The below is OCEAN Newsletter Volume 1, Issue 10, Article 3 (Feb. 10, 2020) published by Russell J. Hatton & Daniel A. Wilson from the gulag in Moose Lake Minnesota.
Ronald Sullivan from Harvard Law School says:
The right to be free from confinement is “of the very essence of a scheme of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937). It forms the basis of other rights deemed fundamental in this country-the right to earn a living, to have children-and it prevents this nation from devolving into tyranny. The government must tread lightly when it intrudes on that freedom, enacting safeguards to prevent it from overreaching.
That is not what occurred in Minnesota. Rather than carefully develop a sexual civil commitment scheme that confines only “a small segment of particularly dangerous individuals,” (Kansas v. Hendricks, 521 U.S. 346, 369 1997), Minnesota enacted the broadest scheme in the country after just ninety minutes of discussion. They did so in the midst of a moral panic over one inmate’s potential release. Minnesota then failed to provide resources so that those confined could receive treatment, and it did not enact procedures to ensure that those no longer posing a risk are released. 1
This comment came from the Summary of the Amicus Brief for Criminology Scholars and The Fair Punishment Project. The Fair Punishment Project (FPP) is a joint project of the Charles Hamilton Houston Institute for Race and Justice and the Criminal Justice Institute, both at Harvard Law School. The mission of The Fair Punishment Project is to address ways in which our laws and criminal justice systems contribute to the imposition of excessive punishment. In the Amicus Brief cited above, Ronald Sullivan commented:
FPP believes that the Minnesota civil commitment statute is a punitive scheme that responds excessively to moral panic rather than in a narrowly tailored way to a compelling government interest.2
Ronald Sullivan and four other Criminology Scholars-Tusty ten Bensel (University of Arkansas at Little Rock), Robert D. Lytle (University of Arkansas at Little Rock), Christina N. Mancini (Virginia Commonwealth University), and Lisa L. Sample (University of Nebraska at Omaha), believe that the Court has relied on faulty statistics about recidivism-the same faulty statistics OCEAN has consistently reported on-as a basis to uphold the durational limits of institutionalization and physical liberty.
FPP and the four criminology scholars further went on to say:
When Republican institutions pass laws in response to moral panics and popular passions, with little thought, deliberation, and scrutiny, the rights of the most vulnerable and unpopular suffer. When “prejudice” against unpopular groups curtails “the operation of those political processes ordinarily to be relied upon to protect minorities,” “more searching judicial inquiry” is required. (internal citations
omitted) 3
Ronald Sullivan continues:
Forty years of research has showed that “moral panics” can have profound and devastating effects on vulnerable populations. Moral panics are outsized public reactions to “a condition, episode, person or group of persons” that prominent stakeholders in society, and the public at large, view as “a threat to
societal values and interests . .. A moral panic often begins with a real and disturbing event which is disseminated through the popular media … The response is disproportionate, exaggerating “the extent of the conduct, or the threat it poses,” and the individual case is portrayed as symptomatic of greater societal woes.4
One of the most recent moral panics in our present history involved fear over same-sex marriage in which led to the passage of thirteen referenda barring same-sex marriage in 2004, which led to harmful infringements on the right to physical liberty, free speech and association, as well as the right to marry. 5
OCEAN asks, where is the compelling state interest of those subjected to pre-crime preventive detention laws and registry? It is the Minnesota Legislatures responsibility to ensure this comprehensive standard is met through abolishing the DHS-MSOP variances and enforcing our Constitution’s broad provisions designed to safeguard individual freedom and to preserve human dignity. This protection is accomplished through our Constitutions Eighth or Fourteenth Amendment:
Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life.” 6
For the past twenty-five years, MSOP has relied heavily upon the public’s moral panic to maintain its functioning as a pseudo-treatment program. Case in point, MSOP does not operated on the ethics of transparency and has intentionally mislead the public to believe that the recidivism rate for men involuntarily civilly committed to MSOP is high. However, A 2003 Department of Justice study of nearly 10,000 released sex offenders found that only 5.3% were arrested for a sex crime within three years of release. 7 This is a relatively low rate of recidivism, and a far cry from the hysteria that recidivism rates are “as high as 80%.” 8
Minnesota’s SPP/SDP scheme is arguably the broadest sex offender civil commitment scheme in the country.
The facts underscore how restrictive the preventive detention scheme is. Nontraditional legislative deliberation has created laws that have cost tax payers millions each year, has cemented the careers of legislatures who claim to be “tough on crime,” and has permitted the courts to rely on unsubstantiated empirical support.
In over 25 years, only 9 men committed had have achieved full discharge through legal technicalities and NOT by completion of the treatment program. With 731 men still languishing behind its walls, and nearly 80 lost lives, many are still waiting for the Minnesota legislature to correct this horrific, deliberate injustice. [RJH]
FOOTNOTES
1 Ronald Sullivan, FAIR PUNISHMENT PROJECT, Harvard Law School, Cambridge, MA 02138, (617) 496- 2054, rsullivan@law.harvard.edu, Amicus Brief for Criminology Scholars and The Fair Punishment Project, June 22, 2017, p. 1, 2
2 Ibid. at 1
3 Ibid. at 2
4lbid. at 3
\c;;ee Michael Klarman, From the Closet to the Alter: Courts, Backlash, and the Struggle for Same-Sex
Marriage, 106 (1st ed. 2012)
6See United States v. Carolene Products, Inc., 304 U.S. 144, 153 n.4 (1938); McCleskey v. Kemp, 481 U.S. 279, 343 (1987) (Brennan, J., dissenting)
7 Ibid. 11, also see Patrick A. Langan, PhD et al., Bureau of Just. Stat., Recidivism of Sex Offenders Released from Prison in 1 994 (2003), https://www.bjs.gov/content/pub/pdf/rsorp94.pdf.
8 McKune v. Lile, 536 U.S. 24, 33 (2002) (Kennedy, J., opinion for the Court).
