The Basics of Civil Commitment in Minnesota

By Liesl Holum*, 3L

Civil commitment can mean a lot of different things. If you’re anything like me before I had done any work in the field, then maybe the term brings up vague spooky concepts like asylums from the early 1900s—the setting of many horror stories. These misconceptions are perhaps so widespread because of the stigma surrounding mental health. As that gets broken down, piece by piece, I hope to contribute in some small way to the breakdown of the stigma surrounding civil commitment by explaining the basics.

I would split up civil commitment into two main categories: (1) civil commitment by reason of sexual psychopathic personality or being a sexually dangerous person (i.e., SPP or SDP); and (2) civil commitment by reason of mental illness, chemical dependency, or developmental disability. The Minnesota Statutes more or less use this type of split to categorize civil commitment work; SDP/SPP civil commitments are covered by Chapter 253D of the Minnesota Statutes, and the other category is covered by Chapter 253B of the Minnesota Statues. I explain the basics of both below.

1. Civil Commitment as SDP/SPP

Probably the most interesting aspect of civil commitment is the tension between protecting the person subject to the commitment, and the community around them. Civil commitments of sex offenders under Chapter 253D can be considered beneficial for the person subject to commitment as well as for the community. When a repeat sex offender is civilly committed, it usually results in their participation in a sex offender treatment program, which serves to both heal the person subject to commitment and protect the public.

There are, however, a lot of questions surrounding whether sex offender treatment programs are actually effective, and whether civil commitment is really that different from prison. A lot of individuals who enter sex offender programs do not make the progress that is required in order to secure their release, and Minnesota in particular has come under fire for releasing especially few individuals from the Minnesota Sex Offender Program (MSOP).¹ By default, civil commitment under this category is for an indeterminate period of time,² and there are certain requirements that must be met in order for an individual to be discharged.³

Yet, there is an irrefutable benefit to the community in increasing safety by closely supervising repeat sex offenders. Keep in mind that in order to be civilly committed under this category, a person has to be found to be a “sexually dangerous person” or have a “sexual psychopathic personality,” under Minnesota Statutes §§ 253D.02, subdiv. 15–16. A sexually dangerous person (“SDP”) is one 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.”⁴ In comparison, to have a sexual psychopathic personality (“SPP”), a person must demonstrate “emotional instability,” “impulsiveness of behavior,” “lack of customary standards of good judgment,” “failure to appreciate the consequences of personal acts,” or “a combination of any of these conditions, which render[s] the person irresponsible for personal conduct with respect to sexual matters.”⁵ Additionally, to be categorized under the SPP statute, the person must have “evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses” and must be dangerous to others as a result.⁶ It is also important to note the higher burden of proof that applies in these cases—clear and convincing—in comparison to the criminal standard, which is beyond a reasonable doubt.⁷

Additionally, while civil commitment of a person under § 253D often results in their commitment to a secure facility, that is not always necessarily the case.⁸ If the person subject to commitment can establish by clear and convincing evidence that a less restrictive treatment program is available, is willing to accept them under commitment, and is consistent with their treatment needs and the requirements of public safety, then the court can allow commitment to a less restrictive program.⁹

Once a person has been civilly committed as an SDP or SPP, they can petition for a reduction in custody¹⁰ to gain back more individual freedoms.¹¹ However, in order to do this, it has to have been at least six months since either (1) entry of judgment on an order for commitment issued in district court under Minn. Stat. § 253D.07, subdivision 5, or exhaustion of all related appeal rights in state court stemming from that order, whichever is later; or (2) recommendation of the special review board or order of the judicial appeal panel, or exhaustion of all appeal rights in state court, whichever is later.¹² As a result of this provision, it can actually take much longer than six months for a person subject to commitment as SDP or SPP to be eligible for a reduction in custody. Once a person does request a reduction in custody, Minnesota law does identify the factors that courts must consider in coming to a decision on the issue.

If the person subject to commitment is requesting a transfer out of a secure facility, the following factors must be considered in determining whether this transfer is appropriate: (1) the person’s clinical progress and present treatment needs; (2) the need for security to accomplish continuing treatment; (3) the need for continued institutionalization; (4) which facility can best meet the person’s needs; and (5) whether transfer can be accomplished with a reasonable degree of safety for the public.¹³

If requesting provisional discharge, the factors to be considered are as follows:

(1) whether the committed person’s course of treatment and present mental status indicate there is no longer a need for treatment and supervision in the committed person’s current treatment setting; and (2) whether the conditions of the provisional discharge plan will provide a reasonable degree of protection to the public and will enable the committed person to adjust successfully to the community.¹⁴

Once a provisional discharge is achieved, the person would have to petition again and meet all the requirements of a complete discharge.

To be granted a complete discharge from SDP/SPP civil commitment, the judicial appeal panel must be shown that the committed person is “capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of treatment and supervision.”¹⁵ The key considerations are whether specific conditions exist to both provide a reasonable degree of protection to the public and assist the committed person in adjusting to the community. Importantly, “[i]f the desired conditions do not exist, the discharge shall not be granted.”¹⁶

These options, and the requirements laid out in connection with them, indicate that the most important public policy consideration in this area of law is the protection of the public. Since that is the goal of this legislation, it makes sense that a huge part of SDP/SPP civil commitment cases consist of analyzing actuarial scores on tests designed to predict recidivism, as well as structured professional judgment tools.

In SDP/SPP civil commitments in Minnesota, the MnSOST-4 is often used as one of multiple tools to predict the risk of sex offender recidivism. The MnSOST assessments have “[p]erhaps most notably . . . been used to help assign risk levels for sex offenders leaving prison, which are then used to determine the extent to which the community will be notified.”¹⁷ There are three levels of risk: “lower risk,” “moderate risk,” and “higher risk.”¹⁸ If you have ever been officially notified of a sex offender moving into your neighborhood, you may be familiar with these categories. The MnSOST series of instruments have also been used for years to prioritize sex offenders for prison-based programming, and in particular sex offender treatment.

At its most basic, the MnSOST-4 includes thirteen items (some of which having multiple dimensions) to predict sexual recidivism risk. Seven of the thirteen are measures of total criminal history, and four of these seven pertain specifically to prior sexual offending.¹⁹ The other items are as follows: suicidal tendencies, completion of sex offender and/or chemical dependency treatment in prison, stake in conformity index, age at release, release violator status, and unsupervised release status.²⁰

While there isn’t the time and space to take a deeper dive into the MnSOST-4 here, I would recommend viewing the report created by the Minnesota Department of Corrections which details how each item was chosen and how the MnSOST-4 is updated from previous versions of the instrument.²¹ It is a very scientific, data-driven process. I would also recommend going to an SDP/SPP civil commitment trial and observing an expert witness, because they discuss the MnSOST-4 and other actuarial measures in depth and often describe the psychology field’s opinions on particular actuarial tests. Keep in mind that the MnSOST-4 is only one of multiple risk-predicting devices used to evaluate a sex offender for civil commitment. The result of the MnSOST-4 is measured against several other results to make sure the broadest set of data on a particular person can be accounted for.

In sum, SDP/SPP civil commitment is not problem-free, but it serves an important function, and civil commitment attorneys on both sides must meticulously analyze the case at each step of the process.

• Civil Commitment by Reason of Mental Illness, Chemical Dependency, or Developmental Disability

A petition for civil commitment by reason of Mental Illness (MI), Chemical Dependency (CD), or Developmental Disability (DD), is often filed by a hospital who has recently received an individual who they believe is in need of commitment, though generally any interested person can file such a petition in district court.²² If a hospital or treatment facility believes a person has a mental illness, developmental disability, or is chemically dependent and is a danger to themself or others, they can place a 72-hour emergency hold on the patient while they have the chance to file.²³

Once a petition is filed, then the court can place a judicial hold on the person if (1) there has been a “particularized showing” at a preliminary hearing that “serious physical harm to the proposed patient or others is likely” unless the hold is extended until the civil commitment trial; (2) the proposed patient has not voluntarily appeared for a court examination or the commitment hearing; or (3) the person has been placed under an emergency hold and a petition for commitment has been filed.²⁴ The judicial hold essentially extends the emergency hold for another 72-hours, and the civil commitment trial must be held within that time period (subject to certain exceptions).²⁵

The standard at these civil commitment trials is also “clear and convincing evidence.”²⁶ To be civilly committed as a “person who poses a risk of harm due to a mental illness,” the court must find by clear and convincing evidence that the person “has an organic disorder of the brain or a substantial psychiatric disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand.” Additionally, this disorder must have “manifested by instances of grossly disturbed behavior or faulty perceptions” and must result in a “substantial likelihood of physical harm to self or others.”²⁷

To be committed by reason of developmental disability, a similar “substantial likelihood of physical harm to self or others” must be present, as well as a diagnosed developmental disability. To be committed due to chemical dependence, the person must be “incapable of self-management or management of personal affairs by reason of the habitual and excessive use of alcohol, drugs, or other mind-altering substances,” and this habitual and excessive use must cause conduct that poses a “substantial likelihood of physical harm to self or others.”²⁸

As is evidenced by the language repeated in the statutes requiring a substantial likelihood of harm to self or others, the policy behind these civil commitment statutes appear to prioritize the safety of both the person and the public. In my personal experience, I often see cases where the safety of the person subject to commitment is the main concern, which makes these cases feel even more significant because it is truly life or death.

Unlike in sex offender civil commitment, civil commitment under 253B is generally capped at one year.²⁹ At that time, if the petitioner believes that the person is still in need of treatment, they may file for recommitment, and the process starts all over again, with the same standard of proof.³⁰

The things I find most interesting in MI civil commitment cases are Jarvis and Price orders. These are of course named, in traditional Minnesota legal fashion, after the cases that state the rules. In certain cases, a person committed by reason of mental illness may be in need of antipsychotic medications to be stabilized. However, antipsychotic medications are considered more intrusive than other options, such as antidepressants. So, while antidepressants can be given to a patient under commitment without consent as part of their treatment, a special order by the court is needed for the hospital to be able to administer antipsychotic medications to a person who lacks capacity to consent.³¹ The same is true for ECT (electroconvulsive therapy).³² That’s right—“shock” therapy is still around! But today, of course, it is much safer, and more is known about its benefits and side effects. It can actually provide rapid, significant improvements in severe symptoms of treatment-resistant depression, severe mania, catatonia, and agitation and aggression in individuals with dementia.³³ Still, Price hearings, as well as Jarvis hearings, can be emotionally difficult for attorneys because it is simply impossible to know how an individual will respond to certain treatments. That is why the decisions about what a patient under civil commitment needs for treatment is decided by experts at the hospital, who file for the court order. The attorney’s role is to trust in and advocate for those experts’ opinions, and to present the evidence to the court, which then issues an order.

• Conclusion

What I have learned most acutely from my brief time working in the civil commitment field is that these attorneys—for both petitioners and respondents—take on a massive burden every day. Prevention of disaster is laid squarely on their plates, and the alternate realities that flicker when making decisions are palpable. These attorneys must wrestle with impossible tensions between personal autonomy and personal and public safety. There is no question that civil commitment in general carries a weighty stigma, and there are many issues to consider. One thing, though, remains clear: the civil commitment field is filled with extremely empathetic, thoughtful, and resilient attorneys that bear the burden of this heavy, high-stakes work.

* Liesl Holum, J.D. Candidate, University of St. Thomas School of Law Class of 2024 (Senior Editor).

1. See John Rosengren, Locked Up For Good–Or Forgotten?, Minnesota Monthly (Apr. 19, 2022), https://www.minnesotamonthly.com/lifestyle/the-fight-against-minnesota-sex-offender-program-msop/. ↩︎
2. Minn. Stat. § 253D.07(4). ↩︎
3. Minn. Stat. § 253D.31 (stating that discharge will only be allowed after the majority of a “special review board” makes such a recommendation, and the “judicial appeal panel” is satisfied that the committed person “is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of treatment and supervision.”). ↩︎
4. Minn. Stat. § 253D.02(16)(a). ↩︎
5. Minn. Stat. § 253D.02(15). ↩︎
6. Id. (emphasis added to show the most important key phrases that make SPP commitment more difficult to achieve). ↩︎
7. Minn. Stat. § 253D.07(3). ↩︎
8. Currently, the only secure facility of this nature in Minnesota is the Minnesota Sex Offender Program (MSOP). ↩︎
9. Minn. Stat. § 253D.07(3). ↩︎
10. This can mean either transferring out of a secure treatment facility, provisional discharge, or discharge from commitment. Minn. Stat. § 253D.27(1)(b). ↩︎
11. Minn. Stat. § 253D.27. ↩︎
12. Minn. Stat. § 253D.27(2). ↩︎
13. Minn. Stat. § 253D.29(1)(b). ↩︎
14. Minn. Stat. § 253D.30(1)(b). ↩︎
15. Minn. Stat. § 253D.31. ↩︎
16. Id. (emphasis added). ↩︎
17. Grant Duwe & Minn. Dep’t of Corr., The Development and Validation of the Minnesota Sex Offender Screening Tool-4 (MnSOST-4), 3, https://mn.gov/doc/assets/The%20Development%20and%20Validation%20of%20the%20Minnesota%20Sex%20Offender%20Screening%20Tool-4%20%28MnSOST-4%29_tcm1089-557810.pdf. ↩︎
18. Id. at 4. ↩︎
19. These seven items include “[t]otal number of violent offense convictions,” “[r]atio of felony offenses to violent offenses,” “[n]umber of violations of orders for protections,” “[h]as committed sex offense against a stranger victim,” “[h]as committed sex offense in a public location,” “[s]pecialization in sex offenses involving male victims,” and “[h]as multiple predatory offenses and victim age groups.” Id. at 22. ↩︎
20. Id. ↩︎
21. Id. ↩︎
22. Minn. Stat. § 253B.07(2)(a). ↩︎
23. See Minn. Stat. § 253B.051(2). ↩︎
24. Minn. Stat. § 253B.07.2b(a). ↩︎
25. See Minn. Stat. § 253B.07(7). ↩︎
26. Minn. Stat. § 253B.09(1). ↩︎
27. Minn. Stat. § 253B.02(17a). The statute goes on to list what can constitute a demonstration of this substantial likelihood of physical harm. Id. ↩︎
28. Minn. Stat. § 253B.02(2). ↩︎
29. See Minn. Stat. § 253B.13. ↩︎
30. Minn. Stat. § 253B.13(1)(b). ↩︎
31. Jarvis v. Levine, 418 N.W.2d 139, 146 (Minn. 1988) (explaining that tardive dyskinesia can be a side effect of antipsychotic medications, which is permanent and irreversible, and therefore constitutes a heightened intrusion on personal autonomy). ↩︎
32. See generally Price v. Sheppard, 239 N.W.2d 905 (Minn. 1976). ↩︎
33. Electroconvulsive therapy (ECT), Mayo Clinic, https://www.mayoclinic.org/tests-procedures/electroconvulsive-therapy/about/pac-20393894 (last visited Mar. 22, 2024). ↩︎

---