How one case — and geography — dramatically affected commitments to the Minnesota Sex Offender Program

Dru Sjodin National Sex Offender Public Website
Dru Sjodin was a 22-year-old UND student when she was abducted from a Grand Forks mall parking lot, raped and brutally murdered by a repeat sex offender.

On Thanksgiving eve 2003, Dru Sjodin disappeared from the Columbia Mall parking lot in Grand Forks, North Dakota.

Early evidence didn’t look promising. Investigators found the 22-year-old’s car in a parking lot with a knife sheath beside it. A few days after the disappearance, police found one of her shoes across the Red Lake River in Crookston, Minnesota, under a bypass. Sjodin’s family wasn’t giving up, but by the end of the year, police knew they were most likely looking for a body.

They already had a suspect: Alfonso Rodriguez Jr., a recently released Level-3 sex offender from Crookston. Officers discovered small blood splatters in the back seat of his car and a knife in the trunk matching the sheath found near Sjodin’s vehicle. Then, in early spring, after five months of searching on both sides of the river, a retired cop and police reservist discovered Sjodin’s body in a ravine outside Crookston. She was face down and naked below the waist, hands tied behind her back. Rope and remnants of a plastic bag encircled her neck. She had been sexually assaulted.

TV crews brought in satellite trucks that beamed daily images of Sjodin, who the media dubbed "everyone's daughter, everyone's sister." Outrage for the tragedy was aimed not just at Rodriguez, but at Minnesota officials, who didn’t commit him to a sex offender treatment program after his prison sentence, despite a pre-release evaluation that found him likely to reoffend.

What happened next illustrates the incredible amount of discretion judges and prosecutors hold when it comes to civil commitments of sex offenders in Minnesota, and how the actions of one man could alter the fates of hundreds. Following Sjodin’s case, the number of people committed to Minnesota’s sex offender program skyrocketed, peaking at 88 in 2007, an almost six-fold increase from 2003, according to two decades of commitment records reviewed by MinnPost (data that does not include a small portion of cases that are still pending or have been sealed by a judge). The most dramatic spikes took place in Minnesota’s rural counties, which commit sex offenders at disproportionately high rates relative to their populations, the data show.

Sex offender commitments by year
Following Sjodin’s case in 2004, the number of people committed to Minnesota’s sex offender program increased dramatically.
Source: Minnesota Courts

As a result, the population of the Minnesota Sex Offender Program (MSOP) has exploded to more than 700 offenders since Sjodin’s death. Only two people have been successfully released in the 20-year history of the program, and they remain under strict supervision.

Judge Donovan W. Frank
Judge Donovan W. Frank

In June, U.S. District Judge Donovan Frank ruled that it was unconstitutional for the state to lock up the offenders with virtually no hope of ever getting out. And on Monday, state officials and attorneys will meet in a closed-door St. Paul courtroom to discuss how to fix the controversial MSOP.

At the center of the controversy is Sjodin’s story and an ambiguous civil commitment law that experts say leaves too much to the whims — and hearts — of a vast and scattered network of politicians and county officials. Some of those officials abide by a philosophy that reserves the razor-wired walls of MSOP should be reserved for the state’s worst sex offenders; others take a liberal approach to commitment, believing locking up more people in the facility is a better alternative to risking another Sjodin case.

“It’s all very emotional,” said Eric Janus, dean of the William Mitchell College of Law and an expert on the sex offender program. “When you have a law that doesn’t provide many clear guidelines, then people don’t have much to fall back on other than their emotions.”

Up for interpretation

In the 1930s, Minnesota put a law on the books addressing civil commitment, the term used to broadly describe post-sentence institutionalization to prevent further offenses. It wasn’t until 1994 that lawmakers specifically carved out a place in the statute for those suffering from “sexual psychopathic personality.” To this day, that’s defined as people who act habitually and impulsively on sexual behavior, with little control over their actions and almost no remorse, making them a danger to others.

The Legislature created another path to commitment — a “sexually dangerous person” — defined even more vaguely as anyone who engages in harmful sexual conduct and may suffer from a sexual, personality or other mental disorders. That meant people who didn’t exhibit a habitual or utter lack of control over their sexual impulses could still be civilly committed. The new category also allowed for commitment even if the offender’s actions inflicted only emotional harm — not physical — to a victim. In 1995, the year after legislators created the designation, MSOP opened its main campus in Moose Lake.

Typically the commitment process begins with a referral from the Department of Corrections as an offender is about to be released from prison. Staff at the DOC forward the names of people they believe meet the criteria for commitment to elected attorneys in all 87 counties, who then choose whether or not to pursue the case. However, a county prosecutor may seek commitment without receiving a screening referral from DOC. That was the case for the more than 60 men committed to MSOP who had only juvenile offenses on their record. In the end, it’s a county judge who makes the final call on a commitment.

William Mitchell Dean Eric Janus
William Mitchell Dean Eric Janus

In its early days, the state sparingly used it as a place to house sex offenders. From 1999 to end of 2003, judges committed only 56 people, about 11 per year on average, according to the data. The spike in commitments began immediately after Sjodin’s body turned up in an icy ravine. From 2004 through 2008, judges committed 321 sex offenders — almost six times as many as the five years prior. The overwhelming majority of these were committed under the more broad “sexually dangerous” category.

After Sjodin, commitment referrals from DOC also shot up. In a 13-year period leading up to December 2003, there was an annual average of about 26 referrals from DOC to county attorneys, according to a 2011 Office of the Legislative Auditor report on MSOP. More than half of those offenders were committed. In December 2003, DOC made 236 additional referrals.  That followed an extensive review of sex offenders in prison — and even those already out and living in the community after serving their sentence. About 31 percent of those sex offenders referred in December 2003 have been committed, according to the report.

Sex offenders have a right to counsel in civil commitment proceedings, but there are a number of ways commitment trials don’t follow the same stringent standards as criminal proceedings. The court can consider hearsay evidence and testimony about offenses that didn’t result in convictions. The prosecuting attorney in a civil commitment case also does not need to prove someone is sexually dangerous or psychopathic “beyond a reasonable doubt,” the standard that is used in criminal trials. Instead, commitment hearings use the lower bar of proof: “clear and convincing evidence.”

“Criminal laws are precise about what they state needs to prove and they have to prove it beyond a reasonable doubt,” Janus said. “This law really turns that whole process upside down. You don’t’ have to prove anything specific, that the person might be dangerous in the future.”

Rural counties commit at higher rates

The rise in commitments following Sjodin’s death didn’t happen evenly throughout the state. Hennepin and Ramsey, the most populous counties in the state, have committed the most offenders by raw count. But rural counties have committed at a much higher rate relative to population — calculated as commitments per 100,0000 — according to the Minnesota courts data. Among the counties committing at the highest rates are Traverse, Chippewa, Clearwater, Faribault and Pennington.

Beltrami — a county with a current population of about 45,000 —  is also one of the top committing counties. It’s sent 17 people to MSOP since the sex offender program began, 13 in the six-year period following the Sjodin case. In 2008, Beltrami committed four people, the same number as Dakota County — even though Dakota is the third most populous in the state, and has more than nine times the population of Beltrami. Anoka County — Minnesota’s fourth most populous — committed two people that year.

Rates of sex-offender commitment by county, 1994–2015
Source: Minnesota Courts

Legend

  •       More than 24.6 commitments per 100,000 people
  •       Between 15.1 and 24.6
  •       Between 10.8 and 15.1
  •       Less than 10.8
  •       No commitments reported
Hennepin County Attorney Michael Freeman
MinnPost file photo by Ibrahim Hirsi
Hennepin County Attorney Michael
Freeman

It’s not that rural counties produce more sex offenders. The discrepancy can be explained by the broad definition of what qualifies an offender for commitment and how much the philosophies of a county attorney can play into the process.

Hennepin County Attorney Michael Freeman, a former DFL legislator, is a staunch opponent of the sex offender program. He believes those convicted of sex crimes should serve indeterminate prison sentences with better mental health resources, and offenders should eventually have the opportunity to petition for release.

When he took office in 2007, Freeman directed his staff to pursue commitments to MSOP only in extreme cases. “We think this is a pretty Draconian resolution and we try to be very prudent and save it for the worst of the worst,” he says. This philosophy has resulted in Hennepin being among the lower committing counties by rate in the state.

Another explanation for why smaller counties might commit at higher rates is extra pressure from the community when it comes to dealing with sex criminals, given people are more likely to recognize the offender, says Freeman. “People know this person, and they’re scared to death of them,” he says. “Everyone wants this person away.”

Chippewa County Attorney David Gilbertson
Chippewa County Attorney David
Gilbertson

More than 100 miles west of the metro area, in Chippewa County, County Attorney David Gilbertson takes a different approach to commitment petitions. He says it weighs heavy on him when it comes to what cases to pursue. As top prosecutor in a county with a population of about 12,000, Gilbertson says he is closer to his community. He knows most of his neighbors and hears their concerns on a regular basis, while attorneys in metro-area counties tend to be lesser-known quantities.

Gilbertson describes himself as a filter in the process. He gets the cases forwarded to him by DOC and he makes the call whether or not he or the attorney general’s office should pursue it in county court. Despite having a total population smaller than Minneapolis’ Whittier neighborhood — which stretches less than a mile in area — Chippewa County has committed six people to the sex offender program since 2004.

“No one has a crystal ball,” says Gilbertson. “What weighs on me the most is public safety. I don’t want to have another Dru Sjodin.”

A decade after Sjodin, commitments fall back to previous levels

The only place big enough to hold Sjodin’s funeral near her hometown of Pequot Lakes was a lake resort outside of Nisswa. At least 500 people packed into the Grand View Lodge on the day of her funeral. Another 1,000 filled overflow tents nearby. Mourners received pine saplings wrapped in a pink ribbon, Sjodin’s favorite color. Dozens of law enforcement officers attended the ceremony, as well as North Dakota Gov. John Hoeven and Minnesota Gov. Tim Pawlenty.

Three years later, in 2007, the rapid rise in sex offender commitments plateaued. As the name Dru Sjodin disappeared from headlines, soon to be replaced by questions over MSOP's constitutionality, the number of sex offenders sent to the program began to drop as quickly as it rose. From ‘07 to 2011, commitments fell by more than 50 percent.

Last year, just 13 people were committed. It’s possible some cases from last year are still pending. But for the first time, commitments have dropped back down same level as in 2003, when Sjodin was just another college student at the University of North Dakota.

Now that Minnesota’s sex offender program has been declared unconstitutional, state officials are looking at ways to fix it. Experts have long bemoaned the state’s equivocal civil commitment process, fearing another case like Sjodin’s could easily trigger another wave of offenders sent to MSOP. It’s an expensive problem — each patient in the program costs the state roughly $120,000 per year for treatment, or three times more than the average inmate in the corrections system.

One solution could be setting up a special panel to deal with civil commitments across the state. It’s not a new idea; in 2005, lawmakers passed a law specifically allowing the state Supreme Court to do just that. But the statute didn’t require the court to do so, and the panel was never set up. A December 2013 report of the Sex Offender Civil Commitment Advisory Task Force recommended the same thing: Establish an independent judicial body of experts that will use a standard, scientific process to deal with civil commitments to MSOP.

“The Task Force is deeply concerned about the influence of public opinion and political pressure on all levels of the commitment process,” reads the task force report. The group also suggested establishing a two-step commitment hearing.The first step would determine whether a commitment is needed at all. If so, the second would consider what type of placement is best for the individual offender.

State Sen. Kathy Sheran
State Sen. Kathy Sheran

The state Senate took the first step toward that system in 2013, passing a bill out of the upper chamber that adopted some of the recommendations of the task force, including a two-step hearing process. County attorneys opposed the creation of an all-new civil commitment court, but lawmakers were able to add a piece to the proposal that created a three-member panel to review all commitment cases before recommending them to attorneys.

“At the very core of people’s fears is the unpredictable and horrific assault against victims,” said DFL Sen. Kathy Sheran, whose district includes the St. Peter campus of MSOP and has led on reforms to the program. “The assumption is that all offenders engage in that kind of behavior, but that’s not the case. We have a broad range of differnet people locked up in [MSOP].”

But any legislation to change the program repeatedly floundered in the state House, where the reality of two-year election cycles kept the bill from earning bipartisan agreement. Both sides feared passing a bill without backing of the other party would quickly turn into an attack on the campaign trail.

Rep. Nick Zerwas
Rep. Nick Zerwas

Rep. Nick Zerwas, R-Elk River, says he wants to see the commitment process standardized. Zerwas says House Republicans support creating an independent body to decide commitments, but he thinks local officials still need some say in the process, whether that be a nonbinding recommendation to the panel or something else. “Clearly there is a disparity there,” he said. “But [local officials] have the closest affiliation back to the case, so there needs to be a way for that local input back into the process.”

Zerwas also isn’t convinced the fix will be found through pressure from the courts, which could order immediate changes to the program if lawmakers don’t act. “This isn’t something that can be solved in a conference in a federal court room,” he said. “It needs to be a legislative remedy.”

Sex offender commitment rate by county, 1994–2015
Minnesota Sex Offender Program Commitments per 100,000 people
Source: Minnesota Courts

Comments (8)

  1. Submitted by Ray Schoch on 08/07/2015 - 11:40 am.

    conflation

    Kudos to the authors. A good article, I think.

    I’m neither lawyer nor legal scholar, so I won’t pretend to have a simple answer to this conundrum. The gruesome case of Dru Sjodin was both a sexual assault and murder. Those are not even close to being the same, or even the same *kind* of crime, yet the undertone of many of the responses in the article suggests that legislators, prosecutors and members of the general public have conflated the two. Also bound up in this issue is the prudery regarding sexual matters that is endemic to this culture.

    As a society, we’re terrified by sexuality in general, largely a result of Puritanical religious teachings, and the public seems inclined to treat sexual offenses, as a category, as pretty much the same thing as murder or whatever the most serious level of physical assault (i.e., beating) might be. It’s a response that seems out of whack to me. Sex crimes may produce various levels of psychological harm, but they’re not at all the same thing as actually killing someone.

    A 14-year-old boy who gets it on with his 14-year-old girlfriend, to the angry and appalled consternation of her relatives and neighbors, has committed statutory rape, but in following the lead of his hormones rather than his brain, he has plenty of company – male AND female – at that age, and has done nothing to merit a life sentence in a state facility just because the neighbors think he might try to date *their* daughters.

    And that case is quite obviously different from the 40 or 50-something rapist, and rape, while an appalling crime, is not at all the same thing as murder. My sympathy goes to Judge Donovan Frank. This situation strikes me as an excellent illustration of Frank Herbert’s line in his novel, “Dune,” which begins with “Fear is the mind-killer.” Much of the irrational response that people often have to cases involving sexuality – especially sexual assault – seems to me little more than an expression of fear.

    • Submitted by Kim Guse on 08/08/2015 - 08:05 am.

      First of all sexual assault/rape should be treated just like murder; the rapist murders the person they rape, that victim will never be the same person they were before the rape. Doesn’t mean they won’t ever be happy or lead a productive life, but they will never be the same and may take years if ever to recover from it.

      Second your example of two 14 yr Olds doing it is not an example of what they article is about. Two 14 yr Olds “consenting” even though they are not of an age to consent is not rape since they are both equal age.

      • Submitted by Ray Schoch on 08/08/2015 - 01:41 pm.

        I understand, but disagree

        While I understand the emotional and psychological damage that rape can cause, I don’t agree that rape is synonymous with actual murder. I certainly hope you’re correct in suggesting that the victim of a rape may (not “will,” but at least “may”) eventually lead a happy and productive life, but leading any kind of life at all is out of the question for a murder victim. That victim is dead. Life of any kind is over. End of story.

        Dru Sjodin was the victim of *two* crimes: a sexual assault, bad enough, but something from which she might have recovered, and a murder, from which there is no recovery at all.

        As I stated in my response to Mr. Hailperin, I should have chosen my example more carefully. The age of consent in Minnesota is generally 16, which is why I chose age 14, and my experience has been that, at least in the minds of some, including some in positions of legal authority, a sexual encounter at age 14 *does* constitute rape in the legal sense, whether there is “consent” or not, because the presumed age of consent is 16. My understanding is that the law generally assumes someone *under* the “age of consent” is not considered legally competent to *give* consent.

    • Submitted by Carrie Anderson on 08/09/2015 - 10:38 am.

      Yes and no

      While I somewhat agree with parts of your comment, I believe the question of how a person is murdered cannot be ignored.

      I started writing a step-by-step look at what someone like Dru Sjodin may have experienced on the road her murderer intentionally took to her death. It became too graphic. Perhaps that graphicness is what a judge or a jury must weigh in deciding how to sentence a convicted murderer. Would you not weigh immediate death by a single bullet against the long and cruel passage of victims who are sexually abused before their torturers take their lives?

      If the answer to that is yes, maybe it isn’t always a case of conflation but of measurement of the brutality and remorselessness involved in the taking of a human being’s life.

  2. Submitted by Max Hailperin on 08/08/2015 - 07:42 am.

    Neither lawyer, nor legal scholar, nor factually accurate

    I, too, am neither a lawyer nor a legal scholar. Perhaps for that reason, I would not dream of making a factual statement about Minnesota’s statutes such as “a 14-year-old boy who gets it on with his 14-year-old girlfriend … has committed statutory rape” without first looking it up. Even aside from some helpful summary charts that have been published regarding the five degrees of criminal sexual conduct, the statute itself is readily found on the official website of the Revisor of Statutes. There one can find the helpful phrase “the complainant is at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant.”

    • Submitted by Ray Schoch on 08/08/2015 - 01:21 pm.

      Apologies

      I wasn’t making a factual statement, but providing what I thought was a hypothetical example. That said, however,I should have chosen my example more carefully. It’s my understanding that the age of consent in Minnesota is 16, which is the figure I had in mind, though there may be extenuating circumstances that change the number. I wasn’t aware that there *was* such a thing as the official website of the Revisor of Statutes, so it’s true that I did not consult it.

      Let’s suppose, however, that the circumstances are those of Mr. Hailperin’s last sentence, and that the complainant is at least 13 and the actor is 16, and thus more than 24 months older. Should that actor – male or female, though much more likely male – be condemned to a lifetime in a state facility? It depends upon the circumstances of the case, of course, but my inclination is to say “no.” For reasons ancient and mysterious, we tend to treat sex crimes more harshly than almost any other kind. The reasons for that societal response are surely complicated, and tied up with centuries of tradition, but that doesn’t automatically make our response a rational one.

  3. Submitted by Max Hailperin on 08/08/2015 - 08:12 am.

    Statistically naive

    It is statistically naive to point out that the highest commitment rates are in rural counties with low populations without also pointing out that other low-population rural counties have among the lowest commitment rates — not only all the zeros apparent in the map but not the bar chart (10 counties, if I counted right), but also some of the low but non-zero values at the bottom of the bar chart, such as Houston County, population around 19K and less than half the commitment rate of Hennepin County.

    Is it surprising that low-population counties should be found at both the top and bottom of the distribution? Not really. If you instead had ranked the counties by what fraction of their population has 1234 as the last four digits of their social security numbers, I am quite confident you would have found that the highest and lowest incidences were in low-population counties — just like if a randomly scattered collection of coins has far more or less than 50% heads, it is probably a small collection.

    Now, is this effect (the binomial distribution) enough to explain the observed variation in commitment rates? Maybe not, but there’s nothing in this article to help one figure that out.

  4. Submitted by DENNIS SCHMINKE on 08/09/2015 - 10:54 pm.

    Dru Sjodin…

    …was not the only one. Never forget Katie Poirier in 1999. Pretty much the same deal. Donald Blom just took a little longer to go off the rails.

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