexual behavior. For example, the court plainly contradicts itself when it cites the masturbation incidents to conclude both that Linehan “had recently displayed impulsiveness in his sexual impulses,” and that Linehan “conceals his sexual misconduct.” While these facts may be disturbing to the community and the court, they necessarily indicate that Linehan has the ability to control his behavior.

[20] I agree with the court that the legislature passed the SDP Act in the “wake of appellant's release” after this court's decision in Linehan I. The legislature, in effect, ordered Linehan's continued confinement by removing the inability to control standard. The legislature did so because of enormous public pressure. The court now endorses this denial of Linehan's freedom and his substantive due process rights because he is a potentially dangerous person and panders to what is politically expedient rather then to what is constitutionally permissible. Cf. United States v. Will, 449 U.S. 200, 218 (1980) (stating that the role of Article III is to safeguard a litigants' “right to have claims decided by judges who are free from potential domination by other branches of government”); Peterson v. Stafford, 490 N.W.2d 418, 420 (Minn. 1992) (stating that the goal of any system to select judges is “to create and maintain an independent judiciary as free from political, economic and social pressure as possible so judges can decide cases without those influences”).

[21] The court glosses over this distinction by stating both that the SDP Act does not require proof of an individual's inability to control his or her sexual behavior and that the legislature “shift[ed]” away from an utter inability to control requirement. This is precisely the point. The legislature shifted away from an utter inability to control requirement by eliminating altogether any consideration of the individual's inability to control their sexual behavior. Yet, in a vain attempt to save the statute, the court now adds consideration of that factor back into the statute.