Forty detainees at the Moose Lake Correctional facility in Minnesota began a hunger strike on July 4. This is the second hunger strike this year at the facility where detainees and advocates claim the Minnesota Sex Offender Program (MSOP) is unconstitutionally detaining people after they have completed their prison sentences with no clear path to release.
The Minnesota Sex Offender Program is administered by the Minnesota Department of Human Services (DHS) and began its operations at Moose Lake in 1995 as a treatment center for people who have been labeled by the state as “sexually dangerous” or as having “sexually psychopathic personalities”. These terms are legal determinations assigned to people by a panel of judges during a petition process that the Minnesota Department of Corrections (DOC) initiates as prisoners approach the end of their sentence.
Civil commitment is a non-criminal process that allows for the indefinite detention of people deemed potentially dangerous to the public. It is a preventative measure that has garnered significant criticism from those detained and their advocates because few people have ever progressed through treatment to release and individuals detained within this system are not afforded the same rights as a person detained as a state prisoner.
In January of this year, 10 men at the Moose Lake facility participated in a hunger strike to demand “freedom from unconstitutional indefinite detention,” said Daniel Wilson in a press release from July 5. Wilson is a detainee at Moose Lake and a co-founder of Overcoming Corruption Encouraging All Nations (OCEAN), a detainee-led advocacy group inside the facility.
After 20 years in operation, 700 people had been committed to the facility and only 3 people had ever been released. Today, there remain 743 people detained at the Moose Lake Treatment Facility. In its 26 years in operation, only 14 people have ever been fully discharged from the program and 45 have been provisionally discharged. To date, 88 people have died while in the MSOP, making it 6 times more likely that a detainee will die in the facility than be discharged without provisions.
According to a public statement released by OCEAN, on the 14th day of the January strike, Minnesota Human Services Commissioner Jodi Harpstead made a deal with the strikers. The deal would have the MSOP administration meet with detainees to discuss the creation of what Wilson calls a “clear path home.” After a series of 4 meetings in February, March, April, and May, strikers feel that the administration has failed to maintain dialogue or meet their demands. .
Following the breakdown of negotiations, a press release disseminated by detainees and their advocates on Monday asserted that this month’s strike is larger and the demands unequivocal: in addition to a clear path home, the detainees demand an “end to the program” via either “an Executive Order from the Governor” or “commitment from a Senator and Representative in the MN Legislature to sponsor a bill to end the program.”
David Boehnke, a member of the End MSOP Coalition, a families group advocating for the abolition of the MSOP, told Perilous that in conjunction with the January hunger strike the End MSOP Coalition and strikers negotiated with MSOP administrators who agreed to send a proposal to the state legislature to remove the term “sex offender” from the title of the program. Approximately 90 individuals held at Moose Lake have never been convicted of a sex crime.
“The name change was a minor proposal as part of the barriers and solutions document written by detainees to the facility,” said Boehnke. This document examines 13 barriers to release from the program and proposals for policy changes within three governmental agencies as solutions to these barriers.
Boehnke added that the stigma attached to the program’s name, and thereby the societal value placed on the people inside, results in a lack of adequate media coverage and institutional transparency. Further, he asserts that this stigma is exploited to “cover up the much bigger crime of creating an extra-legal way to hold people until they die as “mentally ill” despite knowing this is not the case.”
Erica Meiners, a professor of Education and Women and Gender studies at Northeastern Illinois University, spoke with Perilous about civil commitment. “It might be warehousing the problem, but it certainly isn’t getting our communities to talk about gender and sexual violence,” Meiners said.
As an abolitionist, Meniers says she is often asked: “If we were to abolish the prison industrial complex, what do we do with the bad people?” For her, it’s important to note that “what we’re doing right now isn’t helping the situation. It’s not ending child sexual violence. It’s not holding people who do that harm accountable. It’s not meeting the needs of people who’ve experienced that harm and it doesn’t change the society that makes that harm imaginable and possible.”
In her book, The Feminist and the Sex Offender: Confronting Sexual Harm, Ending State Violence, Meiners suggests various alternatives to hold harm-doers accountable while shrinking our reliance on the criminal legal system.
On Sunday, advocates and family members of the hunger strikers held what Wilson refers to as a “honk in” to show support for the striking detainees. Honk-in’s are a type of noise demonstration that increased in popularity during the pandemic as prisoner advocates attempted to push for releases during spiking positive COVID-19 rates in prisoner populations. At Moose Lake, there were 3 detainees deaths from COVID-19.
According to Wilson, about 450 detainees stood outside and were able to listen to the noise demonstration for 15-20 minutes. At that point, he said, the administration moved everyone inside the facility. The demonstrators also released 88 red balloons, “one for everybody that has died here in the last 26 years,” said Wilson.
The hunger strike has taken a toll on the detainees’ physical conditions. According to reports from detainees, one striker fell unconscious while his family was outside participating in the honk-in. Since the start of the current strike, 3 men have been hospitalized including Russel Hatton, co-founder of OCEAN, who had a seizure in the yard. All three men have returned to striking after a short break during the hospitalization.
Wednesday marks Wilson’s 11th day of refusing food. He reports that he may begin refusing fluids on Thursday in an effort to increase pressure on MSOP officials to meet the strikers’ demands. Refusing water dramatically increases risks associated with hunger strikes.
According to Duluth News Tribune correspondent Teri Cadeau, DHS spokesperson Christopher Sprung disputed the number of hunger strike participants. DHS recorded 27 participants at its height, claiming that there were 10 or fewer strikers as of Monday.
The strikers maintain that as of Monday there were 29 detainees refusing meals with some reporting they will strike until they lose consciousness, are force fed, or die. The discrepancy may be due to the facility’s classification of hunger strikes based on whether or not the detainee is consuming water in a given moment or how many consecutive meals have been refused.
DHS Deputy Commissioner Chuck Johnson told the News Tribune Tuesday, “It’s disappointing that they’re taking this action now, especially since we’ve upheld our end of the agreement that brought the first hunger strike to an end in January.”
“Over several meetings, a team that included key MSOP leaders as well as an ombudsman and well-known defense attorney who has extensive experience with MSOP clients listened to the concerns of clients, families and advocates,” Johnson said. “Those sessions resulted in a report and recommendations that will be finalized in the coming weeks.”
According to members of OCEAN and End MSOP, the strike was initiated due to a lack of follow through by the MSOP and DHS administrations on their side of the deal.
Inside the “Shadow Prison”
Striking detainees and their advocates refer to the Moose Lake facility as a “shadow prison,” meaning a prison-like facility where people are civilly committed and held against their will–not based on serving a sentence for a criminal conviction, but as a preventative measure against future offenses they might commit.
These “shadow prisons” and the process of civil commitment used to fill them exist in an arguably gray area of law and remain a constitutionally contentious issue for detainees, their advocates, and lawmakers. Only 20 states in the U.S. have legalized civil commitment. Earlier this year, law makers in Virginia attempted to pass a bill repealing the state’s civil commitment law, asserting that it violates a person’s right to not be punished twice for the same crime.
Plans for the Moose Lake Treatment Facility were first presented in a 1993 session of the Minnesota state legislature. At the time, the facility was called the Minnesota Psychopathic Personality Treatment Center, later to become the Minnesota Sexual Psychopathic Personality Treatment Center, and today known as the Minnesota Sex Offender Program.
The Minnesota Sex Offender Program opened its doors at Moose Lake in 1995. Prior to the facility’s opening, people designated as Sexually Psychopathic Personalities (SPP) were committed to the Minnesota Security Hospital in St. Peter under the state’s Psychopathic Personality Law. There is a second facility run by the MSOP in St. Peter where individuals go as they progress to the second phase of treatment. There are currently about 450 people detained at Moose Lake and nearly 300 in St. Peter.
The third state in the U.S to enact such a law, the 1939 Minnesota statute allows for the indefinite civil commitment of people deemed to be dangerous to the public due to “emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.”
The law remained on record for decades with little invocation until the 1990s when public outcry following a series of violent crimes committed by recently released offenders prompted the Minnesota Department of Corrections (MDOC) to modify its supervised release policies. In July 1991, the MDOC began requiring a systematic screening of people with sex offenses for possible psychopathic personality commitment, leading to an increase in commitments in subsequent years.
In 1994 the statute’s reach was expanded by the addition of the Sexually Dangerous Persons (SDP) category, essentially lowering the bar for judges to civilly commit a person. To fall under this category, a person does not have to display a pattern of harmful behavior nor are petitioners required to prove the person’s inability to control their sexual impulses.
The number of civil commitments in Minnesota rose again in 2000 from 167 people in the MSOP to 565 people in the program by 2010. This is due to the MDOC recommending all high-risk sex offenders for commitment following the abduction and murder of a 22-year-old North Dakota college student.
Once a person has been flagged by the MDOC for possible commitment, a recommendation is made to a county attorney who then brings a petition for commitment in front of a judge.
Unlike within the criminal legal system, a person being considered for commitment is not presumed innocent until proven guilty during the proceedings nor do they have the right to trial by jury. Further, unsubstantiated allegations and hearsay are admissible in commitment hearings as the standards of proof are lower than in a criminal court.
In fact, it is not a requirement of civil commitment under the sexually dangerous persons category to have ever been convicted of a sex crime in the past. While most detainees in the facility have been convicted and served prison sentences for past sex crimes, 90 individuals detained at the facility have not had sex crime convictions, according to Boehnke of the MSOP Coaition.
Once a person has been committed under the MSOP statute, the only way to be discharged from the program is to file a petition for release to a panel of district judges appointed by the state supreme court. It is not up to the practitioners inside the facility or the Department of Human Services, the governmental body who administers the program, to make the final call.
In 2011, 14 people detained at Moose Lake filed a class action lawsuit against the MSOP alleging that their detention was unconstitutional. At the time of filing no detainee who had entered the program had ever been released.
When the MSOP began, it was intended to be completed by a “model patient” in approximately 32 months. By 2015 when the lawsuit went to trial, and after more than 20 years of operation, only three people had been released with provisions and not a single person unconditionally released of a 700 person population.
This led to the 2015 decision by the U.S. District Judge Donovan Frank of the MSOP’s unconstitutionality, noting in his decision: “The overwhelming evidence at trial established that Minnesota’s civil commitment scheme is a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”
In 2017, Judge Frank’s decision was reversed in the U.S. Court of Appeals, allowing the MSOP to continue unhindered by federal directives for reform. In this decision, the program was found constitutional due to being “rationally related to the state’s legitimate interest of protecting its citizens from sexually dangerous persons or persons who have a sexual psychopathic personality.”
The Plaintiffs in the case appealed the decision to the United States Supreme Court, but in October 2017, the court declined to hear the case, allowing the Appeals Court decision to stand and the MSOP to continue unhindered by federal directives.
“This is anyone’s worst nightmare — getting locked up, with no exit, with the government claiming it’s ‘treating’ you.”
Despite the Supreme Court’s decision to not hear the case, there remains significant controversy surrounding the constitutionality of civil commitment. Much of this contention stems from the use of tools within these programs to determine if a person is a high risk sex offender or to assess their progression through treatment.
A survey conducted within the Moose Lake facility by Wilson and other detainees organizing with OCEAN has shown that members of the LGBTQ community are two times more likely to be civilly committed in Minnesota than persons who do not identify on the LGBTQ spectrum.
The same survey also found that Black men are 2 times as likely to be civilly committed in Minnesota than non-Black individuals. According to U.S Census data from 2019, Black people comprised only 7 percent of the state’s population. The Minnesota Sex Offender Program: Annual Performance Report from that year reported 13.8 percent of detainees in the program were Black.
Wilson is not alone in speculating that the tools used to assess patients are imbued with biases. NARSOL, the National Association for Rational Sexual Offense Laws (NARSOL), asserts that the Static-99, one of the most common tools used to assess detainees, “includes an explicit bias against gay men and younger offenders.”
The Static-99 is a survey for men only consisting of a series of ten questions in which men are assigned points that measure their likelihood to re-offend. In one case, a young man from Virginia gained a point for being between the ages of 18-34.
The man, Galen Baughman, was held in civil contempt in Virginia for 2.5 years after serving a 6.5 year prison sentence for 2 offenses. “The two convictions are for youthful offenses,” wrote Virginia State Senator Patrick Hope in an op-ed on Baughman’s case, “one when he was barely 14 years old, the other when he was 19 years old, where the “victim” was 14.” Under Virginia law, a jury found that Baughman was not a sexually violent person (SVP), releasing him from civil commitment.
After four years, Baughman was arrested and sentenced to 21 months in prison on a technical probation violation for exchanging text messages that, according to Baughman, had no sexual content with a teenage boy he had met at a mutual friend’s funeral.
In 2019, Baughman was again committed by a jury that was not allowed to hear the testimony of two psychiatrists or an expert psychologist who found that Baughman was not dangerous. “This is anyone’s worst nightmare — getting locked up, with no exit, with the government claiming it’s ‘treating’ you,” Baughman told the Associated Press at the time.
Baughman remains in civil commitment as he waits to find out if the the Supreme Court of Virginia will hear his appeal. The opportunity to have a civil commitment reviewed by a jury is not an opportunity Minnesota law affords people who are civilly committed. Instead, the decision is left to a panel of judges.
The tests used to determine whether someone is “sexually dangerous” target people who “aren’t engaged in traditional heterosexual relationships,” said Meiners. One of the questions on the Static 99 adds points if the subject has not lived with a sexual partner for more than two years. Another adds points if their victim was of the same gender.
In an interview, Meiners told Perilous that this follows a “historic trajectory” of LGBTQ people “being seen as deviant, as predatory, as somehow harmful to whatever sounds normal.”
Although the history of the criminalization of LGBTQ people in the U.S. goes back much further, one may look to the 1948 law passed by the U.S. Congress criminalizing sodomy, essentially any sexual act that is not procreative, for the “treatment of sexual psychopaths and other purposes.” In fact, it wasn’t until 2003, that sodomy laws across the U.S. were officially stricken down as unconstitutional by the U.S. Supreme Court.
In a 2016 report, Ashely Nellis, Ph.D. found that people who are Black in Minnesota were 10 times more likely to serve time in a state prison than whites. One of several racially biased determinants Nellis cites as causing this disparity in representation between Blacks and whites in prison is that “people of color are frequently given harsher sanctions because they are perceived as imposing a greater threat to public safety and are therefore deserving of greater social control and punishment.”
“Designed for failure”
Tiffany Minkel, an advocate with the End MSOP Coalition, survivor of childhood sexual abuse, and a family member of a detainee at the St. Peter Treatment Facility, wants to see an end to the MSOP.
Minkel’s brother was sentenced to civil commitment following a parole violation. Minkel told Perilous she began organizing to end the MSOP after hearing from her brother of the circumstances inside. “He would tell me some of the things that happened there, the corruption and having to pass a polygraph,” she said, “and I was just surprised by that because polygraphs aren’t even admissible in a court.”
The use of polygraph tests became inadmissible in criminal court in 1998 following United States v. Scheffer in which the court found polygraphs unreliable, stating “to this day, the scientific community remains extremely polarized about the reliability of polygraph techniques.” While the limitations to the polygraph’s reliability prevents them from being used to find a person guilty within the criminal justice system, this doesn’t prevent the MSOP from using polygraphs to determine if someone is progressing through their treatment.
According to ACLU Senior Policy Analyst Jay Stanley, it isn’t just the scientific doubt of polygraph technology that informs the ACLU’s decades long opposition to the tool but that they rely on the examiner’s interpretation of raw data. In a study using polygraph data from police departments and several lawsuits, rates of “failure” of examiners to accurately detect supposed lies have varied wildly from examiner to examiner and “Black people have been “failed” disproportionately often,” said Stanley.
Wilson told Perilous that he received more counseling services while he was incarcerated in state prison than as a detainee at the Moose Lake treatment program. While in prison he had spent 6 hours a week in treatment, whereas he only currently spends 4 hours a week in treatment at Moose Lake. In contrast, Wilson reports that he and other detainees spend 20 hours a week painting signs for the state of Minnesota for $5 an hour. The Minnesota minimum wage for businesses with a revenue of more than $500,000 is $10.08.
WIlson also told Perilous that he thinks the way that the civil commitment process is set up may actually deter people who would otherwise seek help from coming forward. He spoke of a former cellmate who checked himself into treatment in 2000, having not committed an offense but instead aiming to get treatment to avoid harming someone. Now, 21 years later, despite attempts to leave the facility, “they won’t let him go,” says Wilson.
Re-framing the conversation
Minkel believes that the more than 100 million dollars a year, or $393 per person, per day, according to the DHS website, spent on the MSOP would be better used if diverted to educational programs for youth and adults. “To know the warning signs of when things might be abusive or when someone should step in,” she said. “I think that would make a world of difference instead of focusing on punishment afterwards.”
Minkel isn’t alone in feeling this way. Perilous spoke with a woman named Sara Brainard who is also a part of the End MSOP Coalition. A survivor of rape and kidnapping, Brainard became involved with the coalition after learning about conditions at the facility from her brother who is a detainee there. Brainard agrees with Minkel that the funding spent depriving people of their freedom after they’ve completed their prison sentences is better spent elsewhere.
“If I had the gas money to drive all over the state, I would go to elementary schools and junior highs and high schools and talk to young people,” she said. “I would be very open with my own stories.”
Sara recalled her “so-called” sex education and remembered, “they barely even talked about periods,” much less, she said, did they cover topics of what sex might actually look like and how to engage in sexual relationship without causing harm.
While advocates for maintaining civil commitment laws argue that it is integral to ensuring public safety, a 2017 article co-authored by Meiners reports that “statistics do not point to a reduction in the number of sex offenses, or lower “recidivism rates … for people in Washington and the 19 other states that use civil commitment, as compared to the 30 states where there are no civil commitment laws.”
Meiners contends that the failure of civil commitment to lower rates of sexual violence in the states with such laws is evidence that civil commitment fails as a deterrent. “It doesn’t change the society that makes that harm imaginable and possible. It just spends a darn lot of money sort of warehousing the problem,” Meiners said.
For feminist and abolitionists, Meiner says, it’s important to re-frame the conversation for reducing sexual violence away from the failed response of the criminal legal system, and instead toward “taking some of those resources that the criminal legal system has had a monopoly on for centuries, and failed miserably at ending gender and sexual violence.” Instead, Meiner suggests, we should be investing the money in the “multitude of things that we know would work.”
Meiner offered structural interventions that might be achieved by redirecting finances from institutions like civil commitment. “What would it mean if the millions and collectively billions of dollars we spend on sex offender registries and civil commitment, even a fraction of those resources, were spent on free childcare, or meaningful and affirming sexual health education in schools?” she asked.
“How might people learn bodily autonomy and agency in different ways?” said Meiners. “How might people who are caregivers have safe environments to have their kids housed in after school?”
Ridley Seawood is a member of the Perilous Editorial Collective and is based in Tucson, Arizona. Email them: firstname.lastname@example.org
Header image: (Photo Credit: KBJR6)