Derek W. Logue of OnceFallen.com
Written 21 August 2020, Updated 10 Feb 2021

INTRODUCTION: “BETTER OFF DEAD”

Welcome to where time stands still, No one leaves and no one will,
Moon is full, never seems to change, Just labeled mentally deranged,
Dream the same thing every night, I see our freedom in my sight,
No locked doors, No windows barred, No things to make my brain seem scarred…”
–From Metallica, “Welcome Home (Sanitarium)”

The next to the last day of 2019 came with an interesting headline, “Sex offender wants name changed to ‘Better Off Dead’.” [1] Hollis Larson, incarcerated at the Minnesota Sex Offender Program (MSOP) since February 2008, filed an application to legally change his name to “Better Off Dead” citing religious freedom and his right to protest against the conditions of his civil confinement. The Minnesota Court of Appeals rejected his request, stating no constitutional infringement of Larson’s rights.[2]

Larson’s failed attempt to change his name is the latest attempt by those behind bars at the MSOP, whose initials are derided by inmates of the “program” as standing for “Minnesota State’s Other Prison.”[3]  For years, Minnesota’s civil commitment program has stood out among the roughly 20 states for only allowing their “clients” to exit the program in a body bag. Even today, few of MSOP’s living “clients” have ever seen the other side of the fencing surrounding the moose Lake Center.

This article is a review of the Minnesota Sex Offender Program- Moose Lake (MSOP-ML) and insight into the program as told by those indefinitely detained within the program.

BRIEF STATUTORY HISTORY OF THE MOOSE LAKE CIVIL COMMITMENT CENTER

Subtle changes within the Minnesota statute illustrate the ever-changing focus and philosophy behind the MSOP.  Summarizing the legal history of the MSOP is key to understanding why society continues to justify a blatantly unconstitutional and costly program.

As noted in the 2015 Karsjens v. Jesson, 109 F. Supp. 3d 1139 (2015), “In 1939, the Minnesota Legislature adopted its first civil commitment law,  now codified at Minn. Stat. § 526.10, which provides for the civil commitment of any  individual found to have a “psychopathic personality” to the Minnesota State Security  Hospital in St. Peter, Minnesota.  Over the course of the next fifty years, the statute was used primarily as an alternative to criminal punishment, and individuals were civilly committed under the law rather than being criminally charged and convicted. By 1970, civil commitment under the “psychopathic personality” law had dramatically decreased; in the 1970s, only thirteen individuals were civilly committed, and in the 1980s, only fourteen individuals were civilly committed.”

“Following a series of horrific rape and murder crimes that were committed between 1987 and 1991 by recently released sex offenders from state prison, a task force on the prevention of sexual violence against women recommended stiffer criminal sentences for dangerous sex offenders and increased use of the ‘psychopathic personality’ law to confine and treat the most dangerous offenders being released from prison.”

“In 1989, the Minnesota Legislature modified the ‘psychopathic personality’ law to include provisions that required the district court sentencing a sex offender to determine whether civil commitment under the statute would be appropriate and to refer such cases to the county attorney.”

Plans specific to the Moose Lake Civil Commitment Center began on May 27, 1993, when Minnesota Governor Arne H. Carlson signed HF1, the “Minnesota Psychopathic Personality Treatment Center.” It created section 246B.02 into the 1993 Minnesota Statutes. As noted below, the center was initially for anyone considered to have a “psychopathic personality.”

The high-profile release of career criminal Dennis Linehan (who was arrested on multiple sex offenses) promted a change in the the civil commitment law to emphasize detention for some convicted of sex offenses: “With his release set for 1992, the state committed him under the Psychopathic Personality Commitment Act, but the Minnesota Supreme Court overturned that decision in 1994. Panicked that an obviously dangerous offender was about to be released, Gov. Arne Carlson called a special session of the Legislature, which quickly passed just the second sex offender civil commitment law in the country. Two days later, the Ramsey County attorney hauled Linehan before a judge.”[4]

246B.02 – ESTABLISHMENT OF MINNESOTA PSYCHOPATHIC PERSONALITY TREATMENT CENTER (1993 MN Stat.): The commissioner of human services shall establish and maintain a secure facility located in Moose Lake.  The facility shall be known as the Minnesota Psychopathic Personality Treatment Center.  The facility shall provide care and treatment to 100 persons committed by the courts as psychopathic personalities, or persons admitted there with the consent of the commissioner of human services.

On August 31, 1994, this passage was amended to change the focus of the program to “sexual psychopaths.”

Minnesota Statutes 1993 Supplement, section 246B.02, is amended to read: 246B.02 [ESTABLISHMENT OF MINNESOTA SEXUAL PSYCHOPATHIC  PERSONALITY TREATMENT CENTER]: The commissioner of human services shall establish and   maintain a secure facility located in Moose Lake.  The facility shall be known as the Minnesota Sexual Psychopathic Personality Treatment Center.  The facility shall provide care and treatment to 100 persons committed by the courts as sexual psychopathic personalities or sexually dangerous persons, or persons admitted there with the consent of the commissioner of human services.

The dissenting opinion by MN Supreme Court Justice Tomljanovich in the case of In re the Matter of Dennis Darol LINEHAN. 557 N.W.2d 171 (Minn. 1996), discusses in further details the scramble to keep Linehan behind bars, which prompted the shift in focus of both the new civil commitment facility and the process by which a person would be committed:

“On August 18, 1994, after the reversal of his PP Act commitment and his discharge from MSH, Linehan was paroled to Residence 4 on the grounds of the Stillwater correctional facility. Residence 4 was converted to a halfway house for Linehan because no other facility would accept him. At the halfway house, Linehan was under “intensive supervised release.” …

“On August 31, the Minnesota Legislature met in special session and amended the civil commitment statute to include ‘sexually dangerous persons.’ Act of August 31, 1994, ch. 1, art. 1, 1995 Minn. Laws at 5-9. A “sexually dangerous person” has engaged in a course of harmful sexual conduct; suffers from a sexual, personality, or other mental disorder or dysfunction; and, as a result, is likely to engage in serious and harmful sexual conduct in the future. Minn.Stat. § 253B.02, subds. 7a, 18b(a) (1994). Commitment under the SDP Act does not require proof that the proposed patient is unable to control his or her sexual impulses. Id. § 253B.02, subd. 18b(b). On September 2, respondent Ramsey County petitioned for Linehan’s commitment under the SDP Act…

“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. 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.”

Despite making the intent of the new law blatantly obvious, the state upheld the new civil commitment guidelines, further buttressed by a similar ruling in SCOTUS (Kansas v Hendricks 1995), allowing indefinite detention under a lower standard to continue.

In June 2003, the statute was slightly altered again, changing the program name to Minnesota Sex Offender Program and removing the 100-person limit on the program.

“Minnesota Statutes 2002, section 246B.02, is amended to read:  246B.02 [ESTABLISHMENT OF MINNESOTA SEX OFFENDER PROGRAM.]  The commissioner of human services shall establish and maintain a secure facility located in Moose Lake.  The facility shall be operated by the sex offender program.   The program shall provide care and treatment in secure treatment facilities to persons committed by the courts as sexual psychopathic personalities or sexually dangerous persons, or persons admitted there with the consent of the commissioner of human services.”

In May 2008, Section 246B.02 removed one stipulation allowing the consent by the commissioner of human services and revision of the wording on the section related to court orders.

“Sec. 2. Minnesota Statutes 2006, section 246B.02, is amended to read: [246B.02 ESTABLISHMENT OF MINNESOTA SEX OFFENDER PROGRAM.]: The commissioner of human services shall establish and maintain a secure facility located in Moose Lake. The facility shall be operated by the Minnesota sex offender program. The program shall provide care and treatment in secure treatment facilities to persons on a court-hold order and residing in a secure treatment facility or program pending commitment or committed by the courts as sexual psychopathic personalities or sexually dangerous persons.”

In May 2009, section 246B.02 which allowed the expansion of the MSOP and clarified the responsibilities of the program.

“Minnesota Statutes 2008, section 246B.02, is amended to read: [246B.02 ESTABLISHMENT OF MINNESOTA SEX OFFENDER PROGRAM]: The commissioner of human services shall establish and maintain the Minnesota sex offender program. The program shall provide specialized sex offender assessment, diagnosis, care, treatment, supervision, and other services to clients as defined in section 246B.01, subdivision 1a. Services may include specialized programs at secure treatment facilities as defined in section 253B. 02, subdivision 18a, consultative services, aftercare services, community-based services and programs, transition services, or other services consistent with the mission of the Department of Human Services.

The final revision to the MN Statutes Section 246B.02, passed on May 10, 2010, merely changed the word “clients” to “civilly committed sex offenders.” The current Minnesota Statutes, Section 246.02, reads as follows:

“[246B.02 ESTABLISHMENT OF MINNESOTA SEX OFFENDER PROGRAM] The commissioner of human services shall establish and maintain the Minnesota sex offender program. The program shall provide specialized sex offender assessment, diagnosis, care, treatment, supervision, and other services to civilly committed sex offenders as defined in section 246B.01, subdivision 1a. Services may include specialized programs at secure treatment facilities as defined in section 253B.02, subdivision 18a, consultative services, aftercare services, community-based services and programs, transition services, or other services consistent with the mission of the Department of Human Services.”

The 2019 Minnesota Statutes, Section 253D.02 provides the following definitions for the program and of those subject to the program:

Subd. 8.Harmful sexual conduct.

(a) “Harmful sexual conduct” means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.

(b) There is a rebuttable presumption that conduct described in the following provisions creates a substantial likelihood that a victim will suffer serious physical or emotional harm: section 609.342 (criminal sexual conduct in the first degree), 609.343 (criminal sexual conduct in the second degree), 609.344 (criminal sexual conduct in the third degree), or 609.345 (criminal sexual conduct in the fourth degree). If the conduct was motivated by the person’s sexual impulses or was part of a pattern of behavior that had criminal sexual conduct as a goal, the presumption also applies to conduct described in section 609.185 (murder in the first degree), 609.19 (murder in the second degree), 609.195 (murder in the third degree), 609.20 (manslaughter in the first degree), 609.205 (manslaughter in the second degree), 609.221 (assault in the first degree), 609.222 (assault in the second degree), 609.223 (assault in the third degree), 609.24 (simple robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 609.255 (false imprisonment), 609.365 (incest), 609.498 (tampering with a witness), 609.561 (arson in the first degree), 609.582, subdivision 1 (burglary in the first degree), 609.713 (terroristic threats), or 609.749, subdivision 3 or 5 (harassment or stalking).

Subd. 13.Secure treatment facility. “Secure treatment facility” means the Minnesota sex offender program facility in Moose Lake and any portion of the Minnesota sex offender program operated by the Minnesota sex offender program at the Minnesota Security Hospital, but does not include services or programs administered by the Minnesota sex offender program outside a secure environment.

Subd. 15.Sexual psychopathic personality. “Sexual psychopathic personality” means the 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 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.

Subd. 16.Sexually dangerous person.

(a) A “sexually dangerous person” means a person who:
(1) has engaged in a course of harmful sexual conduct as defined in subdivision 8;
(2) has manifested a sexual, personality, or other mental disorder or dysfunction; and
(3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 8.

(b) For purposes of this provision, it is not necessary to prove that the person has an inability to control the person’s sexual impulses.

The language of the statutes keeps changing, too, adding to the difficulty of following legislative changes. For example, under Chapter 2, HF 11 of the 1st Special Session of the 2020 legislature, Section 253B.18, subdivision 2, was amended to change the term “secure treatment facility” to “state-funded treatment program.” Interestingly, these changes were not suggested in other statutes. The reason for the specific change is unclear but this segment was in an amendment that was created specifically to make semantic changes to the law. Perhaps the justification is the whitewashing of specific language (after all, “secure treatment facility” sounds scarier than “state-funded treatment program”) but this is merely speculation.

To simplify the rather dull statutory history, Minnesota’s civil commitment program was created in 1939 and grew until it fell out of favor in the 1970s. The civil commitment program was revised following a handful of high-profile cases in the late 1980s/ early 1990s. The Moose Lake facility was authorized by the Governor in 1993 to commit those determined to have “psychopathic disorders,” but was narrowed to sexual offenses within two years of the establishment of the program. The usage of the program was used rather sparingly until 2003, when Dru Sjodin’s high-profile murder at the hands of Alfonso Rodriguez led to a vast expansion of civil commitment against some sexual offenders. In addition to expanding the program from 100 beds to 700 and screening all convicted of sexual offenses in the state for civil commitment, a moratorium was soon placed on releases from the program. This has caused Minnesota’s unique civil commitment crisis.

As MSOP detainee Cyrus Gladden explains, “Gov. Pawlenty’s directive to prosecutors across the state to consider all released sex offenders as possible commitment respondents, and to correctional officials to refer all sex offender schedules for release soon to be referred for commitment as well, was purely a demonstration that some action was being taken, whether or not the commitment of those selected thus would or would not have any impact on recidivist sex crimes in the future. It was a distraction from that scandalous failure – a ‘red herring.’ And it worked perfectly as a political ploy. But on human terms, it condemned hundreds to commitment – possibly for life, both immediately and indeed, to the present. Annual rates of (sex offender civil commitment) in Minnesota spiked up sharply overnight, and never returned to their pre-Rodriguez numbers. Many of those selected in this ‘purge’ were literally snatched off the streets as they worked or from their homes with their own families, long after years of crime free life has signified that they presented no risk of sex crime recidivism.”[5]

CURRENT POPULATION OF MOOSE LAKE

According to the MN Department of Human Services, “The Moose Lake facility currently has two buildings – the Main Building and Complex I. The Main Building houses up to 150 clients. Complex I houses up to 400 clients.” “The St. Peter facility’s Pexton Building contains two 28-bed units and two 30-bed units. The Shantz Building has four 36-bed units. Community Preparation Services houses up to 89 clients approved by the court to live outside the campus’ secure perimeter.” [6]

According to the Minnesota Department of  Human Services, there are 743 indefinite detainees at the MSOP, 454 of which are currently in the Moose Lake facility. Minnesota has granted only allowed 14 full discharges and 28 living outside the walls of the program on conditional release as of April 1, 2021. [7] Minnesota will spend $93 MILLION on the MSOP in 2021, or $393 per day per inmate. [8]  Minnesota ranks second in total number of civilly committed persons in America. California’s population is seven times that on Minnesota but only civilly committed 200 more persons than Minnesota. [9]

CHRIS KRYCH’S JOURNEY

In January 2010, I received my first letter from Chris Krych, a “client” at the Moose Lake Civil Commitment Center. After a couple of letters in which Chris Krych discussed his desire to make his voice heard, I had settled on assisting him with establishing a platform to help his voice be heard in the form of a free Google blogger service, chriskrych.blogspot.com.

Chris Krych’s first post, which became the basis for the title of the blog, was “Please Help an American Citizen.”[10]  In this post, Krych admits he made a number of mistakes but notes his only sexual offense in Minnesota was a statutory offense committed in the 1986, when Chris Krych was only 19 years old. (He was also convicted of a statutory offense in 1989 in Wisconsin; Krych maintains both incidents were under the influence of alcohol and has been sober since September 28, 1997. He also maintains he never has intercourse in the Wisconsin case and only took a guilty plea out of fear of a 10 year prison sentence if convicted.) His record consisted primarily of DUIs and petty property offenses, but his most serious charge, an arrest in 1997 for an assault stemming from Mr. Krych describes as “accidental,” leading to a 10 year prison sentence.

Krych stated in his first blog post was “disgusted” with his actions and used his prison time to enter various treatment programs, earned ten certificates, and paid his $290 driver’s license reinstatement fees with money he earned in prison. However, he believed the courts made an error in his case. Krych stated he was only initially required to participate in a chemical dependency assessment and follow recommendations. (He was never ordered to take any sex offense treatment classes during his stint for his assault conviction). Krych wrote a document outlining his grievances with his case and incarceration (“Beef Stew”, titled because “I had so many legitimate BEEFS”), but it primarily fell on deaf ears.

Krych filed a Section 1983 complaint against the prison for conspiring to censor his legal petitions. Krych’s complaints, as noted in the courts, were as follows:

“He sought damages and injunctive relief, alleging that Judge Metzen conspired with Hvass to destroy Krych’s “legal work” and “retaliate” against him for sending Minnesota state officials a newsletter complaining about his wrongful state- court conviction; that Hvass violated his due process rights when she had Lind and Uner “steal [his] legal papers and make false disciplinary reports” without having a legitimate security concern; that Hvass “threatened [his] life” and assigned him to administrative segregation (ad seg) “to deter [his] writing” and “for exposing/seeking help on [his] false imprisonment”; and that his requests for “meds (cream)” were ignored, his mail “is repeatedly being stolen,” and he is “constantly being oppressed [and] abused.” In his written objections to the magistrate judge’s report, Krych further stated that defendants were sued “in and out of their official capacity”; that he is still without medical attention for pain in his testicles; and that unidentified individuals continue to steal, delay, and otherwise interfere with his mail.”

Krych’s 1983 complaint reached as high as the 8th Circuit Court; the Court; in an unpublished opinion [11], “find(s) that Krych stated individual-capacity claims against (Minnesota Department of Corrections (MDOC) Commissioner Sheryl Ramstad Hvass; Minnesota State Judge Leslie Metzen, and MDOC employees Diana Lind and Mark Uner, who work at MCF at Moose Lake) for violation of his First Amendment rights and against Hvass for retaliation. See Turner v. Safley, 482 U.S. 78, 89, 91 (1987) (inmate’s First Amendment right to receive mail may be limited by legitimate penological objectives); Leonard v. Nix, 55 F.3d 370, 374 (8th Cir. 1995) (outgoing personal mail does not generally pose serious threat to prison order or security and should not be restricted unless it involves escape plans, plans relating to ongoing criminal activity, or threats of blackmail or extortion); Goff v. Burton, 7 F.3d 734, 736 (8th Cir. 1993) (officials may not retaliate against inmate for exercising constitutional right), cert. denied, 512 U.S. 1209 (1994).” Krych was allowed to sue officials in the individual capacities. Krych considered this at least a partial vindication of his complaints.

Chris Krych received his first release on parole on June 30, 2005; Krych was sent to the RS Eden halfway house in St. Paul, an 8-week transitional program. Because Krych was suffering from health problems, the program decided they no longer wanted Krych in their home, which led to a parole violation. Krych was initially only given a 90-day sentence; the DOC added two 60-day extensions because a transitional home acceptable to the DOC could not be located.

On October 20, 2005, independent legal counsel to the Minnesota Department of Corrections Screening Committee, the Honorable Bertrand Poritski (retired judge who had Dennis Linehan civilly committed) recommended:

“Because there are not sufficient grounds to proceed, it is my recommendation that the commissioner not forward to the county attorney in the county where Mr. Krych was convicted, a determination that it is appropriate to file a petition under Minnesota statutes section 250 3B.185 seeking to commit Mr. Krych as a SDP… While it is likely that Mr. Krych will engage in criminal behavior, in my opinion, the record does not support a conclusion that he is likely to engage in harmful sexual conduct… Dangerousness to others? In the context in which we are dealing, the phrase means sexually dangerous. While Mr. Krych may be dangerous to others, the record is not supporting a finding that he will be sexually dangerous.”

The Dakota County DA filed a civil commitment hearing against Krych on December 22, 2005. As noted by Krych, a new policy had been implemented in Minnesota following the high-profile murder of Dru Sjodin that stipulated all of those convicted and considered a Tier 3, or high risk to reoffend, would have their cases forwarded to County Attorneys for Civil Commitment review. But one month later, January 26, 2006, it appeared the state backed off the plans and re-released Krych to RS Eden.

Chris Krych graduated early from the 8-week transitional program and moved into his own apartment in St. Paul on March 1, 2006. But just a few days later, the Dakota County DA’s office filed a civil commitment petition using the same parole violation for which he had already been punished. The DA’s office relied, at least in part, on the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R). In a preliminary hearing, Judge Michael J. Mayer determined that Krych was not an imminent threat and should be released pending a recommendation from psychologist Roger C. Sweet.

First Judicial District Judge Michael Mayer stated at the March 9, 2006 hearing, “…[S]o a sex offender coming out of prison will complete – ECRC is End of Confinement Review Committee. They will review that process and assess an evaluation of level 1, 2, or 3. This information is referring to that tool. Mr. Krych was not subject to ECRC review, so he did not complete this. Where are they coming up with the scores then for him? They scored him, but they should not have scored him. He was not subject to this process. Tell me how that happens when someone who is not supposed to be scored gets scored or why that happens… I’m… Troubled by the concept that I think I’m being asked to try another avenue of punishment when he’s done his time… But now you did your time.” Krych was released after this hearing.

Despite being free for nine months without incident, and despite testimony from Dr. Roger Sweet and a second psychologist, Dr. Thomas Alberg, who both testified they did not find Chris Krych to be an imminent threat (in October 2006), Judge Mayer ordered civil commitment for Mr. Krych on June 7, 2007; he ruled, “Respondent’s diagnosed Antisocial Personality Disorder… satisfies the statutory requirement that Respondent had or has manifested a sexual personality OR OTHER mental disorder or dysfunction.”

(Emphasis added.)

Chris Krych maintains he is not mentally ill, was never mandated to take sex offense treatment, was never disciplined for any sexual infractions at any time during his incarceration, and had never been diagnosed with a sexual disorder or subject to sex offense registration or community notification. Chris Krych also suspects that the decision may have been partially influenced by a judge’s desire to move Mr. Krych out of her neighborhood.

Since Chris Krych’s formal commitment order on June 7, 2007, Chris Krych has been languishing at the Moose Lake Civil Commitment Center without treatment needs any real hope for release; the state is paying over $10,000/month to keep Mr. Krych incarcerated. The commitment decision was upheld on April 22, 2008; Chris claims the decision is not worth the paper to print it because the DA’s brief was full of lives inconsistent with the Commitment Order and the appellate court adopted said lies. His public defender was appointed after the appeal time period started and he never got extra time, never visited him, and denied him participation. To this day, Chris Krych continues to seek legal representation; as a civilly committed detainee, Mr. Krych is not granted legal assistance typically afforded to defendants in criminal cases. He seeks release, noting he already has housing and work lined up when that release date arrives, if it ever arrives.  [12]

As of July 2020, Chris Krych is awaiting a decision on a writ of mandamus; Chris notes that he could be waiting up to a full year for a hearing.

MSOP CIVIL COMMITMENT STANDARD IS A LIMBO BAR

Chris Krych’s journey is not unique among those civilly committed. Chris Krych’s sex offense conviction was almost 20 years prior to his civil commitment. Krych served a sentence for a physical assault involving a friend, served his time, and was free in the community for almost the entire year of 2006 before he was civilly committed based on a judge’s finding Krych had a personality disorder that had nothing to do with sexual deviancy. Krych was denied treatment needs while incarcerated, and only when his release was imminent did the courts deem further “treatment” was needed.

For Chris Krych, any window of opportunity for release was being nailed shut before he even stepped foot inside the MSOP.

Civil commitment has been utilized in America for nearly a hundred years, proliferating during the “sexual psychopath era” in the 1930s. The standards for civil commitment were high and the confinement period was relatively short. Following the sex offender panics of the 1980s and early 1990s, the standard for civil confinement due to sexual abnormalities had been lowered. In Kansas v Hendricks, [13]  the US Supreme Court ruled in a 5-4 decision (along party line, with conservatives in the majority) that:

1. “The Act’s definition of ‘mental abnormality’ satisfies ‘substantive’ due process requirements. An individual’s constitutionally protected liberty interest in avoiding physical restraint may be overridden even in the civil context… this Court has never required States to adopt any particular nomenclature in drafting civil commitment statutes and leaves to the States the task of defining terms of a medical nature that have legal significance… The legislature is therefore not required to use the specific term “mental illness” and is free to adopt any similar term.
2. The Act does not violate the Constitution’s double jeopardy prohibition or its ban on ex post-facto lawmaking.
3. The Act does not establish criminal proceedings, and involuntary confinement under it is not punishment. The categorization of a particular proceeding as civil or criminal is a question of statutory construction… Nothing on the face of the Act suggests that the Kansas Legislature sought to create anything other than a civil commitment scheme… the Act is not necessarily punitive if it fails to offer treatment where treatment for a condition is not possible, or if treatment, though possible, is merely an ancillary, rather than an overriding, state concern. The conclusion that the Act is nonpunitive removes an essential prerequisite for both Hendricks’ double jeopardy and ex post-facto claims.
4. Hendricks’ confinement does not amount to a second prosecution and punishment for the offense for which he was convicted. Because the Act is civil in nature, its commitment proceedings do not constitute a second prosecution.
5. Since the Act is not punishment, its application does not raise ex post-facto concerns. Moreover, the Act clearly does not have retroactive effect. It does not criminalize conduct legal before its enactment or deprive Hendricks of any defense that was available to him at the time of his crimes.”

The Kansas v Hendricks decision was bad in many ways, including offering the justification for sex offense registries (as in the 2003 Smith v. Doe decision), but Kansas v. Hendricks not only upheld a lower threshold for civil commitment, it also held that effective treatment is not even necessary for indefinite detention.

After the high-profile murder of Dru Sjodin in 2003, Gov. Tim Pawlenty raised the sentence for first-degree sex offenses from 12 to 25 years and introduced the possibility of life with parole for the most severe crimes. He also allocated $90 million to double the capacity of MSOP’s Moose Lake facility. Therapists’ caseloads doubled. Rules were copy-and-pasted directly from the Department of Corrections. Letters from inmates were censored.  In 2006, as Chris Krych was fighting for his freedom, Gov. Pawlenty had enacted a moratorium on releases from MSOP, which was merely symbolic, since the MSOP had already had a reputation for never releasing their “clients.” Pawlenty’s laws helped ensure no one would even be considered for release for many years. [14]  

Since civil commitment programs have low standard of proof for civil commitment proceedings, Krych’s was seemingly destined for civil commitment despite being of little danger for committing sexual offenses. The Minnesota Sex Offender Screening Tool – Revised (MnSOST-R), the test used against Chris Krych in the first civil commitment hearing, is a 16-item checklist of static factors (factors that don’t change, like prior arrests or gender) and dynamic factors (factors that can change, like drug addiction or certain behaviors) used to predict the probability that someone will commit a future sex offense.  

As noted in a 2002 critique of Minnesota’s MnSOST-R test the  Minnesota Department of Corrections required only a +4 to consider a male as eligible for an automatic civil commitment screening. [15]  Considering factors like alcohol consumption (+1), receiving a write-up while incarcerated (+1), and not having employment for at least a year (+1) can all be counted against the subject, a score of +4 is a very low standard for civil commitment eligibility. This means that it is entirely possible for a registrant convicted of a single offense can face a civil commitment hearing in Minnesota.

To offer an example, [16] imagine a very unlucky 19 year old male high school senior named Joe who engaged in a mutual sexual relationship with a 14 year old female freshman named Sue (+2 for being 5 years apart in age). Over the course of a few months, the pair engaged in multiple sexual acts (+1 because multiple actions were involved). Joe is a nice guy and is not prone to violence or crime nor hung around with the troublemakers at his school, but Joe still made a couple of poor decisions because he wanted to “fit in.” Joe was caught skipping classes and got caught smoking a joint with the other teens and served a short stint in juvy for his stupidity during his freshman year. In his junior year, he was invited to a party where other teens were drinking and after a little peer pressure, he took a swig of beer. The party was raided and he got caught with a beer in his hand, leading to probation and community service. This means he has a “history of antisocial behavior,” (+2 points). Since the drinking incident was less than a year before Joe was caught with Sue, add a point.

Joe gets a few years for statutory rape because Sue was below the age of consent. While inside, Joe was a gleaner and signed up for both chemical dependency classes and sex offense treatment. One day, Joe got into a heated argument with a fellow inmate, so the therapist decided to kick Joe out of the program (+4 points for termination from the program and +1 for receiving a prison disciplinary.) Since the therapist also ran the sex offender class, he decided that Joe should be terminated from that program too (+3 for termination from sex offense program). So far, Joe has now accumulated 13 points under the MnSOST-R scale, well beyond the +4 minimum required for a civil commitment hearing and around the average noted in the 2002 critique. Thus, it is possible that Joe could be civilly committed without being a danger to society at all. Whiler the MnSOST-R is not the only reason one may be civilly committed, it is very influential in the decision-making process should a candidate score higher than +4 on the test.

Gladden notes that the MSOP also uses similar actuarial tools, including the STATIC 99R/ 2002R, the PCL-R, and the MnSost-3/3. 1/3.12, as well as Stable 2007 and Acute, two dynamic (changing factor) tools. All are dubious and rely on junk science.

The Minnesota Commitment and Treatment Act (Sec. 253B.02) defines a “sexually dangerous person” means a person who:

(1) Has engaged in a course of harmful sexual conduct as defined in subdivision 7a;
(2) Has manifested a sexual, personality, or other mental disorder or dysfunction; and
(3) As a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 7a.
(b) For purposes of this provision, it is not necessary to prove that the person has an inability to control the person’s sexual impulses.

This definition allows for a wide net because a person needs only one offense and any kind of mental illness that leads a judge to believe that person has a chance to reoffend someday to land in the civil commitment center. If anyone has had any brush with the juvenile system, as unlucky Joe had done, there was likely a mental health evaluation. Joe was sent to a forensic psychologist does not have enough symptoms to qualify for any clinical definition of a mental illness, particularly those of a sexual nature. Nevertheless, the forensic psychologist determines somehow that Joe possibly meets the criteria for “Paraphilia-Not Otherwise Specified.” This would make Joe’s civil commitment all the more likely.

Here lies the biggest problem with the Kansas v Hendricks ruling. The ruling allowed state legislatures to make up their own definitions of what constitutes a mental illness. In fact, the terms “mental abnormality” and “mental disorder” do not correspond to specific diagnostic categories in the DSM. Furthermore, there is less of a consensus view that having a paraphilia diagnosis is mentally illness as opposed to someone suffering from more established mental disorders, such as paranoid schizophrenia.

Gladden points out that Minnesota lacks the “mental abnormality” element; a disorder or at least a partial set of symptoms of the disorder (a “dysfunction”) is sufficient for civil commitment. Through court decisions in both the state appellate and Supreme courts, “some of the qualifying disorders have been held by their mere presence in someone to necessarily include a lack of ‘volitional control.’” Gladden argues the courts misinterpreted Kansas v Crane, 534 US 404, 413 (2002), “… that a ‘serious difficulty’ in controlling one’s actions must be present as an element” for civil commitment. Properly understood from that context, this means that the perpetrator beheld an opportunity to commit a sex crime with a preferred type of victims, and, without any ability to engage a decisional process, immediately, compulsively acted criminally. Instead, it Minnesota case law, it has instead been held that certain paraphilias, such as pedophilia, supposedly involved a strong urge or repeated acted out propensity, that an inability to engage such a decisional process is inherently included in the disorder. Of course, if this were true, there would very seldom be any grooming process before the pedophile actually commits a crime with a selected child victim.” This belief is contrary to the research that suggests those who are truly pedophiles engaging in criminal behavior involve lengthy grooming processes.

As noted in Charles Patrick Ewing’s book “Justice Perverted,” a lack of meaningful DSM diagnosis for the most the candidates for civil commitment has caused many experts to use DSM creatively, sometimes using inaccurate diagnoses that are so common among those convicted of sexual offenses they cannot separate the high risk from the low risk, stretching diagnoses to fits facts it normally would not support & simply making up diagnoses not in the DSM-IV. Antisocial Personality Disorder (APD), another commonly used diagnosis, is also questioned as a description of criminal behaviors rather than mental illness (much like NOS). Many personality disorders have nothing to do with sexual behavior. Because many people convicted of sexual offenses are not mentally ill, suffer from a personality disorder, or sexual sadists, courts have no choice but to rely on the NOS (or APD) diagnosis to justify civil commitment. [17]  

Under the DSM-IV-TR, Criterion A of the general diagnostic category of paraphilias in DSM‐IV‐TR requires that the person demonstrate “recurrent, intense, sexually arousing fantasies, sexual urges, or behaviors involving 1) nonhuman objects; 2) the suffering or humiliation of oneself or one’s partner, or 3) children or other nonconsenting persons that occur over a period of at least 6 months.” Criterion B requires that the person be distressed or have impaired functioning, except for the diagnoses of pedophilia, voyeurism, and sexual sadism, which can be made based solely on the person having acted on his or her paraphilic urges.” This is vague and could be used to consider a woman using a vibrator or a man who enjoys BDSM role play with a consenting partner. Furthermore, the “NOS” diagnosis and pedophilia are the two most common paraphilias used to justify civil commitment. [18]

Paraphilia NOS was defined in the DSM-IV-TR as “This category is included for coding paraphilias that do not meet the criteria for any of the specific categories.  Examples include, but are not limited to, telephone scatologia (obscene phone calls), necrophilia (corpses), partialism (exclusive focus on part of body), zoophilia (animals), coprophilia (feces), klismaphilia (enemas), and urophilia (urine).” Dennis Doren, evaluator for Wisconsin’s civil commitment program, was a key proponent of the use of the NOS diagnosisin civil commitment hearings. Doren has claimed that rape-related paraphilia is a common diagnosis while the DSM lacks any category specific to rape aside from sexual sadism, and other scholars opine it the exclusion of rape-related paraphilia is intentionally excluded from the DSM with good reason. Doen has also advocated for inclusion of “hebephiliac” in the DSM but that had also been rejected at least for the DSM-IV-TR. It seems that Doren (and those influenced by Doren) simply feel any sexual interest not tolerated by society should be included in the NOS diagnosis; this is a slippery slope as it could lead to the re-inclusion of homosexuality as a paraphilia. [19]

Proponents of the NOS diagnosis (or, more formally, the diagnosis is “Paraphilia Not Otherwise Specified, Nonconsent, or PNOSN, most commonly used to commit those who have committed acts of rape) have relied heavily on the appeals to emotion; they cite a few studies but rely heavily on anecdotal “clinical experience”; they also note that DSM criteria are “merely guidelines” and that legal statutes do not have to comply with DSM criteria. Critics of NOS have stated the following:

1. Proposed diagnoses indistinguishable from PNOSN were rejected in the DSM-III (and subsequently rejected in the DSM-V).
2. The chair of the DSM-IV-TR admitted mistakes were made by making the criteria for paraphilias ambiguous. The diagnosis should not act as a mere description of behavior, and more is required to establish a deviant sexual interest than just an act.
3. Paraphilias better defined than PNOSN have proven to be unreliable.
4. Adherence to DSM diagnostic criteria needs clearer communication and greater reliability.
5. DSM-IV-TR codes cast sexual abuse of adults as a problem but not as a mental disorder.
6. Evaluators are engaging in confirmation bias, concluding a client has PNOSN based on a sex offense conviction then seeking clinical data to support that conclusion.
7. Not Otherwise Specified (NOS) diagnoses are considered “wastebasket” or ‘garbage” diagnoses and inappropriate for use in a forensic setting.
8. Too few studies support the diagnosis and there are too many issues with it to justify using it as justification to restrict individual liberties. [20]

Due to the negative connotations of the NOS diagnosis, the DSM-V has altered the term; the “not otherwise specified” categories in the DSM-IV have been renamed and reconceptualized as “other specified” and “unspecified” categories in the DSM-5. [21]

Using diagnoses that have either little or nothing to do with sexual offending (as with many personality disorders), or by using weak and controversial criteria like the Not Otherwise Specified diagnoses, legislators have found  a legal loophole to circumvent the Constitution and indefinitely detain people convicted of sexual offenses beyond their sentences. Using such diagnoses constitute an appeal to authority. After all, “officially authenticated diagnoses regularly function as evidence in legal proceedings of all kinds, and their medical validity is rarely if ever questioned.” [22]

WHERE DEATH IS THE ONLY OPTION

“At 19, when you show up for this program and the very first thing you hear is that nobody ever leaves, it’s like your whole life ends… Every hope and dream you ever had of going to college and having a career and a family, everything pretty much ceases to exist. You realize you’ll never be out in society again. You’re never going to accomplish anything.” – Craig Bolte, an MSOP “Client” in 2015 [23]

For years, there was virtually no hope of ever seeing freedom for anyone sent to the MSOP. Imagine being this 19 year old, looking around the facility for the first time and noticing the average age of an MSOP resident is around age 55. The youngest detainee is 17, while the oldest 94. Many detainees are in their 70s, 80s, and even 90s; none of them have any hope of a “compassionate release” and know they will likely die at the facility. They’re likely suffering too, since diseases are often left untreated.[24]  Would you simply accept your fate, or would you try any measure to attract attention to your personal plight?

Hollis Larson attempted to change his name to “Better Off Dead” in 2019 for multiple reasons. One aspect of the name change stems from his religious beliefs (primarily Taoism, with influences from Buddhism and Hindu faiths). He believes in the Wheel of Life, a belief that the soul is trapped in Samsara (an endless cycle of birth, life, death, and rebirth). The ultimate goal of existence is to break free of this circle of Samsara by transcending the material plane (i.e., through death) to achieve Nirvana. Larson also finds justification in Bible verses (Mark 14:21; Jeremiah 20:14; Job 3:3). That line of reasoning formed the basis for requesting his name should be changed to “Better Off Dead.”

As is common for many civil commitment candidates, Larson received a diagnosis of “Paraphilia, Not Otherwise Specified, Hebephilia.” Larson accurately notes that Hebephilia was not in the DSM-IV and rejected by the DSM-V. It was later changed to the equally dubious PNOSN diagnosis. Larson believes he suffers from PTSD and Autism Spectrum Disorder but the MSOP will not acknowledge that assessment. As a victim of multiple concussions, Larson was to receive a Traumatic Brain Injury (TBI) screening in 2017, but Larson express concerns about the test conducted by biased MSOP employees. Larson lobbied unsuccessfully to have external professionals cover the diagnostic and functional assessments required by MN Rules 9544 and 9525. [25]

For most of his stay, he has been in the “Omega 3” segregation unit due to his legal battles. It is not uncommon for “writ writers” (prison slang for those willing to file grievances against the facility in which they are housed) to endure stricter sanctions, as being placed in a unit that functions as a “prison within a prison.”

Three of Moose Lake’s “clients” have shared insight into the daily lives they must endure within the gates of the MSOP. [26]

One of the clients stated that life inside the MSOP is a “definitely better than prison” but the place is built like a prison. The main building contains six housing units holding between 66-98 inmates each; an older building consists of smaller housing units holding 25-30 inmates a piece in double-bunked rooms. Each “wet cell” looks like a standard prison cell consisting of steel toilets, desk and beds with foam mattresses. The common area resembles one you would find inside a jail, save a couple of thin carpets. Each unit is given a Greek Letter name (Alpha, Beta, Chi, Delta, Nova, Omega) with Omega Unit acting as the disciplinary (maximum security) wing. Another building called “The Complex” consists of 1A (intake unit), 1B, 1C (high psychopathy unit, 1D (cognitively challenged unit) and 1E.

One detainee clarified the current living conditions at Moose Lake by adding only three of the units are currently occupied—Omega, the disciplinary Unit; Alpha, the regular unit (formerly the “Mental Health Unit”), and Beta, where elderly and failing health stay before being shipped to what they call “forensics” (nursing home/ hospice/ end of life care). MSOP justifies keeping Chi, Beta, and Nova units empty by citing staff shortages, but at least one detainee believes the real purpose is to place pressure on them to cooperate with the program as well as promote “homosexuality” which some detainees have come to believe is promoted and rewarded within the facility.

Monotony and boredom is the norm at Moose Lake. Cable TV does not exist at the facility. The facility has a small library primarily consisting of old books. Inmates have donated used magazines to the prison library, although the staff have gone to ridiculous lengths to censor reading materials (think redacted sentences and magic markers taken to pictures). The food has been described as similar to prison food with insufficient meat. Even going to a poorly equipped gym is a privilege limited to 50 minutes per week for Omega Unit residents. (Those not in Omega Unit have “reasonable” access to the gym.)

Educational training is discouraged at Moose Lake; GED classes and college classes do not exist at the MSOP. At best, they offer some basic computer and typing classes along with the occasional hour-long seminar on “conversational topics and hobbies” including Mythology, The middle Ages, Crocheting, Flowerbed Planning, and Exercise/ Games. In fact, inmates are banned from taking correspondence courses even when the inmate can pay for his own education.

Prison labor jobs are available but are used to coerce inmates into taking the treatment programs. The programmers claim work is part of the therapy, though the inmates question the therapeutic benefits of performing menial labor within the camp). A $97 General Assistance commissary “stipend” (as explained by one prisoner, government welfare benefits taken from the detainee’s county of commitment) is offered to those who are ineligible to work or lack a job at the camp, providing basic supplies to the inmates. At times, the units are locked down except for those performing cleaning labor for free.

Medical care is also on par with the type of medical care a person in prison would receive. It is nearly non-existent, with no doctors on staff. As one inmate described it, “If I were to fall out from a heart attack, it would take an average of 50 minutes to get me on the road in an ambulance. Some elders have died due to this delay.” Even if the inmate needs off-site medical care at a nearby hospital, the MSOP staff “truss us up like we are Guantanamo inmates.” Many MSOP detainees do not qualify for medical benefits, thus lacking insurance. As the Moose Lake population grows, more inmates are using used walkers and wheelchairs taken from local hospitals (that were intended to be recycled). Institutional policies have pressured inmates to act as nurses for ill and dying residents. Ambulances are called to the facility on a regular basis and the ambulances must be escorted by a law enforcement agent. Only those who are in the not US citizens are excluded from the Minnesota Medical Assistance programs.

Communication with inmates is difficult. The MSOP pays Global Tel-Link for phone services, which is very expensive for the inmate, even for local calls. They cannot call toll-free numbers. Mail is also heavily censored and all mail is scanned by local police under the belief that inmates must be plotting sex crimes with those outside the walls. Inmates are allowed visitors but only after a two to four month screening process “the equivalent of a national security vetting.” Mail and phone calls are screened; the Office of Special Investigation (OSI) is a non-law enforcement position within the facility tasked with checking the mail for contraband. Some have suggested mail is also heavily censored, and all mail is scanned by local police under the belief that inmates must be plotting sex crimes with those outside the walls.

If it is built like a prison, looks like a prison, treats those forced to reside there like prisoners, and run by prison officials, then it is a prison. Yet, legislators continue to deny this even while describing the facility using prison terms. In 2006, State Representative Bill Hilty described the facility in prison terms by stating, “In terms of the facility, whether you call it a treatment facility or a prison, it’s built to confine people in pretty much maximum security.” State Senator Becky Lourey added that the 2006 Moose Lake expansion “is a prison design, which allows us more space for less money.” [27]  Former State Senator Don Betzold told the Star-Tribune, “The sex offender treatment program is like a prison — only worse, because there’s no ‘out’ date. The Moose Lake building was designed as a maximum-security prison. The treatment program has been led by some state employees who came from corrections backgrounds.” [28]  This is intriguing given the tendency towards sterilizing the language in the state statutes.

The MSOP promotes itself as being a structured program. “The program includes three “phases” of treatment for clients. Most of the individuals in the program are in the first phase of treatment, which focuses on adjusting clients to the rules of the program and treatment basics. Only in the second phase of treatment do clients detail their sexual history. The third stage of treatment takes place at another MSOP facility, in St. Peter. Clients are allowed to take supervised excursions into the community. If they do well, the client can petition a special review board to go into a program known as Community Preparation Services (CPS). As the name suggests, CPS is supposed to prepare clients to go back into the community. Clients get certain privileges there, including college-level classes and the ability to move around freely — under supervision — in a facility just outside the razor wire.” [29]

In reality, the standards of “treatment” offered by the MSOP are Kafkaesque, where inmates go through a program designed to maintain only an appearance of treatment while setting them up for failure.

The treatment program provided by the MSOP is a pastiche of various popular models for treating people convicted of sexual offenses, including Cognitive-Behavioral Therapy, Relapse Prevention, and the Good Lives Model, but is presented in an ineffective manner promoted by negative reinforcement. Inmates are expected to learn and apply a 32-point matrix of treatment goals until it is second nature to the inmate; one inmate estimated that only 30 inmates in 25 years have even been deemed as successfully reaching these goals, while nearly three times that many have died at MSOP.

Forced treatment is promoted through intimidation, threats, and coercion. Inmates cannot apply for prison jobs unless they are actively in treatment. The facility has implemented a Tier system of privileges, and even the smallest infraction could lead to lengthy periods in more restrictive wings of the prison. As one inmate noted, “The harsh emphasis on exact obedience of even the most minor rules greatly increases the onerous burden of daily life here.” Since there is no real hope for release, so there is little motivation to struggle through the farce of MSOP’s “treatment” regimen. Those sent to MSOP while on parole work the program to avoid being sent back to state prison but quit as soon as their parole periods end.

Those who refuse to share a cell or written up for even the slightest of infractions can find themselves in the Omega Unit, the prison within the prison. Here, they face a more environment resembling solitary confinement; those in Omega Unit could even be restricted from religious studies if not approved by the staff.

When considering the conditions of confinement, it is no mystery why Larson chose to use the name “Better Off Dead.” As Larson explains:

“I could go on for days and reams describing the punitive and torturous conditions of MSOP, but these suffice to show why I feel like I would be Better Off Dead. Also, due to my pretty much life-long incarceration… I’m sure I have Post-Incarceration syndrome, Segregation Psychosis, and who knows what else due (to) the virtual limitless sensory deprivation and torture to which I’ve been subjected. Of course, I am also attempting to exercise my constitutional rights to protest the way I’ve been ‘treated’ by the government relating to/ regarding my civil commitment. Having my name Better Off Dead would at least (hopefully) make my captors stop and think whenever they hear my name. It also… draws attention to not only my plight, but hopefully all persons’ plight of falling into the civil commitment industry ‘rabbit hole.’ By the same token, it is virtually my only way to peacefully protest, to the public at large, what a witch hunt civil commitment is and the extent to which it negatively affects not only the committed person, but their families, friends, etc. On top of all this, add the pervading atmosphere of utter hopelessness of knowing I will probably never be released from MSOP and my legitimate diagnosis of major depression/ dysthymia, and you have the basic rationale and mindset for me knowing that I am truly better off dead.”

The news media have confirmed what inmates have suspected all along – the system is indeed to keep them in limbo permanently. Dr. Mischelle Vietanen, former MSOP psychologist, told City Pages in 2015 treatment took a backseat to the public desire to keep inmates incarcerated for life:

“Progress reports were entirely subjective, written by young therapists who cycled in and out in troubling volume. Each time one therapist quit and another filled the void, patient scores were lowered due to unfamiliarity. Yet one prerequisite for progress was maintaining steady scores, a task made impossible for even the most earnest of offenders.

‘My first year there, there was really very little indication to me that we were trying to move people out,” Vietanen says. “I never felt like they wanted in my reports something saying this person is ready to be released.’

One report was returned by a supervisor, urging her to find something, anything wrong with the inmate.

Vietanen held her ground. She could not find a shred of evidence in the man’s records showing him defiant or refusing to engage. ‘I am sure it was not supported by MSOP. I don’t remember any of my reports being supported by MSOP.’

The program seemed chronically short-staffed, usually with only two or three psychologists when there should have been six to eight. Paperwork took priority over counseling.” [30]

Staff and counselors were told to treat the inmates aloof and without any respect. Former security guard Kevin Scanlon was yelled at his boss for treating the inmates with respect; he was told he was not there to help people. [31]

Even before the 2006 moratorium on releases from MSOP, it was well-documented no one had been released from the program. As noted in the 2002 critique of the MSOP:

“In view of the paucity of discharges from such commitments thus far in Minnesota’s experience with such laws, one must draw one of two conclusions. Either the treatment is only slightly effective or even worthless; or the treaters are unable to observe actually present signs of readiness for release. There are a few data on discharges in Minnesota since the sexually dangerous predator law of 1994 was passed. Of approximately 102 sex offenders committed during 1995–December 1999, not one had been released (provisionally or directly) by the end of 1999; average length of stay was 4.7 years. This presents quite a discomfiting picture of the state of sex offender commitment “treatment” in comparison to typical mental health commitments. Hence, we stand by our analogy between the erroneous commitment of a sex offender mistakenly said to be at high risk of recidivism, and the mistaken imprisonment of a citizen.” [32]

Former State Representative Don Betzold explained to the Star-Tribune in 2015 the Minnesota Civil Commitment law was intended to be treatment, not punishment; however, the law was a reactionary response to a high profile case:

“In August 1994, Gov. Arne Carlson called the Minnesota Legislature into special session to rewrite a 1939 law that allowed civil commitments of “psychopathic personalities.” The special session was called in response to a Minnesota Supreme Court ruling that decided that Dennis Linehan should not have been civilly committed as a sex offender…

“The day I presented the bill to the Senate, I stressed that civil commitment was for treatment, not incarceration. I repeated that statement in subsequent years as other legislators tried to make it stronger by claiming that “the worst of the worst need to be locked up!” Gov. Tim Pawlenty once said he’d push for the death penalty for sex offenses. (Never mind that a sex offense, by itself, would not qualify for capital punishment.)”

“As Judge Frank observed, some sex offenders are very dangerous, and society should be protected from them. But a number of those committed as sex offenders are not now dangerous at all. Some of them are old men in wheelchairs or on walkers.”

“The state doesn’t know who is really dangerous and who isn’t. As a result, almost everyone remains locked up.” [33]

FORMER MSOP STAFFER VERIFIES MSOP IS A TOXIC WORK ENVIRONMENT

“Traci” [34] worked at the Moose Lake facility for roughly four years. Traci took the job because she never knew civil commitment was used on people convicted of sexual offenses, and she saw the job as a “great opportunity to hopefully elicit change in an area that is highly misunderstood by society.” Traci spent much of her tenure within the Behavioral Therapy Unit and the “High Psychopathy Unit”, the wing for those with “treatment-interfering behaviors.”

Traci found that few of her fellow MSOP employees shared her same enthusiasm for treating the “patients”. Traci stated many staff expressed an explicit disgust and hatred towards MSOP clients and appeared “jaded and bitter.” Traci witnessed staff calling prisoners “little fuckers”, “pieces of shit”, and other derogatory names. Some staff would look for reasons to write up a client out of spite for statements made by prisoners (they took even general statements personally). Security staff would sometimes take steps to ensure prisoner needs or grievances were not conducted in a timely manner.

According to Traci, clients were berated for feeling helpless within the confines of the facility. If a prisoner was in crisis, they were told to just “deal with it”. If a prisoner asked to speak to the Primary Therapist (PT) because he was struggling with a personal issue, the staff would not bother to contact the PTs. Even if the PTs were contacted, the PTs would often refuse to meet with the prisoner, stating the prisoner should “learn how to manage his emotions.” Mental health issues such as Complex PTSD or TBIs are routinely ignored by the staff.

Traci also confirms the practice of double-bunking in small cells, a complaint brought up my numerous prisoners over the years but largely ignored by outsiders. Staff ignored concerns that vulnerable prisoners were forced to share cells with those with a history of assaulting other prisoners at the facility; the administration and staff claimed it was all a part of the “learning process.” One prisoner refused to accept a violent cellmate due to a previous traumatic experience. Administration and Clinical Directors felt he was “playing a game” and did not take his request seriously. This prisoner spent months in the East Observation Area (the suicide isolation area) and was only released after filing litigation against the facility.

MSOP administration seemingly turned a blind eye to potential violence against prisoners or even staff because assaults could be used to justify the existence of the MSOP. Traci noted one prisoner with a violent history made repeated threats of assaults against staff; the prisoner had stated he wanted to go back to prison because, “prison is better than this hellhole.” Clinical staff reported these concerns and suggested this prisoner be moved to the Behavioral Health Unit to upper management, but the report was ignored. Later that day, the prisoner slashed at the throat of the Clinical Supervisor during a community meeting.

Traci quickly realized the “clients” at the Moose Lake facility had no real hope. Many prisoners had died within the facility, and many living clients had been imprisoned over two decades. Traci argues, “All peer reviewed research indicates that any program that is longer than a few years, does more harm than good to the client. It has further been suggested that a general aim of sex offender treatment is to not exceed the duration of 2 years in total length, because of doubts about the added value of treatment. Concerns about the possible iatrogenic effects of “over-treating” sex offenders appear to be rarely discussed and yet appear to warrant further consideration, especially in light of the move away from the open-ended treatment models that were available in the 1980s to the time-limited approaches that characterize contemporary practice. If DHS is hiring the best people for the job at the treatment center, then they are failing in their position to guide clients to elicit change. The program itself is outdated and flawed and there is no consistency in presenting the psychoeducation material, no consistency in providing individual therapy, and no consistency in writing quarterly or annual reports.”

Traci knew she had to leave this toxic working environment. While stating she had multiple reasons to leave, Traci notes the primary action that led to her decision to quit was prisoner progression within the program was actively discouraged by those within the MSOP Administration. Prisoners are encouraged to be open and honest about rule-breaking behavior, but that honesty is met with harsh punitive sanctions. Prisoner behavior is monitored and reported on a quarterly and an annual treatment progress reports; the staff utilize a “Matrix scale” on specific areas like Interpersonal Skills, Emotion Management, and Healthy Lifestyle on a scale of zero to five. If a prisoner scores a four or a five, that prisoner could progress into the next phase of treatment. However, if a prisoner scores “too high” on the Matrix scale, Administration would force changes to the report to show a lower score. Clinicians rarely handed out a score beyond a three; the ideal score is a two because it shows the prisoner “needs improvement’ and shows the prisoner is still “in need” of treatment.

THE LEGAL BATTLE FOR FREEDOM

The three men that have corresponded with me to help paint of picture of life behind the walls of the MSOP – Chris Krych, Hollis Larson, and Cyrus Gladden – have all tried different ways to bring attention to their personal plight and the plight of the MSOP inmates as a whole.

The MSOP is a costly program; the reactionary response to Dru Sjodin’s high-profile case led to annual costs of the MSOP to increase from $18 million per year in 2003 to $71.6 million six years later ($134,000/yr per inmate in 2009). It is hard to justify the costs considering the reactionary laws also lowered the standards by which a person convicted of a sexual offense could qualify for civil commitment. Paul Reitman, a forensic psychologist who screened candidates for civil commitment, noted that before Sjodin’s murder, only those with repeat violent offenses involving multiple victims would land someone in the MSOP; since Sjodin’s murder, people convicted of non-violent offenses, those who had only committed crimes as juveniles, and individuals suffering from developmental disabilities have been civilly committed. Furthermore, the state’s Department of Corrections has fought attempts to force them to provide sex offense treatment to lower the chances one will be civilly committed after serving time.[35]

Despite the various methods of fighting back, inmates at MSOP had only one avenue for making their voices heard – through the courts. The litigation route would not be easy, however. Civil Commitment laws have routinely been upheld by the conservative-majority US Supreme Court going back to the Kansas v Hendricks decision. Arguing ineffective treatment would be harder to do because Kansas v Hendricks allowed for institutionalization even if the treatment provided does not work.

After the moratorium has passed in 2006, MSOP inmate Peter Lonergan (who had always maintained his innocence) began studying law to figure out a way to fight back against his incarceration. He concluded no individual appeal would ever work, so he focused on conditions of confinement. Lonergan knew becoming a “writ writer” would come with consequences; for years, he was stuck in the “introduction phase” of treatment. [36]

Nearly a decade later, on June 17, 2015, the inmates at the MSOP finally secured a victory, lifting the spirits of inmates across the facility. In Karsjens v. Jesson [37], Judge Donovan Frank ruled that the current conditions of the MSOP were unconstitutional the MSOP would have to change in order to continue to exist. The ruling gives collaborated testimony about the conditions of the program. Below are some key statements from Judge Donovan’s ruling for those who do not want to accept the words of MSOP inmates:

“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 light of the structure of the MSOP and the history of its operation, no one has any realistic hope of ever getting out of this “civil” detention. Instead, it is undisputed that there are committed individuals who meet the criteria for reduction in custody or who no longer meet the criteria for commitment who continue to be confined at the MSOP…”

“Since 1994, various evaluators have published reports that are critical of the state’s civil commitment system, the MCTA, and the MSOP’s treatment program structure. The Governor’s Commission on Sex Offender Policy (“Governor’s Commission”) issued a report in January 2005 recommending, among other things, the transfer of the screening process of sex offenders for possible civil commitment to an independent panel and the establishment of a continuum of treatment options. The Office of the Legislative Auditor for the State of Minnesota (“OLA”) issued a report in March 2011 (“OLA Report”) recommending numerous changes to the civil commitment statutory scheme as well as to the MSOP, including revising statutory commitment standards and creating lower cost, reasonable alternatives to commitment at high-security facilities. The Sex Offender Civil Commitment Advisory Task Force (“Task Force”) recommended, among other things, that the Commissioner of DHS develop less restrictive programs throughout the state. The MSOP Program Evaluation Team (“MPET”) found that the MSOP’s requirements for phase progression may be too stringent and recommended modification of the phase progression criteria. The Rule 706 Experts published reports criticizing the commitment and placement of certain committed individuals and a final report identifying problems with various aspects of the program, including the lack of periodic assessments. The MSOP Site Visit Auditors have issued reports every year since 2006 that have identified deficiencies in the program and statutory scheme and have included recommendations to improve the civil commitment system…”

“The evidence clearly establishes that hopelessness pervades the environment at the MSOP, and that there is an emotional climate of despair among the facilities’ residents, particularly among residents at the Moose Lake facility…”

“The MSOP lacks less restrictive options, such as halfway houses, for committed individuals at the MSOP. This lack of less restrictive facilities and programs undermines the MCTA’s provision allowing a committing court to consider placing an individual at a less restrictive alternative. It is undisputed that there are civilly committed individuals at the MSOP who could be safely placed in the community or in less restrictive facilities… there are committed individuals at the MSOP, including some of the sixty-seven juvenile-only offenders at the MSOP, who could be treated safely in a less secure facility…”

“DHS attempted to provide less restrictive placement options for civilly committed individuals at the MSOP. In September 2013, Commissioner Jesson sent a letter to the Minnesota Legislature identifying committed individuals at the MSOP who could be transferred to an existing DHS site in Cambridge, Minnesota. Commissioner Jesson expected the facility to become available to the MSOP in 2014. Commissioner Jesson credibly testified that she planned to transform the Cambridge facility to become a less restrictive alternative for individuals committed as sex offenders. However, those efforts were halted by Governor Dayton’s November 2013 letter…”

“The current three-phase program began in 2008 after Hébert became Executive Clinical Director of the MSOP. Prior to 2008, the MSOP used various programming over the years. Steiner credibly testified that there have been four or five clinical directors during his commitment at the MSOP, and that the MSOP’s treatment program changed four or five times with each change in clinical leadership…”

“Some committed individuals at the MSOP are not in the proper phase of treatment. The MPET reported that thirty percent of the Phase I patient files reviewed reflected that the patients were not placed in the proper phase based on the MSOP’s own policies. Since receiving the MPET Report, the MSOP has not reassessed all committed individuals to determine if they are in the proper phase of treatment. In addition, the MSOP clinicians credibly testified that there are individuals who are in the wrong treatment phase…”

“The MSOP uses the Goal Matrix for Phases I, II, and III to identify treatment goals for each phase of the program, to measure treatment progress, and to reference as a benchmark for moving committed individuals between phases of the program. The MSOP began using the Goal Matrix in 2009. Treatment progress is scored using the Matrix factors… The Matrix factors are not used by any other civil commitment program in the country. Independent evaluators and internal staff at the MSOP have repeatedly observed confusion regarding how the Matrix factors were to be used and inconsistencies with the application of the Matrix factors… scores on the Matrix factors fluctuate, due to changes in staffing, and that she was concerned by the lack of inter-rater reliability of the Matrix factors. Persons credibly testified that newer clinicians are more likely to give lower Matrix scores…”

“The MSOP did not provide training to all staff on the Matrix factors until 2013 and 2014, and the MSOP did not provide any training on the Matrix scoring until 2014…”

“As of October 2012, the MSOP phase progression design time line indicated a range of six to nine years for a “model client” to progress from Phase I through Phase III. Currently, the treatment program at the MSOP does not have any delineated end point… Independent evaluators and outside experts have repeatedly criticized the lack of progression…”

“Some committed individuals at the MSOP have regressed as a result of changes to the treatment program phase progression model. For example, Steiner had progressed to the last phase of the treatment program; the MSOP then adopted the current three-phase model, resulting in Steiner starting over and moving back to the MSOP Moose Lake facility. Clinical staffing shortages and turnover at the MSOP have hindered the ability of the MSOP to provide treatment as designed and have impeded treatment progression of committed individuals at the MSOP. …”

“Some individuals confined at the MSOP have stopped participating in treatment, despite satisfying phase progression requirements, because they knew it was futile and they would never be released. Thuringer credibly testified that some individuals have been confined at the MSOP for over twenty years and have completed the treatment program three times, but are currently only in Phase II due to subsequent treatment program changes; he concluded it would be ‘futile’ to even attempt to progress through the treatment program…”

“Defendants are not required under the MCTA to conduct periodic risk assessments after the initial commitment to determine if individuals meet the statutory requirements for continued commitment or for discharge… Significantly, a full risk assessment is the only way to determine whether a committed individual meets the discharge criteria. Risk assessments are only valid for approximately twelve months.

Johnston and Puffer credibly testified that if a risk assessment has not been conducted within the past year on civilly committed individuals at the MSOP, the MSOP does not know whether those individuals meet the statutory criteria for commitment or for discharge. Hébert credibly testified that all juvenile-only offenders who have not had a risk assessment within the last year should be reassessed to determine whether they meet the statutory criteria for continued commitment or for discharge. Risk assessments need to be performed regularly to account for new research, aging of the individual, and to track an individual’s changes through treatment…”

“In 2013, DHS attempted to implement a rolling risk assessment process… At the proposed rolling assessment rate, it would take between thirty and sixty years to finish just one risk assessment for each Class Member currently committed at the MSOP… The MSOP does not have a manual or guide regarding how to conduct risk assessments…”

“Dr. Pascucci and Dr. Jennifer Jones (“Dr. Jones”), a Risk Assessor at the MSOP, credibly testified that they did not receive any training regarding the constitutional standards for commitment or discharge…”

“The discharge criteria is more stringent and harder to prove than the commitment criteria. The SRB and the SCAP, with limited exception, will not grant provisional discharge or discharge without the support of the MSOP. The SRB nearly always follows the MSOP’s recommendation… As of July 2014, the SCAP has granted transfer to CPS twenty-eight times, provisional discharge once, and full discharge zero times… some petitions can take longer than five years to complete the petitioning process…”

“There is no policy or practice at the MSOP, nor a requirement in the statute, that requires the MSOP to file a petition on an individual’s behalf, even if the MSOP knows or reasonably believes that the individual no longer satisfies the statutory or constitutional criteria for commitment or for discharge… The MSOP knows that there are Class Members who meet the reduction in custody criteria or who no longer meet the commitment criteria but who continue to be confined at the MSOP. Despite its knowledge that individuals have met the criteria for release, the MSOP has never petitioned on behalf of a committed individual for full discharge…”

“Between January 2010 and June 2014, 441 committed individuals at the MSOP who were potentially eligible for discharge had not filed a petition for a reduction in custody… MSOP will only support individuals for discharge if they had been successful in finishing treatment and defined ‘successful’ to mean ‘finished.’”

“The Court concludes that the evidence presented over the course of the six-week trial in this case demonstrates that Minnesota’s civil commitment statutory scheme is unconstitutional both on its face and as applied. Contrary to Defendants’ assertions, the Court concludes that the ‘shocks the conscience’ standard does not apply to Plaintiffs’ facial and as-applied challenges because Plaintiffs’ substantive due process claims involve the infringement of a fundamental right…”

“Specifically, the Court concludes that section 253D is facially unconstitutional for the following six reasons:

(1) section 253D indisputably fails to require periodic risk assessments and, as a result, authorizes prolonged commitment even after committed individuals no longer pose a danger to the public and need further inpatient treatment and supervision for a sexual disorder;
(2) section 253D contains no judicial bypass mechanism and, as such, there is no way for Plaintiffs to timely and reasonably access the judicial process outside of the statutory discharge process to challenge their ongoing commitment;
(3) section 253D renders discharge from the MSOP more onerous than admission to it because the statutory discharge criteria is more stringent than the statutory commitment criteria;
(4) section 253D authorizes the burden to petition for a reduction in custody to impermissibly shift from the state to committed individuals;
(5) section 253D contemplates that less restrictive alternatives are available and requires that committed individuals show by clear and convincing evidence that a less restrictive alternative is appropriate, when there are no less restrictive alternatives available; and
(6) section 253D does not require the state to take any affirmative action, such as petition for a reduction in custody, on behalf of individuals who no longer satisfy the criteria for continued commitment.”

“In addition, the Court further concludes that section 253D is unconstitutional as applied for the following six reasons:

(1) Defendants do not conduct periodic, independent risk assessments or otherwise evaluate whether an individual continues to meet the initial commitment criteria or the discharge criteria if an individual does not file a petition;
(2) those risk assessments that have been performed have not all been performed in a constitutional manner;
(3) individuals have remained confined at the MSOP even though they have completed treatment or sufficiently reduced their risk;
(4) discharge procedures are not working properly at the MSOP;
(5) although section 253D expressly allows the referral of committed individuals to less restrictive alternatives, this is not occurring in practice because there are insufficient less restrictive alternatives available for transfer and no less restrictive alternatives available for initial commitment; and
(6) although treatment has been made available, the treatment program’s structure has been an institutional failure and there is no meaningful relationship between the treatment program and an end to indefinite detention.”

“Benson credibly testified that ‘the politics around the program are really thick’ and that ‘politics guide the thinking of those involved in the [release] process,’ which Benson described as a ‘political crapshoot.’ Benson further credibly testified that ‘I think this is an area where people have got to rise above the politics and do the right thing or … this program is going to, I think, eventually be deemed unconstitutional, and in its current form probably should be.’ The Task Force Report corroborated these observations, stating that ‘the Task Force is deeply concerned about the influence of public opinion and political pressure on all levels of the commitment process.’”

“It appears to this Court that the civil commitment process—with lower burdens of proof—is being utilized instead.”

While the US District Court case was gaining traction, Minnesota was looking for a symbolic release in an effort to deflect criticism over their record of never releasing anyone from the program. In 2012, MPR reported that Gov. Mark Dayton wrote a letter to legislators explaining that if the state didn’t release someone, it left the sex offender program open to court challenges. [38]

In March 2012, Clarence Opheim was granted a provisional release, making him the first MSOP inmate to receive a release under any condition. Of course, the release came with controversy, including passage of a bill the state legislature claimed would “close a loophole” in the state’s law that would have allowed Opheim to enter the transitional program without community notification. [39]

Since his provisional release, Opheim stayed in two halfway houses. He spent over 1500 consecutive days without a disciplinary infraction while staying at the Zumbro House. In 2018, Opheim received approval to move into an independent apartment. He has paid his rent, maintained employment, and continued involvement in his aftercare program. Opheim has also been allowed 8 hours a day of unsupervised time daily without incident. At last notice, Opheim unsuccessfully appealed a Tier 2 classification which allowed for community notification. [40]  As of this writing, there have been no news reports that can be found online connecting Opheim with any arrest reports.

Since then, the number of discharges increased but only slightly. As one of the detainees stated in his letter, 15 people were released in 2019, but at the rate of release, without taking into account new inmates, it would take the MSOP 50 years to release the current population of around 750 inmates. Since the average age of MSOP inmates hovers around age 60, chances are, more MSOP clients will die long before being considered for release.

On January 3, 2017, the Eighth Circuit overturned Judge Donovan’s decision by claiming Judge Donovan used the wrong standard (strict scrutiny) for ruling against the MSOP:

“Accordingly, the proper standard of scrutiny to be applied to plaintiffs’ facial due process challenge is whether MCTA bears a rational relationship to a legitimate government purpose… MCTA is facially constitutional because it is rationally related to Minnesota’s legitimate interests. The district court expressed concerns about the lack of periodic risk assessments, the availability of less restrictive alternatives, and the processes for seeking a custody reduction or a release… We conclude that this extensive process and the protections to persons committed under MCTA are rationally related to the State’s legitimate interest of protecting its citizens from sexually dangerous persons or persons who have a sexual psychopathic personality. Those protections allow committed individuals to petition for a reduction in custody, including release; therefore, the statute is facially constitutional.”

“We agree with the state defendants that much of the district court’s ‘as-applied’ analysis is not a consideration of the application of MCTA to the class plaintiffs but is a criticism of the statutory scheme itself… None of the six grounds upon which the district court determined the state defendants violated the class plaintiffs’ substantive due process rights in an asapplied context satisfy the conscience-shocking standard. Having reviewed these grounds and the record on appeal, we conclude that the class plaintiffs have failed to demonstrate that any of the identified actions of the state defendants or arguable shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard. Accordingly, we deny the claims of an as-applied due process violation.” [41]  

The Eighth Circuit simply determined that strict scrutiny was too high a standard; they reasoned that the atrocities committed at MSOP are perfectly fine simply because they feel the state has an interest in protecting the public. Of the three judges on the panel, two were George W Bush appointees (Colloton and Shepherd) and the third a Bill Clinton appointee (Murphy, who passed away soon after the ruling). Also worth noting is the fact the Eighth Circuit is filled primarily with appointees from Republican presidents.

In October 2017, the US Supreme Court declined to hear the appeal on the Eighth Circuit ruling. The news media reported by that time, one person had been fully discharged from the program and eight more had been provisionally discharged to halfway houses. [42]

Due to the Eighth Circuit ruling, Judge Donovan had no choice but dismiss the remaining complaints. While Judge Donovan’s hands were tied by the higher court ruling, he stood by his findings that some aspects of the MSOP shock his conscience. “Finally, the Court expresses its view that some of the facts revealed during the lengthy Phase One trial in this matter are indeed shocking to this Court’s conscience. In particular, the Court finds the circumstances surrounding the confinement of Rhonda Bailey, the MSOP’s sole civilly committed female, to be truly conscience-shocking. Furthermore, the Court views the continued confinement of elderly individuals with a low likelihood of re-offense as an egregious affront to liberty, particularly in light of the pervasive sense of hopelessness at the MSOP. Similarly, the confinement of individuals with cognitive disabilities or juvenile-only offenders who could safely reside in a less restrictive alternative facility or in the community remains of great concern to the Court. Notwithstanding these observations and concerns, however, the Eighth Circuit’s reversal of this Court’s liability findings in large part compels the conclusions the Court reaches today.” [43]

“The dismissed claims, which had been put on hold for a second phase of the case, dealt mostly with alleged violations of religious freedom, free speech and free association, and protections against unreasonable searches and seizures. The effect of the rulings is that anyone in the program who wishes to pursue such claims must do so as an individual instead of a class action. Frank noted that several such cases are pending, and more may now follow.” [44]

SUGGESTIONS FOR CHANGE

A 2011 evaluation from the Minnesota Office of the Legislative Auditor concluded that the program was costly, lacked reasonable alternatives to civil commitment at a high-security facility, unnecessarily detains people who are actually not considered a risk to society, experienced frequent disruptions in staff and leadership, and lacks a clear pathway for progression in the program. The Auditor recommended exploring lower cost alternatives, changes in commitment standards and sentencing policies, and providing actual treatment. [45]

When asked what could be done to improve the program, Traci, the former MSOP employee, responded with many reasonable suggestions for change. [46]

First, the practice of civil commitment should NOT be sought for non-sexual revocations. Those who complete treatment during incarceration should not be considered for civil commitment.

Second, the program should take needs of prisoners with mental health and/or legal issues into account (which would require an individualized approach). For example, prisoners should be allowed to attend sex offense treatment while maintaining the right to declare innocence. Currently, the Minnesota Dept. of Corrections will not allow those convicted of sex offenses to attend treatment unless they “confess” to all the crimes in which they were charged and/or convicted, even if they are fighting appeals based on innocence. In this particular example, a truly innocent person may be forced to admit to actions he did not actually commit. Also, non-sexual needs like substance abuse issues are not addressed until the prisoners advance to the St. Peter facility (the facility that is supposed to prepare the prisoners for release). In fact, prisoners can be written up and punished for disclosing their struggles with substance abuse.

Fourth, the program should shift focus away from reliance on junk science like polygraphs and the Penile Plethysmograph (PPG) to “prove” prisoners no longer have deviant thoughts or fantasies. While neither device is admissible in court, they have been heavily utilized by the MSOP as tools to determine advancement within the program. (Unfortunately, this is a common practice in many treatment programs in the US.) If such treatment standards are to be maintained, Traci suggests prospective staff should “lead by example” and be subjected to these same tools “for the safety and security of the facility.”

Fifth, Traci expresses grave concerns with the incredibly high turnover rate; many clients had over ten different therapists in a relatively short amount of time. Yet, clients are expected to follow the program religiously and perfectly despite the chaos. The result is an impossibly high standard for release that ensures virtually everyone is destined to fail the program.  

Finally, the MSOP lacks a “trauma informed care approach” to treatment, meaning the personal traumas experienced by the prisoners are ignored or misused. Prisoners have also experienced extreme trauma at some point in their lives, and the MSOP forces those prisoners to relive those traumas without proper support. Traci notes, “Trauma focused therapies are proven to be effective in helping individuals manage negative behaviors and lead productive lives; however, at MSOP, if you utilize many of the foundations of a trauma focused therapy, they consider you to be ‘a client hugger’ and they will immediately start finding ways to push you out the door. The goal should be on helping them learn the tools to live the best life they can, regardless of what that might look like. In the end, no one can predict the future—but places like MSOP feel that this is exactly what they can do. Ultimately, it wouldn’t be profitable for the organization to operate under care, concern, and compassion and therefore; the struggle to change the system continues to remain an almost impossible task.”

Traci ends her statement with the following statement:

“Truly, if the public were given the chance to meet some of these clients, hear their stories, hear their current views and their current goals, they would see that humans have a significant capacity to change for the better. So many of these individuals have homes to go too, family that miss them and love them, and a stability that society doesn’t believe exists for them. If we give up believing that humans have the capacity to change, then there really is no point in life overall. As humans, we need to believe in change—and believe that people can make appalling mistakes and still find a path that leads them to leading productive, positive lives. These individuals served their prison terms. They did the time that the Department of Corrections felt was appropriate. By MSOP continuing to lock them up to make a profit by playing on the fears of the community is…well, it’s downright atrocious and I feel dirty that I ever worked for an entity that promotes the further punishment and suffering.”

SEEKING A “CLEAR PATHWAY” FOR RELEASE

This article is the story of a lone civil commitment center; similar stories have played out in civil commitment centers across America. An August 2020 report found similar conditions at the Rushville, IL civil commitment center:

“In These Times spoke with people held in civil commitment, rights advocates, scholars and lawyers who say that, instead of receiving effective treatment, people held under civil commitment statutes are subject to prison conditions, inadequate mental health care, scientifically dubious evaluations, and homophobic bias; they are deprived of meaningful due process; and they have little hope of getting out anytime soon. Rehabilitation is not the goal, critics charge, but rather, civil commitment is intended to indefinitely detain and punish people whom society has deemed undesirable. This confinement does not rectify the harm individuals have done, and there is no evidence that civil commitment laws reduce sexual violence in society, critics say. Instead, they argue, it unleashes untold new harms: as the site of abuse, trauma and, according to some, sexual violence…”

“In the spring of 2019, the civil commitment working group of Black and Pink: Chicago, a prison abolitionist organization, sent a survey to 569 people being held in Rushville — which the organization says was roughly the full population at the time. The group received 204 responses, which it began analyzing that summer. While the organization plans to release a formal report in the coming months, it shared a one-page summary of preliminary findings with In These Times. The conclusions are dire.”

“Residents complained about ‘unqualified therapists,’ some of them students, as well as a high turnover problem, and the general lack of a ‘trusting therapeutic relationship’ this engenders. They also complained about a climate of favoritism, in which residents are ‘incentivized to kiss ass.” Residents say, ‘Civil commitment is a life sentence, a death sentence; they were sent there to die, believe they will die here.’ Respondents expressed concern about ‘homophobia of staff and violation of rights of gay and transgender people.’ They described an ‘unfair tier system: no consistency or transparency in application of tier or behavior status systems; difficult to progress, unclear standards for progressive, arbitrary, used for punishment rather than treatment.’ It’s a ‘scam,’ ‘farce,’ ‘indefinite,’ ‘end¬less,’ is not about treatment or public safety, and is ‘only open for political or financial reasons,’ the document states. Allegations of profound negligence and mis¬treatment have also been aired in lawsuits…”

“Critics point out that the tests and evaluation tools used to assess whether an individual can progress through the treatment program at the Rushville facility are not universally accepted as sound science. Lawyers, scholars and residents confirmed to In These Times that people held in Rushville have to take polygraph ‘lie detector’ tests, which have been broadly discredited as junk science. In a position statement on this test, the American Psychological Association advises, ‘although the idea of a lie detector may be comforting, the most practical advice is to remain skeptical about any conclusion wrung from a polygraph.’ There is another, more invasive test peo-ple held at the Rushville facility must take if they wish to progress, according to lawyers, scholars and residents: The penile plethysmograph…” [47]

When I forwarded this article to Traci, she replied the events in article were similar to those she witnessed at the Moose Lake Center. Indeed, the author could have replaced “Rushville” with Moose Lake” and the article would still be accurate.

The year 2020 has been chaotic in many ways. The COVID-19 pandemic has led to shutdowns which have led to severe budget shortfalls. Minnesota has become an epicenter for renewed calls for criminal justice reform after George Floyd was murdered by militaristic law enforcement agents. However, many of those marching to “defund the police” and proclaiming that Black Lives Matter call for stronger sanctions against those convicted of sexual offenses. The plight of those forgotten souls held indefinitely within the confines of the MSOP has been excluded from the calls for legal reforms even in the midst of budget crises and protestsover law enforcement overreach.

Disillusioned by the court, inmates at the MSOP are seeking new pathways for release. Inmates at the Moose Lake Civil Commitment in Minnesota engaged in a 14-day-long hunger strike in January 2021 to protest the MSOP and the lack of a clear pathway for release. Minnesota has only give 13 full releases between the founding of the MSOP in 1993 and 2020. Prisoners began refusing to eat on 21 January 2021. About 20 relatives and loved ones of the MSOP inmates protested at the home of Department of Human Services Commissioner Jodi Harpstead. Hunger strikers ended a two-week hunger strike after state officials agreed to discuss possible changes to the MSOP through a series of monthly meetings between Febrary 2021 and May 2021. “I am relieved that no one was seriously hurt or died, but this system of indefinite confinement has gone on far too long,” said Merry Schoon of Appleton, Minn., whose 33-year-old son, Daniel A. Wilson, is being held at Moose Lake. “These men have families and they deserve a second chance to be productive members of society just like everyone else.” [48]

The headline of Jacob Sullum’s February 2021 Reason article succinctly describes the practice of civil commitment: “Civil Commitment of Sex Offenders Pretends Prisoners Are Patients.” [49] MSOP has played this game for over a quarter century now, and most had no hope of quitting this game outside of death or a legal technicality. Individual lawsuits, including the “Better Off Dead” lawsuit, have worked their way through various courts in the past couple of years. The Hunger Strike in January 2021 led to discussions with officials to provide a clearer pathway for release. A conference and rally sponsored by the OCEAN group at the Minnesota State Capitol ground on July 18, 2021 also seeks to raise public awarenes to the current problems with the state’s civil comitment scheme. These actions have given at least a little hope to those in the MSOP who had no prior hope.

In the ten years that have passed since I created the Chris Krych Blog, the MSOP itself has changed little, unless you count the high turnover rates. But even in defeat, the brave men who challenged an undefeatable opponent came away with a small victory. For Chris, Cyrus, and Hollis, however, there is still the lingering question of how—or if—they will be freed from the place where time stands still.

REFERENCES

1.  Mike Mullen. “Sex offender wants name changed to ‘Better Off Dead’.” City Pages. 30 Dec 2019. Accessed on 2 Jan 2020 at http://www.citypages.com/news/sex-offender-wants-name-changed-to-better-off-dead/566571251
2. In the Matter of the Application of: Hollis John Larson for a Change of Name, A18-2153 (MN Ct of App. 30 Dec. 2019). Unpublished Opinion.
3. See for example, Chris Krych, “Minnesota State’s Other Prison and the Hospital Review Board.” Please Help an American
   Citizen blog. 2 August 2013. Accessed on 2 Jan 2020 at http://chriskrych.blogspot.com/2013/08/minnesotas-other-state-prison-and.html
4. Jason Hoppin. “Are sex offenders patients or prisoners?” Twin Cities Pioneer Press. 20 Feb. 2010. Accessed 26 May 2020 at
   https://www.twincities.com/2010/02/20/are-sex-offenders-patients-or-prisoners/
5. Letter from Cyrus Gladden, 16 Mar 2020
6. “Sex offender treatment locations.” MN Dept. of Human Services. Accessed on 7 Jan 2020 at https://mn.gov/dhs/people-we-serve/adults/services/sex-offender-treatment/site-locations.jsp
7. See “Data about clients in the Minnesota Sex Offender Program.” MN Dept. of Human Services. Accessed 8 July 2021 at
   https://mn.gov/dhs/people-we-serve/adults/services/sex-offender-treatment/statistics.jsp
8. See “Frequently Asked Questions.” MN Dept. of Human Services. Accessed 8 July 2021 at https://mn.gov/dhs/people-we-serve/adults/services/sex-offender-treatment/faqs.jsp
9. Trevor Hoppe, Ilan H. Meyer, Scott De Orio, Stefan Vogler, & Megan Armstrong. “Civil Commitment of People Convicted of Sex Offenses in the United States.” UCLA School of Law Williams Institute, October 2020. Accessed 8 July 2021 at https://williamsinstitute.law.ucla.edu/wp-content/uploads/SVP-Civil-Commitments-Oct-2020.pdf
10. Chris Krych. “Please Help an American Citizen.” Please Help Chris Krych, and American Citizen. 10 Feb. 2010. Accessed 7 Jan 2020 at http://chriskrych.blogspot.com/2010/02/please-help-american-citizen.html; supplementary info was sent to me in two letters in December 2019 and March 2020 to assist in telling his story.
11. Krych v Hvass, No. 03-2643 (8th Cir. 2003), Unpublished. Copy can be found at https://www.courtlistener.com/opinion/3033211/chris-r-krych-v-sheryl-ramstad-hvass/
12. Details of Chris Krych’s journey were taken from a series of personal correspondence from Chris Krych, received January 2020 to March 2020, as well as excerpts from blog posts at chriskrych.blogspot.com
13. Kansas v. Hendricks, 521 U.S. 346 (1997)
14. Susan Du. “Minnesota thought it locked up 700 sex offenders for life — it was wrong.” City Pages. 21 Oct. 2015. Accessed on 28 Feb. 2020 at http://www.citypages.com/news/minnesota-thought-it-locked-up-700-sex-offenders-for-life-it-was-wrong-7769202
15. Martin D Lloyd and William M Grove. “The Uselessness of the Minnesota Sex Offender Screening Tool–Revised (MnSOST-R) in Commitment Decisions.” 23 Mar 2002. Accessed 28 Feb 2020 at https://pdfs.semanticscholar.org/271b/cccd4a3b541f0c7a528fd9f8fd9686acb053.pdf
16. A copy of the MnSOST-R’s scoring system was accessed on 29 Feb 2020 at https://www.waspc.org/assets/SexOffenders/mnsostrinstructions.pdf
17. Charles Patrick Ewing. “Justice perverted: Sex Offense Law, Psychology, and Public Policy.” New York City, Oxford University Press. Pgs. 24, 26, 31
18. Thomas K Zander. “Civil Commitment Without Psychosis: The Law’s Reliance on the Weakest Links in Psychodiagnosis.” Journal of Sexual Offender Civil Commitment: Science and the Law, 1, 17-82 (2005).
19. Ibid.
20. King, C. M., Wylie, L. E., Brank, E. M., & Heilbrun, K. (2014, June 16). Disputed Paraphilia Diagnoses and Legal Decision Making: A Case Law Survey of Paraphilia NOS, Nonconsent. Psychology, Public Policy, and Law. Advance online publication. http://dx.doi.org/10.1037/law0000018
21. Darrel A Regier, Emily A Kuhl, and David J Kupfer. “The DSM-5: Classification and criteria changes.” World Psychiatry. 2013 Jun; 12(2): 92–98. Published online 2013 Jun 4. doi: 10.1002/wps.20050
22. Thomas Szasz, “Psychiatry: The Science of Lies.” Syracuse University Press, Syracuse, NY. 2008. Pg. 5
23. Supra., Du, City Pages 2015
24. Per Cyrus Gladden letter, March 2020
25. Letter from Hollis Larson postmarked 07 Feb 2020
26. The following description of the daily lives of the “clients” of the MSOP Moose Lake Center were an amalgamation of descriptions given by residents Chris Krych, Hollis Larson, and Cyrus Gladden, from letters sent in January and February 2020.
27. Scott Thistle. “Hospital plans to add jobs, offenders.” Duluth News Tribune. 11 Jan. 2006.
28. Don Betzold. “What the Minnesota Sex Offender Program was meant to be.” Note that in 2008, Dennis benson, former head of the Minn. Sept. of Corrections, was hired to lead the MSOP
29. Briana Bierschbach. “The Minnesota Sex Offender Program, explained.” Minnesota Post. 22 July 2014. Accessed 30 Jan. 2020 at https://www.minnpost.com/politics-policy/2014/07/minnesota-sex-offender-program-explained/
30. Supra., Du, City Pages 2015
31. Ibid.
32. Supra., Lloyd et al, “Uselessness” 2002
33. Supra., Betzold, “What MSOP was mean to be.” 2015
34. Correspondence with “Traci”, former MSOP employee, August 21, 2020. Name changed and story written intentionally ambiguously in order to protect Traci’s identity out of concerns for possible retaliation.
35. Paul Demko. “MN Sex Offender Program costs $70 million a year but rehabilitates no one.” Twin Cities Daily Planet. 16 Nov.
    2009. Accessed on 3 Mar 2020 at https://www.tcdailyplanet.net/mn-sex-offender-program-costs-70-million-year-rehabilitates-no-one/
36. Supra., Du, City Pages 2015
37. Karsjens v. Jesson, Civil No. 11-3659 (DWF/JJK) (D. Minn. 15 June 2015)
38. Rupa Shenoy. “Families of sex offenders find hope in Clarence Opheim’s release.” MPR News. 5 Mar 2012. Accessed 4 Mar 2020 at https://www.mprnews.org/story/2012/03/05/minnesota-sex-offender-program
39. “Dayton gets bill to close sex offender loophole.” MPR News. 23 Feb. 2012. Accessed 3 Mar 2020 at https://www.mprnews.org/story/2012/02/23/dayton-gets-bill-to-close-sex-offender-loophole
40. In the Matter of the Risk Level Determination of Clarence Joseph Opheim. #OAH 8-1100-35768. (MN Office of Admin. Hearings, 28 Jan 2019.) Found at https://mn.gov/oah/assets/1100-35768-clarence-opheim-ecrc-risk-level-determination-summary-disposition-order_tcm19-370282.pdf
41. Karsjens v Piper, 845 F.3d 394 (8th Cir. 2017)
42. “After Supreme Court Passes, What’s Next for Sex Offenders?” KSTP 5. Accessed 8 Oct 2017 at https://kstp.
    com/news/after-supreme-court-passes-whats-next-for-sex-offenders/4628566/
43. Final Order of Karsjens v Piper as accessed on 4 March 2020 at https://www.govinfo.gov/content/pkg/USCOURTS-mnd-0_11-cv-03659/pdf/USCOURTS-mnd-0_11-cv-03659-24.pdf
44. AP. “Protracted Minnesota Sex Offender Program suit comes to end.” MPR News. 23 Aug 2018. Accessed 4 March 2020 at
    https://www.mprnews.org/story/2018/08/23/long-running-minnesota-sex-offender-case-comes-to-end
45. Supra., Correspondence with “Traci”, August 21, 2020.
46. “EVALUATION REPORT: Civil Commitment of Sex Offenders”, Office of the Legislative Auditor, State of Minnesota, March 2011. (https://www.auditor.leg.state.mn.us/ped/pedrep/ccso.pdf)
47. Sarah Lazare. “Inside the Endless Nightmare of Indefinite Detention Under ‘Civil Commitment.’” In These Times. 19 Aug
    2020. Accessed 21 Aug 2020 at https://inthesetimes.com/article/civil-commitment-rushville-treatment-detention-facility-prison-indefinite-detention
48. Chris Serres. “Sex offenders at Moose Lake end 14-day hunger strike after reaching deal with state officials.” Star-Tribune. 4
    Feb 2021. Accessed 10 Feb. 2021 at https://www.startribune.com/sex-offenders-at-moose-lake-end-14-day-hunger-strike-after-reaching-deal-with-state-officials/600019058/
49. Jacob Sollum. “Civil Commitment of Sex Offenders Pretends Prisoners Are Patients.” Reason. 10 Feb 2021. Accessed 10 Feb2021 at https://reason.com/2021/02/10/civil-commitment-of-sex-offenders-pretends-prisoners-are-patients/