Lead Opinion
OPINION
Appellant Dennis Darol Linehan was civilly committed under the Sexually Dangerous Persons Act on July 27, 1995 at the age of 54 after spending most of his life in the criminal justice system for sex-related crimes. See Act of August 31, 1994, ch. 1, art. 1, 1995 Minn. Laws 5, 5-9 (1994 first special session), codified in relevant part at Minn.Stat. §§ 253B.02, subd. 18b, 253B.185 (1994) (SDP Act). The district court concluded that the application of the Act to Linehan was constitutional and found that: (1) Linehan had engaged in a course of harmful sexual conduct; (2) Linehan suffers from an antisocial personality disorder (APD); and, as a result, (3) it is “highly probable” that Linehan will engage in harmful sexual conduct in the future. The court of appeals affirmed Line-han’s initial commitment. In re Linehan,
Linehan contends that the commitment violates his constitutional rights to substantive due process and equal protection under the Minnesota and United States Constitutions, and his rights against ex post facto laws and double jeopardy under the United States
We conclude that Linehan’s initial commitment did not violate his constitutional rights, nor did the district court clearly err in evaluating the evidence; therefore, we affirm.
I.
Facts and Procedural History
Linehan was sexually and physically abused as a child and he began a record of sexual misconduct in his teens. In 1956, at age 15, Linehan pulled down the shorts of a 4-year-old girl and was sent to reform school. In 1960, at age 19, he had intercourse with a 13-year-old girl. In 1963, Linehan engaged in window peeping. Later that year, he and a friend raped L.H. On June 10, 1965, after window peeping, Line-han killed B.I. while attempting to sexually assault her. Before being arrested for B.I.’s death, Linehan committed two additional sexual assaults — including rape — in July of 1965. Linehan pleaded guilty to kidnapping B.I. and the murder charges against him were dropped. He wаs sentenced to a maximum term of 40 years and began serving time at the Minnesota Correctional Facility in Still-water. Linehan’s sentence expires on August 21,1997.
Linehan escaped from Stillwater’s minimum security facility on June 20, 1975, and 11 days later he assaulted 12-year-old T.L. in a ditch off the side of a Michigan road. He was convicted of assault with intent to commit criminal sexual conduct and imprisoned in Michigan. Linehan was returned to Stillwater prison 5 years later. He remained at Stillwater for most of the next 12 years.
On December 30, 1992, Linehan was committed to the Minnesota Security Hospital (MSH) under the Psychopathic Personality Commitment Act (PP Act). See Minn.Stat. §§ 526.09-.10 (1992) (current version at Minn.Stat. § 253B.02, subd. 18a (1994)). However, Linehan’s PP Act commitment was vacated by this court on June 30,1994. In re Linehan,
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.” Residence 4 was equipped with phone taps (of which Li-nehan was notified) and hidden video surveillance cameras. Linehan was also subject to drug testing. Linehan continued his treatment as a sex offender at Residence 4. He began participating in the Atlantis outpatient sex offender program after completing the inpatient Transitional Sex Offender Program (TSOP). Atlantis conducted group therapy sessions at Residence 4 for Linehan and other sex offenders.
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,
The district court denied Linehan’s motion to dismiss the petition based on as-applied constitutional challenges, and the court of appeals later affirmed. Linehan II,
In its opinion, the district court interpreted the SDP Act to require proof that it is “highly probable” that the proposed patient will sexually harm others in the future, even though the statute refers to “likely” future harm. Minn.Stat. § 253B.02, subd. 18b(a)(3). The court relied on the clear and convincing evidence standard for such commitments, due process concerns, and the seriousness of the proceedings. The court of appeals agreed with the district court’s interpretation, and described the standard for prediction as “highly likely.” Linehan II,
Much of the initial commitment hearing was devoted to expert testimony.
Dr. Douglas Fox also testified in favor of commitment. Although he did not examine Linehan, Dr. Fox concluded from written records that Linehan meets the criteria for APD, paraphilia (not otherwise specified), alcohol dependence (by history), and voyeurism (by history) according to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Dr. Fox acknowledged, however, that Linehan is not “mentally ill,” as he understood the term. Dr. Fox relied primarily on DOJ base rates for rearrests and the factors in Linehan I,
Linehan’s experts disagreed with these conclusions. Dr. John Austin interviewed Li-nehan for the hearing and concluded that APD is not an appropriate diagnosis, although in 1992 he had concluded otherwise. Based partly on Linehan’s age and the results of a “psychopathy checklist” also used by Dr. Millard, Dr. Austin concluded that the likelihood of reoffense is low.
Dr. Darel Hulsing, Linehan’s treating psychiatrist during his PP Act commitment, concluded in 1992 that Linehan was not mentally ill, mentally disordered, or incompetent, and did not suffer from impulse control disorder. Hulsing diagnosed Linehan with APD in 1992, but at the SDP commitment hearing Hulsing testified that he had intended a “softer” conclusion than the label implied. Dr. Hulsing acknowledged that an APD diagnosis may partly rest on thought-based criteria, such as a lack of empathy, and is not restricted to evidence of outward physical behavior.
Linehan also called Professor Herb Hutch-ins, a DSM expert and critic, to discredit DSM’s method of defining supposed mental disorders in terms of characteristics that are largely behavioral. DSM offers diagnostic checklists, but it does not explain the under
Linehan then attacked the accuracy of the prediction evidence used by the county’s experts. Dr. R. Owen Nelson, a clinical psychologist, testified that multi-factor “clinical” predictions based on an examiner’s experience and judgment are generally less accurate than “actuarial” predictions founded on well-tailored base rate statistics. Dr. Nelson used a base rate of 8% to illustrate that even an actuarial prediction of future dangerousness will often produce a “false positive.”
After 20 days of testimony, the district court issued an initial commitment order. Linehan was committed to MSH, or to a treatment facility designated by the Commissioner of Human Services, for a 60-day treatment evaluation. See Minn.Stat. §§ 253B.18, subds. 1, 2, 253B.185, subd. 1. The court found clear and convincing evidence that Li-nehan (1) engaged in a course of harmful sexual conduct, and (2) manifests an Axis II diagnosis of antisocial personality disorder.
DSM-IV describes the “essential feature” of antisocial personality disorder as “a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood.” DSM-IV at 645. This pattern must be indicated by satisfaction of at least three of seven diagnostic criteria.
(1) Failure to conform to social norms of lawful behavior, demonstrated by his past course of harmful sexual conduct;
(2) Deceitfulness, shown by Linehan’s various versions of B.I.’s death; his testimony regarding the seriousness of his attack on T.L., which conflicted with the victim’s testimony; Linehan’s statement to Dr. Millard that he no longer masturbated when the evidence showed otherwise; and Line-han’s violation of North Dakota prison rules by selling merchandise to other inmates and charging interest (“conning others for personal profit,” Id. at 650);
(3) Irritability and aggressiveness, expressed in his attacks on women when he was out of custody, and in shouting at and other irritability toward staff at MSH and Residence 4;
(4) Consistent reckless disregard for the safety of self or others, also demonstrated by his past course of harmful sexual conduct; and
(5) Lack of remorse, based on Linehan’s unconvincing display of regret at the hearing; Linehan’s August 1994 telephone conversation with his wife during which Line-han said that T.L. “deserved what she got” for putting herself in such a position; and*178 Linehan’s failure to recognize that he has caused more than 12 hours of misery to others, as he claimed during an interview with Dr. Millard.
The court did not rest its conclusion on the remaining criteria: impulsivity or failure to plan, and consistent irresponsibility.
In finding that Linehan would very likely repeat a course of harmful sexual conduct, the district court used a multi-factor analysis. First, the court considered all six factors for predicting dangerousness outlined in Line-han I,
The district court also considered base rate statistics introduced at the hearing, but con-eluded that the statistical evidence was not dispositive. The court noted several reasons for believing the 7.7% rearrest rate for rapists in the DOJ survey was not a sound base rate in Linehan’s case. First, rapes committed 4 or more years after rеlease were not included in the survey. See DOJ Recidivism Report, at 1, 6 (table 9). Second, not all rapes are reported and not all rapists are arrested. See, e.g., Bureau of Justice Statistics, U.S. Dep’t of Justice, Criminal Victimization in the United States, 1992, at 7 (1994) (table 5). Third, the 7.7% figure included only rearrest for rape, and therefore did not include rearrest for other crimes that are included in the definition of “harmful sexual conduct.” Minn.Stat. § 253B.02, subd. 7a; see DOJ Recidivism Report, at 1, 6 (table 9). Finally, the court conceded that Linehan’s age group was less likely to be rearrested, but emphasized that rearrest was more likely for those with longer records and for those first arrested at a younger age. See DOJ Recidivism Report, at 1, 7-10 (tables 11, 14, 15,16,18).
In addition, the district court weighed other factors it believed were sound indicators of future conduct. The court concluded that Linehan was still attracted to young girls,
On balance, Linehan’s past record, current behavior, and APD sufficiently outweighed the evidence against commitment as a sexually dangerous person. The court of appeals affirmed. Linehan II,
II.
The Sexually Dangerous Persons Act
The Sexually Dangerous Persons Act created a new class of individuals eligible for civil commitment for treatment.
(1) has engaged in a course of harmful sexual conduct * * *;
(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 * * *.
Id. § 253B.02, subd. 18b(a).
The SDP Act is a departure from the Psychopathic Personality Act upheld in Blod-gett,
Otherwise, the operation of the SDP Act is substantially the same as the PP Act. Both contain three substantive elements. See Li-nehan I,
III.
The Likelihood of Harmful Sexual Conduct
The SDP Act requires a finding that the proposed patient is “likely” to engage in harmful sexual conduct in the future. Id. § 253B.02, subd. 18b(a)(3). The evidence must be clear and convincing. Id. §§ 253B.18, subd. 1, 253B.185, subd. 1; see also Addington v. Texas,
We agree with the lower courts’ conclusions for two reasons. First, the best reading of the statute and its concern for accurate factual findings precludes the state’s construction. The SDP Act’s demand for “likely” harm implies that committing courts cannot combine a factual element that requires only 50.1% probability with an eviden-tiary standard of less-than-certainty. See Minn.Stat. § 253B.02, subd. 18b(a)(3). We do not believe that the legislature intended to iveaken the standard of likelihood in the SDP Act by combination with a relatively high burden of persuasion — the clear and convincing evidence standard. The district court applied this heightened burden of persuasion to each element of proof necessary under the Act, but by demanding highly likely future harm, the lower courts established a degree of overall certainty consistent with the statute.
Second, and in the alternative, due process concerns under the state and federal constitutions constrain legislative discretion to set standards of likelihood when liberty is at stake. U.S. Const, amend. XIV; Minn. Const, art. I, § 7. “The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” Addington,
IV.
Substantive Due Process
Linehan argues that, as applied to his case, civil commitment under the SDP Act violates substantive due process rights arising from the Minnesota and United States Constitutions. Linehan’s primary contention is that his SDP Act commitment is not narrowly drawn to serve the state’s interests because criminal sanctions are available to deter him from and, if necessary, to punish him for any future harmful sexual conduct. He asserts that he is presently competent to stand trial, able to control his sexual impulses, not mentally ill, and that he has not been acquitted of a crime on the basis of insanity. Linehan further contends that an antisocial personality disorder is' an insufficient basis for the commitment of dangerous persons, and that an utter inability to control sexual impulses is required in order to satisfy the narrow tailoring demand of strict scrutiny.
Despite these arguments, Linehan’s commitment under the SDP Act is constitutional. As applied to Linehan, the SDP Act is a narrowly tailored departure from the PP Act, which itself is a limited but valid policy of confinement and treatment for highly dangerous sexual predators. We acknowledge the constraint of substantive due process in this area of legislative action, but we conclude that there is no principled and constitu
A.
Both the Minnesota and United States Constitutions protect individuals from deprivations of liberty without due process of law. U.S. Const, amends. V, XIV; Minn. Const, art. I, § 7. Both guarantees include substаntive components prohibiting “certain arbitrary, wrongful government actions, ‘regardless of the fairness of the procedures used to implement them.’ ” Zinermon v. Burch,
Because the fundamental right to liberty is at stake, the SDP Act is subject to strict scrutiny and the burden of persuasion rests with the government. Blodgett,
Under its police powers, the state has a compelling interest in protecting the public from sexual assault. Blodgett,
B.
We therefore consider whether the SDP Act is sufficiently narrow, as applied to a person suffering from APD, to satisfy strict scrutiny. The leading United States Supreme Court case on the subject of civil commitment for dangerous persons is Foucha v. Louisiana,
After Foucha, this court upheld the PP Act commitment of a convicted sex offender diagnosed with APD in In re Blodgett,
Although the SDP Act is a departure from the PP Act, Blodgett is not distinguishable. Like Linehan, Blodgett was dangerous and suffered from APD; the court concluded that there was a valid mental health basis for commitment. The Blodgett court did note that psychopathic personality is a severe form of APD that involves a “volitional dysfunction which grossly impairs judgment and behavior with respect to the sex drive.” Id. at 915. However, the court did not assert that an utter inability to control sexual impulses was the only constitutional basis for committing sexual predators; Blodgett did not indicate that substantive due process precluded milder forms of APD as the mental health basis for civil commitment. See id. at 916 (emphasizing that substantive due process requires a connection between the medical rationale for commitment and the patient’s continued loss of liberty, but not offering limits to the medical basis for commitment).
Other decisions make clear that civil commitment for sexual predators is allowed if treatment is necessary to abate the mental disorders that make such persons so dangerous to others. See Call v. Gomez,
We conclude that, under Blodgett, the SDP Act is sufficiently narrow to satisfy strict scrutiny as applied to Linehan. The SDP Act serves the same state purposes and interests as the PP Act. In fact, the SDP Act is an attempt to protect the public by treating sexual predators even more dangerous than those reached by the PP Act — the mentally disordered who retain enough control to “plan, wait, and delay the indulgence of their maladies until presented with a higher probability of success.” Linehan II,
Linehan attempts to distinguish Blodgett by posing an underlying theory of substantive due process as applied to civil commit
There is some force to Linehan’s argument. Foucha ⅛ application of strict scrutiny to the continued commitment of a sane insanity acquittee did demand sound reasons for departing from the criminal justice system in the name of public protection. Moreover, Linehan’s substantive due process theory might avoid difficult constitutional issues. If every basis for civil commitment implied a defense to criminal charges, and if every criminal conviction precluded civil commitment, the judiciary might not have to inquire whether a particular mental disorder, dysfunction, or illness is acceptable under substantive due process; only the division between the two systems would be relevant. The legislature could create a mental health basis for commitment, but then a defense to criminal charges would follow. Likewise, a mental health defense to criminal charges would imply a valid basis for commitment.
Nevertheless, we believe that some overlap between the two systems is justified to adequately serve the interests of public protection and treatment.
We cannot accept Linehan’s theory without disrupting the result in Blodgett. Blodgett upheld the commitment of a dangerous person who suffered from APD and who lacked volitional control, but who was serving a prison sentence at the time, of his commitment. Blodgett,
It may be true, in a certain philosophical sense, that Blodgett was less blameworthy than is Linehan because Blodgett could not control his sexual impulses. And Blodgett may have been less deterred by impending criminal sanctions. But Blodgett, like Line-han, was neither incompetent nor mentally ill, and Blodgett’s inability to control his impulses was not a defense to criminal liability. The 1994 amendments to the civil commitment statute reaffirm this conclusion. Minn.
C.
Linehan also contends that APD is, per se, an invalid basis for commitment because the diagnosis is little more than a definition of criminal behavior. We recognize that there are constitutional limits to state-created definitions of mental illness in the civil commitment context. The Supreme Court implied such limits in Foucha.
[T]he State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term. It would also be only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law.
Foucha,
However, substantive due process allows the legislature some flexibility to define the medical grounds for civil commitment. See Foucha,
Linehan relies on Young v. Weston for the proposition that APD is a constitutionally deficient basis for his commitment. In Young, a federal district court held that the State of Washington’s definitions of mental “abnormalities” were unconstitutionally circular. Washington allowed civil commitment of persons convicted of or charged with a crime of sexual violence, who suffer from a mental abnormality or personality disorder that makes such persons likely to commit violent sexual offenses. Wash.Rev.Code Ann. § 71.09.020(1), (4) (West Supp.1997). The court thought that the statutory bases for civil commitment were essentially descriptions of dangerous behavior, and not medically recognizable mental illnesses. See Young,
The reasoning in Young cannot be used to invalidate Linehan’s commitment. First, adopting Young ⅛ belief that substantive due process precludes “circular” definitions of mental illness seems inconsistent with this court’s opinion in Blodgett. The “utter inability to control” test for psychopathic personalities also might be “circular” in the sense that it describes dangerous behavior as well as a mental disorder. Again, Linehan does not explain how his reasoning can be applied without disturbing the result in Blod-gett. Second, even if the circularity argument is valid after Blodgett, the diagnosis of antisocial personality disorder applied to Li-nehan by the district court was not solely based on his criminal behavior. The court also relied on evidence of Linehan’s mental processes in finding that he has APD, emphasizing Linehan’s lack of empathy and remorse.
Moreover, the SDP Act was written with the advice of psychiatrists and psychologists who believe that DSM-IV offers a helpful categorization of mental disorders — “clinically significant behavioral or psychological syndrome[s] of pattern[s] * * * currently * * * considered a manifestation of a behavioral, psychological, or biological dysfunction in the individual.” DSM-IV at xxi-xxii. Granted, a diagnosis of APD is based in part on evidence of behavior. However, the purpose and effect of the diagnоstic criteria in DSM-IV is to identify an underlying mental disorder that accounts for the behavior. Linehan does not now challenge the district court’s conclusion that he has such a disorder. In the absence of evidence to the contrary, we accept the legislature’s and the American Psychiatric Association’s determination that APD is an identifiable mental disorder that helps explain behavior.
V.
Equal Protection
Linehan’s second constitutional argument is that the SDP Act violates his right to equal protection of the laws. U.S. Const, amend. XIV; Minn. Const, art. I, § 2. Ami-cus curiae MCLU contends that the SDP Act impermissibly distinguishes between two classes of sexually dangerous persons: (1) those who suffer from a sexual, personality, or other mental disorder or dysfunction, Minn.Stat. § 253B.02, subd. 18b(a)(2), and (2) those who do not. Only the first class is subject to civil commitment under the SDP Act. MCLU argues that the Act fails to satisfy strict scrutiny because the classifications are underinclusive: it may be that many sex offenders who are as likely to reoffend as Linehan do not suffer from mental, sexual, or personality disorders.
Again, Blodgett controls our analysis. There, we recognized that civil commitment for sexual predators threatens liberty, and therefore such schemes must satisfy heightened scrutiny under state and federal equal protection principles. See Blodgett,
The legislature had sufficient basis to conclude that interests in public protection and treatment would be reasonably served by a distinction between sexually dangerous persons with and without mental disorders. First, the legislature has concluded that applying civil commitment to those with mental disorders helps isolate sexually dangerous persons most likely to harm others in the future. Although the SDP Act already requires that future harmful sexual conduct must be highly likely, the existence of a mental disorder such as APD identifies a
Second, the state’s interest in treating sexual predators is served by confining the scope of the SDP Act to those with mental disorders. The state appears to assert this interest by emphasizing the substantial commitment the legislature has made to creating adequate facilities and treatment programs for those committed under the PP and SDP Acts. The state has an obvious interest in treating sexual predators for their mental disorders before they harm others again. See Addington,
The state adds that substantive due process requires the classifications challenged by Linehan: civil commitment is not available as a tool for protecting the public unless the proposed patient is both dangerous and suffering from a mental disorder. Foucha,
Nevertheless, thе SDP Act’s classification is sufficiently justified by Blodgett and the reasonable connection between a proposed patient’s mental disorder and the state’s interests in public protection and treatment. Therefore, the Act does not violate Linehan’s rights to equal protection.
VI.
Ex Post Facto and Double Jeopardy
MCLU also asserts that the SDP Act and its application to Linehan constitutes enhanced or additional criminal punishment under the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution. U.S. Const, art. I, § 10; id. amends. V, XIV. Both clauses apply only to criminal and predominantly punitive civil laws. Because the SDP Act was an amendment to a civil statute (chapter 253B) and thus facially civil, Line-han must offer the “clearest proof’ that the Act is sufficiently punitive in purpose or effect to negate its civil label. United States v. Ward,
A. '
Article I, Section 10 of the federal constitution prohibits ex post facto laws, which include laws that increase the punishment for crimes committed before enactment. Collins v. Youngblood,
MCLU does not address Blodgett,
Moreover, after 2 years of work, the staff of the Minnesota Security Hospital developed a four-phase treatment program for sex offenders committed to MSH, and a similar program is being developed at the Minnesota Psychopathic Personality Treatment Center (MPPTC) in Moose Lake. Sex Offender Treatment Program, supra, at 1, 26, 29. According to evidence introduced at Linehan’s initial commitment hearing, each' of the four phases will last approximately 8'months for model patients — those who complete the program’s therapy and education requirements, satisfy the program’s goals, and behave consistent with program standards. Id. at 6. In fact, treatment and rehabilitation are essential to MSH’s mission. Id. at 2, 8 (“Residents have a right to treatment.”). The purpose and effect of the SDP Act is therefore predominantly remedial, not punitive.
This conclusion is in accord with Allen v. Illinois,
MCLU notes'that the SDP Act requires that a prison sentence be completed at a facility designated by the Commissioner of Corrections if the patient was committed to the commissioner before the SDP Act petition. See Minn.Stat. § 253B.185, subd. 2(b). However, the SDP Act does not, by its terms, require that any outstanding criminal sentence be served at a correctional facility. Moreover, the lower courts in this case did not invoke the provision cited by MCLU. Linehan was ultimately committed to the MSH and to the MPPTC. Both institutions are managed by the Commissioner of Human Services, and both must provide care and treatment. Id. §§ 246B.02-.04, 253.20-202; Call,
B.
The protection against double jeopardy in the Fifth Amendment to the federal constitution applies to the states through the Fourteenth Amendment. See Benton v. Maryland,
As above, Linehan fails to demonstrate that his commitment under the SDP Act is “punishment.” See id. at 448-49,
Linehan has not offered evidence that the treatment regime at MSH or MPPTC is a sham, or even that such treatment is ineffective. On the record before us and in light of our conclusion in Call, we conclude that the SDP Act is facially civil and is not so punitive in purpose or effect to trigger the federal constitutional prohibitions against ex post facto laws and double jeopardy.
VII.
Sufficiency of the Evidence
Linehan also argues that certain findings of fact were clearly erroneous. On appeal, we will not weigh the evidence. We will determine if the evidence as a whole presents substantial support for the district court’s conclusions. Johnson v. Noot,
A.
First, Linehan asserts that the county failed to prove highly likely future harm by “state of the art” evidence or the “best available scientific knowledge and methodology.” Linehan argues that “actuarial” methods of prediction founded on base rate recidivism statistics are more accurate than “clinical” predictions, and therefore dangerousness predictions must rely on the former.
We note first that the district court’s dangerousness finding is not a purely “clinical” prediction. The district court’s opinion analyzed both base rate statistics and case-spe-eific facts. According to testimony at the hearing, some research on violence prediction indicates that combining actuarial methods with the clinician’s experience and knowledge of the peculiar circumstances of a given case may enhance accuracy. Moreover, contrary to Linehan’s claim, the county’s experts did not rely “exclusively on clinical prediction.” Dr. Millard and Dr. Fox both considered base rate statistics.
Linehan offers no statutory or precedential support for the argument that actuarial methods or base rates are the sole permissible basis for prediction. In fact, Linehan’s argument is contrary to the multi-factor analysis for dangerousness prediction outlined in Linehan I,
B.
Linehan also claims that the district court findings lack specificity. First, Line-han emphasizes that the district court did not
Second, Linehan notes that the “time horizon” for the district court’s prediction is indefinite. However, the Act does not limit the prediction by time period. In addition, the Act does not incorporate the factual specificity requirements for the commitment of mentally retarded, mentally ill, or chemically dependent persons. See id. § 253B.09, subd. 2 (requiring specific findings and identification of the patient’s conduct that formed the basis for a commitment order).
Third, Linehan asserts that the district court failed to make sufficiently specific findings regarding the causal link between the likelihood of sexually harmful conduct and his past conduct or his personality disorder. However, the factors in Linehan I and others balanced by the district court are appropriate for predicting dangerousness under the SDP Act. Their consideration satisfies the statute. We have demanded nothing more in PP Act commitments, and, as noted above, the factual specificity requirements for other civil commitment findings were not adopted in the SDP Act. See id. §§ 253B.09, subd. 2, 253B.18, subd. 1, 253B.185, subd. 1.
Linehan also asserts that his past sexual violence was caused by anger and shame, not his APD. However, finding that anger and shame played a role in Linehan’s prior harmful sexual conduct is not inconsistеnt with finding that Linehan’s APD will result in future harmful sexual conduct. These two motivating factors are not mutually exclusive. The district court had sufficient evidence to conclude that APD and the enduring pattern of behavior it can cause makes Linehan highly likely to sexually harm others in the future.
C.
Linehan also challenges six factual findings underlying the district court’s conclusion that he is highly likely to sexually harm others if he is not committed for treatment. Reviewing for clear error, we find sufficient evidence in the record to uphold the court’s findings.
First, the district court inferred from the videotape of Linehan masturbating after vigorous play with his stepdaughter that he was still attracted to young girls. This inference was permissible even if Line-han’s group therapist at Residence 4 had not noted any such attraction on other occasions. The court based its opinion on Linehan’s sudden departure to the upstairs bathroom during a time-limited visit. Second, there was adequate evidence that Linehan lacks truthfulness in sexual matters. Linehan testified that he masturbated at Residence 4, but he told Dr. Millard, “You probably won’t believe it, but I don’t.” Third, as Linehan concedes, there was evidence in the record that he continues to lack remorse for his past course of harmful sexual conduct. The court heard testimony that Linehan recently said that T.L. “deserved what she got,” and that Linehan still does not accept that he has caused more than 12 hours of misery to others. Fourth, whatever weight the court placed on Linehan’s irritability and verbal aggressiveness during confinement, the record supports the conclusion that such incidents occurred. Fifth, the court used Line-han’s age as a factor against commitment. Linehan believes that the evidence deserves more weight, but that determination was largely for the district court and its assessment of expert testimony. Minn.R.Civ.P. 52.01; Oliver Iron Mining Co. v. Commissioner of Taxation,
Sixth, there was sufficient evidence to conclude that Linehan is not presently willing to participate in Alcoholics Anony
Finally, Linehan asserts that the ev-identiary standard used by the district court would allow almost any criminal to be civilly committed. We disagree. A thorough review of the record demonstrates the strength of the county’s case for Linehan’s commitment. Linehan has a long history of harmful sexual conduct, and the only opportunity for him to harm the public in the last 30 years was when he escaped from Stillwater’s minimum security facility. Within 11 days, he committed another sexual assault. Since Li-nehan was returned to custody, he has displayed less overt but persuasive signs of his dangerousness. In the last 2 years, Linehan expressed his absence of remorse and empathy. Linehan also recently displayed a continuing attraction to young girls; the district court identified three instances over a 2-day period of Linehan masturbating within minutes of vigorous play with his stepdaughter. Furthermore, Linehan’s failure to engage in treatment opportunities and lack of truthfulness about sexual matters are additional evidence that his commitment for treatment was proper.
Dangerousness prediction under the SDP Act is a difficult task that the legislature has delegated to district courts. In this case, the district court had to evaluate 20 days of testimony during Linehan’s initial commitment hearing. The evidence was voluminous and complex, but the record against Linehan was sufficient to civilly commit him. The district court’s careful balancing of all the relevant facts does not imply that the clear and convincing evidence standard was not . properly applied. Contrary to Linehan’s assertions, dangerousness prediction under the SDP Act is not simply a matter for statisticians. See Linehan I,
VIII.
Linehan’s commitment under the SDP Act does not violate his rights to substantive due process or equal protection of the laws. The Act has not been shown to be so punitive that it constitutes an ex post facto law or violates the prohibition against double jeopardy. Finally, the district court did not clearly err in its findings of fact.
Affirmed.
Notes
. A significant portion of the hearing was also occupied by consideration of a videotape of Line-han twice masturbating in the upstairs bathroom of Residence 4 soon after physical play with his stepdaughter. The conduct took place during a time-limited visit on January 1, 1995. There was also testimony that the same behavior occurred the day before, but a videotape was not preserved.
.Testimony regarding statistical predictions focused on base rates from the United States Department of Justice. Those statistics indicated that among prisoners released in 1983 whose most serious offense at the time of release was rape, 7.7% were rearrested for rape within 3 years of their release. Bureau of Justice Statistics, U.S. Dep 't of Justice, Recidivism of Prisoners Released in 1983, at 6 (1989) [hereinafter DOJ Recidivism Report ] (table 9).
Dr. Nelson testified that if the historical evidence of recidivism is low among a particular population (the "base rate”), and if one assumes that not all predictions are accurate (“accuracy” less than 100%), then the number of inaccurate predictions of future violent conduct for those who fit the characteristics of the population ("false positives") will be high when compared to all predictions of future violent conduct ("false positives” plus “true positives”). Dr. Nelson explained that if one predicts from a base rate of 8%, and if prediction accuracy is 75% — a number he considered the mean for expert attempts at predicting violence — then 79% of all predictions of future violence will be wrong.
. "Axis I" disorders generally include mentаl illnesses and sexual disorders, while "Axis II” lists personality disorders. Both personality disorders and sexual disorders are subsets of "mental disorders.” See DSM-IV at xxi-xxii.
. APD also requires a “conduct disorder” before age 15. DSM-IV at 646. Otherwise, DSM-IV does not set time parameters for the behavior used in diagnosing APD. Present exhibition of behavior satisfying the APD criteria is apparently not necessaxy for the diagnosis to persist: Dr. Hulsing testified that if a person has APD, that person's thinking and personality condition endures, even if the person's behavior changes.
. The court found that Linehan masturbated in privacy after physical play with his stepdaughter during visits at Residence 4 on December 31, 1994 and January 1, 1995.
. The court also cited the masturbation incidents to conclude that Linehan appeared to suffer from "a degree of impulsivity and lack of control in connection with sexual impulses.” On appeal to this court, Linehan inaccurately asserts that there was no evidence to support and the district court made no findings regarding "volitional impairment at this time.”
. The civil commitment statute also allows commitment for the treatment and care of persons who are chemically dependent and dangerous to themselves or others, Minn.Stat. § 253B.02, subd. 2; mentally retarded and dangerous to themselves or others, id. § 253B.02, subd. 14; mentally ill or mentally ill and dangerous to the public, id. § 253B.02, subds. 13, 17; and sexual psychopathic personalities, id. § 253B.02, subd. 18a. In addition, the Commissioner of Health is authorized to confine persons who constitute a health threat to others. Minn.Stat. §§ 144.12, subd. 1(7), 144.4171, subd. 1, 144.4172, subd. 8 (1994 & Supp.1995).
. "Sexual psychopathic personality” is equivalent to "psychopathic personality” under the 1994 amendments to the Civil Commitment Act. See Minn.Stat. § 253B.02, subd. 18a; Act of August 31, 1994, ch. 1, art. 1, sec. 5(a),
. We doubt that the legislature would preserve the current bases for commitment if forced to create new and parallel criminal defenses. See, e.g., Minn.Stat. § 253B.02, subd. 2 (allowing commitment for persons chemically dependent and dangerous to themselves or others); id. § 253B.02, subd. 14 (allowing commitment for persons mentally retarded and dangerous to themselves or others). A theory of due process that threatens such civil commitments seems unsound. See Blodgett,
. Other opinions indicate that idiosyncratic or "unusual” behavior is not a constitutionally sufficient basis for restricting liberty. See Addington, 441 U.S. at'426-27, 433,
. The district court did not conclude that Line-han has a "dysfunction” under the SDP Act. That language is not at issue here.
We draw support for our conclusion from other courts that have upheld commitments of dangerous persons who suffer from medically recognized mental disorders. Before Young v. Weston, the Washington Supreme Court upheld its sexual predator statute against a substantive due process challenge. In re Personal Restraint of Young, 122 Wash.2d 1, 59-60,
The Wisconsin Supreme Court upheld a similar sexual predator statute as applied to a prisoner convicted of violent- sexual offenses and diagnosed with APD under DSM-IV criteria. The Wisconsin statute required a violent offense, a mental disorder and a substantial probability that the offender will commit future acts of sexual violence because of the disorder. Wis. Stat. Ann. §§ 980.01-.02 (West Supp.1995); see also id. § 980.01(2)' (defining mental disorder as "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence”). The court acknowledged that substantive due process requires a "mental conditiоn component” in civil commitment statutes applied to dangerous offenders, but held that this requirement was satisfied by a definition of mental disorder that targeted those predisposed to commit sexually violent acts. Post,
Amicus curiae Minnesota Civil Liberties Union (MCLU) points out that the Kansas Supreme Court recently held that the application of that state's sexual predator statute to a person with a
Hendricics is not persuasive in light of our precedent. Like Hendricics, Blodgett noted that mental illness combined with dangerousness is an alternative basis for civil commitment under state law. Blodgett,
. MCLU also asserts that the Act might be ov-erinclusive because many sex offenders with personality disorders are not dangerous. This argument is unconvincing because the SDP Act confines its application to those who are highly likely to sexually harm others. Minn.Stat. § 253B.02, subd. 18a(a)(3).
. The United States Supreme Court has not established a scrutiny level under the federal constitution in this context. See Foucha,
. According to testimony at the hearing, clinical predictions are based on the clinician's observations, experience, and knowledge about the subject of predictions or about individuals in pаrticular classes, such as rapists or child molesters. Actuarial predictions are based on statistics that can be determined mathematically (e.g., age and the number of previous offenses), and on a formula for evaluating the significance of such variables.
Dissenting Opinion
(dissenting).
The case before us illustrates better than most that the judicial power is often difficult in its exercise. * * * The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.
Texas v. Johnson,
By affirming the trial court’s civil commitment of Dennis Darol Linehan under the Sexually Dangerous Person’s Act (“SDP Act”), this court today chooses to make the easy decision. Not because it is right, not because it is compelled by the constitutions of either the United States or Minnesota, but because it is convenient. The United States Supreme Court in its affirmation of Pearson asserted that it was this court’s duty to “protect appellant in every constitutional right he possesses.” State ex rel. Pearson v. Probate Court of Ramsey County,
Before reaching the constitutional issue of substantive due process, which by itself invalidates the application of the SDP Act to the appellant, it is important to clarify that this court’s prior decisions regarding the Psychopathic Personality Commitment Aсt (“PP Act”) do not mandate, as the majority would have us believe, .today’s holding regarding the SDP Act. If anything, this court’s holdings in Pearson and Blodgett require us to conclude that the SDP Act is unconstitutional as applied to the appellant.
I. Precedent
It all started in 1939 when the legislature passed the PP Act after recognizing a “need for legislation to deal with sex offenders and a belief, shared in by the medical authorities and others, that sex crimes are committed because of a weakness of the will as well as of the intellect.” State ex rel. Pearson v. Probate Court of Ramsey County,
[T]he existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of his acts, or a combination of any such conditions, as to render such person irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons.
Psychopathic Personality Act, 1939 Minn. Laws, ch. 369 (codified as amended at Minn. Stat. § 526.09-526.10 (1992)). Upon a constitutional challenge for vagueness, this court stated that the statute “was imperfectly drawn,” and therefore redefined “psychopathic personality” as including only those persons who:
by a habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses and who, as a result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire.
Pearson, 205 Minn, at 555,
The next significant case in which this court considered the constitutionality of the PP Act was In re Blodgett, only this time, the question was whether the statute as interpreted in Pearson remained valid in light of the Supreme Court’s holding in Foucha v. Louisiana,
A person committed as a psychopathic personality may petition the Commissioner of Human Services at any time for a transfer to an open hospital or for a provisional discharge to a community or other residential treatment facility, or for a temporary pass. These relaxations of security hospital confinement provide an opportunity (and an incentive) for the committed person to demonstrate that he has mastered his sexual impulses and is ready to take his place in society.
Id. at 916 (emphasis added). In other words, a person committed as a psychopathic personality who learns to control his sexual
Of course that was not the end of In re Linehan. The legislature subsequently passed the SDP Act and provided civil commitment for those found to be sexually dangerous persons (“SDP”). See Sexually Dangerous Persons Act of August 31, 1994, ch. 1, art. 1, § 3-4, 1995 Minn. Laws 1st Spec. Sess. 5-7 (1994), codified at Minn.Stat. §§ 253B.02, 253B.185 (1994). Under the new law, the state needed to show that the person has engaged in a course of harmful sexual conduct, and that the person has manifested a “sexual, personality, or other mental disorder or dysfunction, and as a result, is likely to engage in acts of harmful sexual conduct.” Minn.Stat. § 253B.02, subd. 18b(a) (1994). The law additionally provides that for the purpоses of proving a SDP, the state need not show that the person has an inability to control his or her sexual impulse's. Minn. Stat. § 253B.02, subd. 18b(b) (1994).
What the legislature in essence did was throw out the “utter lack of power to control their sexual impulses” requirement: a requirement this court created to uphold the PP Act against an attack for vagueness in Pearson; a requirement this court relied upon to uphold the PP Act against an attack for substantive due process, equal protection, ex post facto and double jeopardy violations in Blodgett; and a requirement this court cited to release the committee in Linehan I. Yet today this court says the “utterly unable to control” element is of “no principled and constitutionally significant distinction between Linehan’s commitment under the SDP Act and the commitments of other sexual predators upheld under the PP Act.” Ante, at 180. Furthermore, the majority states that Blodgett stands for the proposition that APD alone is “a valid mental health basis for commitment” and that substantive due process does not preclude “milder forms of APD as the mental health basis for civil commitment.” Ante, at 182. Of course the majority fails to recognize that Blodgett involved a psychopathic personality and does not require this court to hold that APD alone is a sufficient mental-health basis for commitment.
That is why it is disingenuous, and perhaps a little too convenient, to assert, as the majority does, “that under Blodgett the SDP Act is sufficiently narrow to satisfy strict scrutiny as applied to Linehan.” Ante, at 182. This court in Blodgett upheld the commitment of the appellant only because he had a psychopathic personality, in other words, because he had an utter lack of power to control his sexual impulses. Despite the majority’s holding that Blodgett stands for the proposition that APD alone fits within the mental-illness requirement of Foucha, the fact remains that if Blodgett stood for such a proposition, it would have been contrary to rulings by the U.S. Supreme Court. Foucha,
In the absence of evidence to the contrary, we accept the legislature’s and the American Psychiatric Association’s determination that APD is an identifiable mental disorder that helps explain behavior.
Ante, at 185 (emphasis added). Although the majority is wont to admit as much, such a holding necessarily negates Pearson and grossly expands Blodgett. Even more importantly, it erodes the protections of substantive due process as established by Fou-cha.
II. Substantive due process
Foucha stands for the proposition that a state cannot deprive a person of his or her liberty simply because that person is. dangerous. Put another way, the Due Process Clause of the Constitution prohibits us as a society from locking up persons simply because we fear them. It matters not if our fear is based upon a rational assessment of the person’s likelihood to commit future bad acts, the fact remains that the Supreme Court has said we cannot remove a person from society for the sole purpose of preventing the future bad acts, even if the future bad acts are almost certain to occur. That is the baseline from which this court is required to begin its analysis of the SDP Act.
To that end, the majority correctly admits that the SDP Act deprives an individual of the fundamental right to liberty and therefore is subject to strict scrutiny. The majority also correctly adopts the form of strict scrutiny that asks whether the action is narrowly tailored to serve a compelling state interest. The majority then recognizes that the state has two compelling interests in this case: 1) to ensure public safety from sexual assaults under the police powers and 2) to provide care and treatment of the mentally disordered. What the majority fails to recognize, however, is that the validity of the state’s action will vary depending upon which compelling interest the state is trying to serve.
If the state is attempting to serve only the first compelling interest, in other words it is trying only to protect the public from future sexual assaults, it cannot deprive a person of his liberty without first obtaining a criminal conviction for past acts. Foucha,
A State, pursuant to its police power, may of course imprison convicted criminals for the purposes of deterrence and retribu*196 tion. But there are constitutional limitations' on the conduct that a State may criminalize. Here the State has no such punitive interests. As Foucha was not convicted, he may not be punished. * * ⅜
The State may also confine a mentally ill person if it shows ‘by clear and convincing evidence that the individual is mentally ill and dangerous.’ Here, the state has not carried that burden; indeed, the state does not claim that Foucha is now mentally ill.
Foucha,
The criminal law defines a discrete category of conduct for which society has reserved its greatest opprobrium and strictest sanctions; past or future dangerousness, as ascertained or predicted in civil proceedings, is different in kind. * * * In the civil context, the State acts in large part on the basis of its parens patriae power to protect and provide for an ill individual, while in the criminal context, the State acts to ensure the public safety.
Id. at 95-96,
only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law.
Id. at 83,
Likewise, this court relied upon a compelling interest in Blodgett that encompassed more than mere protection.
Here the compelling government interest is the protection of members of the public from persons who have an uncontrollable impulse to sexually assault.
Blodgett,
Addington v. Texas,441 U.S. 418 [99 S.Ct. 1804 ,60 L.Ed.2d 323 ] (1979), held that to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others.
The bottom line is that a state cannot incarcerate a person simply because it fears the person’s future acts. It can, however, civilly commit a person whom it fears, so long as the commitment is narrowly tailored to the state’s additional compelling interest in treating mentally ill people. See Addington,
[T]he SDP Act is an attempt to protect the public by treating sexual predators even more dangerous than those reached by the PP Act — the mentally disordered who retain enough control to ‘plan, wait, and delay the indulgence of their maladies until presented with a higher probability of success.’ And as the court of appeals recognized, the mental disorder requirement in the SDP Act serves the state’s interest in public safety by aiding the prediction of dangerousness.
Ante, at 182. We concede that the majority’s reliance on public safety alone would be sufficient to incarcerate Linehan for past criminal acts.
Before going any further, it is revealing to note that the state did not even bother to argue that its compelling government interest in passing the SDP Act was to provide treatment for Dennis Linehan or any other subsequent committee. And for that, the state deserves credit for its honesty. Although the statute provides a treatment mechanism, it is clear given the following circumstances regarding the bill’s passage that the actual government interest was to lock up sеxually dangerous persons in general and Dennis Linehan in particular.
Less than one week after this court ruled that Linehan could not be committed under the PP Act, the speaker of the house called for a meeting and was quoted as saying, “The prospect of these predators being released is frightening, especially for the women of Minnesota.” Donna Halvorsen, Sex Predators’ Status Sparks Insecurity; Commitment Law Appears Frayed, Star Trib., July 9, 1994, at IB. Approximately five weeks later, the attorney general proposed legislation that he said would keep sexual predators “locked up.” Robert Whereatt, Laws Proposed to Keep Sex Predators off Streets, Star Trib., Aug. 12,1994, at 1A. The Governor, who at the same news conference announced he would call for a special legislative session, said, “By all accounts, these two men
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 IB. 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.
[T]he State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term.
Foucha,
This limitation is essential. Not because persons with “personality disorders” are any less dangerous than those who have recognized mental illnesses,
As the Kansas Supreme Court recently demonstrated, actual strict scrutiny necessarily leads to the opposite result. Matter of Care and Treatment of Hendricks,
Therefore, as applied to Hendricks, the constitutionality of the Act depends upon a showing of dangerousness without a finding of mental illness. Clearly, the due process standard of Addington and Fou-cha is not met by the Act as applied to Hendricks.
Hendricks,
Likewise, a federal district court in a ha-beas corpus proceeding found that Washington’s Sexually Violent Predator Statute, which had been upheld by the Washington Supreme Court,
Technically speaking, we do not disagree with the majority’s equal protection analysis. Unlike substantive due process, which necessarily examines the statute’s effect on a person’s fundamental right of liberty, equal protection focuses on the distinction between those who fit within the statute’s reach and those who do not. Unless such a distinction involves a suspect classification, this court will ask only if there is any rational basis for such a selection. Pearson,
Although we do not disagree with this conclusion, we point out that the first justification for the distinction (dangerousness), while sufficient to uphold the act under the equal protection clause, is not sufficient to uphold the act under due process analysis. Likewise, the second justification for the distinction (treatment), while mere surplusage under equal protection requirements, is a necessity for this court’s conclusion that the SDP Act does not violate ex post facto or double jeopardy. Unlike substantive due process, which focuses on the government’s interests, ex post facto and double jeopardy focus on the statute’s purpose and whether it is “for treatment purposes and * * * not for purposes of preventive detention.” Call v. Gomez,
As stated earlier, we elect not to quibble with this holding at this time. But see Young v. Weston,
. During oral argument, Justice Anderson stated:
We’re all familiar with the Soviet Union gulag and Nazi Germany. * ⅞ * Let’s say people had antisocial conduct, dysfunctional in that particular society, and the state wanted to put them away for indeterminate confinement. * * * What are the safeguards here that would prevent that from happening in our society under a statute such as this?
In response, assistant attorney general John Kirwin said:
You, your honor. I think it is the function of the courts to draw those lines. * s 's Asking, 'At what level does the harm become so great that it's constitutional to have a civil commitmеnt statute like this?’ * * * By its nature that standard is going to require the court to make some difficult decisions sometimes.
. As a further limitation on the permissible reach of the statute, this court said ”[i]t would not be reasonable to apply the provisions of the statute to every person guilty of sexual misconduct nor even to persons having strong sexual propensities.” Pearson, 205 Minn, at 555,
. Neither the appellant nor the state argued that a commitment under the PP Act would have fit under either of Foucha 's other two categories.
. The trial court found that the appellant met the criteria for psychopathic personality under the standard imposed by Pearson. On appeal to this court, the appellant did not challenge the finding that he had "an uncontrollable sexual impulse dangerous to others." Blodgett,
. Like Linehan, Blodgett suffered from an antisocial personality disorder.
. The majority concedes this point by stating that ”[i]t may be true, in a certain philosophical sense, that Blodgett was less blameworthy than is Linehan because Blodgett could not control his sexual impulses.”
. If it was clear that Foucha stood for the proposition that a mental disorder alone was a sufficient mental-illness justification for civil commitment, then there is no reason why the U.S. Supreme Court would have granted certiorari in Matter of Care and Treatment of Hendricks,
. Such a compelling government interest can, depending on a state’s definition of an insanity acquittee, reach a person found to be not guilty by reason of insanity. See State v. Randall,
. The majority correctly rejected Linehan’s argument that criminal conviction and civil commitment are mutually exclusive. As this court stated in Pearson, "an uncontrollable and insane impulse to commit crime, in the mind of one who is conscious of the nature and quality of the act, is not allowed to relieve a person of criminal liability.” Pearson, 205 Minn, at 556,
.In addition to Linehan, wе concluded that the state could not commit Peter Rickmyer under the PP Act.
.The Kansas Supreme Court in holding a similar statute unconstitutional noted that:
It is clear that the overriding concern of the legislature is to continue the segregation of sexually violent offenders from the public. Treatment with the goal of reintegrating them into society is incidental, at best.
Matter of Care and Treatment of Hendricks,
. The Supreme Court did not grant certiorari. In re Blodgett,
. In fact, the court of appeals noted that "[pier-sons whose mental afflictions leave them with a measure of self-control present an especially insidious risk, for they retain the ability to plan, wait, and delay the indulgence of their maladies until presented with a higher probability of suc
. In re Young,
. While it is true that the Wisconsin Supreme Court recently upheld a civil commitment statute similar to our SDP Act, it did so by relying entirely upon Justice O’Connor’s concurrence in Foucha. State v. Post,
Dissenting Opinion
(dissenting).
I join the dissent of Justice Tomljanovich. I write separately to note that thеre is no question that Dennis Linehan is an extremely dangerous person. There is also no question that he has been tried, convicted, and punished under our criminal law. Some might argue, myself included, that the sentence
I also write separately to comment on the court’s treatment of Blodgett. Blodgett was a 4-3 decision of this court which I joined. In re Blodgett,
Applying these principles to the case before us, it can reasonably be said that the language of Section 1 of the [Psychopathic Personality Commitment Act] is intended to include those persons who, by a habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses and who, as a result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire. It would not be reasonable to apply the provisions of the statute to every person guilty of sexual misconduct nor even to persons having strong sexual propensities. Such a definition would not only make the act impracticable of enforcement and, perhaps, unconstitutional in its application, but would also be an unwarranted departure from the accepted meaning of the words defined.
Id. at 555,
The court now holds that the instant case is indistinguishable from Blodgett despite the fact that the “inability to control” requirement articulated in Blodgett is not contained in the Sexually Dangerous Persons Act. In upholding the psychopathic personality statute, the Blodgett court made clear that there are constitutional limitations to the state’s use of preventive detention. However, no such limitations are found in the Sexually Dangerous Persons Act. The only real criteria for commitment under the Sexually Dan
Today the target is people who are sexually dangerous. Which class of people, who are different from us and who we do not like, will it be tomorrow?
As Justice Simonett wrote in Blodgett, at issue is not only “the safety of the public on the one hand and, on the other, the liberty interests of the individual * * *. In the final analysis, it is the moral credibility of the criminal justice system that is at stake.”
. A sentence of life in prison without the possibility of release may well have been appropriate based on the criminal conduct for which Linehan was convicted. Indeed, it may have been better than he deserved. In any event, such a sentence would have certainly met constitutional muster. Unfortunately, for whatever reason, at the time Linehan’s crime was committed, the legislature did not see fit to provide for such a sentence.