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Friday, March 22, 2013

Judge Stauber's Dissent



STAUBER, Judge (dissenting)
I respectfully dissent. I would reverse the district court’s order indefinitely
committing appellant Cedric Scott Ince to the Minnesota Sex Offender Program (MSOP)
and would hold that the district court’s determination that Ince is a Sexually Dangerous
Person (SDP) is clearly erroneous.
Background
Ince is a 23-year-old man who has been incarcerated since the age of 19, with the
exception of eight months of successful intensive supervised release (ISR) in the
community prior to his civil commitment trial. Ince’s incarceration resulted from his
rape of a 19-year-old woman when he was 18, and his subsequent conviction of thirddegree criminal sexual conduct. Ince had an earlier juvenile adjudication for fifth-degree
criminal sexual conduct at age 17 involving a 17-year-old girl. Both parties agree that
Ince’s substance abuse played a factor in these crimes. The district court’s determination
is purportedly based only upon Ince’s two sexual offenses.
The question posed by this appeal is whether Ince is highly likely to reoffend by
engaging in future acts of harmful sexual conduct. See Minn. Stat. § 253B.02, subd.
18c(a) (2010); In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (Linehan III). In
attempting to determine whether Ince is highly likely to engage in future acts of harmful
sexual conduct, the district court reviewed the evidence in the record under the specific
criteria set forth in In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (Linehan I). The
district court determined that Ince was highly likely to engage in future acts of harmful
sexual conduct and therefore qualified as a sexually dangerous person subject to civil D-2
commitment. The district court’s conclusions with regard to these criteria are
unsupported by the evidence in the record.
Linehan Factors
Customarily, several experts are employed to provide evaluation and testimony at
civil commitment trials. Here, Dr. Penny Zwecker, Dr. Rosemary Linderman, and Dr.
Peter Marston each submitted reports. The court specifically “found the testimony of Dr.
Peter Marston particularly persuasive and convincing.” The court used this testimony in
evaluating Ince under the Linehan factors. These factors include: (1) the person’s
demographic characteristics, including age, education, etc.; (2) the person’s history of
violent behavior; (3) the base rate statistics for violent behavior among individuals of this
person’s background; (4) the sources of stress in the environment; (5) the similarity of the
present or future context to those contexts in which the person has used violence in the
past; and (6) the person’s record with respect to sex therapy programs. Linehan I, 518
N.W.2d at 614 (determining whether an allegedly SDP is highly likely to engage in future
acts of harmful sexual conduct).
The concurrence notes that the Linehan factors may be “outdated or unduly
inflexible in light of subsequent developments in the nature of the expert evidence that
typically is introduced in SDP commitment cases.” The concurrence proposes that
because of the “heavy reliance on actuarial risk-assessment tools, it would seem
incongruous for the caselaw to relegate those actuarial tools to the margins of the legal
analysis.” While the concurrence may in fact be accurate, for the purpose of this dissent,
it seems incongruous to ignore the law established by the Minnesota Supreme Court, D-3
which outlines important dynamic factors affecting defendants, in favor of following a
practice. Actuarial scores alone are not determinative of whether a person is highly likely
to reoffend. In re Commitment of Navratil, 799 N.W.2d 643, 649 (Minn. App. 2011). I
therefore employ the Linehan factors to determine whether the district court’s
conclusions were correct.
Demographic Characteristics
The district court determined that Ince’s age, gender, history of violent behavior,
and mental-health diagnosis indicate that Ince has an increased risk of re-offense. This
finding is based primarily upon Dr. Marston’s testimony at trial that Ince’s age,
aggressive behaviors, diagnosis, and gender all place him at “an increased risk.”
Ince is a 23-year-old man who has been incarcerated since the age of 19, with the
exception of eight months in ISR prior to the conclusion of his civil commitment trial.
He has battled substance abuse since adolescence. His first clinical diagnosis of
substance abuse was at the age of 17. Dr. Marston conceded at trial that Ince’s substance
abuse has played a significant factor in his mental illness and in his violent behavior. Dr.
Marston testified that Ince had “a poor behavioral history from day one, but . . . it got
quite a bit worse when he began using chemicals and alcohol.”
Ince also suffers from various forms of mental illness. Dr. Marston testified that
Ince has been diagnosed with ADHD, antisocial personality disorder, and psychopathic
disorder. Dr. Marston’s written report explains that because Ince is male, not married,
and suffers from ADHD, his likelihood of reoffending is higher. How this makes Ince
any different from the vast majority of the sex offender population is entirely unclear.D-4
The majority highlights Dr. Marston’s testimony that Ince’s “antisocial personality
disorder and psychopathic disorder are at their peak at his age,” indicating that his
likelihood for re-offense is higher as a result. However, the majority ignores Dr.
Marston’s acknowledgment that Ince’s mental illness and aggressive behaviors are
closely correlated to his substance abuse. Dr. Marston testified that “if we take [Ince’s
substance abuse] away, my question then becomes – so if we take that away, then are we
back to a person who has just ADHD and isn’t really a psychopathic person.” In other
words, remove the substance-abuse problems, and the mental illness and aggressive
behavior may diminish as well. In fact, Ince has removed the substance-abuse problems.
He has been sober since October 2008.
At its best, Dr. Marston’s testimony on this issue is ambivalent and inconsistent.
Ince is a 23-year-old man who has been incarcerated since the age of 19. His two
relevant offenses were committed at the ages of 17 and 18. Dr. Marston’s ambivalence
fails to demonstrate that Ince is “highly likely” to reoffend.
History of Violent Behavior
The district court determined that Ince’s prior criminal offenses were “recent,
serious, and extremely violent” and indicated a lack of self-control. This is the entirety of
the district court’s conclusions on the second Linehan factor.
The record supports the district court’s finding that Ince’s prior crimes were recent
and serious. The record also supports the finding that Ince’s most recent crime was
“extremely violent.” But the record does not support that Ince’s first crime was
“extremely violent.” As to the lack-of-control factor, as the majority notes, “it is not D-5
necessary to prove that the person has an inability to control the person’s sexual
impulses.” Minn. Stat. § 253B.02, subd. 18c(b) (2010). Yet the majority cites Dr.
Marston’s testimony regarding the lack-of-control factor – the fact that Ince raped his
second victim three weeks after being placed on probation for raping his first victim. In
other words, Ince raped his second victim approximately one year and eight months after
raping his first victim. Dr. Marston clearly testified that this fact supports the lack-ofcontrol factor, which is unnecessary, according to section 253B.02, subdivision 18c(b).
If the lack-of-control analysis is removed from the equation, we are left with the
district court’s findings that Ince’s crimes were recent, serious, and (one was) extremely
violent. Ince was adjudicated as a juvenile for the fifth-degree criminal sexual conduct
offense, and as an adult, convicted for the third-degree criminal sexual conduct offense.
The thought that a defendant may suffer the consequence of MSOP incarceration for the
balance of his life based substantially upon a fifth-degree criminal sexual conduct crime
he committed as a juvenile is a precedent that I feel uncomfortable setting. Further, after
his first offense, Ince was put on probation, but he was not provided the intensive
programming and tools that have since been made available to him during his
incarceration and ISR, and which would continue to be made available to him were he to
continue with ISR. It is also noteworthy that following his conviction, the district court
granted a downward sentencing departure.
Ince does not have the history of violent behavior that is required for an SDP civil
commitment. He is a young man who, as a teenager, committed two qualifying crimes. D-6
The district court’s findings on this factor are scant, and Dr. Marston’s testimony does
not support a conclusion that Ince is “highly likely” to reoffend.
Base Rate Statistics
The district court noted Dr. Marston’s testimony that “the base rate statistics
indicate Ince is at a high risk compared to the typical sex offender in the community.”
Dr. Marston further testified that Ince’s number of “one night stands” indicates that there
could be more victims than have thus far been discovered. This testimony is clearly
speculative, without evidentiary basis, and insufficient for the third Linehan factor. The
factor, in its entirety, states: “the base rate statistics for violent behavior among
individuals of this person’s background.” Linehan III, 518 N.W.2d at 614. These
statistics are “data showing the rate at which rapists recidivate, the correlation between
age and criminal sexual activity, etc.” Id. The district court merely makes a conclusory
statement with regard to this factor, without evidentiary basis, concluding that Dr.
Marston testified that this factor was satisfied.
Dr. Marston’s statement in his written report that Ince’s behavior is associated
with a lifetime recidivism rate of 39 percent is based upon one particular study published
in 1998. Dr. Marston concludes in his testimony that this is “a high risk” in comparison
with sample populations. Dr. Marston also testified that Ince was three times more likely
to recidivate than the average sex offender. However, Dr. Marston further testified that
because Ince had not reoffended during his eight months of ISR, the likelihood that he
ever would reoffend would be lower, because the first year following release is the most
crucial in predictive determinations.D-7
Dr. Marston relied upon the results of actuarial assessment tools administered to
Ince. The idea that an actuarial test can predict how a person will respond to any number
of influences, situations, events, temptations, or obstacles with any level of accuracy is
fundamentally unsound. Dr. Marston himself even conceded during testimony that
evaluating human behavior is “difficult to quantify.” And when asked at trial whether he
could “predict with any statistical reliability who will and will not succeed,” Dr. Marston
responded “I wish I could.” Dr. Marston further testified that “[p]art of the problem with
our risk assessment is that we don’t – you know, when we’re trying to calibrate this kind
of thing, I think we’re out of our depth.”
This is exactly the point. These issues are indeed difficult to quantify, and
employing a numeric actuarial assessment tool is sorely deficient when dealing with
human subjects and the myriad components that constitute a human life. The
concurrence proposes the use of actuarial assessment tools to the exclusion of the other
Linehan factors because of their popularity with psychiatrists, who believe the tools
nicely blend historical facts with professional judgment. But the question becomes,
doesn’t an actuarial assessment inherently involve judgment and intuition? An actuarial
assessment is a test administered by psychiatrists and psychologists that assigns numeric
values to aspects of a human life, like a person’s criminal history, his mental disorders,
and his answers to questions posed in evaluating him. These actuarial assessments are
subjective assessments, even though they use numeric values, and they rely heavily upon
psychiatrists’ judgments and intuition in an attempt to objectify a clearly subjective
process.D-8
At a civil commitment trial, the district court then reviews these “judgments” as
presented through expert testimony. The district court makes credibility assessments of
these expert witnesses, and these assessments are almost wholly protected from appellate
review based on our standard of review.
The concurrence offers that the “predictive validity of actuarial instruments has
significantly improved in the past twenty years.” If accurate, this is good news, but it still
means that we as a society are civilly committing hundreds of people – for life – who
may never have reoffended had they been released. Actuarial assessment tools simply
are not as accurate as they need to be in predicting who needs to be locked up forever in
order to protect society. As the concurrence highlights, nowhere in this nebulous area
can we get a truly accurate prediction.
Even were I to believe that these actuarial assessment tools were adequate support
for committing people to MSOP, the test results in Ince’s case are far from unequivocal.
Dr. Marston’s initial written report on Ince indicated that he scored Ince at a +5 on the
Static 99-R test. However, Dr. Marston testified that in reviewing this rating the evening
prior to his testimony, he altered his score to a +6, based solely upon his assessment of an
incident where Ince simulated masturbating on a school bus in front of other students
when he was 14 years old, an incident that the district court stated it was not considering.
This last-minute modification is extremely important, if not determinative, in the
outcome for Ince, because a score of +5 puts him in the “moderate-to-high” range of
likelihood for reoffending – generally not committable – whereas a score of +6 puts him
squarely within the “high” range for reoffending, thus more likely committable.D-9
The majority highlights testimony that appears to indicate that Dr. Marston’s +6
score exists independent of the bus masturbation incident and squarely places Ince in the
“high risk” category. Specifically, the majority provides that “when asked about the
impact of the increased point, Dr. Marston testified that changing the score of the Static-
99R did not ultimately affect his overall opinion.” The majority then quotes Dr.
Marston’s testimony: “It simply increases his score past the threshold of 5, which is
moderately high category of risk to high risk. So it nudges his score into that category.
And I had placed him in that category already.” Dr. Marston’s reference to “that
category” is clearly the “moderately high category of risk to high risk,” not the purely
“high risk” category. The majority further ignores Dr. Marston’s testimony that he
changed his rating in order to add “an additional point, with reference to the 2004 bus
incident.” And when asked whether his rating “was changed today because of the 2004
incident,” Dr. Marston responded, “[c]orrect.”
The district court may have indicated that it gave “some credibility” to the bus
masturbation incident, but it also specifically stated that it was not relying upon the
incident in its analysis, and that it was only relying upon the two sex offenses to evaluate
Ince. Consequently, the district court’s finding that Ince is at a high risk of reoffending is
not supported by the evidence in the record.4
The most accurate evidence clearly
4
In further support of a conclusion that Ince has nothing more than a moderate-to-high
risk of re-offense, the district court found that:
On October 14, 2009, Duncan Anderson, Psy.D., filed a
psychosexual evaluation report with the Scott County District
Court, described above. Ince’s score on the Static-99 placed D-10
demonstrates that Ince has a moderate-to-high risk of reoffending, a far cry from
establishing that Ince is highly likely to engage in future harmful sexual conduct.
We need to also discuss sex-offender recidivism rates in general, because it
appears that these rates may be far lower than what we have been led to believe.
“[S]tudies with the strongest methodology show that the recidivism rate for sex offenders
is as low, and often lower, than re-offense rates for criminals convicted of non-sexual
crimes.” Eric S. Janus & Emily A. Polachek, A Crooked Picture: Re-Framing the
Problem of Child Sexual Abuse, 36 Wm. Mitchell L. Rev. 142, 162 (2009). In 1994, the
U.S. Department of Justice’s Office of Justice Programs conducted a study that followed
9,691 sex offenders who had been released from prison across the United States. In the
three years following their release, 5.3 percent had recidivated. Matthew R. Durose, et
al., U.S. Dep’t of Justice, Bureau of Justice Statistics, Recidivism of Sex Offenders
Released from Prison in 1994 (2003), available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1136. And, if Dr. Marston’s
him in the moderate-high risk pool for sex offense reconviction. Ince’s score on the Stable-2007 placed Ince in the
moderate-high risk for sexual re-offense. Sex offender
treatment was recommended.
And the district court further found that:
The psychologist noted that Ince scored +8 on the Minnesota
Sex Offender Screening Tool-Revised (MnSOST-R),
reflecting a high risk for re-arrest for a sex offense. Ince
scored a +3 on the Rapid Risk Assessment for Sex Offense
Recidivism (RRASOR), reflecting a moderate risk for sex
offense reconviction. Ince also scored a +5 on the Static-99,
reflecting a moderate-high risk for sex offense reconviction.D-11
testimony is accurate, and the first year is the most crucial to predicting whether a sex
offender will reoffend, then this is an accurate statistic.
Eric Janus discusses a far more compelling study in his 2003 law review article.
See Eric S. Janus, Minnesota’s Sex Offender Commitment Program: Would an
Empirically Based Prevention Policy Be More Effective?, 29 Wm. Mitchell L. Rev. 1083,
1094 (2003). He cites a Minnesota Department of Corrections study that followed a
group of individuals who were referred for commitment but were not committed for a
period of 6.5 years. See id. One would think that this would be one of the most similarly
situated groups of people to those who have been civilly committed, because they are
among the individuals the DOC finds most likely to reoffend. The DOC found that in 6.5
years, 18% of that group recidivated. Id. Recidivism rates are skewed in general, thus
any reliance upon them in this case is purely speculative.
Sources of Stress
The district court found that since Ince’s release from prison, Ince has received
“support in the community and has attended [Alcoholics Anonymous], attended sex
offender treatment, maintained sobriety, and obtained employment.” This finding is
bolstered by the fact that during Ince’s eight months of ISR prior to the conclusion of his
civil commitment trial, he appeared to have arranged a relatively stable lifestyle. He
obtained employment, leased a home, purchased a vehicle, and remained sober during
those eight months. He now has a strong relationship with his father along with other
significant familial support. His grandparents are preparing to move into his residence
with him, providing even more stability and support. But most notably, Ince did not D-12
reoffend during his eight months of ISR. He may have had a minor violation of his ISR
contract, but that is not the issue here – the issue is whether Ince has removed the sources
of stress from his environment that indicate that he is highly likely to reoffend.
The majority points to Ince’s antisocial personality disorder in this analysis. An
antisocial personality disorder should not be considered a source of stress. The full factor
for analysis is “sources of stress in the environment,” Linehan I, 518 N.W.2d at 614
(emphasis added), and has been interpreted as “sources of stress in the offender’s
environment,” In re Stone, 711 N.W.2d 831, 840 (Minn. App. 2006). An antisocial
personality disorder is not an external influence in a person’s environment. An antisocial
personality disorder should clearly play into a discussion of a person’s demographic
characteristics or base rate statistical analysis, but not in an analysis of sources of
environmental stress.
Ince has removed the sources of environmental stress that prompted him to
commit the prior sexual offenses. Any other finding on this factor is unsupported by the
record.
Similarity of Future Context to Past Context Containing Violence
The district court noted that Dr. Marston testified that Ince “is not in exactly the
same setting he was in” before he committed his offenses. The district court further
noted Dr. Marston’s testimony that as supervision of Ince disappears, Ince’s “disorders
[will] take over,” and “he will be at high risk to sexually reoffend.”
The district court is again relying upon speculative future predictions given by Dr.
Marston instead of focusing on the similarities or differences of Ince’s current and future D-13
context to his past context. In focusing on the comparison of Ince’s current/future
context with his past context, we are left only with what the district court finds on this
specific matter, which is simply that Ince “is not in exactly the same setting.”
This statement is clearly correct. Ince has attained and maintained sobriety, he has
obtained employment, purchased a vehicle, leased a home, and completed programs to
help him overcome his substance abuse and deal with his sexually violent criminal
history. The programs, along with his age, maturity, and family support have provided
him with tools he did not have at age 18, prior to incarceration. Ince has remained sober
since his arrest in October 2008. Dr. Marston conceded that Ince’s associations with
friends must necessarily be different in the future because of Ince’s parole contract. Ince
may have struggled with honesty in his treatment, but this is hardly a consideration in
determining whether he is highly likely to reoffend. Dishonesty is a human failing, not a
failing specific only to sex offenders.
The majority highlights Dr. Marston’s testimony that Ince has a history of
“‘beating the system’ and this type of behavior will reassert itself without a secure
setting.” This begs the question of whether a “secure setting” need necessarily be MSOP.
More importantly, Ince’s proclivity for “beating the system” is irrelevant to the specific
issue of whether Ince’s past/future contexts are different or similar. The record shows
that Ince’s future context will be starkly different from his past context. Any other
finding is not supported by the record.D-14
Sex Therapy Programs
The district court found only that “while Ince is engaged in treatment, CORE had
operated under the wrong assumption that Ince had participated in treatment before.”
The district court further found that Ince had no valid Relapse Prevention Plan and that
he had been terminated from chemical-dependency treatment. The issue is “participation
in sex therapy programs,” not chemical dependency, nor relapse prevention plans, nor
incorrect assumptions promulgated by Ince. As to that issue, only the district court’s first
finding (that Ince “is engaged in treatment”) is relevant. The record shows that Ince has
participated in sex therapy programs since his incarceration. Ince’s ISR required him to
undergo sex-offender treatment. He did so in January 2012, entering CORE. Ince
successfully completed two parts of CORE prior to the conclusion of his trial.
The majority highlights Ince’s struggles with chemical-dependency treatment,
wherein he struggled due to lack of cooperation. These facts are irrelevant to the issue of
Ince’s participation in sex therapy programs. We are left with no fact other than that Ince
completed two parts of a sex therapy program. Consequently, the district court’s finding
is unsupported by the record.
“The key to civil commitment, and the argument that makes it ‘constitutional,’ is
the assumption that the dangerous sexual offender can be distinguished from the typical
repeat offender.” 799 N.W.2d at 652-53 (citing In re Civil Commitment of Ramey, 648
N.W.2d 260, 266 (Minn. App. 2002)), review denied (Minn. Aug. 24, 2011). Nothing in
the record supports a conclusion that Ince has been anything more than a typical offender.
His crimes were sexual in nature, but civil commitment is not a substitute for the criminal D-15
justice system, which is the system that has been vested with punitive powers over all
crimes, including sex crimes. Civil commitment should be reserved for people like
Dennis Linehan, who committed numerous sexual assaults, pleaded guilty to kidnapping
in a case in which he was suspected of first-degree murder, and sexually assaulted a 12-
year-old girl shortly after escaping from prison. Linehan I, 518 N.W.2d at 611. Civil
commitment should be reserved for the unequivocal case. This is not that case.
Highly Likely Analysis
The concurrence makes an important point when it states that the term “highly
likely” to reoffend, as used in the civil commitment process, has never been adequately
defined. The concurrence researches possible interpretations of “highly likely” and
concludes that “highly likely” should mean a defendant who has at least a 75% chance of
reoffending. It is entirely appropriate to interpret the term “highly likely” with the
understanding that 678 of the 679 individuals committed to MSOP have yet to be
released from “treatment.” This understanding comports with the requirement that
defendants “should not be asked to share equally with society the risk of error.” Linehan
III, 557 N.W.2d at 180 (quoting Addington v. Texas, 441 U.S. 418, 427, 99 S. Ct. 1804,
1810 (1979)). “Highly likely” should therefore be interpreted to require a finding that a
person is so likely to reoffend that he should be locked away in MSOP for the rest of his
life.
District Court’s Credibility Determinations
The district court concluded that the testimony of Dr. Marston was most credible,
and relied upon it to the exception of other testimony and evidence. The district court D-16
found Dr. Marston’s testimony to be more credible than the testimony of the other two
psychiatrists who testified at the trial, including the court-appointed psychiatrist. The
reasons for this are unclear.
Minnesota Department of Corrections’ Independent Legal Counsel
The fact that this case even made it to the district court for a commitment hearing
is also interesting and strange. The SDP/SPP Screening Committee charged with
determining whether to forward the matter to the county attorney to pursue a petition for
civil commitment initially determined that Ince’s case should not be forwarded to the
county attorney. The case was forwarded for commitment only after the Minnesota
Department of Corrections’ Independent Legal Counsel, who was not a part of the
referral process, “trumped” the recommendation of the screening committee.
The record reflects that counsel “participated in the [screening committee]
meeting” and reviewed the screening committee’s report. Counsel then recommended
forwarding Ince’s case to the county attorney despite the committee’s decision otherwise.
Counsel’s recommendation acted to override the report of the committee charged with
independently evaluating Ince’s case.
Counsel’s recommendation is supported by a brief memorandum, wherein he
languidly analyzes the six Linehan factors, most of which clearly favor Ince, but
summarily concludes that Ince’s case should be referred to the county attorney. The
Department of Corrections has an established practice for determining whether to
forward such cases to the county attorney for prosecution under the civil commitment D-17
laws, but the Department of Corrections’ counsel’s involvement clearly subverted and
prejudiced this established practice. I find this disturbing.
Conclusion
Given that 678 of the 679 people who have been civilly committed to MSOP
remain in MSOP, we must approach these cases with an appreciation for their gravity and
an understanding that every case must be scrutinized to ensure absolute compliance with
the law. A civil commitment to MSOP is, essentially, a life sentence. Only those people
who are truly “highly likely to reoffend” should be committed to the program. Clearly,
the courts have failed to follow the “highly likely to reoffend requirement,” because,
since 2003, the number of sex offenders who have been civilly committed to MSOP has
increased by 357%. In 2003, MSOP had 190 “clients.” Eric S. Janus, Minnesota’s Sex
Offender Commitment Program: Would an Empirically-Based Prevention Policy Be
More Effective?, 29 Wm. Mitchell L. Rev. 1083, 1089 (2003). Now, MSOP houses 678.
This is an unsustainable system.
Yet this system will continue unabashedly so long as district courts are allowed to
rely solely upon actuarial assessment tests to attempt to predict whether an individual will
reoffend. District courts will rely upon these tests, as communicated to the court through
expert testimony, and will make credibility assessments insulated from appellate review.
Given the standard of review, it will continue to be almost impossible to overturn even
borderline cases such as Ince’s case.
“As the guardians of our constitutional order, the courts have promised that they
will ‘intervene before civil commitment becomes the norm and criminal prosecution the exception.’” Eric S. Janus, Failure to Protect: America’s Sexual Predator Laws and the
Rise of the Preventive State, at 26 (2006) (citing Linehan III, 557 N.W.2d at 181). We
break this promise by affirming a decision to civilly commit a 23-year-old man for two
acts of sexual violence committed as a teenager, before he had even fully developed
emotionally and intellectually. As the dissent stated, “To affirm the order for
indeterminate commitment under these circumstances is to approve the warehousing of
another borderline candidate for treatment, with no guarantee that he will receive
meaningful treatment.” Navratil, 799 N.W.2d at 653. I could not agree more. D-18

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